People v. O'NEILL

Justice VOLLACK

concurring in part and dissenting in part:

I concur in the results of parts II and III of the court’s opinion. I dissent, however, to part IV, the reversal of the penalty phase. I disagree with the majority’s conclusion that the instructions given to O’Neill’s jury did not ensure the heightened level of reliability and certainty required in capital sentencing. I would affirm the penalty phase and hold that the instructions given to O’Neill’s jury had the required degree of reliability, based on People v. Davis, 794 P.2d 159 (Colo.1990).

The severity and finality of the death penalty are unique and require a heightened level of reliability and certainty in capital sentencing. See Mills v. Maryland, 486 U.S. 367, 383, 108 S.Ct. 1860, 1869, 100 L.Ed.2d 384 (1988); People v. Drake, 748 P.2d 1237, 1254 (Colo.1988). In response to the need for greater reliability and certainty in death penalty cases, the legislature enacted section 16-11-103, 8A C.R.S. (1986), governing the penalty phase. At the time of O’Neill’s offense, the statute provided a four-step process 1 for jury deliberations to determine whether the death penalty is appropriate. First, the jury must determine if at least one statutory aggravating factor exists beyond a reasonable doubt. § 16 — 11—103(2)(a)(I), -103(6), 8A C.R.S. (1986). Second, if the jury finds that at least one statutory aggravating factor exists, then it must determine whether any mitigating factors exist. § 16-11-103(2)(a)(II), -103(5), 8A C.R.S. (1986). Third, the jury must determine whether the mitigating factors outweigh the proven statutory aggravating factors. § 16 — 11—103(2)(a)(II). Fourth, if the jury finds that any mitigating factors do not outweigh the proven statutory aggravating factors, then the jury must decide whether the defendant should be sentenced *181to death or life imprisonment. § 16 — 11—103(2)(a)(III), 8A C.R.S. (1986). The majority correctly notes that there is no statutory burden of persuasion attached to the third or fourth step. Maj. op. at 177.

Before addressing the instructions in question, the standard of review should be considered. The defendant did not object to instructions 6 and 15 on the ground that there was no statutory burden of persuasion attached to step four. The defendant’s failure to object to an alleged error in the instructions, if there was error, should be reviewed under a standard of plain error. Vigil v. People, 196 Colo. 522, 524-25, 587 P.2d 1196, 1198 (1978); Crim.P. 52(b). Errors not raised at trial will require reversal only where they so undermine the fundamental fairness of the proceeding as to cast doubt on the reliability of the verdict. Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987). Reliability in this context means the certainty that, despite the error, the jury would have found beyond a reasonable doubt that death was the appropriate penalty. If the unpreserved error is of constitutional dimension, reversal is required unless the court is convinced the error was harmless beyond a reasonable doubt. People v. Rodgers, 756 P.2d 980, 984 (Colo.1988). With this standard of review in mind, the instructions, in my opinion, were proper and, as given to the jury, did ensure reliability and certainty.

The majority concludes that a “beyond a reasonable doubt” instruction is necessary in step four — regardless of the instructions used in the other three deliberation steps— to ensure the reliability of the jury in returning a death sentence. I disagree. The two instructions in question are instructions 6 and 15. Instruction 6 outlines the four-step process set out in the statute. Instruction 6 provided:

