People v. Davis

JUSTICE MULLARKEY delivered the Opinion of the Court.

[278] CHIEF JUSTICE QUINN dissenting.

[279] The shocking and repulsive killing of Virginia May creates an instinctive demand for ultimate retribution. Our system of law, however, does not permit justice to be rationed in inverse proportion to the depravity of the crime. Indeed, it is precisely because of the distinctive urge to exact ultimate retribution that there devolves upon this court a correspondingly greater duty to assure itself that the means employed by the state in imposing the death sentence comport with constitutional norms calculated to insure fundamental fairness in a capital sentencing hearing.

[280] A death sentence is qualitatively different from any other sentence. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."Woodson v. North Carolina,428 U.S. 280,305(1976) (plurality opinion). This requirement of reliability, which is grounded in constitutional doctrine, mandates a "careful scrutiny in the review of any colorable claim of error."Zant v. Stephens,462 U.S. 862,885(1983). Procedures that might pass constitutional muster inPage 214other criminal proceedings, or might satisfy even the harmless error standard on review, well may be inadequate when the state imposes the ultimate sanction of death.

[281] An appellate court reviewing a death sentence has the nondelegable responsibility of assuring itself that the decision whether a person deserves to live or die is not made on scales that are tipped in favor of death but rather is based on procedures that minimize the risk of arbitrary and capricious action and enhance the certainty and reliability of the sentencer's decision. The record in this case demonstrates a combination of errors which in the aggregate create an unacceptable risk that the jury's death sentence was imposed in violation of proper constitutional norms. These errors encompass such fundamental components of our legal process as the impermissible disqualification of prospective jurors from the jury panel, several faulty jury instructions that irreparably undermined the reliability of the death verdict, and an unconstitutionally vague aggravating factor submitted to the jury for its consideration in weighing aggravating factors against mitigating factors. Instead of coming to grips with the cumulative effect of these errors on the essential fairness of a capital sentencing hearing, the court employs a cramped analysis of an array of substantive and procedural deficiencies and reduces basic constitutional principles to ineffectual formalities. I accordingly dissent. [282] A review of the record shows that the trial court improperly excused two jurors from the jury panel because of their views on capital punishment. Although I cannot say that the improper exclusion of these prospective jurors programmed the ultimately selected jury to return a death sentence, I am satisfied that the trial court exceeded the bounds of permissible constitutional discretion in excusing these jurors for cause. [283] A sentence of death cannot be carried out if the jury that imposed the sentence was chosen by excluding prospective jurors for cause simply because they voiced general objections to the death penalty or expressed some degree of conscientious reluctance to impose it.Maxwell v. Bishop,398 U.S. 262(1970) (per curiam). The prohibition against improperly excusing a juror for cause in a capital sentencing proceeding is grounded in the Sixth Amendment right to a fair trial.Wainwright v. Witt,469 U.S. 412(1985). The standard for determining whether a prospective juror should be excused for cause because of the juror's views on capital punishment is whether those views would prevent or substantially impair the juror in performing his or her duties in accordance with the instructions on the law and the juror's oath.Id.at 420;Adams v. Texas,448 U.S. 38,45(1980). A prospective juror's preconceived belief as to the propriety of capital punishment does not alone provide a sufficient basis to disqualify the juror for cause. Rather, the controlling standard is whether the juror is unable to set aside his or her beliefs and render a verdict based upon the evidence adduced at trial and the court's instructions on the law.People v. Drake,748 P.2d 1237,1243-44(Colo. 1988). The purpose of jury selection, in short, is to empanel jurors who will impartially determine the facts and conscientiously apply the law to those facts, and not to seek jurors who are predisposed to return a verdict of death. [284] The first juror improperly excused for cause was Thelma Wolfe. The trial court excused Ms. Wolfe because, in the court's view, she manifested some uncertainty as to whether she could or could not make a decision to impose the death penalty in this case.⁵²Wolfe initially stated that she didPage 215not approve of the death penalty and probably would not vote for it, but later acknowledged that if sworn as a juror she would be able to set aside her personal views on capital punishment. The following colloquy reflects her ability to do so:

[285] "Q (By defense counsel): On the jury under oath, even though I know you don't like the death penalty, and you don't believe in the death penalty, if you were under oath and you knew the law in Colorado was that you had to consider the death penalty, and if it were appropriate to return a death verdict, would you follow that oath?

[286] "A: I would have to, I suppose.

[287] "Q: You wouldn't like it?

[288] "A: No, I certainly wouldn't.

[289] "Q: But you would do it?

[290] "A: I would have to, yes, if I took the oath."

[291] The interrogation of Wolfe clearly shows that she voiced general objections to the death penalty and had some reluctance to consider it but that nonetheless she would be able to abide by her oath as a juror and to render a verdict in accordance with the law and the evidence. [292] The other juror improperly excused for cause was Michael Bradbury. He initially stated that he had some problems with the death penalty, but he never suggested that he would be unable to vote for it under any and all circumstances, as the majority seems to suggest. On the contrary, this prospective juror acknowledged that he could impartially determine whether the district attorney had proven beyond a reasonable doubt the presence of aggravating factors, could decide whether mitigating factors existed, and could follow his oath in determining whether certain facts existed that might render the death penalty appropriate. When questioned on whether he could vote for the death penalty, Bradbury at one point responded that it would depend on the circumstances. When questioned again, he responded that he didn't know, and at one point responded that he could not vote for the death penalty. When the prosecutor challenged Bradbury for cause, the trial court posed this additional question:

[293] "Q: Well, Mr. Bradbury, you have gone down this line where you have found the aggravating factors, they outweigh the mitigating factors; that means that under the law that you would have to find the death penalty. Are you saying that under those circumstances, that even though logically that would be the conclusion, that you would not follow it?"

[294] Mr. Bradbury's response indicated that, based on the circumstances posed by the court, he would be unable to vote for the death penalty. However, the question asked by the court, as the majority concedes, contained an inaccurate statement of the law. It is not correct that under Colorado law a finding that aggravating factors outweigh mitigating factors mandates a death sentence. Rather, it is incumbent upon a juror, after being convinced beyond a reasonable doubt that mitigating factors do not outweigh proven aggravating factors, to further determine whether death is the appropriate sentence in the particular case under consideration.People v. Tenneson,788 P.2d 786(Colo. 1990).

