Opinion
No. 91SA312
Decided June 29, 1992. Rehearing Denied August 24, 1992.
Original Proceeding.
Norman S. Early, Jr., District Attorney, Nathan B. Coats, Chief Deputy District Attorney, for Petitioner.
David F. Vela, Public Defender, David D. Wymore, Chief Deputy Public Defender, Michael J. Heher, Deputy Public Defender, Sun Wolf, Deputy Public Defender, for Kevin Fears.
Holland, Seelen Pagliuca, Jeffrey S. Pagliuca; Pozner, Hutt, Gilman, Kaplan, P.C., David Kaplan, for Roger Young.
Montano Encinas, P.C., Duane Montano; Arthur S. Nieto, for Joseph Young.
Gale A. Norton, for Amicus Curiae Office of the Attorney General.
Bonnie Wright-Benedetti, for Amicus Curiae Colorado District Attorneys' Council.
This original proceeding pursuant to C.A.R. 21 arises as a direct consequence of our holding that the death penalty statute as amended in 1988, section 16-11-103, 8A C.R.S. (1988 Supp.), was facially unconstitutional because it eliminated the fourth step from jury deliberations during the sentencing phase following conviction for a class 1 felony. See People v. Young, 814 P.2d 834 (Colo. 1991). Following the People's notice of intent to seek the death penalty under section 16-11-103, 8A C.R.S. (1986) ("pre-1988 statute"), the trial court ruled that the pre-1988 death penalty statute was not revived by operation of law upon the finding that the 1988 statute was unconstitutional and prohibited the People from seeking the death penalty.
In response to the People's petition for an order directing the district court to show why the People should not be allowed to proceed under the revived pre-1988 statute, we issued a rule to show cause and stayed further proceedings in the district court. For the reasons set forth in our decision announced today in People v. District Court, No. 91SA329 (Colo. June 29, 1992) (hereinafter Thomas), we now discharge that rule.
I
Defendants Joseph L. Young, Roger L. Young, a/k/a Roy Young, and Kevin Fears were charged with first-degree murder in connection with two deaths that occurred in June 1989. After the People notified the defendants and the court of their intent to seek the death penalty, the trial court ruled that the 1988 death penalty statute, section 16-11-103, 8A C.R.S. (1988 Supp.), was facially unconstitutional. The People appealed, and in People v. Young, 814 P.2d 834 (Colo. 1991), exercising our original jurisdiction under C.A.R. 21, we found the 1988 statute facially unconstitutional because it failed to "assure a constitutionally certain and reliable verdict." Id. at 847.
Subsequently, the People filed a motion and notice of their intent to seek the death penalty under the pre-1988 statute, asserting that the 1988 statute never effectively repealed the pre-1988 statute and hence the pre-1988 statute was revived by operation of law at the time of our decision in Young. The defendants opposed the People's motion to proceed under the pre-1988 statute. In August 1991, following a hearing, the court ruled that no valid death penalty existed that was applicable to the defendants at that time. The People then filed an original proceeding with this court requesting an order directed to the district court to show why the People should not be allowed to proceed under the revived pre-1988 statute. We issued a rule to show cause.
The issue before the court was whether the revival doctrine could be invoked to make the pre-1988 statute applicable to the defendants. The effect of House Bill 1038 discussed in Thomas was not considered because it had not been adopted at the time.
II
Today we also announced Thomas, No. 91SA329 (Colo. June 29, 1992), which sets forth in detail the history and statutory changes that have affected the death penalty statute. Because, as in Thomas, the crimes with which the defendants are charged occurred before our decision in Young, our opinion in Thomas is dispositive. In that case, we considered whether the doctrine of revival could be invoked to make applicable the pre-1988 death penalty statute to the defendants and held that it could not. Thomas, slip op. at 14-21. The trial court, therefore, properly determined that the People could not seek the death penalty under the pre-1988 statute. Accordingly, we now discharge the rule.
We note that in this case the defendants argued that the People waived the revival argument at a hearing held prior to the Young decision. Additionally, the defendants argued that the doctrine of judicial estoppel should be invoked to preclude the People from arguing the revival theory. The trial court found that neither waiver nor estoppel applied in this proceeding. However, because of our decision in Thomas that the pre-1988 statute was not revived by operation of law, we need not address these arguments here.
JUSTICE KIRSHBAUM and JUSTICE VOLLACK dissent.