Ortiz v. District Court in & for the County of Las Animas

626 P.2d 642, 1981 Colo. LEXIS 635

• Court: Supreme Court of Colorado
• Decided: March 30, 1981
• Docket: 80SA165
• Status: Published

Opinions

DUBOFSKY, Justice.

In response to a petition filed under C.A.R. 21, we issued a Rule to Show Cause why the respondent district court should not dismiss informations charging the petitioners, Sam Ortiz and Joseph Ortiz, with first-degree and second-degree assault and crime of violence. We now make the Rule absolute.

On October 5, 1979, a jury found the petitioners guilty of menacing¹ Troy Gutierrez. This was one of several counts arising from an altercation between the petitioners and three alleged victims. The instructions and verdict forms submitted to the jury charged petitioners with the following offenses:

second-degree assault, section 18-3-203, C.R.S.1973 (1978 Repl.Vol. 8) against Troy Gutierrez, on February 24, 1979;

second-degree assault, section 18-3-203, against Max Aragon, on February 24, 1979;

second-degree assault, section 18-3-203, against James Sanchez, on February 24, 1979;

third-degree assault, section 18-3-204, C.R.S.1973 (1978 Repl.Vol. 8); no victim specified;

menacing, section 18-3-206, C.R.S.1973 (1978 Repl.Vol. 8) against Troy Gutierrez; ²

special verdicts on using a deadly weapon during the commission of each offense of second-degree assault, section 16-11-309, C.R.S.1973 (1978 Repl.Vol. 8).³

The trial court instructed the jury as follows:

“If you are not satisfied beyond a reasonable doubt that the defendants are guilty of the offense charged, they may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged if the evidence is sufficient to establish their guilt of such lesser offense beyond a reasonable doubt.

The offense of Assault in the Second Degree, as charged in the Information in this case necessarily includes the lesser offenses of Assault in the Third Degree, and Felony Menacing.

* * * * * *

.. . you are not, in any event, to find the defendants, Joseph Ortiz and Sam Ortiz guilty of more than one of the following offenses: Assault in the Second Degree, Assault in the Third Degree, Felony Menacing. Of course, you may find the defendants not guilty of all of these offenses. If you find the defendants guilty of Assault in the Second Degree, then you must make a specific finding as to whether or not the said crime is a crime of violence as defined in these instructions.”

(Emphasis added.)

The trial court gave the jury a separate set of verdict forms for each petitioner. The jury returned verdicts finding both petitioners guilty of the lesser offense of felony menacing against Troy Gutierrez, but did not return any other verdicts.⁴

From the record before us it appears that the court discharged the jury without the jury having resolved the other charges. The petitioners then moved for a judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial, based in part on the erroneous submission of the menacing charge to the jury as a lesser included offense of second-degree assault. After the district attorney confessed the motion for a new trial,⁵ the People, on December 11, 1979, filed new informations charging each petitioner with second-degree assault, third-degree assault, menacing, and crime of violence against each of the three alleged victims. These new charges were based on the same incident which gave rise to the original charges and jury trial.' The petitioners then moved to dismiss the second informations on grounds of double jeopardy. The trial court granted the motion to dismiss the counts of felony menacing but denied the remainder of the motion.

We issued a Rule to Show Cause why the remaining charges against the petitioners should not be dismissed. We now make the Rule absolute. Retrial of the petitioners is barred by the federal and state constitutional prohibitions against twice putting the accused in jeopardy for the same offense. U.S. Const, amend. V; Colo.Const. Art. II, Sec. 18. The double jeopardy clauses proscribe retrial both because the felony menacing convictions in the first trial impliedly acquitted the petitioners of one of the charges in the new informations (the second-degree assault charge relating to Troy Gutierrez) and because the petitioners have a legitimate interest in having the charges against them determined by the jury first impaneled to hear their case.

I.

