People v. Saathoff

790 P.2d 804, 14 Brief Times Rptr. 498, 1990 Colo. LEXIS 286, 1990 WL 43180

• Court: Supreme Court of Colorado
• Decided: April 16, 1990
• Docket: 88SA244
• Status: Published

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

The prosecution appeals from two rulings of the district court on questions of law pursuant to section 16-12-102(1), 8A C.R.S. (1986). In the first, the court did not permit the prosecution to introduce evidence of the defendant’s prior felony convictions during the sentencing phase for a class 1 felony, § 16-11-103, 8A C.R.S. (1986). The trial judge also refused to hold a habitual criminal sentencing hearing. We disapprove both rulings.

I.

The defendant Ricky Dean Saathoff was charged with first degree murder after deliberation, § 18-3-102(l)(a), 8B C.R.S. (1986), first degree felony murder, § 18-3-102(l)(b), 8B C.R.S. (1986), and first degree sexual assault, § 18-3-402, 8B C.R.S. (1986). The jury convicted the defendant on all three charges. The prosecution announced that it intended to introduce evidence of the defendant’s three prior felony convictions during the death penalty phase.¹ The capital sentencing statute in effect at the time the charged offenses were committed, January 18, 1987, was section 16-11-103, 8A C.R.S. (1986),² which provided in part:

16-11-103. Imposition of sentence in class 1 felonies — appellate review.

(l)(a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment. ...

(b) All admissible evidence presented by either the prosecuting attorney or the defendant that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, and any matters relating to any of the aggravating or mitigating factors enumerated in subsections (5) and (6) of this section may be presented. Any such evidence which the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence.

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(d) The burden of proof as to the aggravating factors enumerated in subsection (6) of this section shall be beyond a reasonable doubt. There shall be no burden of proof as to proving or disproving mitigating factors.

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(5) For purposes of this section, mitigating factors shall be the following factors:

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(g) The absence of any significant pri- or conviction; or

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(,l) Any other evidence which in the court’s opinion bears on the question of mitigation.

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(6) For purposes of this section, aggravating factors shall be the following factors:

(a) The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed against another state or the United States which would constitute a class 1, 2, or 3 felony as defined by Colorado law; or

(b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 16-11-309, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 16-11-309....³

The prosecution argued that the defendant's felony record was admissible under section 16-ll-103(l)(b) because it was relevant to the defendant’s “character, background, and history....” The district court concluded, however, that because none of the three felonies were statutory aggravating factors under subsection 16-ll-103(6)(b), they were inadmissible during the sentencing phase, unless the defendant somehow “opened the door.”

Because the defendant did not “open the door” by introducing, evidence of the absence of a prior criminal history, the prosecution did not bring out the defendant’s prior convictions. The jury found that two statutory aggravating factors existed, but also concluded that the prosecution did not prove beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors. See § 16-11-103(2). The prosecution has not asserted error in the instructions given to the jury. Cf. Tenneson, 788 P.2d at 795-96. The defendant was then sentenced to life imprisonment. § 16 — 11—103(2)(b)(II). This appeal does not place the defendant in jeopardy of the death penalty. People v. Tenneson, 788 P.2d 786, 788 n. 1 (Colo.1990). See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

II.

The district court refused to allow evidence of the defendant’s prior felony convictions because none of the felonies the prosecution sought to admit were statutory aggravators under subsection 16 — 11— 103(6)(b). We conclude, however, that these felony convictions were relevant and admissible to prove the non-existence of a statutory mitigating factor — the absence of any significant .prior conviction, § 16-ll-108(5)(g).

It is well-settled that there is no constitutional barrier to the admission of a defendant’s prior felony convictions during a capital sentencing proceeding. Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134 (1983); Zant v. Stephens, 462 U.S. 862, 887-88, 103 S.Ct. 2733, 2748-49, 77 L.Ed.2d 235 (1983). The question therefore is whether state law bars their introduction. We hold that it does not.