JURY INSTRUCTION 6

I will give you a general outline of the process to follow in your deliberations. The law allows the death penalty only if the prosecution, in addition to proving Murder in the First Degree, also proves that:
1. One or more of the specified aggravating factors exist beyond a reasonable doubt; and
2. Any aggravating factor or factors found to exist outweighs beyond a reasonable doubt any mitigating factor or factors found to exist;2 and
3. Death is the appropriate penalty. The first step in your deliberations is to decide whether the prosecution has proven the existence of at least one specified aggravating factor beyond a reasonable doubt. If one or more jurors finds that none of the specified aggravating factors has been proven beyond a reasonable doubt, then you must return a verdict imposing a sentence of life imprisonment. If and only if all jurors agree that one or more specified aggravating factors have been proven beyond a reasonable doubt, should you then proceed to the second step in your deliberations.
The second step in your deliberations is to decide whether any mitigating factor or factors exist.
The third step in your deliberations involves a weighing of the aggravating factor or factors against any and all mitigating factors. You may consider only those aggravating factors found to exist beyond a reasonable doubt. You may assign any weight you wish to each aggravating or mitigating factor. If one or more jurors finds the specified aggravating factor or factors do not outweigh the mitigating factor or factors, then you must return a verdict imposing a sentence of life imprisonment. If and only if the jury finds that one or more specified aggravating factors exist which outweigh the mitigating factors, should the jury then proceed to the fourth step.
The fourth step in your deliberations is to decide whether the defendant shall be sentenced to death or life imprisonment. This decision is solely in your discretion. *182If one or more jurors finds that life imprisonment is the appropriate penalty, then you must return a verdict imposing a sentence of life imprisonment. On the other hand, if all members of the jury unanimously agree that death is the appropriate penalty, then the jury may return a verdict imposing a sentence of death.
I will now instruct you in greater detail regarding the steps to follow in your deliberations.

Instruction 15 elaborates on the fourth step and provides the jury with more specific guidance on determining whether death is the appropriate penalty. Instruction 15 provides:

JURY INSTRUCTION 15

The fourth step in your deliberations is to determine the penalty to be imposed upon the defendant.
Before imposing a death sentence, you must unanimously be convinced that death is the appropriate penalty for the defendant. Each of you must make your own individual assessment of whether the defendant shall be sentenced to death or to life in prison. Your decision should not be mechanical or mathematical. Your decision should instead be a reasoned judgment as to whether, in your individual assessment, in light of the totality of the circumstances presented in this case and under these instructions of law, the defendant should be sentenced to life in prison or to death. If you are not all convinced that death is the appropriate penalty, the sentence must be life imprisonment.
Regardless of the findings you have made in steps one, two and three, you do not have to return a verdict of death. There is never a requirement that you must impose a death sentence in any situation.
No juror should ever feel compelled to reach a verdict that is contrary to that juror’s conscientious view of what the verdict should be in the case, under the law contained in the Instructions of the Court, just for the sake of reaching a unanimous verdict.
Before a verdict of death can be imposed it must be unanimous. Thus, before you can return a verdict of death in this case, you must all unanimously agree on such a verdict. You may also unanimously reach a verdict of life imprisonment. If you cannot unanimously reach a verdict one way or the other, the foreman shall so notify the Court, and the result will be a sentence of life imprisonment imposed by the Court.
Your deliberations in this final step can lead to one of the three following results. You must select the appropriate result for the defendant.
1. If all jurors unanimously agree that the death penalty is the appropriate penalty, you may return a verdict imposing a sentence of death.
2. If all jurors unanimously agree that life in prison is the appropriate penalty, you may return a verdict imposing a sentence of life in prison.
3. If all jurors cannot agree on the appropriate penalty, the foreman of the jury shall so report to the Court, and the Court must impose a sentence of life imprisonment.

This instruction not only meets the statutory minimum, but exceeds it. This instruction requires a unanimous decision by the jury to impose the death penalty. The instruction makes it clear that any juror may decline to impose the death penalty for any reason, thus requiring the defendant to be sentenced to life imprisonment. This acts as a safety valve to prevent imposition of the death penalty except in those cases where the jury is unanimously convinced that death is the appropriate penalty. I believe that this instruction “communicate[d] to the jurors the degree of confidence they must have in the correctness of their ultimate conclusion” in returning a verdict of death. People v. Tenneson, 788 P.2d 786, 796 (Colo.1990).