[295] Notwithstanding the inaccurate statement of the law contained in the trial court's question, the majority nonetheless concludes that the question was appropriate for determining whether the prospective juror was "inalterably opposed to capital punishment." Maj. op. at 104. Bradbury's answer, which caused the trial court to excuse him for cause, indicated only that he would not vote for the death penalty based solely on a simple weighing of mitigators and aggravators. Bradbury's voir dire examination, considered in its totality, indicates that he viewed his task with the utmost seriousness and gravity and that he could consider the death penalty but most likely would not vote for it. In the absencePage 216of a more convincing demonstration than that present here of Bradbury's categorical opposition to capital punishment and his inability to consider the death penalty as a possible penalty in any case whatever, I would hold that, considering the voir dire examination of this juror in its entirety, the trial court's disqualification of Bradbury was premature. Although Bradbury expressed some objection to the death penalty and a reluctance to impose it, I do not view his total examination as demonstrating such an irrevocable opposition to capital punishment as would have prevented or substantially impaired him from performing his duty as a juror and from returning a verdict according to the law and the evidence and in a manner consistent with his oath as a juror.

[296] In my view, therefore, the trial court's rulings in excluding for cause Ms. Wolfe and Mr. Bradbury violated the defendant's right to a fair and impartial jury on the issue of life or death, with the result that the death sentence imposed by the empaneled jury did not comport with constitutional norms.Maxwell,398 U.S. 262. [297] The trial court gave several jury instructions that, when considered in the context of other deficiencies in the sentencing phase of the trial, substantially detracted from the constitutionally required reliability and certainty essential to a valid death verdict. [298] InMills v. Maryland,486 U.S. 367(1988), the United States Supreme Court vacated a death sentence because the jury instructions and the verdict form reasonably could have been understood by the jury to preclude consideration of any mitigating evidence unless all twelve jurors agreed on the existence of a particular mitigating circumstance. After noting that the critical question is not what the Maryland Court of Appeals declared "the meaning of the jury charge to be, but rather what a reasonable juror could have understood the charge as meaning,"id.at 376 (quotingFrancisv. Franklin,471 U.S. 307,315-16(1985)), the Court stated:

[299] "With respect to findings of guilt on criminal charges, the Court consistently has followed the rule that the jury's verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict.See, e.g., Yates v. United States,354 U.S. 298,312,77 S.Ct. 1064,1073,1 L.Ed.2d 1356(1957);Strombergv. California,283 U.S. 359,367-368,51 S.Ct. 532,535,75 L.Ed. 1117(1931). In reviewing death sentences, the Court has demanded even greater certainty that the jury's conclusions rested on proper grounds.See,e.g., Lockett v. Ohio,438 U.S. at 605,98 S.Ct. at 2965("[T]he risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty . . . is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments");Andres v. UnitedStates,333 U.S. 740,752(1948) ("That reasonable men might derive a meaning from the instructions given other than the proper meaning of § 567 [federal statute authorizing jury to qualify guilty verdict by adding thereto "without capital punishment"] is probable. In death cases doubts such as those presented here should be resolved in favor of the accused"); accord,Zant v. Stephens,462 U.S. 862,884-885(1983). Unless we can rule out the substantial possibility that the jury may have rested its verdict on the "improper" ground, we must remand for resentencing. [300] "We conclude that there is a substantial probability that

[301] reasonable jurors, upon receiving the judge's instructions in

[302] this case, and in attempting to complete the verdict form as

[303] instructed, well may havePage 217

thought they were precluded from

[304] considering any mitigating evidence unless all 12 jurors agreed

[305] on the existence of a particular such circumstance. Under our

[306] cases, the sentencer must be permitted to consider all mitigating

[307] evidence. The possibility that a single juror could block such

[308] consideration, and consequently require the jury to impose the

[309] death penalty, is one we dare not risk."

[310] 486 at 376-77, 384 (footnotes omitted);accord, McKoy v. NorthCarolina, 58 U.S.L.W. 4311 (U.S. Mar. 5, 1990).

[311] Here, the trial court instructed the jury, in pertinent part, that "if . . .you have made unanimous findingsthat the prosecution has proven beyond a reasonable doubt that one or more aggravating factors exist and that no mitigating factors exist, orthat a mitigating factor or factorsexists, you must now decide whether the prosecution has proven that any factors in aggravation outweigh any factors in mitigation." (Emphasis added). The majority rejects the defendant's argument that this instruction (Instruction No. 5) reasonably could have been interpreted by the jury as requiring unanimity on a mitigating factor because, according to the majority, the instruction further informed the jury that if "one or more of the jurors believe that a mitigating factor or factors outweigh the aggravating factor or factors found to exist, then the jury should enter a verdict of life imprisonment." Maj. op. at 70-71. Although this latter portion of the instruction could be interpreted as negating any requirement of unanimity on a mitigating factor, the instruction can also reasonably be read as internally inconsistent or, more importantly, as negating the unanimity requirement only as to the "outweighing" requirement but not as to the existence of a particular mitigating factor. If read in either way, the requirement of reliability essential to a valid death verdict would be irreparably impaired because reasonable jurors well might have believed that they were precluded from considering any mitigating factor unless all twelve jurors agreed on the existence of the particular mitigating factor. In light of the high requirement of reliability for the determination that death is the appropriate penalty in a particular case, a doubt such as that present here must be resolved in favor of the accused.E.g., McKoy, 58 U.S.L.W. 4311;Mills,486 U.S. 367. [312] The high standard of reliability and certainty applicable to a capital sentencing hearing also mandates that the jury not be led to believe that the responsibility for determining the ultimate appropriateness of a death sentence rests elsewhere. InCaldwell v.Mississippi,472 U.S. 320(1985), the United States Supreme Court vacated a death sentence because the prosecutor's summation led the jury to believe that responsibility for determining the appropriateness of the death sentence rested not with the jury but with an appellate court which would later review the case. The Court stated:

[313] "This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its "truly awesome responsibility." In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated."

[314]Id.at 341.

[315] It is of no significance that a particular infirmity in the constitutional requirement of reliability originates in a jury instruction rather than, as inCaldwell, in a prosecutor's summation.See Mills,486 U.S. at 376. What is significant is that an instruction that leaves the jury in a state of uncertainty or confusion about the effect of their verdict on the ultimate question of life imprisonment or death is incompatible with the reliability required for a valid death sentence.E.g., Drake,Page 218748 P.2d 1237(death sentence reversed where jury instructions did not clearly and unambiguously apprise jury of their role "as the sole arbiter of whether a sentence of death should be imposed upon the defendant");People v. Durre,690 P.2d 165(Colo. 1984) (death sentence reversed where jury verdict manifested some uncertainty as to whether all jurors had unanimously agreed to death sentence and where instructions on aggravating and mitigating circumstances did not adequately inform jury of effect of verdict on ultimate question of life imprisonment or death).

