Rowe v. People, 92SC396
| Decision Date | 06 July 1993 |
| Docket Number | No. 92SC396,92SC396 |
| Citation | 856 P.2d 486 |
| Parties | George W. ROWE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Miller, Hale & Harrison, Daniel C. Hale, Boulder, for petitioner.
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., Laurie A. Booras, Asst. Atty. Gen., Denver, for respondent.
Justice ERICKSON delivered the Opinion of the Court. Justice VOLLACK specially concurs in the result only, and Justice LOHR and Justice KIRSHBAUM join in the special concurrence.
The court of appeals in People v. Rowe, 837 P.2d 260 (Colo.App.1992), affirmed the judgment of conviction and the sentence imposed on the petitioner, George W. Rowe, for first-degree assault committed under heat of passion. The court of appeals rejected Rowe's assertion that the district court had committed reversible error by giving a jury instruction stating that first-degree assault committed under heat of passion was a lesser included offense of first-degree assault. We reverse the judgment of the court of appeals and return this case to the court of appeals with directions to remand to the district court for a new trial.
Rowe worked as a manager of the Atrium Bar and Grille. On the evening of February 18, 1989, two customers, Thomas Gary and Kevin Fox, refused to leave the bar at closing time. After an altercation broke out involving the two customers, Rowe and an off-duty bartender forced the two men out of the bar and locked the door to the bar. Once outside, Gary continued to shout obscenities and pounded on the locked door in an attempt to reenter the bar. Rowe subsequently fired several shots from a handgun into the door, seriously injuring Gary.
On February 28, 1989, Rowe was charged with one count of first-degree assault in violation of section 18-3-202, 8B C.R.S. (1986), 1 and one count of committing a violent crime in violation of section 16- At trial, Rowe's theory of the case was self-defense. For tactical reasons, Rowe also advanced an alternative theory of defense based on provocation and requested a jury instruction on second-degree assault committed under heat of passion, a class one misdemeanor. See § 18-3-203(2)(a), 8B C.R.S. (1986). 2 Defense counsel's strategy and conclusion were that if Rowe was convicted of second-degree assault committed under heat of passion, a misdemeanor, instead of first-degree assault, Rowe not only would receive a shorter sentence, but also could not be adjudged a habitual criminal. The prosecution subsequently withdrew the habitual criminal counts during the jury instruction conference. The district court agreed to give the instruction on second-degree assault committed under heat of passion as a lesser included offense of first-degree assault and incorporated Rowe's request within Jury Instruction Number 13. See Appendix.
11-309(2), 8A C.R.S. (1986). On January 12, 1990, the prosecution added habitual criminal counts, under which Rowe faced a potential mandatory life sentence.
The prosecution subsequently requested a jury instruction on second-degree assault, a class four felony. § 18-3-203(1)(d), 8B C.R.S. (1986). 3 The prosecution also requested an instruction on first-degree assault committed under heat of passion, a class five felony. § 18-3-202(2)(a), 8B C.R.S. (1986). 4 Over Rowe's objection, the district court agreed to give both of the instructions requested by the prosecution as lesser included offenses of first-degree assault and incorporated the requests within Jury Instruction Number 13. See Appendix.
The jury found Rowe guilty of first-degree assault committed under heat of passion. Rowe was sentenced to four years in the department of corrections. On appeal, Rowe asserted that first-degree assault committed under heat of passion was a lesser nonincluded offense of first-degree assault, and, as a lesser nonincluded offense, could only be requested by a defendant.
The court of appeals determined that first-degree assault committed under heat of passion was neither a lesser included nor a lesser nonincluded offense of first-degree assault, but that heat of passion was merely a mitigating factor. Rowe, 837 P.2d at 263. While the court of appeals agreed with Rowe that the district court erroneously instructed the jury that first-degree assault committed under heat of passion was a lesser included offense, it concluded that no prejudice resulted from the erroneous instruction. Id. We granted certiorari to review the decision of the court of appeals and now reverse. 5
Prior to 1979, Colorado's first-degree assault statute, section 18-3-202, did not contain any "heat of passion" language. In People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978), we determined that the legislative scheme embodied in the first-degree assault statute was constitutionally infirm because a person charged with first-degree assault who could establish that he acted under heat of passion nevertheless could receive a greater penalty than he could have received had he caused the death of his victim and been charged with manslaughter.
