People v. Smith, 92SA363

• Decision Date: 22 March 1993
• Docket Number: No. 92SA363,92SA363
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Eugene SMITH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 365

848 P.2d 365

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Eugene SMITH, Defendant-Appellant.

No. 92SA363.

Supreme Court of Colorado En Banc.

March 22, 1993.

Rehearing Denied March 29, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Eric V. Field, Asst. Atty. Gen., Appellate Section, Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Robert B. Holt, Special Deputy Public Defender, Denver, for defendant-appellant.

Justice VOLLACK delivered the Opinion of the Court.

Donald Eugene Smith (Smith) appeals the decision of the district court in People v. Smith, No. 89CR72 (June 28, 1990), wherein the jury found Smith guilty of first degree murder and the district court sentenced Smith to the mandatory minimum sentence of life imprisonment with no possibility of parole for forty years. § 18-1-105(1)(a)(IV), 8B C.R.S. (1986 & 1989 Supp.); § 16-11-103, 8A C.R.S. (1986 & 1989 Supp.). Smith appeals and contends that the district court erred by: (1) instructing the jury that the prosecution would not seek the death penalty pursuant to section 16-10-110, 8A C.R.S. (1990); ¹ (2) refusing to admit character evidence regarding the decedent; (3) failing to readminister an oath to the jurors ultimately chosen to serve on the panel; and (4) imposing an unconstitutionally disproportionate sentence. We affirm the district court ruling.

I.

During the afternoon and evening of December 15, 1989, Smith was drinking beer in his apartment with his sixteen-year-old cousin, Brandon Kyle (Brandon), and a group of Brandon's friends. At approximately 1:00 a.m., Bobby Joe Kyle, Smith's uncle, came to Smith's apartment to take his son Brandon home. As he left Smith's apartment with Brandon, Bobby Joe Kyle (the victim) told Smith that he was going to turn him in to the police for contributing to the delinquency of minors.

At approximately 2:10 a.m., Smith went to the home of his former girlfriend. Smith told her that the recruiter for the U.S. Army had told the victim that Smith would not be admitted into the army because he had "failed his test." ² Smith told her that "the family would be a lot better off without [the victim]" and that "if he could kill [the victim] and get away with it, he would do it." She noted that Smith was intoxicated and appeared to be depressed.

At approximately 3:00 a.m., Smith entered the front doors of the victim's home with a Ruger rifle in his possession. The victim had been sleeping on the living room couch. Aimee, the victim's thirteen-year-old daughter, heard the following events: the front doors opened; the victim exclaimed, "What the hell, Gene"; ³ and a series of gun shots were fired. Smith fired seven shots, six of which entered the victim's body. Aimee found the victim attempting to phone for help; Aimee and her brother Cliff called for emergency assistance. The victim died from multiple injuries caused by the gun shots. Later that morning, the police apprehended Smith. Smith was charged with first degree murder.

At trial, the district court administered two oaths to the potential jurors. The first oath was given before the jury questionnaires were distributed; this oath required the potential jurors to truthfully answer all the questions. The second oath was given after the panel of thirty-five potential jurors was accepted for cause, and before the attorneys on both sides exercised their peremptory challenges; this oath required the jurors to well and truly try the case. The district court did not readminister the second oath after selecting the final jury panel. At the beginning of voir dire, the district court informed the jury, pursuant to section 16-10-110, 8A C.R.S. (1990), and over Smith's objection, that the prosecution would not be seeking the death penalty in Smith's case.

Witnesses at trial testified regarding Smith's relationship with the victim over the years and months before the shooting. Smith's grandmother, Ruth Smith, testified that the victim teased Smith; Smith's aunts, Betty Jo Trumble and Charlotte Good, testified as to two incidents, which occurred several years before the killing, where the victim criticized Smith's father.

Deputy Sheriff Robert Walton (Deputy Walton), one of the arresting officers, testified at trial that Smith made a series of confessional statements to the police. According to Deputy Walton, Smith stated: "I shot him. I hope he dies"; "I emptied my gun into him ... I will plead guilty"; "I wanted to shoot him." Deputy Walton also testified that Smith said that the victim had caused his family enough grief.