[316] In this case, the trial court submitted an instruction which stated that "for purposes of sentencing" the crimes of murder in the first degree after deliberation and felony murder merge, that "the defendant would receive a life sentence on these counts," and that "[t]he decision whether to impose concurrent or consecutive life sentences is upon the court." The majority holds that the obvious effect of this instruction (Instruction No. 10) was to inform the jurors that "they should assume, as a starting point, that the least severe penalty the defendant was to receive was two life sentences." Maj. op. at 74. From that unsupported premise the majority concludes that the instruction "could not possibly have detracted from the clear understanding of the jury that despite those life sentences, if the jury ultimately determined that death was the appropriate sanction, then the defendant would be put to death."Id.at 74-75. The majority's conclusion flies in the face of the unambiguous language of the instruction itself. By its plain terms, the instruction created the potential for jury confusion on whether the jury verdicts were advisory only or indeed were final and binding decisions on the ultimate issue of life imprisonment or death.⁵³ [317] The above errors were compounded, in my view, by the court's instruction on the "reasonable doubt" standard of proof applicable to the jury's weighing of mitigating factors against any proven aggravating factors. The jury was instructed that the prosecution must prove beyond a reasonable doubt that "[n]o mitigating factor or factors outweigh the aggravating factor or factors found to exist beyond a reasonable doubt." Although this instruction (Instruction No. 2) was consistent with this court's recent decision inPeople v. Tenneson,788 P.2d 786, I continue to adhere to my dissenting view inTennesonthat the formulation of the "proof beyond a reasonable doubt" standard in terms of mitigating factors not outweighing aggravating factors vitiates the reliability essential to a capital sentencing hearing.⁵⁴

[318] Such formulation permits the jury to consider the imposition of a death sentence notwithstanding the fact that the jury finds that the mitigating factors are evenly balanced with any proven aggravating factors. A death sentence predicated on a state of evidentiary equipoise of mitigation and aggravation "is irreconcilable with the heightened reliability and concomitant certainty required for a constitutionally valid death verdict."Tenneson,788 P.2d at 805(Quinn, C.J., dissenting). The Supreme Court of New Jersey cogently and succinctly articulated the fundamental flaw in the instruction under consideration here:Page 219

[319] "We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of "beyond a reasonable doubt," and therefore appropriately applicable to factfinding, the weighing process really is not factfinding at all but a judgmental determination by the jury, based on conflicting values, of whether the defendant should live or die.See Barclay v. Florida,463 U.S. 939,950,103 S.Ct. 3418,3425,77 L.Ed.2d 1134,1144(1983) (plurality opinion) ("It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing."). If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here. We therefore hold that as a matter of fundamental fairness the jury must find that aggravating factors outweigh mitigating factors, and this balance must be found beyond a reasonable doubt."

[320]State v. Biegenwald,106 N.J. 13,524 A.2d 130,156(1987).

[321] Furthermore, the trial court's formulation of the reasonable doubt standard in terms of mitigating factors not outweighing aggravating factors has the practical effect of creating "a burden-shifting presumption of death eligibility upon the state's proof of an aggravating factor beyond a reasonable doubt."Tenneson,788 P.2d at 806(Quinn, C. J., dissenting). "Presumptions which have the effect of shifting the burden of persuasion to an accused have been struck down as violative of due process of law under both the United States and Colorado constitutions."Id.;see, e.g., Francis v. Franklin,471 U.S. 307(1985);Sandstrom v. Montana,442 U.S. 510(1979);Jolly v. People,742 P.2d 891(Colo. 1987). I cannot reconcile such a presumption with the constitutional prohibition against cruel and unusual punishment under federal and state constitutional doctrine or, for that matter, with the most rudimentary requirements of due process of law.See Adamson v.Ricketts,865 F.2d 1011(9th Cir. 1988) (Arizona statutory scheme requiring imposition of death sentence when one or more aggravating circumstances exist and "there are no mitigating circumstances sufficiently substantial to call for leniency" violates Eight Amendment by creating a presumption of death and unduly limiting consideration of mitigating factors);Jackson v. Dugger,837 F.2d 1469(11th Cir. 1988) (finding unconstitutional a jury instruction which stated that death should be presumed as the appropriate penalty unless mitigating circumstances outweigh proven aggravating circumstances)cert. denied,486 U.S. 1026(1988). [322] Rather than construing and applying Colorado's death penalty scheme in a narrow fashion, the trial court erroneously expanded an aggravating factor beyond its intended scope and erroneously permitted the jury to consider a single aggravating factor twice in the weighing process. [323] To be consistent with Eighth Amendment jurisprudence, a capital sentencing scheme "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sanction on the defendant compared to others found guilty of murder."Stephens,462 U.S. at 877;see Tenneson,788 P.2d at 790. Indeed, the very reason for codifying into law a list of aggravating circumstances is to satisfy this constitutional requirement by narrowing the class of persons eligible for the death penalty according to an objective legislative definition.Lowenfield v. Phelps,484 U.S. 231,244(1988).

[324] Because the defendant at the time he kidnapped and murdered the victim was on parole for first degree sexual assault, a class three felony, §18-3-402, 8B C.R.S. (1986), the trial court instructed the jury on the aggravating factor listed in subsection16-11-103(6)(a), 8A C.R.S. (1986) — that is, "[t]he class 1 felony was committed by a person under sentence of imprisonment forPage 220a class 1, 2, or 3 felony as defined by Colorado law." The trial court further instructed the jury that a "person on felony parole is by law deemed to be still under sentence of imprisonment for the felony that caused him originally to be sentenced." The majority concludes that principles of statutory construction support the trial court's submission of this statutory aggravating factor to the jury. Maj. op. at 35-39. In my view, the majority construes this provision not only in derogation of the constitutional requirement of narrowing the class of persons eligible for the death sentence but also in a manner contrary to basic rules of statutory construction.

