stating that the trial court should "determine whether there is a likelihood of progress towards a unanimous verdict" before giving a modified-Allen instruction
How later courts described this case
- stating that the trial court should "determine whether there is a likelihood of progress towards a unanimous verdict" before giving a modified-Allen instruction
- recognizing “compelling concern” that jury not be coerced into rendering verdict
- "The determination of whether to declare a mistrial is a matter within the sound discretion of the trial court. . . ."
- "Although we have held that conduct by a district attorney in retrying or re-filing charges against a defendant may, in unusual cireumstances result in a denial of the particular defendant's due process right to fundamental fairness, the cireumstances of this case do not justify judicial interference with executive discretion."
Written by the judges who cited it.
The opinion
DUBOFSKY, Justice,
specially concurring:
I specially concur.
Although I agree with the result reached by the majority in Part II, I do not believe that it is necessary to rewrite the child abuse statute to uphold it as constitutional in this case.
I think it is reasonable for the General Assembly to have determined that a person who knowingly places a child in a situation that endangers a child’s life or health commits a more reprehensible act than does a person who knowingly places a child in a situation that may endanger a child’s life or health. The gravamen of the offense is the person’s knowing placement of the child in a dangerous situation. The degree of danger in the situation, rather than the resulting harm to the child, governs the severity of the sanction which may be imposed.
The majority opinion, which directly links conduct which endangers or may endanger a child, with the result — injury or death— writes the language “placed in a situation” out of the statute. So construed, the child abuse statute is indistinguishable from statutes proscribing murder or assault. In this case, the district court ruled unconstitutional sections 18-6-401(1)(a) and (1)(b), C.R.S. only with respect to the mental state “knowingly.” Although the majority addresses equal protection problems with the statute which may arise if the conduct charged is reckless or committed through criminal negligence, I am not persuaded that we should rewrite the statute to avoid problems not before us. The sections applied when a person acts “knowingly” may be upheld as constitutional when compared to each other under a simpler analysis.
As the majority notes, in People v. Hoehl, 193 Colo. 557, 560 , 568 P.2d 484, 486 (1977), we defined the phrase “may endanger” in the context of the child abuse statute then in effect, 1 to mean that “there is a reasonable probability that the child’s life or health will be endangered,” and stated: “There is no constitutional impediment to the legislature punishing conduct creating less than imminent danger.” Id. Section 18—6—401(1)(b), then, covers conduct which creates less than imminent danger as well as conduct creating imminent danger. Section 18-6-401(l)(a), on the other hand, applies only to conduct which creates an imminent danger to a child’s health. While the sections overlap, in that conduct punishable under the “endangers” standard may also be reached by the “may endanger” standard, they are not identical (conduct creating only a reasonable probability of harm may be reached under section 18-6—401(1)(b), but not section 18—6—401(1)(a)).
In People v. Velasquez, 666 P.2d 567 (Colo.1983), we considered an equal protection challenge to a statute prescribing a greater penalty for possession of hashish than for possession of marihuana. We stated:
To be sure, hashish, which is made from the resin of the marihuana plant, satisfies both the statutory definition of marihuana in section 12-22-303(17), C.R.S. 1973 (1982 Supp.) and the statutory definition of marihuana concentrate in section 12-22-303(18), C.R.S.1973 (1982 Supp.). Because hashish is marihuana, however, does not mean that all marihuana is hashish.
Id. at 569 (emphasis added). We held that there was a rational basis for distinguishing between possession of hashish and marihuana, despite the overlapping definitions. In the case before us, because “endangers” and “may endanger” do not mean the same thing although there is some overlap in the definition, section 18—6—401(1)(a) and section 18-6-401(1)(b) do not proscribe the same conduct.
*1014 I am authorized to say that Justice LOHR and Justice KIRSHBAUM join me in this special concurrence.
. Section 18-6-401(1)(a), C.R.S.1973, Colo.Sess. Laws 1971, ch. 121 at 448-49.