Smith sought to introduce evidence demonstrating the violent and abusive tendencies of the victim. Smith requested that information from Social Services files regarding the victim's alleged prior acts of violence and abusive language toward Aimee be introduced as examples of the victim's violent and abusive character. In a written order, the district court refused to admit such character evidence on the ground that Smith had not asserted a claim of self-defense.

Smith additionally sought to question Aimee regarding an alleged incident of violence between the victim and Smith, which occurred many months before the murder. The district court refused to allow this line of questioning because such testimony was beyond the scope of cross-examination.

The jury found Smith guilty of committing murder in the first degree, and the district court sentenced Smith to life imprisonment with no possibility of parole for forty years. We accepted jurisdiction over this appeal and now affirm the district court ruling.

II.

Smith argues that the district court erred by instructing the jury, pursuant to section 16-10-110, 8A C.R.S. (1990), that the prosecution would not be seeking the death penalty in this action. Section 16-10-110 provides for the following jury instructions in cases involving the possibility of death:

At the trial of any felony in which the prosecution is not seeking the death penalty, upon the request of the prosecution or the defendant, the court shall instruct the jury during voir dire that the prosecution is not seeking the death penalty.

Smith contends that section 16-10-110 is unconstitutional because it requires discussion of the penalty range of a crime during the guilt phase of the trial without also informing the jury that a conviction results in a mandatory life sentence with no possibility of parole for forty years. ⁴ Noting that constitutional due process requires a fair trial, Oaks v. People, 150 Colo. 64, 70, 371 P.2d 443, 447 (1962), Smith contends that

[a]s applied in the instant situation, the statute allows the jury to dismiss the consequences of their actions as being "non-capital." This information may unnecessarily lead to a lack of the [sic] appreciation of the seriousness of [sic] crime, and likewise the seriousness of the punishment. It is respectfully contended at this early juncture in the trial court proceedings that it is fundamentally unfair to instruct the jury regarding one aspect of the consequences of sentencing without presenting the entire sentencing scheme.

"Statutes are presumed constitutional, and one who asserts that a statute violates constitutional standards assumes the burden of proving that assertion beyond a reasonable doubt." People v. Zinn, 843 P.2d 1351, 1353 (Colo.1993); see Bloomer v. Boulder County Bd. of Comm'rs, 799 P.2d 942, 947 (Colo.1990); People v. District Court, 185 Colo. 78, 81, 521 P.2d 1254, 1255 (1974). "Absent the presence of a fundamental constitutional right, legislation that bears a rational relationship to a legitimate governmental interest will survive challenges based on the substantive due process clauses of the United States and Colorado Constitutions." Zinn, 843 P.2d at 1353; see Ferguson v. People, 824 P.2d 803 (Colo.1992).

We first consider whether it is fundamentally unfair to inform the jury that the death penalty will not be an option, without also explaining the applicable sentencing scheme. The death penalty is the only sentencing decision within the purview of the jury; all other sentencing decisions are made by the judge. § 16-11-101, 8A C.R.S. (1986); § 16-11-103, 8A C.R.S. (1992 Supp.); § 18-1-105(6) to -105(10), 8B C.R.S. (1986 & 1989 Supp.). In addition, in cases where the jury determines that the death penalty should not be applied, "[a] person who has been convicted of a class 1 felony shall be punished by life imprisonment [which] shall mean imprisonment without the possibility of parole for forty calendar years." § 18-1-105(4), 8B C.R.S. (1986 & 1989 Supp.). Thus, the advisement required by section 16-10-110 merely informs the jury during voir dire that it will not be called upon to determine whether the death penalty should be applied, and consequently, that it should not consider sentencing at all. We therefore conclude that section 16-10-110 did not impair Smith's fundamental right to a fair trial.

Because we conclude that section 16-10-110 does not infringe on Smith's fundamental right to a fair trial, the rational basis test is the appropriate standard of review in this case. ⁵ See Christie v. People, 837 P.2d 1237, 1245-46 (Colo.1992) (holding that strict scrutiny need not be applied in a due process case where the defendant was not denied the fundamental right to jury trial or to a fair trial); see also Wills v. State, 821 P.2d 866, 869 (Colo.App.1991) (holding in an equal protection case that, where a statute did not "significantly interfere with plaintiff's right to a fair trial," the applicable test is whether the legislation bears a reasonable relationship to a legitimate state interest, rather than strict scrutiny analysis).

Although the legislative history is silent, we find that section 16-10-110's requirement that the court...