[325] I acknowledge that the phrase "under sentence of imprisonment" in section16-11-103(6)(a) is perhaps unclear and thus susceptible to more than one meaning. Under such circumstances, it is appropriate to look to legislative history in an effort to effectuate legislative intent. In looking to the legislative history, the majority concedes that the term "under sentence of imprisonment" was intended to "cover persons who are in prison at the time they commit the class 1 felony." Maj. op. at 36. The majority, however, does not end its inquiry here. Instead, the majority, asserting that this may not have been the sole purpose of the statutory aggravator, hypothesizes that another purpose was to provide a deterrent effect to persons on parole who, as a class, "pose a greater threat of criminal activity to law enforcement authorities than ordinary citizens." Maj. op. at 39 (quotingPeople v. Anderson,189 Colo. 34,37,536 P.2d 302,304(1975)). This unsupported assumption, however, is without foundation in either the text or legislative history of the statutory aggravator under consideration and actually results in broadening the class of death eligible persons.

[326] It is inconceivable to me that the General Assembly intended the term "under sentence of imprisonment" to include persons on parole but was somehow at a loss to express its intent. As an ostensible rationale for its construction of "under sentence of imprisonment," the majority relies on the 1988 amendment to section16-11-103(6)(a), which broadens the statutory aggravator to include the following: "The class 1 felony was committed by a person under sentence of imprisonmentincluding the periodof parole, or on probation, for a class 1, 2, or 3 felony as defined by Colorado law." Ch. 114, sec. 1, §16-11-103(6)(a), 1988 Colo. Sess. Laws 673, 674. (Emphasis added). The significance of the 1988 amendment lies in the fact that it quite clearly demonstrates that the General Assembly intended to change the preexisting law by broadening its scope to include the period of parole or probation.See Charnes v. Lobato,743 P.2d 27,30(Colo. 1987);People v. Hale,654 P.2d 849,851-52(Colo. 1982).

[327] At the very least, the statutory term "under sentence of imprisonment" is ambiguous. Under such circumstances, the rule of lenity requires that the statute be strictly construed in favor of the accused.Bell v. United States,349 U.S. 81,83(1955);Tenneson,788 P.2d at 795;S.G.W. v. People,752 P.2d 86,88(Colo. 1988);People v. Russo,713 P.2d 356,364(Colo. 1986);Chavez v. People,659 P.2d 1381,1384(Colo. 1983);People v. Lowe,660 P.2d 1261,1267-68(Colo. 1983);Peoplev. Cornelison,192 Colo. 337,559 P.2d 1102(1977). The majority ignores the rule of lenity and adopts a construction inconsistent with the constitutionally mandated "narrowing" requirement applicable to capital sentencing statutory schemes. [328] To permit the jury to consider and weigh the same aggravating circumstance twice during the course of a capital sentencing results in artificially inflating the particular circumstances of the crime and strays from the constitutional mandate that a state "tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty."People v. Harris,679 P.2d 433,449(Cal. 1984) (quotingGodfreyv. Georgia,446 U.S. 420,428(1980)). ThePage 221"doubling up" effect or the duplicate use of the same aggravating factor for essentially the same purpose runs afoul of the constitutional requirement that a capital sentencing scheme guide and focus the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender in determining whether a death sentence is the appropriate punishment in a particular case.SeeJurek v. Texas,428 U.S. 262,273-74(1976);Cook v. State,369 So.2d 1251,1256(Ala. 1979);Randolph v. State,463 So.2d 186,193(Fla. 1984);Francois v. State,407 So.2d 885,891 (Fla. 1982),cert. denied,458 U.S. 1122(1982);Provence v. State,337 So.2d 783,786(Fla. 1976),cert. denied,431 U.S. 969(1977);State v. Rust,250 N.W.2d 867,874(Neb. 1977);State v. Goodman, 257 So.2d 569, 587 (N.C. 1979).

[329] The trial court in this case submitted to the jury the "kidnapping" statutory aggravator listed in subsection16-11-103(6)(d), 8A C.R.S. (1986) — that the defendant "intentionally killed a person kidnapped or being held as a hostage by him or by anyone associated with him" — and also the felony-murder aggravator codified in section16-11-103(6)(g), 8A C.R.S. (1986) — that the defendant committed "a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, he intentionally caused the death of a person other than one of the participants." Because the "kidnapping-killing" formed the basis of both statutory aggravators, the trial court's submission of both aggravators to the jury impermissibly allowed the jury to weigh and consider the single aggravating circumstance of the "kidnapping-killing" twice for essentially the very same purpose in determining the issue of life or death. The majority, however, concludes that the doubling up of aggravators "is not legally significant" because the jury was instructed that it is the weight assigned to each aggravating factor, rather than the number of aggravating factors, that is to be considered. Maj. op. at 56-57. This analysis does not adequately answer the "doubling up" problem. Permitting the jury to consider two aggravating factors for essentially the same purpose increases the likelihood that the jury will attribute greater weight to the proven aggravating factors in the weighing process and correspondingly reduces the likelihood that the jury will find that no mitigating factors outweigh the proven aggravating factors. The duplicate use of the same aggravator for essentially the same purpose, as the jury was permitted to do in this case, fosters the very type of arbitrary and capricious decision-making that is constitutionally prohibited in a capital sentencing proceeding.⁵⁵ [330] Of the many errors in the case, perhaps the most predominant is the trial court's submission to the jury of the statutory aggravating factor that "[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner." §16-11-103(6)(j), 8A C.R.S. (1986). Although such statutory aggravator was declared unconstitutionally vague by the United States Supreme Court inMaynard v. Cartwright,486 U.S. 356(1988), the majority, enigmatically in my view, finds no reversible error in this case.Page 222 [331] After noting that the United States Supreme Court inCartwright,486 U.S. 356, held that the statutory aggravator of "especially heinous, atrocious, or cruel" was unconstitutionally vague and thus contrary to the Eighth Amendment's prohibition against standardless and open-ended discretion in the imposition of a death sentence, the majority concludes that the error in submitting this unconstitutionally vague aggravator was harmless beyond a reasonable doubt. Maj. op. at 28-34. The majority reaches this astounding conclusion by engrafting onto the statutory aggravator a so-called narrowing construction derived from the Supreme Court's decision inProffitt v. Florida,428 U.S. 242(1976) (Stewart, Powell, and Stevens, J.J.), which upheld a Florida aggravator of "especially heinous, atrocious, or cruel" on the basis of the Florida Supreme Court's construction limiting the aggravator to murders which are "conscienceless or pitiless" and "unnecessarily torturous to the victim." Maj. op. at 25-26.

