People v. Davis

Justice KIRSHBAUM

dissenting.

I join part IV of Chief Justice Quinn’s dissent. Because the probability is great that the jury’s consideration of the unconstitutional “especially heinous, cruel or depraved” aggravator rendered its verdict im-permissibly suspect under the eighth amendment to the United States Constitution, the sentence of death should be vacated on that ground alone and the case remanded to the trial court for imposition of a sentence of life imprisonment.

The majority recognizes that this aggravating factor, which the jury was instructed to consider and which the prosecutor emphasized in his closing arguments, violated federal constitutional standards because it failed to provide sufficient certainty that the jury did not act arbitrarily and capriciously in imposing a sentence of death. Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980). Having determined that the trial court committed error of constitutional magnitude, the majority then holds that the error was harmless beyond a reasonable doubt, referring to the United States Supreme Court decision in Clemons v. Mississippi, — U.S. -, 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990), as authority for this startling conclusion. 1

Colorado’s death penalty statute requires a fact-finding jury to balance mitigating and aggravating circumstances in reaching its ultimate decision. § 16-11-103(2), 8A C.R.S. (1986); People v. Tenneson, 788 P.2d 786 (Colo.1990). The majority concludes that Clemons “is dispositive” of the issue of whether submission of a single unconstitutional aggravator to a jury requires reversal of a sentence of death. Maj. op. at 179. That conclusion is permissible only if this court properly may reweigh evidence in the manner the Supreme Court described in Clemons . However, under Mississippi law the Mississippi Supreme Court apparently has authority to decide for itself whether the death penalty should be affirmed when an aggravating factor upon which the jury relied should not have been presented to the jury. Clemons, 110 S.Ct. at 1447 . I know of no principle of Colorado law that authorizes this court to engage in the type of credibility evaluation and evidentiary comparisons contemplated by the weighing process required by our death penalty statute. The jurisprudence of this state has established that appellate adjudication does not embrace fact-finding authority. See, e.g., People in re D.G.P., 194 Colo. 238 , 570 P.2d 1293 (1977); Godfrey v. People, 168 Colo. 299 , 451 P.2d 291 (1969); Mitchell v. People, 24 Colo. 532 , 52 P. 671 (1898). Our appellate function is limited to determining whether by objective standards evidence properly admitted at trial supports a jury verdict, whatever contrary view we might have taken of that same evidence. People v. O’Donnell, 184 Colo. 434 , 521 P.2d 771 (1974). The majority’s conclusion suggests that this court possesses appellate authority to reverse a jury verdict of death based on our independent re-weighing of the evidence. I do not *231 find common-law or statutory support for such concept of appellate adjudication in this state.

I also find untenable the majority’s conclusion that this court should and can accurately psychoanalyze the state of mind of all twelve jurors had they considered a record that contained a narrowing instruction satisfying the standards articulated in Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976). This conclusion appears to contradict the majority’s earlier determination that because the unconstitutional aggravator had not been so narrowed it was not possible to ascertain whether the jury’s verdict in fact resulted from unbridled and unrestrained passion. I fail to see how a court can accomplish by hypothesis what it cannot accomplish in fact.

The majority’s assumption that a harmless error analysis is appropriate is especially untenable in light of the closing arguments presented by the People. The prosecutor basically recited legal principles of law when commenting on other alleged ag-gravators. When discussing the “especially heinous, cruel and depraved” aggra-vator, however, the prosecutor emphasized the evidence establishing the inhuman nature of defendant’s conduct in brutally murdering Virginia May. In rebuttal, the prosecutor again emphasized the “hideous” nature of the defendant’s bestial conduct.

Relying on Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), the majority determines that because the same evidence would have been admissible to establish other aggravators, the prosecutor’s references to that evidence did not constitute reversible error. Zant , however, arose in the context of a Georgia death penalty statute that did not contain the balancing features of section 16-11-103(2). Under our statute, juries may conclude that one aggravator so outweighs any mitigating factors that the death penalty should be imposed. It is not possible to conclude beyond a reasonable doubt that the jury’s decision here did not turn on considerations of the significance of the unconstitutional aggravator alone, espe-daily in view of the prosecutor’s emphasis of the evidence in relation to that aggravator.

The defendant’s conduct was hideous, as the prosecutor emphasized in his closing arguments. That historic fact is not in dispute. However, I conclude that this court cannot ascertain from the record in this case what the jury would have done had it not considered the unconstitutional “especially heinous, cruel and depraved” aggravator, much less what the jury would have done had it considered that aggravator together with a limiting instruction it never received. I also conclude that this court, in the exercise of its appellate jurisdiction, should not constitute itself as the sentencing court in every death penalty case by independently identifying and then re-weighing aggravating and mitigating factors when requested to do so by the People or by the defendant. I therefore respectfully dissent from the contrary conclusions of the majority.

I am authorized to say that Justice LOHR joins in this dissent.

. The majority correctly concludes that the trial court’s failure to give any limiting instruction with regard to the meaning of "especially heinous, cruel or depraved” cannot be cured on appeal. See Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988); Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).