People v. Stewart

• Decision Date: 09 September 2002
• Docket Number: No. 00SC672.,00SC672.
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Wayne Robert STEWART, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

55 P.3d 107

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Wayne Robert STEWART, Respondent/Cross-Petitioner.

No. 00SC672.

Supreme Court of Colorado, En Banc.

September 9, 2002.

As Modified on Denial of Rehearing September 23, and October 15, 2002.

Ken Salazar, Attorney General, Robert M. Russel, Assistant Solicitor General, Denver, Colorado, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

We are reviewing the court of appeals' decision in People v. Stewart, 26 P.3d 17 (Colo.Ct.App.2000), reversing the defendant's assault conviction arising out of an incident in which the vehicle he was driving struck and seriously injured a pedestrian. The court of appeals held that Wayne Robert Stewart's conviction of reckless second degree assault with a deadly weapon, section 18-3-203(1)(d), 6 C.R.S. (2001), violates equal protection of the laws, U.S. Const. Amend. XIV; Colo. Const. Art II, Sec. 25, because it imposes a more severe penalty for the same behavior proscribed by the vehicular assault statute, section 18-3-205(1)(a), 6 C.R.S. (2001). In addition to review of this constitutional issue, we granted certiorari to consider whether (1) the court of appeals erred in finding that the trial court committed plain error by failing to give an intervening cause instruction as to second degree assault when the instruction was not requested by the defense; (2) whether the court of appeals erred when it held that an investigating officer, who was not qualified as an expert, should not have been allowed to express his opinion about how the accident occurred; and (3) whether a limited remand is required in order for the trial court to properly consider a defendant's motion for appeal bond.

We reinstate the conviction. Because we conclude that there are reasonable distinctions between the statutes governing reckless second degree assault and vehicular assault, we find no equal protection violation. Therefore, we reverse the court of appeals' decision on this issue. Additionally, we hold that the trial court did not commit plain error in failing to instruct the jury that intervening cause constituted an affirmative defense as to second degree assault. Consequently, we reverse the court of appeals' judgment on this issue. We agree with the court of appeals that the trial court abused its discretion in permitting an investigating officer to testify about his reconstruction of the crime scene without qualifying him as an expert. Because we conclude that the error was harmless, however, no reversal of Stewart's conviction is warranted. Finally, we conclude that a limited remand is not required on the bond issue. Accordingly, we affirm the court of appeals' judgment with respect to this issue.

I. FACTS AND PROCEEDINGS BELOW

The crimes occurred on a Sunday evening in March 1997 when Wayne Stewart left the bar of a restaurant located in a suburban shopping center. As Stewart began to drive his sports utility vehicle out of the shopping center parking lot, he encountered three pedestrians — Richard Ehrmann, Christine Castro, and Jeffrey Pippenger, in that order — walking abreast in the middle of the driving lane. The pedestrians had just left a video rental store and, as they walked to their vehicle, they were looking up at the Hale Bopp comet streaking across the sky. The testimony of disinterested bystanders established that Stewart veered toward the pedestrians at an angle; Ehrmann, who was closest to the traffic lane, was brushed by Stewart's vehicle. A verbal altercation ensued, after which Stewart began driving back and forth at an angle and in an aggressive manner.

The parties dispute how Ehrmann came to land on the hood of Stewart's vehicle. Stewart maintained that as he drove forward and passed Ehrmann, the victim, who was facing him, Ehrmann suddenly vaulted onto the front quarter panel, landing on the vehicle's hood. Just as suddenly, according to Stewart, Ehrmann rolled or jumped off. Stewart argued that a dent was caused by Ehrmann's buttocks as he vaulted onto the hood, landing in a seated position. The People, by contrast, contended that Ehrmann had his back to the vehicle when he was hit by it and propelled into the air, landing on the SUV's front quarter panel. They asserted that the dent was caused by Ehrmann's elbow when he was thrown onto the vehicle.

Eyewitnesses testified that Stewart abruptly stopped his vehicle, and Ehrmann rolled off the hood, landing "hard" on the ground next to the driver's side of the SUV. Ehrmann's head landed under the SUV between the front and back wheels. There is conflicting evidence as to whether the defendant stopped his vehicle after Ehrmann rolled off. As Stewart proceeded ahead at a slow rate of speed, the rear driver's side tire ran over Ehrmann's head. Stewart testified that he neither saw Ehrmann lying on the ground after Ehrmann fell off the vehicle nor was aware that he had run over Ehrmann's head. Stewart left the scene without stopping.

