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holding that defendant did not need to know that child was in vehicle to be convicted of reckless child abuse when defendant's car struck that vehicle
Summary of this case from Hastings v. PeopleOpinion
No. 95SC360
October 15, 1996 Petition for Rehearing DENIED November 12, 1996
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Gale A. Norton, Attorney General Stephen K. ErkenBrack, Chief Deputy Attorney General Timothy M. Tymkovich, Solicitor General John Daniel Dailey, Deputy Attorney General Robert M. Russel, First Assistant Attorney general Wendy J. Ritz, Assistant Attorney General, Criminal Enforcement Section, Paul E. Koehler, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.
David F. Vela, Colorado State Public Defender C. Keith Pope, Deputy State Public Defender Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.
We granted certiorari to review certain questions regarding the court of appeals' decision reversing the convictions of Gerald Deskins (Deskins) for three counts of vehicular homicide, three counts of child abuse resulting in death, two counts of vehicular assault, one count of driving under the influence, one count of child abuse resulting in injury, and six habitual offender counts. People v. Deskins, 904 P.2d 1358 (Colo.App. 1995). Deskins was sentenced to five consecutive terms of life imprisonment. He also was sentenced to four additional terms of life imprisonment and one year in the county jail. The latter sentences were to be served concurrently with the other sentences. The issues before us are:
§ 18-3-106, 8B C.R.S. (1996 Supp.).
§ 18-6-401(7)(a)(I), 8B C.R.S. (1986).
§ 18-3-205, 8B C.R.S. (1996 Supp.).
§ 42-4-1202, 17 C.R.S. (1996 Supp.).
§ 18-6-401(7)(a)(III), 8B C.R.S. (1986).
§ 16-13-101, 8A C.R.S. (1986).
1. Whether the defendant, who faced both substantive charges and habitual criminal charges, was adequately advised of his right to testify.
2. Whether the court of appeals erred in holding that reckless child abuse does not require an awareness by the accused that his conduct could result in injury to a child rather than an adult.
Because we find dispositive our recent decision in People v. Gray, 920 P.2d 787 (Colo. 1996), we reverse the court of appeals' holding on the first issue that the Curtis advisement given in this case constituted reversible error. See People v. Curtis, 681 P.2d 504 (Colo. 1984).
On the second issue, we agree with the court of appeals that the defendant was properly convicted of the child abuse charges. Thus, we affirm in part and reverse in part.
I
In August, 1992, Deskins, while driving under the influence of alcohol, collided with another car occupied by a woman and four children. As a result of the collision, three of the children were killed and the woman and one child sustained serious injuries.
At trial, out of the presence of the jury, the trial court gave Deskins the following advisement with respect to his right to testify:
Sir, you are advised that you have both the right to remain silent and the right to testify. That decision is your decision certainly to be made with the advice and assistance of your attorney and whoever else you may have conferred with, but the decision is yours.
If you decide not to testify before the jury and exercise your right to remain silent, you are entitled to an instruction to the jury that they are to draw no inference of guilt from the fact that you did not testify.
If you decide to testify anything you do say to the jury can be used for you and against you, and you would be subject to cross-examination and impeachment.
And in this case we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.
In its opinion, the court of appeals noted that the trial court did not specifically advise Deskins that his prior felony convictions were admissible only for the limited purpose of credibility. Deskins, 904 P.2d at 1360. The court of appeals concluded that the advisement was therefore inadequate. Id.
In its ruling, the court of appeals relied on its earlier decision in People v. Gray, 899 P.2d 290 (Colo.App. 1994). Deskins, 904 P.2d at 1360. We reversed Gray and rejected its analysis of the Curtis advisement issue in People v. Gray, 920 P.2d 787 (Colo. 1996). Our Gray decision held that the advisement given in that case was sufficient to establish that the defendant's waiver of his right to testify was voluntary, knowing, and intelligent. Gray, 920 P.2d at 790.
The trial court's duty to make an on-the-record advisement of the defendant's right to testify was established in People v. Curtis, 681 P.2d 504 (Colo. 1984). We held that in order to ensure that a waiver was given voluntarily, knowingly, and intentionally, the trial court should advise the defendant outside the presence of the jury
that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.
Id. at 514 (emphasis added). The critical part of the Curtis advisement for both Gray and the case now before us is the underscored language above. In Gray, we were divided on the question of whether an advisement must inform the defendant that prior felony convictions could be used only for the purpose of impeaching the defendant's credibility or words to that effect. See Gray, 920 P.2d at 795-97 (Lohr, J., concurring and dissenting). The majority, while acknowledging that it would be better practice to use such qualifying language in the advisement, held that the advisement given was adequate because it informed the defendant that his prior felonies could be raised by the prosecution to impeach his credibility. Gray, 920 P.2d at 791.