[332] TheProffittinterpretative gloss on the meaning of "especially heinous, cruel, or depraved" was never brought to the attention of the jury in this case. Nevertheless, according to the majority, if the trial court had properly limited the unconstitutionally vague terms to include only those murders which were conscienceless or pitiless, and were unnecessarily torturous to the victim, the jury under the facts of this case would have returned a verdict of death. Maj. op. at 33-34. Such a conclusion, reduced to its essentials, is nothing but a facile guess at what the jury would have found under a totally hypothetical set of instructions that realistically could not possibly have been within the contemplation of any juror when this case was decided.

[333] It is important to note that the prosecutor did not make a mere passing reference to the heinous, cruel, and depraved manner in which the murder was committed. Rather, the prosecutor presented the jury with a vivid description of the way in which the killing satisfied each of these three characteristics. I recognize that the United States Supreme Court inClemons v. Mississippi, 58 U.S.L.W. 4395 (U.S. Mar. 28, 1990), held that there is no federal constitutional impediment to an appellate court's affirmance of a death sentence in a "weighing state" where the jury is instructed on an unconstitutional statutory aggravator. However, the Court inClemonsspecially noted that nothing in its decision was intended "to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless error analysis when errors have occurred in a capital sentencing proceeding." 58 U.S.L.W. at 4399. To say that an appellate court is not prohibited from indulging in such a procedure, therefore, is certainly not to affirm that the prudent course for an appellate court is to endorse such a procedure.

[334] In reweighing the facts, this court transforms its traditional function of appellate review of a trial record for error of law into a role of appellate factfinding. Justice Blackmun spoke to the fallacy of such an approach in his dissent inClemons:

[335] "If a jury's verdict rests in part upon a constitutionally impermissible aggravating factor, and the State's appellate court upholds the death sentence based upon its own reweighing of legitimate aggravating and mitigating circumstances, the appellate court, in any real sense, has not approved or affirmed the verdict of the jury. Rather, the reviewing court in that situation has assumed for itself the role of sentencer. The logical implication of the majority's approach is that no trial-level sentencing procedure need be conducted at all. Instead, the record of a capital trial (including a sentencing hearing conducted before a court reporter) might as well be shipped to the appellate court, which then would determine the appropriate sentence in the first instance. [336] "In part, therefore, the impropriety of appellate sentencing

[337] rests on the appellate court's diminished ability to act as a

[338] factfinder. But I think there is more toPage 223it than that. An

[339] appellate court is ill-suited to undertake the task of capital

[340] sentencing, not simply because of its general deficiencies as a

[341] factfinder, or because the costs of erroneous factfinding are so

[342] high, but also because the capital sentencing decision by its

[343] very nature is peculiarly likely to turn on considerations that

[344] cannot adequately be conveyed through the medium of a written

[345] record."

[346]Id.at 4401-02, 4404 (Blackmun, J. dissenting). We have adhered to this salutary principle of not reweighing evidence on appeal merely because we might have reached a conclusion different from that drawn by the jury if we had served as jurors in the case under review.E.g.,Godfrey v. People,168 Colo. 299,451 P.2d 291(1969);Cokley v. People,168 Colo. 52,449 P.2d 824(1969);Neighbors v. People,161 Colo. 587,423 P.2d 838(1967);Balltrip v. People,157 Colo. 108,401 P.2d 259(1965);Mitchell v. People,24 Colo. 532,52 P. 671(1898). Today's decision, unfortunately, abandons this long-standing principle of Colorado jurisprudence. [347] Because mistakes inevitably will occur in the course of a trial, an appellate court is directed to disregard errors not affecting a substantial right of an accused. C.A.R. 35(e). The proper inquiry in determining a harmless-error question is not whether there was sufficient evidence to support the verdict without the asserted error, but rather whether the error substantially influenced the verdict or affected the fairness of the trial proceedings.E.g., Kotteakos v. United States,328 U.S. 750,764-65(1946);People v. Gaffney,769 P.2d 1081,1088(Colo. 1989);Tevlin v. People,715 P.2d 338,342(Colo. 1986);Peoplev. Quintana,665 P.2d 605,612(Colo. 1983). Only if a reviewing court can find with fair assurance, in light of the entire record of the trial, that the error did not substantially influence the verdict or impair the fairness of the trial, may the court deem the error harmless.E.g., Kotteakos,328 U.S. at 764-65;Gaffney,769 P.2d at 1088;Tevlin,715 P.2d at 342;Quintana,665 P.2d at 612. Where, as here, the error is of a constitutional character, a reviewing court must be satisfied that the error is harmless beyond a reasonable doubt before the error properly can be categorized as harmless.E.g., Satterwhite v. Texas,486 U.S. 249(1988);Chapman v. California,386 U.S. 18(1967);Germany v. People,198 Colo. 337,599 P.2d 904(1979).

[348] If the failure of a trial court to instruct a jury on an essential element of a crime constitutes plain error affecting the substantial rights of the defendant,see, e.g., Ramirez v. People,682 P.2d 1181(Colo. 1984);People v. Hardin,199 Colo. 229,607 P.2d 1291(1980);People v. Archuleta,180 Colo. 156,503 P.2d 346(1972), I am at a total loss to understand how the trial court's instruction on an unconstitutionally vague statutory aggravator, especially when viewed in connection with several other errors of record, can be deemed harmless constitutional error. In light of Colorado's statutory scheme requiring the jury to be convinced beyond a reasonable doubt that any mitigating factors do not outweigh a proven statutory aggravating factor, and the further requirement that the jury, after weighing the aggravating and mitigating factors, must agree unanimously and beyond a reasonable doubt that death is the appropriate penalty,see Tenneson,788 P.2d 786, I cannot say with any degree of assurance, much less beyond a reasonable doubt, that the error in submitting the unconstitutionally vague aggravating factor to the jury did not adversely and substantially influence the verdict or impair the basic fairness of the capital sentencing hearing. [349] Numerous irregularities, each one of which in itself might not justify reversal, may in the aggregate so affect the substantial rights of an accused as to require reversal.E.g., People v. Botham,629 P.2d 589(Colo. 1981);People v. Lucero,Page 224200 Colo. 335,615 P.2d 660(1980);People v. Reynolds,194 Colo. 543,575 P.2d 1286(1978);Oaks v. People,150 Colo. 64,371 P.2d 443(1962). The errors in this case include the following: the impermissible disqualification of two jurors whose views on capital punishment would not have prevented or substantially impaired them in the performance of their duty to apply the law to the facts of the case in a conscientious and impartial manner,Wainwright,469 U.S. 412;Maxwell,398 U.S. 262; the submission of a jury instruction that reasonably could have been understood by the jury to preclude consideration of any mitigating evidence unless all twelve jurors agreed to the existence of a particular mitigating circumstance,Mills,486 U.S. 367; the submission of another jury instruction that had the capacity to confuse the jury on whether the ultimate responsibility for determining the appropriateness of the death sentence rested with the court or with the jury,Caldwell,472 U.S. 320; the submission of a third instruction that, at least in my view, formulated the reasonable doubt standard in terms of mitigation not outweighing aggravation in contravention of the basic requirement of reliability for a death verdict mandated by the Cruel and Unusual Punishment Clauses of the United States and Colorado Constitutions, U.S. Const. Amend. VIII; Colo. Const. art. II, § 20, and in contravention of the prohibition against a burden-shifting presumption of death upon the prosecution's proof of an aggravating factor in violation of the Cruel and Unusual Punishment and Due Process Clauses of the United States and Colorado Constitutions, U.S. Const. Amends. VIII and XIV; Colo. Const. art. II, §§ 20 and 25; the erroneous submission of a statutory aggravator by construing and applying it in a manner that broadened rather than genuinely narrowed the class of persons eligible for the death penalty,Stephens,462 U.S. 862; the submission of a single aggravating circumstance under two separate statutory aggravators, with the result that the jury considered and weighed the same aggravating circumstances twice for the same purpose,Harris,679 P.2d 433; and the submission of an unconstitutionally vague aggravating factor to the jury for its consideration on the question of life or death,Cartwright,486 U.S. 356,Godfrey,446 U.S. 420.