As a result of the incident, Ehrmann suffered massive brain injury and lay comatose for approximately two and one-half years. Ultimately, the victim died.

The state charged Stewart with one count of first degree assault against Ehrmann, a class 3 felony in violation of section 18-3-202(1)(a); one count of reckless second degree assault against Ehrmann, a class 4 felony, in violation of section 18-3-203(1)(d), 6 C.R.S. (2001); four counts of violent crime, pursuant to section 16-11-309, 6 C.R.S. (2001)¹; one count of vehicular assault against Ehrmann, a class 5 felony, in violation of section 18-3-205(1)(a), 6 C.R.S. (2001); and four counts of reckless endangerment against the other two pedestrians and two bystanders, a class 3 misdemeanor, in violation of section 18-3-208, 6 C.R.S. (2001). Stewart pleaded not guilty to the charges.

At trial, the People contended that Stewart intentionally hit Ehrmann or, in the alternative, that Stewart used his vehicle to scare and intimidate Ehrmann. Stewart took the position described above that Ehrmann jumped onto Stewart's vehicle and that he was unaware that he ran over Ehrmann. The court instructed the jury on several theories of defense. Stewart asserted "intervening cause" as a defense to vehicular assault but not as to any of the other offenses charged.

A jury convicted Stewart of reckless second degree assault of Ehrmann and two counts of reckless endangerment against the other two pedestrians. At the sentencing hearing, the trial court found that Stewart "did drive his car at Mr. Ehrmann in an act of anger," and sentenced Stewart to five years in the Department of Corrections (DOC) for the second degree assault conviction and six months on each of the reckless endangerment counts. Stewart appealed his conviction and sentence as to second degree assault only.

The court of appeals reversed Stewart's conviction and remanded his case with directions. People v. Stewart, 26 P.3d 17 (Colo.Ct.App.2000). Four of its holdings are relevant here.

First, it determined that second degree reckless assault with a deadly weapon is identical to reckless vehicular assault when the deadly weapon is a car. Applying Colorado's equal protection doctrine, the court concluded that the two statutes proscribe the same conduct but impose disparate penalties and that, consequently, Stewart could not be convicted of the more serious offense of second degree assault. In light of Stewart's acquittal of vehicular assault at trial, and because it deemed retrial necessary on other grounds, the court concluded that Stewart could be retried on second degree assault; if convicted, however, he could be punished only as if convicted for vehicular assault.

Second, the court of appeals concluded that the trial court committed reversible error by failing to instruct the jury that "intervening cause" was a defense to second degree assault. This failure amounted to plain error, in the court's view, because the trial court did provide the instruction as a defense to vehicular assault, a charge of which he was acquitted. Third, the court of appeals concluded that the trial court should not have permitted a police officer to offer opinions about the incident without being qualified as an expert.²

Finally, the court of appeals concluded that no remand was necessary for the trial court to retain jurisdiction to consider a defendant's application for an appeal bond filed after the direct appeal commences.

We granted certiorari.

II. ANALYSIS

1. Equal Protection

Stewart argues that his conviction for reckless second degree assault with a deadly weapon violates his right to equal protection because the statutes governing vehicular assault and reckless second degree assault with a deadly weapon proscribe the same conduct but mete out disparate punishments. He asserts that there is no rational distinction between second degree reckless assault, a class 4 felony requiring mandatory sentencing for a term of five to sixteen years,³ and vehicular assault, a class 5 felony that is punishable by one to three years of imprisonment in the presumptive range and two to six years in the aggravated range, and which neither requires a mandatory sentence nor precludes probation. The lack of any rational basis for distinguishing the two offenses, he maintains, coupled with the significant difference in penalty, renders his conviction of second degree assault violative of equal protection by penalizing him more severely for the identical criminal conduct proscribed by the lesser offense of vehicular assault. We disagree.

The Fourteenth Amendment to the United States Constitution provides in part that no state "shall deny to any person within its jurisdiction the equal protection of the laws." A similar guarantee is implicit in the due process...