People v. Schwartz, 81SA349

• Decision Date: 05 March 1984
• Docket Number: No. 81SA349,81SA349
• Citation: 678 P.2d 1000
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Linda SCHWARTZ, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1000

678 P.2d 1000

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Linda SCHWARTZ, Defendant-Appellee.

No. 81SA349.

Supreme Court of Colorado,

En Banc.

March 5, 1984.

Rehearing Denied March 26, 1984.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., William Buckley, Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, State Public Defender, Jody Sorenson Theis, Deputy Public Defender, Denver, for defendant-appellee.

NEIGHBORS, Justice.

The People appeal the judgment of the trial court dismissing this case. First, they contend that the trial court erred in holding that section 18-6-401(1)(a), C.R.S.1973 (1978 Repl.Vol. 8 & 1983 Supp.), of the child abuse statute is unconstitutional. Second, the People argue that their decision to retry the defendant, after a mistrial was declared because the jury could not reach a unanimous verdict, does not constitute an abuse of prosecutorial discretion which justifies the dismissal of the information by the trial court. The People also seek review of certain evidentiary rulings made by the trial court. ¹ The defendant claims that if we reverse the trial court's order of dismissal and remand the case for a new trial, her constitutional right against being put in double jeopardy will be violated.

We conclude that section 18-6-401(1)(a) is constitutional, that the prosecution did not abuse its discretion in deciding to retry the defendant, and that the constitutional prohibitions against double jeopardy are not implicated. Accordingly, we reverse and remand for a new trial.

I.

The defendant, Linda Schwartz, was charged by an information filed on February 24, 1981, with child abuse resulting in death. ² The victim, Amanda Cruz, age 11 and 1/2 months, was brought by her mother, Christy Cruz, to the apartment of the defendant who was her babysitter on February 18, 1981, at 7:30 a.m. The child was taken to Denver General Hospital by ambulance at about 4:30 p.m. that afternoon because she had stopped breathing. She was kept alive by life support systems for several hours. However, she died when the support systems were disconnected the next day after her treating physician determined that she was "brain dead."

A police officer brought the defendant to the hospital on the evening of February 18th. While at the hospital, she made oral statements and provided a written statement to other officers after having been advised of her Miranda rights. ³ The statement, which was reduced to writing, was written by one of the officers and signed by the defendant. The statement related the following facts: Amanda cried from the time her mother left at 8:00 a.m. until about 10:00 or 10:30 a.m., when the defendant became angry and slapped the child's face as she was sitting on the floor. Amanda fell over sideways, then fell straight back, striking the wooden floor which was covered by carpeting. She stopped breathing, but began breathing again after the defendant "blew in her mouth" and "pushed on her stomach." The defendant then put Amanda down for a nap and the child slept for awhile, threw up, but went back to sleep. At 1:30 p.m., Amanda began crying again and the defendant took her out of the crib and put her on the living room floor. Later in the afternoon, at about 4:30 p.m., Amanda threw up again. When the defendant could not get Amanda's attention, she shook the child. Amanda's eyes were half-closed and seemed unfocused. When she stopped breathing, the defendant unsuccessfully attempted to revive her and then called for an ambulance.

At trial, the defendant testified that she was confused and in shock at the time she made the statements to the officers, and that her statements did not accurately portray the actual sequence of events. She testified that Amanda did not seem normal the whole day. When Christy Cruz brought the child to her, Amanda was listless and cried continually. The defendant testified that in the morning Amanda threw up before the defendant slapped her. She stated that the child did not stop breathing in the morning, rather she was gasping as though trying to catch her breath after the continual crying. The defendant said that Amanda only threw up once in the afternoon, not twice as related in her written statement.

The People's medical experts testified that Amanda died from edema (swelling) of the brain caused by trauma to the head. The medical testimony indicated that the time when the trauma which caused death could have been inflicted ranged from a few hours to a few days prior to the child's death.

The trial court permitted the defendant to introduce evidence, through cross-examination of Amanda's parents, Christy and Eleuterio Cruz, and direct examination of other witnesses, concerning Eleuterio's drinking, arguments between Christy and Eleuterio, and alleged abuse of Christy by Eleuterio. The trial court also admitted evidence regarding a prior incident when child abuse charges were filed against Eleuterio, but were later found to be groundless by the physician who examined the child.