The double jeopardy clauses of the United States and Colorado Constitutions provide that no person shall be twice put in jeopardy for the same offense. U.S. Const. amend. V;⁶ Colo.Const. Art. II, Sec. 18.⁷ These provisions prohibit retrial of the petitioners on the charge of second-degree assault against Troy Gutierrez because the verdicts returned during the first trial convicting the petitioners of menacing Gutierrez impliedly acquitted them of second-degree assault against him. See section 18-l-301(l)(a), C.R.S.1973 (1978 Repl.Vol. 8).

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the United States Supreme Court held that a defendant tried for a greater offense (first-degree murder) but found guilty by a jury of a lesser offense included in the greater (second-degree murder), is impliedly acquitted of the greater crime and cannot be retried for that offense. For purposes of former jeopardy, the conviction of the lesser offense is treated no differently “than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of [the greater offense] but guilty of [the lesser offense].’ ” 355 U.S. at 191, 78 S.Ct. at 225, 2 L.Ed.2d at 206; see also Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Here, the court’s instruction gave the jury the choice of finding the petitioners guilty of any one of the following crimes: assault in the second-degree, felony menacing, or assault in the third-degree. The jury’s verdict of guilty of felony menacing was an implicit acquittal of the charge of assault in the second-degree.⁸

II.

Retrial, in this case, is barred not only by the doctrine of implied acquittal, but by the fundamental principles underlying the constitutional prohibitions against double jeopardy. The petitioners have been tried once on the charges upon which the People seek to try them again. The United States Supreme Court in Green v. United States, supra, 355 U.S. at 187-188, 78 S.Ct. at 223, 2 L.Ed.2d at 204, portrayed the constitutional prohibition against double jeopardy as:

“designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”⁹

The controlling double jeopardy principle here is that which safeguards the accused’s “valued right to have his trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Termination of a criminal trial before the ultimate issue of guilt has been decided deprives the accused of his opportunity to have the first jury resolve the dispute. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Only if a court properly declares a mistrial may a criminal trial be terminated before that issue has been resolved.

It is settled law that a criminal trial may be terminated if the jury is deadlocked and cannot reach a verdict. Repros-ecution of an accused under these circumstances is not barred by double jeopardy doctrine. Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, supra; Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Wade v. Hunter, supra; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); United States v. Perez, 9 Wheat. 580, 6 L.Ed. 165 (1824). The test for determining when a jury may be discharged from giving a verdict enunciated in United States v, Perez, supra, has been followed consistently by the United States Supreme Court:

“ ‘We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to find all the circumstances, which would render it proper to interfere.’ ”

Illinois v. Sommerville, supra, 410 U.S. at 461, 93 S.Ct. at 1069, 35 L.Ed.2d at 429 (quoting from United States v. Perez, supra ). Although explicit findings on the presence of manifest necessity are not required, the record must provide a “sufficient justification” for the judge’s termination of the proceedings short of a verdict. See, e. g., Arizona v. Washington, supra; Espinoza v. District Court, 180 Colo. 391, 506 P.2d 131 (1973); Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972); Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971).

In the present case, the petitioners had completed a full trial and all charges had been submitted to the jury for a decision. When a single verdict was returned signed by the foreman, it must have been apparent to the prosecution, the defense, and the trial judge that the jury had not explicitly decided the issue of petitioners’ guilt or innocence of each of the charges. At that point the judge could have rein-strueted the jury, furnished them with appropriate verdict forms, and required them to continue their deliberations. In the absence of a record we cannot ascertain whether this procedure was suggested by counsel or considered by the court. In any event, it was not adopted and the jury was discharged having returned a verdict on only one of the numerous charges upon which the petitioners were being tried.

The petitioners were entitled to the verdict of that jury. Illinois v. Sommerville, supra. The facts here resemble those in United States v. Jorn, supra,¹⁰ and we conclude, as the United States Supreme Court did there, that there was no manifest necessity for discharge of the jury. See section 18-l-301(l)(d) and (2)(b)(IV), C.R.S.1973 (1978 Repl.Vol. 8). Although it is unclear what the trial court in this case did, its actions were tantamount to an improper termination of the proceedings. Moreover, the harassment to which a second prosecution would subject the petitioners is greater, not less, when the basis for the governmental action remains shrouded in mystery. Therefore, the petitioners’ requested protection from reprosecution is granted.