[350] Regrettably, these errors did not end with the termination of the capital sentencing hearing. In resolving this case, the majority employs a form of analysis that is irreconcilable with the strict scrutiny required in the judicial review of a death sentence. I find nothing in today's decision that contributes to the law's effort to develop a system of capital punishment that is both consistent and principled, that genuinely narrows the class of persons eligible for the death sentence, and that provides procedures calculated to achieve a high degree of reliability and certainty in the jury's determination that death is the appropriate sentence in a particular case.

[351] It well may be that Gary Lee Davis is deserving of execution in retribution for his crimes. That life-or-death decision, however, should be the result of a fundamentally fair proceeding and not, as here, the product of an irreparably flawed process replete with substantive and procedural infirmities that cannot withstand constitutional scrutiny under a reasonably objective analysis. I would vacate the death sentence in this case.

[352] I am authorized to say that JUSTICE LOHR and JUSTICE KIRSHBAUM join the dissent in part.

[353] JUSTICE LOHR dissenting:

[354] The unique severity and finality of the death penalty require a heightened level of reliability and certainty in capital sentencing.Mills v. Maryland,108 S.Ct. 1860,1870(1988);Lowenfield v. Phelps,484 U.S. 231,238-39(1988);Lockett v. Ohio,438 U.S. 586,604(1978);People v. Tenneson, No. 88SA144, slip op. at 8-9 (Colo. Mar. 12, 1990). InTenneson, we held that Colorado's death sentencing statute should be construed in light of this strong concern for reliability and certainty.Tenneson, slip op. at 10.Page 225

[355] The Colorado death penalty statute, §16-11-103, 8A C.R.S. (1986), establishes a four-step process for jury deliberation in the penalty phase. First, the jury must determine whether the prosecution has proven the existence of at least one statutory aggravating factor beyond a reasonable doubt. §§16-11-103(2)(a)(I), -(6). Second, if the jury finds that at least one statutory aggravating factor exists, the jury must then consider whether any mitigating factors exist. §16-11-103(2)(a)(II), -(5). Third, the jurors must determine whether the prosecution has convinced them beyond a reasonable doubt that any mitigating factors do not outweigh the statutory aggravating factor or factors previously found to exist.Tenneson, slip op. at 19. Fourth, and finally, if the jury finds beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors, the jurors must then decide whether the prosecution has convinced each of them beyond a reasonable doubt that the defendant should be sentenced to death.Id.at 20.

[356] Because I believe that the jury instructions given in the penalty phase of Gary Lee Davis's trial contained numerous errors, affecting the jury deliberations at several stages, I respectfully dissent. I join in parts II(A) and (B), IV, and much of what is said in parts III⁵⁶and V⁵⁷of Chief Justice Quinn's dissenting opinion, but write separately to express my views more fully and to dissent on further grounds. [357] Penalty phase instruction no. 3 presented three erroneous aggravators to the jury: the especially heinous, cruel or depraved aggravator, the under sentence of imprisonment aggravator, and the felony murder aggravator. [358] The trial court submitted to the jury the statutory aggravating factor that "[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner."See§16-11-103(6)(j), 8A C.R.S. (1986). The majority acknowledges that this statutory aggravator is unconstitutionally vague under the United States Supreme Court's holding inMaynard v. Cartwright,486 U.S. 356(1988), but concludes that its erroneous submission to the jury was harmless beyond a reasonable doubt. Maj. op. at 25-34. The majority concludes that the jury would have returned a death sentence if it had been given an especially heinous, cruel or depraved aggravator instruction that incorporated constitutionally-sufficient narrowing definitions of those terms. Maj. op. at 34. I agree with Chief Justice Quinn that such a conclusion is no more than a guess as to what the jury might have decided had it been properly instructed.

[359] Although the United States Supreme Court has held that it is permissible under the federal constitution for a state appellate court to uphold a death sentence in a case such as this by applying a harmless error analysis,Clemons v. Mississippi, 58 U.S.L.W. 4395, 4399 (U.S. Mar. 28, 1990), such an approach is inconsistent with Colorado's statutory scheme. In Colorado, the jury is responsible for weighing aggravators and mitigators. Its decision is not merely advisory as it is in some other states.E.g., Fla. Stat. Ann. §921.141(2) (1985). The Colorado legislature did not contemplate that appellate courts would weigh reformulated aggravating factors against mitigating factors to determine whether a properly instructed jury would have concluded that the death sentence was appropriate. The jury that hears the testimony and views the witnesses is uniquely able to make the difficult moral judgments required in weighing aggravating and mitigating factors and determining whether the death sentence is warranted.

