People v. Tenneson, s. 88SA144

• Citation: 788 P.2d 786
• Decision Date: 12 March 1990
• Docket Number: Nos. 88SA144,88SA258,s. 88SA144
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael TENNESON, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Timothy VIALPANDO, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 786

788 P.2d 786

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael TENNESON, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Timothy VIALPANDO, Defendant-Appellee.

Nos. 88SA144, 88SA258.

Supreme Court of Colorado En Banc.

March 12, 1990.

As Modified on Denial of Rehearing April 2, 1990.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coates, Chief Deputy Dist. Atty., and Joan C. White, Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, and Terri L. Brake, Chief Deputy Public Defender, Denver, for defendants-appellees.

Justice LOHR delivered the Opinion of the Court.

Pursuant to section 16-12-102(1), 8A C.R.S. (1986), the prosecution challenges the penalty phase instructions in two death penalty cases, People v. Tenneson, No. 88SA144, and People v. Vialpando, No. 88SA258. ¹ In each case, the trial court instructed the jury that in order to sentence the defendant to death the jurors must find that the proven statutory aggravating factors outweigh any mitigating factors beyond a reasonable doubt and that

death is the appropriate penalty beyond a reasonable doubt. Each court also instructed the jury that there is a presumption in favor of life imprisonment. The prosecution takes issue with those instructions. The prosecution further challenges the instruction given in Tenneson that the jury must consider as mitigating circumstances a list of forty-five statements concerning the defendant and the crime he committed. We approve the trial courts' instructions regarding the burden of establishing that death is the appropriate penalty and also hold that the trial courts acted within their discretion in giving the instructions concerning a presumption of life imprisonment. We disapprove the trial courts' instructions requiring that aggravating factors outweigh mitigating factors. We also conclude that the Tenneson court erred in instructing the jury that it must consider certain statements of purported fact as mitigating circumstances.

I.

The sentencing phase of a trial for a capital offense is governed by section 16-11-103, 8A C.R.S. (1986). ² After a defendant has been found guilty of a capital offense and a sentencing hearing has been conducted, the jury must determine whether the defendant will be sentenced to life imprisonment or to death. The jury is instructed to follow a four-step process. First, the jury must determine if at least one of the statutory aggravating factors exists. §§ 16-11-103(2)(a)(I),-(6). If the jury does not unanimously agree that the prosecution has proven the existence of at least one statutory aggravator beyond a reasonable doubt, the defendant must be sentenced to life imprisonment. §§ 16-11-103(1)(d),-(2)(b)(I),-(2)(c). Second, if the jury has found that at least one statutory aggravating factor has been proven, the jury must then consider whether any mitigating factors exist. §§ 16-11-103(2)(a)(II),-(5). "There shall be no burden of proof as to proving or disproving mitigating factors," § 16-11-103(1)(d), and the jury need not unanimously agree upon the existence of mitigating factors. See McKoy v. North Carolina, 494 U.S. 433, ----, 110 S.Ct. 1227, 1233-34, 108 L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 1865-66, 100 L.Ed.2d 384 (1988). Third, the jury must determine whether "sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist." § 16-11-103(2)(a)(II). Fourth, and finally, if the jury finds that any mitigating factors do not outweigh the proven statutory aggravating factors, it must decide whether the defendant should be sentenced to death or to life imprisonment. § 16-11-103(2)(a)(III). ³

The prosecution challenges the instructions given in both Tenneson and Vialpando regarding the third and fourth steps in the juries' sentencing deliberations. ⁴ The prosecution argues that in both cases the juries were erroneously instructed, over the prosecution's objections, that in order to sentence the defendants to death, statutory aggravating factors must outweigh any mitigating factors beyond a reasonable doubt and death must be proven to be the appropriate penalty beyond a reasonable doubt, and that there is a presumption in favor of life imprisonment. We consider the challenges to these instructions in turn in parts II, III and IV of this opinion.

II.

Section 16-11-103(2)(a)(II), 8A C.R.S. (1986), does not specify the standard to be used in determining whether "sufficient

                mitigating factors exist which outweigh any aggravating factor or factors found to exist."   We now hold that before a defendant may be sentenced to death the jury must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors
                

A.

The death penalty statute at issue in the present case was enacted against a background of decisions of the United States Supreme Court beginning with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), considering whether the death penalty statutes of other states violated the eighth amendment's proscription of "cruel and unusual punishments" as that proscription is made applicable to the states through the fourteenth amendment. See U.S. Const. amends. VIII, XIV; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). ⁵ The Colorado statute now before us was adopted after we struck down an earlier death penalty statute for failure to satisfy eighth amendment standards as articulated in those decisions of the United States Supreme Court. See People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978). The general assembly adopted the new legislation in a series of efforts to establish criteria and procedures for imposition of the death penalty that would remedy the deficiencies in the prior statute and satisfy federal constitutional standards. Federal constitutional standards are highly relevant, therefore, in determining the meaning of our own statute.

In order to assure that the death penalty will not be imposed in violation of the eighth amendment's proscription of cruel and unusual punishments, a capital sentencing scheme must meet at least two requirements. First, the discretion of the sentencer must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976); accord Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 2532, 96 L.Ed.2d 440 (1987); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980); Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976). The statutory scheme "must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)); accord Jurek v. Texas, 428 U.S. 262, 270-71, 96 S.Ct. 2950, 2955-56, 49 L.Ed.2d 929 (1976); People v. District Court, 196 Colo. at 405, 586 P.2d at 34. One means of narrowing the class is by prescribing aggravating circumstances that must exist before the death penalty may be imposed. Blystone v. Pennsylvania, 494 U.S. 299, ----, 110 S.Ct. 1078, 1080, --- L.Ed.2d ---- (1990). "The use of 'aggravating circumstances' is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury's discretion." Lowenfield, 484 U.S. at 244, 108 S.Ct. at 554.

Second, in order to achieve constitutional validity, a capital sentencing scheme must allow the sentencing body to consider any relevant mitigating evidence regarding the defendant's character and background and the circumstances of the offense. Boyde v. California, 494 U.S. 370, ----, 110 S.Ct. 1190, 1195-96, 108 L.Ed.2d 316 (1990); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670, 90 L.Ed.2d 1 (1985); Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-76, 71 Colorado's capital sentencing scheme narrows the group of persons convicted of first degree murder who may be subjected to a death sentence by requiring that before such a sentence can be imposed at least one of a specified group of aggravating factors be established to the satisfaction of a jury beyond a reasonable doubt. §§ 16-11-103(2)(a)(I), 103(6)(a)-(k). The statute then allows both the prosecution and the defendant to present evidence relevant to the nature of the crime and the character and background of the defendant in order to provide information based upon which the jurors can decide whether any mitigating factors exist. A nonexclusive list of mitigating factors is set forth as a guide. § 16-11-103(5). ⁶ This process provides the jurors with information that they can use to decide whether a convicted defendant within the narrowed group should receive a sentence of death or life imprisonment. § 16-11-103(1)(b), (2).

                L.Ed.2d 1 (1982);  Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978);  People v. District Court, 196 Colo. at 405, 586 P.2d at 34.   This is "a constitutionally indispensable part of the process of inflicting the penalty of death" and is based upon "the fundamental respect for humanity underlying the Eighth Amendment."  Penry, 109 S.Ct. at 2945 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976))
                

The statute describes the decision process as one of weighing. The jury is to decide "[w]hether sufficient mitigating factors exist which...