III.

The petitioners moved for a judgment of acquittal or, in the alternative, for a new trial. The respondent contends that the alternative motion for a new trial waived the petitioners’ double jeopardy defense to the charges other than the felony menacing counts.

A motion for a new trial is a prerequisite for appeal. Crim.P. 33(a). It cannot be construed as anything other than a request asking the trial judge to reconsider specific, alleged errors in the proceedings and a procedure for preserving those errors for appellate review. We do not view a motion for a new trial as a relinquishment of the right to invoke double jeopardy guarantees against retrial of the charges upon which no verdicts were returned. Were we to so hold, we would condition an appeal of a conviction of one offense on a “coerced surrender of a valid plea of former jeopardy on another offense,” and in so doing would exact “a forfeiture in plain conflict with the constitutional bar against double jeopardy.” See Green v. United States, supra, 355 U.S. at 194, 78 S.Ct. at 227, 2 L.Ed.2d at 208. See also Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (defendant did not “waive” his right to judgment of acquittal by moving for a new trial).

We hold that the petitioners’ motion for a new trial did not waive their protection against double jeopardy and that their double jeopardy protection extends to all of the charges filed by the People in the second informations.

The Rule is made absolute.

ROVIRA, J., dissents.

1 . Section 18-3-206, C.R.S.1973 (1978 Repl.Vol. 8).

2 . After completion of the evidence, the court, on the district attorney’s motion and over the petitioners’ objection, instructed the jury that second-degree assault included the lesser offenses of felony menacing and third-degree assault.

3 . The complete trial court record is not before us. Therefore we cannot determine why only one victim was included on the menacing ver-diet form or why the verdict form for third-degree assault did not specify a victim.

4 .The jury apparently followed the literal mandate of the instruction and returned a verdict against the petitioners on only one offense. All of the other verdict forms were returned unsigned. The trial judge probably intended to limit the jury to one verdict of guilty with respect to each of the three alleged victims, rather than one verdict of guilty in total, but no action was taken to correct the lack of a full set of signed verdicts.

5 . The confession of error was correct. See People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974).

6 . The Fifth Amendment’s proscription of double jeopardy is made applicable to the states by U.S. Const, amend. XIV. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

7 . Colo.Const. Art. 11, Sec. 18 reads:

“No person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.”

8 .For purposes of double jeopardy, it is immaterial whether the offense of felony menacing was technically a lesser included offense of assault in the second-degree. The dispositive factor is not the validity of the felony menacing conviction, but, rather, the jury’s refusal to find the petitioner guilty of assault in the second-degree. An error in submitting felony menacing to the jury as a “lesser” offense does not weaken the inference that the jury intended to acquit petitioners of the “greater” offense of second-degree assault. Section 18 — 1—301(l)(a), C.R.S.1973 (1978 Repl.Vol. 8); Green v. United States, supra; People v. Lohbauer, 107 Cal.App.3d 204, 165 Cal.Rptr. 436 (1980); In re Hess, 45 Cal.2d 171, 288 P.2d 5 (1955).

9 . For an exhaustive summary of double jeopardy principles, see United States v. DiFrancesco, — U.S. -, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

10 . In United States v. Jorn, during trial, at the suggestion of defense counsel, the judge advised government taxpayer-witnesses of their constitutional rights prior to their testimony in criminal proceedings. The judge, fearing that the witnesses had not been properly advised by Internal Revenue officers during the investigation, on his own motion and without consulting the prosecution or the defense, aborted the trial. Before retrial, the court granted the defendant’s motion to dismiss the information on grounds of former jeopardy. The United States Supreme Court concluded that the trial judge had abused his discretion in declaring a mistrial, particularly in view of the abruptness of the ruling and the failure to consider alternatives such as a continuance to permit the witnesses to obtain counsel. Accordingly, the double jeopardy protection of the Constitution prohibited retrial.