The jury was unable to reach a unanimous verdict and the trial court declared a mistrial on May 26, 1981. On August 4, 1981, the trial court dismissed the case, holding that further prosecution of the defendant by the district attorney would be an abuse of discretion and that section 18-6-401(1)(a), C.R.S.1973 (1978 Repl.Vol. 8 & 1983 Supp.), is unconstitutional. The People then filed this appeal.

II.

We first address the constitutional issue. The trial court held that section 18-6-401(1)(a) is unconstitutional on the ground that it denies the defendant her equal protection guarantees under the United States and Colorado Constitutions. ⁴ Section 18-6-401(1), C.R.S.1973 (1978 Repl.Vol. 8 & 1983 Supp.), states:

"Child abuse. (1) A person commits child abuse if he knowingly, recklessly, or through criminal negligence, and without justifiable excuse, causes or permits a child to be:

(a) Placed in a situation that endangers the child's life or health; or

(b) Placed in a situation that may endanger the child's life or health; or

(c) Exposed to the inclemency of the weather; or

(d) Abandoned, tortured, cruelly confined, or cruelly punished; or

(e) Deprived of necessary food, clothing, or shelter."

Section 18-6-401(7), C.R.S.1973 (1978 Repl.Vol. 8 & 1983 Supp.), provides:

"(7)(a)(I) When a person acts knowingly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in death to the child, it is a class 2 felony.

(II) When a person acts recklessly or with criminal negligence and the child abuse results in death to the child, it is a class 3 felony.

(III) When a person acts knowingly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in serious bodily injury to the child, it is a class 3 felony.

(IV) When a person acts recklessly or with criminal negligence and the child abuse results in serious bodily injury to the child, it is a class 4 felony.

(V) When a person acts knowingly or recklessly, except as to paragraph (b) of subsection (1) of this section, and the child abuse results in any injury other than serious bodily injury to the child, it is a class 1 misdemeanor.

(VI) When a person acts with criminal negligence and the child abuse results in any injury other than serious bodily injury to the child, it is a class 2 misdemeanor.

(b) An act of child abuse not otherwise specified in subparagraphs (I) to (VI) of paragraph (a) of this subsection (7) is a class 3 misdemeanor."

(Emphasis added.)

A statute is presumed to be constitutional and the party attacking its validity has the burden of proving unconstitutionality beyond a reasonable doubt. See, e.g., People v. Rostad, 669 P.2d 126 (Colo.1983); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978). However, "[a] statute which prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like situations is violative of a person's right to equal protection of the law." People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975).

Under section 18-6-401(7), a person charged with knowingly violating section 18-6-401(1)(a) (placing a child in a situation which "endangers" the child's health) is subject to a greater degree of punishment than a person charged with a knowing violation of section 18-6-401(1)(b) (placing a child in a situation which "may endanger" the child's health). ⁵ The trial court, holding that there is no difference between conduct which "endangers" and that which "may endanger" a child's health, concluded that the two sections imposed different degrees of punishment for the same conduct and declared the statute "unconstitutional for lack of equal protection." We disagree.

We are concerned here with subsections (1)(a) and (b) of the statute. Each subsection includes a required culpable mental state (knowingly, recklessly, or criminal negligence) and the elements of "endanger" (in (1)(a)), or "may endanger" (in (1)(b)). However, the confusing statutory scheme also includes the penalty provisions enumerated in subsections (7)(a) and (7)(b). When subsections (1) and (7) are read together, we learn that the grade of the offense under the child abuse statutes is determined by the defendant's mental state and the result of the prohibited conduct.

One might conclude from a reading of only subsections (1)(a) and (1)(b) that the provisions, "endanger" and "may endanger," are sufficiently distinguishable because "endanger" means imminent danger and "may endanger" means a reasonable probability of harm. We agree with this interpretation of the two terms. Using this limited analysis, it could then be determined that the equal protection guarantees are not implicated by the classification of conduct as that which "endangers" or "may endanger," even though the terms are overlapping. However,...