Montoya concluded:
Under the manslaughter statute, a person who intentionally causes the death of another in the "heat of passion" is guilty of a class four felony and is subject to imprisonment for one to ten years. Section 18-1-105(1), C.R.S.1973. A person who intentionally causes serious bodily injury under "heat of passion," however, is subject to conviction for first-degree assault and imprisonment for a term of five to forty years. Thus, the offender who acts with the less culpable intent and who causes the less grievous result receives the greater penalty. Such an unreasonably structured legislative scheme is constitutionally infirm.
In 1979, the General Assembly sought to remedy the constitutional infirmities set out in Montoya by enacting section 18-3-202(2)(a), which amended the first-degree assault statute to include heat of passion language. 6 The General Assembly could have responded to Montoya in a variety of ways. Among other possibilities, the General Assembly could have (1) increased the sentence for manslaughter; (2) reduced the sentence for first-degree assault; (3) created a separate offense of "first-degree assault committed in the heat of passion;" (4) established heat of passion as an affirmative defense to first-degree assault; (5) utilized some form of rebuttable presumptions; or (6) maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Senate Bill No. 189 (S.B. 189) was proposed in direct response to Montoya to add heat of passion language to the first-degree assault statute. In this case, we must determine the effect of the amendment to the first-degree assault statute.
Our task in construing statutes is to ascertain and give effect to the intent of the General Assembly, not to second guess its judgment. Goebel v. Colorado Dep't of Institutions, 830 P.2d 1036, 1041 (Colo.1992); Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991); § 2-4-203, 1B C.R.S. (1980). To determine legislative intent, we look first to the language of the statute. Goebel, 830 P.2d at 1041; Farmers Group, 805 P.2d at 422. If a statute is ambiguous, we may determine the intent of the General Assembly by considering the statute's legislative history, the state of the law prior to the legislative enactment, the problem addressed by the legislation, and the statutory remedy created to cure the problem. Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988); Schubert v. People, 698 P.2d 788, 793-94 (Colo.1985).
Applying these settled principles of statutory construction, we conclude that in amending the first-degree assault statute in 1979, the General Assembly maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Our conclusion is supported by the legislative history of S.B. 189, the overall purpose of the statutory provisions enacted in response to Montoya, the internal structure of the first-degree assault statute, and the language employed in the amendment.
In our view, the legislative history of S.B. 189 demonstrates that the General Assembly intended to maintain the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. In the Senate Judiciary Committee hearing on S.B. 189, the drafter of the amendment repeatedly stressed that "all we are doing is changing the penalty, we are not changing the elements of the [offense of first-degree assault]." Hearings on S.B. 189 Before the Senate Judiciary Committee, 52d Gen. Assembly, 1st Reg.Sess. (audio tape, Jan. 29, 1979, at 2:50-3:04).
By maintaining the offense of first-degree assault while adopting a statutory mitigating factor to reduce a defendant's sentence in certain circumstances, the General Assembly achieved its overriding purpose of addressing the constitutional problems identified in Montoya. S.B. 189 was drafted so that a person who committed first-degree assault under heat of passion would not receive a greater punishment than a person who committed a homicide under heat of passion.
Based on the foregoing considerations, we hold that the General Assembly maintained the offense of first-degree assault, while providing for a lesser sentence if the additional mitigating factor of heat of passion was present. Our conclusion that the General Assembly intended to establish a mitigating factor that could reduce a defendant's sentence for first-degree assault can also be reached by briefly examining the options the General Assembly chose not to adopt in responding to Montoya.
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