Nothing in the statute prohibits the prosecution from introducing evidence of the non-existence of a statutory mitigator. The statute itself places no burden on either side to prove or disprove statutory mitigators. § 16-ll-103(l)(d). Presumably, the jury could conclude that a statutory mitigator existed merely because no evidence of its non-existence was adduced. In the absence of any evidence that the defendant had a prior criminal record, there is the risk that the jury might conclude, incorrectly, that the defendant had no significant criminal history. We believe that such a result would be inconsistent with the heightened need for sentencing reliability in capital cases. Tenneson, 788 P.2d at 791-92.

Our capital sentencing statute is based in some respects on the Florida death penalty statute. Id. at 793 n. 10. In Barclay v. Florida, 463 U.S. at 956, 970, 103 S.Ct. at 3428, 3435-36, six members of the Court recognized that, under the Florida statute, the prosecution was properly allowed to introduce evidence of a defendant’s prior criminal record “to prove that the statutory mitigating circumstance of absence of a criminal record did not exist.” Id. at 956, 103 S.Ct. at 3428. The convictions were admissible even though the defendant’s prior convictions were not statutory aggravating factors. Id.; see also Booker v. State, 397 So.2d 910, 918 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981) (prosecutor properly allowed to cross-examine defendant during capital sentencing proceeding about prior criminal record to negate mitigating circumstance). We conclude that the district court erred in ruling that the defendant’s prior criminal record was inadmissible because of subsection 16-ll-103(6)(b).⁴

III.

The district court also ruled that it would not hold a habitual criminal sentencing hearing, §§ 16-13-101 to -103, 8A C.R.S. (1986), if the defendant was convicted of all three offenses. The court apparently believed that it was foreclosed from entering judgments of convictions and sentences for first degree felony murder, first degree murder after deliberation, and first degree sexual assault (the predicate felony for the felony murder charge).

Under the rule of lenity, the court may not enter judgments of conviction for both murder after deliberation and the felony murder of a single victim. People v. Bartowsheski, 661 P.2d 235, 246 (Colo.1983); People v. Lowe, 660 P.2d 1261, 1269 (Colo.1983). However, with a jury verdict such as was returned in this case, the district court should enter judgments of conviction and sentences for a felony (other than first degree murder), and first degree murder after deliberation, even if there is only one victim so long as the felony is not a lesser-included offense of the murder charge. Bartowsheski, 661 P.2d at 247. Under these circumstances, first degree sexual assault was not a lesser-included offense of murder after deliberation. Id.

Since the jury found the defendant guilty of both murder after deliberation and sexual assault, as well as felony murder, the court should have entered judgments of conviction against the defendant on the sexual assault and murder after deliberation counts. Id. There was thus a felony conviction, in addition to the one for first degree murder, upon which the habitual criminal counts could attach. § 16-13-101(2). The fact that the defendant received a life sentence for murder after deliberation did not render the habitual criminal counts superfluous. The defendant’s murder conviction might, for example, be set aside on direct or collateral review. The court should have held the habitual criminal sentencing proceeding.

IV.

Accordingly, we disapprove the rulings of the district court prohibiting the prosecution from introducing evidence of the defendant’s prior felony convictions during the capital sentencing phase of the trial, and refusing to hold the habitual criminal sentencing hearing.

Chief Justice QUINN dissents, and Justice LOHR and Justice KIRSHBAUM, join in the dissent.

1 . The prior felony convictions were for second degree sexual assault, second degree burglary, and felony theft.

2 . Section 16-11-103 was subsequently amended in 1988. See People v. Tenneson, 788 P.2d 786, 789 n. 2 (Colo.1990). We believe, however, that the result we reach in this case would be the same under the current statute.

3 . Precisely how the jury is to weigh and consider the statutory aggravating factors and mitigating factors found is explained in People v. Tenneson, 788 P.2d 786 (Colo.1990).

4 . Nothing in this opinion prevents a trial court in its sound discretion from excluding evidence of a defendant’s prior criminal record, or the details of prior offenses, in a capital sentencing hearing under either section 16 — 11—103(l)(b) or CRE 403. See People v. Borrego, 774 P.2d 854, 855-56 (Colo.1989). The district court in this case did not exercise such discretion because it concluded that section 16 — 11—103(6)(b) did not permit the introduction of the prior convictions during the prosecution's case-in-chief.