The majority concludes that failure to include a “beyond a reasonable doubt” standard in the fourth step requires reversal, citing Tenneson. Subsequent to Ten-*183neson, we decided People v. Davis, 794 P.2d 159 (Colo.1990). In Davis, the specific instructions concerning the fourth step were nearly identical to the instruction presented here. Instruction 7 in Davis provided:

If in the third step of your deliberations you have made unanimous findings that the aggravating factor or factors found to exist outweigh the mitigating factors or that there are no mitigating factors, you must now decide whether the defendant should be sentenced to death or life imprisonment.
Your decision in the fourth step of your deliberations should be based on the considerations you have previously made during the first three steps of your deliberations as outlined in these instructions. Before imposing a death sentence, you must unanimously be convinced that death is the appropriate penalty for the individual defendant being considered. This consideration involves a process in which you must apply your reasoned judgment in deciding whether the situation calls for life imprisonment or requires the imposition of the death penalty, in light of the totality of the circumstances present. If you are not all convinced that death is the appropriate penalty, the sentence must be life imprisonment.
Regardless of the findings you have made in steps one, two and three, you do not have to return a verdict of death. There is never a requirement that you must impose a death sentence in any situation.
Your deliberations in this final step can lead to one of the three following results:
1.If all jurors unanimously agree that the death penalty is the appropriate penalty, you may return a verdict imposing a sentence of death.
2. If all jurors unanimously agree that life in prison is the appropriate penalty, you may return a verdict imposing a sentence of life in prison.
3. If all jurors cannot agree on the appropriate penalty, the foreperson of the jury shall so report to the court, and the court must impose a sentence of life imprisonment.

Although the defendant in Davis did not specifically argue that the trial court erred by instructing the jury as to the fourth step, he raised arguments concerning step three and the failure to include the appropriate burden of persuasion in places where the jury was given detailed instructions as to step three. Davis, 794 P.2d at 224 (Lohr, J., dissenting). The majority in Davis rejected this argument in adopting the totality of the circumstances and considering all of the penalty phase instructions together.3 The majority in O’Neill adopts the argument rejected in Davis as to step three and applies it to step four in that the jury should be specifically instructed on the burden of persuasion in step four since it is separate and distinct from step three. Maj. op. at 178. (The O’Neill step three sets forth in Instruction 6 that aggravating factors should outweigh mitigating factors beyond a reasonable doubt.)

In light of our decision in Davis not to require the burden of persuasion to be specifically set forth in the detailed instruction, I am not persuaded that Tenneson is dispositive of this case. Much of this court’s reasoning in Tenneson in deciding to apply the standard of “beyond a reasonable doubt” to the statute came about because of this court’s concern “that under Colorado’s statutory scheme the jury would proceed to the fourth step in the unlikely *184event that the jury were convinced beyond a reasonable doubt that any mitigating factors and the proven statutory aggravating factors were exactly in balance.” Tenneson, 788 P.2d at 796. The concerns present in Tenneson are not present in this case. The majority argues that the jury was free to chose any burden it desired in determining the appropriate sentence. I disagree. The jury was required to follow a four-step process as provided by the Colorado statute. Instruction 15 required the jury to apply its “reasoned judgment” to the “totality of the circumstances” and to consider all the instructions together before deciding whether death is appropriate. I believe that this instruction clearly conveyed to the jury the appropriate burden it was to apply and which was required by statute. The jury was not free to apply any burden it chose, as the majority argues. The instructions fully informed the jury of its responsibility before returning its verdict.

I dissent.

I am authorized to say that Chief Justice ROVIRA joins in this concurrence and dissent.

. Section 16-11-103, 8A C.R.S. (1986), was amended in 1989 to eliminate the fourth step in the sentencing procedure. This amendment was not in effect at the time of the murder in this case.

. Although item 2 does not comply with the third step of the statute and People v. Tenneson, 788 P.2d 786 (Colo.1990), the benefit would inure to the defendant. Tenneson had not been decided at the time of this trial.

. Davis instruction no. 2 outlined an overview of the four-step process, and provided in relevant part:

Your deliberations must take place in a certain order and within certain legal guidelines. Colorado law allows the death penalty only if the prosecution, in addition to proving Murder In The First Degree, also proves beyond a reasonable doubt that:
1. One or more of the specified aggravating factors exist beyond a reasonable doubt; and
2. No mitigating factor or factors outweigh the aggravating factor or factors found to exist beyond a reasonable doubt; and
3. Death is the appropriate punishment in this case.

Davis instruction no. 7 is the detailed instruction to step four.