[360] Furthermore, I agree with Chief Justice Quinn that harmless error analysis in thisPage 226case requires a finding beyond a reasonable doubt that the error did not substantially influence the verdict or affect the fairness of the proceedings. I am unable to conclude beyond a reasonable doubt that the jurors were unaffected by the erroneous instruction. [361] Because at the time of the murder Davis was on parole for first degree sexual assault, the trial court instructed the jury on the aggravating factor that "[t]he class 1 felony was committed bya personunder sentence of imprisonmentfor a class 1, 2 or 3 felony as defined by Colorado law."See§16-11-103(6)(a), 8A C.R.S. (1986) (emphasis added). I am unpersuaded by the majority's contention that this aggravator was intended to include persons on parole.

[362] Our interpretation of criminal statutes is guided by several principles. Three are of particular relevance here. First, when a penal code statute is ambiguous, a court should interpret it in light of the principle of lenity, which requires the court to adopt the construction that favors the defendant.People v. Lowe,660 P.2d 1261,1267(Colo. 1983). Second, the court should look to the legislative history in an effort to determine the legislative intent.Civil Rights Comm'n v. NorthWashington Fire Protection Dist.,772 P.2d 70,78(Colo. 1989). I agree with Chief Justice Quinn that the legislative history surrounding section16-11-103(6)(a) demonstrates the legislature's intent to cover persons in prison and that the legislature's subsequent expansion of this aggravator indicates a legislative desire to change the preexisting law. Third, the court should construe the statute in light of its purpose.Olinyk v.People,642 P.2d 490,494(Colo. 1982). Although the majority acknowledges that one of the purposes for this aggravator was to provide an additional deterrent for persons already in prison, the majority contends that this aggravator was also intended to provide further deterrence for persons on parole who, by their previous criminal activity, have demonstrated that they are insufficiently deterred by penal sentences. Maj. op. at 39. The majority is unable to point to support for this contention in the legislative history. Furthermore, this purpose is more properly viewed as the motivating force behind the statutory aggravator of prior felony convictions.See§16-11-103(6)(b).⁵⁸ [363] The trial court submitted both the kidnapping statutory aggravator, §16-11-103(6)(d), and the felony murder aggravator, §16-11-103(6)(g), to the jury. Because the kidnapping conviction is the predicate felony for the felony murder aggravator,⁵⁹the submission of both of these aggravators to the jury amounted to unconstitutional double-counting of a single aspect of the crime. I agree with Chief Justice Quinn that by presenting the same aggravating circumstance to the jury twice, the instructions artificially inflated the importance of that single factor and undermined the constitutional requirement that a capital sentencing law must be tailored and applied to avoid the arbitrary and capricious infliction of the death penalty. The majority argues that because the jury was instructed that the weight of each factor rather than the number of factorsPage 227was important, the double-counting was of no legal significance. This ignores the likelihood that jurors are in fact influenced by the number of aggravators presented as well as the weight they assign to those factors.⁶⁰Courts in several states have found such double-counting to be impermissible despite statutory schemes that theoretically make the number of aggravating factors legally irrelevant.Cook v. State,369 So.2d 1251,1256(Ala. 1979);People v. Harris,679 P.2d 433,449(Cal. 1984);Provence v. State,337 So.2d 783,786(Fla. 1976),cert.denied,431 U.S. 969(1977);State v. Rust,250 N.W.2d 867,874(Neb.),cert. denied,434 U.S. 912(1977);State v. Goodman,257 S.E.2d 569,587(N.C. 1979);State v. Jenkins,473 N.E.2d 264,296-97(Ohio 1984). [364] The federal constitution requires capital sentencing statutes to permit the sentencing body to consider any relevant mitigating circumstances regarding the defendant's character and background, and the circumstances of the offense.Boyde v. California, 58 U.S.L.W. 4301, 4303 (U.S. Mar. 5, 1990);Penry v. Lynaugh,109 S.Ct. 2934,2946(1989). The instructions in this case that were designed to ensure fulfillment of that constitutional requirement were fatally flawed in two respects: they are susceptible of an interpretation that jurors must unanimously agree on the existence of mitigating factors and that the jurors are prohibited from considering the defendant's allocution. [365] I agree with Chief Justice Quinn that there was a constitutionally impermissible risk that the jurors may have thought that they had to agree unanimously upon the existence of mitigating factors before considering them in the weighing required in step three of their deliberations. Such a requirement is constitutionally impermissible.McKoy v. North Carolina, 58 U.S.L.W. 4311, 4314 (U.S. Mar. 5, 1990);Mills v. Maryland,486 U.S. 367,384(1988).

[366] Instruction no. 5 provided in pertinent part:

[367] "Ifin the first two steps of your deliberationsyou have madeunanimous findingsthat the prosecution has proven beyond a reasonable doubt that one or more aggravating factors exist and that no mitigating factors exist, orthat a mitigating factor or factors exist, you must now decide whether the prosecution has proven that any factors in aggravation outweigh any factors in mitigation."

[368] (Emphasis added.)

[369] The majority asserts that the following portion of the same instruction adequately clarifies this ambiguous statement:

[370] "If all, or one or more of the jurors believe that a mitigating factor or factors outweigh the aggravating factor or factors found to exist, then the jury shall enter a verdict of life imprisonment."

[371] I am at a loss to see why this would dispel the impression created by the earlier portion of the instruction that the jury must make unanimous findings as to the existence of mitigating factors. The majority's interpretation would only be plausible if the jury deliberations had been structured as a three-step process in which the jury would first determine if any statutory aggravators existed, then weigh any mitigators against the proven statutory aggravators and finally determine if the death sentence was appropriate. In this case, however, the jury was explicitly instructed to follow a four-step process, which included an additional step requiring the jury to determine whether any mitigating factors existed. In this four-step process, theexistenceof mitigators is determined in step two and theweightassigned to those mitigators found to exist is determined in step three. The portion of the instruction that the majority relies upon governs only the weight assigned to mitigators during stepPage 228three. If a juror has already interpreted the previous portion of the instruction to require a unanimous determination of which mitigating circumstances exist, then that juror would interpret the language relied on by the majority only to allow jurors to make their own determinations regarding the weight of those mitigating factors unanimously agreed upon in step two.

[372] Given the ambiguity of this instruction, and the necessarily high level of reliability required in the penalty phase of a capital trial, I am unable to conclude that no reasonable juror could have interpreted this instruction in a constitutionally impermissible manner to require a unanimous finding that a particular mitigating factor existed before that factor could be taken into consideration in the weighing process. [373] In this case the defendant exercised his right to allocution. The defendant argues that the trial court's instructions may have led the jurors to believe that they were not allowed to consider the allocution in mitigation.

[374] The United States constitution requires that a capital sentencing scheme allow the sentencing body to consider any relevant mitigating circumstances regarding the defendant's character and background and the circumstances of the offense.E.g., Boyde, 58 U.S.L.W. at 4303;Penry,109 S.Ct. at 2946;Skipper v. South Carolina,476 U.S. 1,4(1985). The majority acknowledges that the defendant was constitutionally entitled to have the jury consider his allocution as it might be relevant to mitigation. Maj. op. at 65.

[375] The question in this case is whether the jurors may have interpreted instruction no. 1 to preclude them from considering the defendant's allocution. The standard is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."Boyde, 58 U.S.L.W. at 4304.⁶¹

[376] Instruction no. 1 states in pertinent part:

[377] "During the course of the trial and penalty hearing you received all theevidencethat you may properly consider to decide the case.Yourdecision must be made by applying the rules of law which I give you to theevidence presented.

[378]"It is your duty to determine the facts from the evidence you haveheard during the entire trial including any additional evidence presentedduring the penalty phase hearing.. . .

[379] "When I told you not to consider a particular statement, you were told to put the statement out of your mind, and you may not consider any statement in your deliberations which you were instructed to disregard.The unsworn statement of the defendant is not evidence.

[380] "Finally, you should consider all theevidencein the light of your observations and experiences in life."

[381] (Emphasis added.) In closing argument, as well, the prosecutor told the jury that unsworn statements are not evidence.

[382] The majority simply concludes that there is not a reasonable likelihood that any juror could have applied the instruction to prevent consideration of the defendant's allocution. Maj. op. at 67-68. I disagree. The repeated references to the jury's duty to consider the evidence, combined with the instruction's statement that the defendant's allocution is not evidence, created an unacceptable risk that a juror would have felt prohibited from considering the allocution. [383] I would also hold that the instructions and verdict form in this case do not comply with the requirements we enunciated inPeople v. Tenneson, No. 88SA144 (Colo. Mar. 12, 1990). InTenneson, we held that thePage 229prosecution must convince the jury beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors and that death is the appropriate penalty. The instructions given in the present case are inconsistent and confusing concerning the prosecution's burden in the step three weighing process.

[384] Several of the instructions are relevant. Instruction no. 2 outlined the four-step process required by the Colorado statute. It began with a brief overview of the prosecution's burden:

[385] "Colorado law allows the death penalty only if the prosecution . . . proves beyond a reasonable doubt that:

[386] "1. One or more of the specified aggravating factors exist beyond a reasonable doubt; and

[387] "2. No mitigating factor or factors outweigh the aggravating factor or factors found to exist beyond a reasonable doubt; and

[388] "3. Death is the appropriate punishment in this case."

[389] This statement of the law is consistent withTenneson.This instruction then set forth a series of paragraphs discussing each of the four steps in greater detail. The first paragraph explained that during the first stage of the jury deliberations the jury must find beyond a reasonable doubt that at least one specified aggravator exists. The next paragraph explained that during the second step the jury must consider whether any mitigating factors exist. The paragraph explaining step three of the jury's deliberations stated in pertinent part "[i]f and only if the jury finds that one or more specified aggravating factors outweigh the mitigating factors, the jury then should proceed to the fourth step." The paragraph discussing the fourth step in the jury deliberation instructs the jury that the prosecution must prove beyond a reasonable doubt that death is the appropriate penalty.

[390] The penalty phase instructions included other instructions explaining in greater detail the stages of the jury deliberations. Instruction no. 5 dealt specifically with the third step of the jury deliberations, but did not mention the beyond a reasonable doubt burden. It stated in pertinent part:

[391] "If all jurors unanimously agree that the aggravating factor or factors found to exist outweigh the mitigating factor or factors or that there are not mitigating factors, then you shall continue your deliberations in accordance with these instructions."

[392] Instruction no. 7 provided further clarification of the fourth step in the jury's deliberation. It stated "[i]f 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."

[393] The verdict form also omitted any reference to the beyond a reasonable doubt burden applicable to weighing aggravating and mitigating factors. It stated in pertinent part:

[394] "We, the jury, find that there are insufficient mitigating factors to outweigh the aggravating factor or factors which have been proven by the prosecution beyond a reasonable doubt."

[395] InTenneson, we wrote "[t]he qualitatively unique and irretrievably final nature of the death penalty `makes it unthinkable for jurors to impose the death penalty when they harbor a reasonable doubt as to its justness.'"Tenneson, slip op. at 9-10 (quotingState v. Bey,548 A.2d 887,903(N.J. 1988)). We emphasized the enhanced need for certainty and reliability in death sentencing procedures.Id.at 10;see also People v.Drake,748 P.2d 1237,1254(Colo. 1988);People v. Durre,690 P.2d 165,173(Colo. 1984). Although in the initial overview provided in instruction no. 2 the trial court correctly instructed the jury that they must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors, the instructions failed to include the beyond a reasonable doubt requirement in the three places where the jury was given detailed instruction as to its step three weighingPage 230deliberations. The verdict form also failed to include this requirement. I would hold that those omissions created an unacceptable risk that the jury did not consider the appropriate burden. [396] Given the profoundly serious nature of the death penalty and the heightened reliability we have consistently required in death sentencing procedures, I would hold that each of the errors discussed above sufficiently undermines the fairness and certainty of the death sentence returned in this case to require reversal. I also agree with Chief Justice Quinn that the cumulative effect of these errors further underscores the need for reversal. I would reverse the sentence of death and return the case to the trial court with directions to impose a sentence of life imprisonment.

[397] JUSTICE KIRSHBAUM dissenting.

[398] 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 impermissibly 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.

[399] 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(1988);Godfrey v. Georgia,446 U.S. 420(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 inClemons v. Mississippi,110 S.Ct. 1441(1990), as authority for this startling conclusion.⁶²

[400] 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 thatClemons"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 32. That conclusion is permissible only if this court properly may re-weigh evidence in the manner the Supreme Court described inClemons.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., Peoplein 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 notPage 231find common-law or statutory support for such concept of appellate adjudication in this state.

[401] 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 inProffitt v. Florida,428 U.S. 242(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.

[402] 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 aggravators. When discussing the "especially heinous, cruel and depraved" aggravator, 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.

[403] Relying onZant v. Stephens,462 U.S. 862(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 section16-11-103(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, especially in view of the prosecutor's emphasis of the evidence in relation to that aggravator.

[404] 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.

[405] I am authorized to say that Justice Lohr joins in this dissent.