The advisement given in the present case cannot be distinguished from the advisement given in Gray. Both advisements informed the defendant that prior felony convictions could be used by the prosecution to impeach him on cross-examination. In Gray, the trial court advised, "`If you do testify you should note that the District Attorney will be able to cross-examine you about the facts of this particular case.'" Gray, 920 P.2d at 789. Similarly, in this case, Deskins was advised, "If you decide to testify anything you do say to the jury can be used for you and against you, and you would be subject to cross-examination and impeachment." Both advisements also informed the defendant of the use of those felony convictions for credibility purposes. In Gray, the trial court advised,
I understand from my review of the file that there is some issue as to whether or not you have been convicted of six prior felonies, at least that's the allegation with respect to the other part of this case. As a result of that, I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies. The six prior felonies would be admissible with respect to credibility. The District Attorney can in fact talk about them.
Gray, 920 P.2d at 789 (emphasis in original). Similarly, in this case, Deskins was advised as follows:
And in this case we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.
Deskins argues that the portion of the advisement quoted above is confusing and did not clearly inform him that he, Deskins, was entitled to an instruction on credibility. Fairly read, however, the underscored language shows that the trial court intended to refer to "you," i.e. the defendant. We also note that there was no objection or request for clarification when the advisement was given.
(emphasis added). Therefore, in light of our decision in Gray, we hold that the advisement given in this case with respect to prior felonies was adequate to assure that Deskins knowingly, voluntarily, and intentionally waived his right to testify.
II
The second issue on which we granted certiorari concerns whether the defendant can be convicted of reckless child abuse when there was no evidence that he knew that his conduct could result in injury to a child rather than to an adult. The defendant contends that at the time of the accident he was not aware that there were children in the car that his vehicle struck. He argues that without such an awareness, he should not be held liable for child abuse.
The specific statute in question states that a person is guilty of child abuse if he or she "causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation which poses a threat of injury to the child's life or health . . . ." § 18-6-401(1), 8B C.R.S. (1996 Supp.). A child is defined as a person under sixteen years of age. § 18-6-401(2), 8B C.R.S. (1986). The statute also states that where death or serious bodily injury results, the following shall apply:
(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony.
. . . .
(III) When a person acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony.
According to the statutory definition,
[a] person acts "knowingly" . . . with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly," . . . with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result. § 18-1-501(6), 8B C.R.S. (1986).
The statutory definition of recklessly states that a person acts recklessly "when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists." § 18-1-501(8), 8B C.R.S. (1986).
§§ 18-6-401(7)(a)(I) and (III), 8B C.R.S. (1986).
The culpable mental states applicable to a crime of child abuse relate not to a particular result, but rather to the nature of the offender's conduct in relation to the child or to the circumstances under which the act or omission occurred. Lybarger v. People, 807 P.2d 570, 575 (Colo. 1991). A person acts "recklessly" when he or she consciously disregards a substantial and unjustifiable risk that, in light of the child's circumstances, a particular act or omission will place a child in a situation which poses a threat of injury to the child's life or health. Id. Relying on the plain wording of sections 18-6-401(7)(a)(I) and 18-6-401(7)(a)(III), the court of appeals concluded that "if a person acts recklessly and if that conduct . . . injures or kills a child or children, criminal liability attaches." Deskins, 904 P.2d at 1361. We agree.
Deskins contends that the court of appeals' interpretation of section 18-6-401 is in direct conflict with other decisions of this court. Deskins cites People v. Christian, 632 P.2d 1031 (Colo. 1981) and People v. Taggart, 621 P.2d 1375 (Colo. 1981), and argues that the child abuse statute requires an awareness that the reckless conduct may result in injury or death to a child, as opposed to causing an injury or death to any person, whether the person be a child or an adult. These cases distinguished a reckless act under the child abuse statute from a reckless act under the manslaughter and criminally negligent homicide statutes. We held in both cases that for the purpose of equal protection analysis, the reckless act for child abuse entails conduct particularly abusive to children and the legislature could reasonably punish more severely a crime that was so defined. Taggart, 621 P.2d at 1382; Christian, 632 P.2d at 1036. According to Deskins, it necessarily follows that a reckless act for child abuse is no more particularly abusive to children than a reckless act for manslaughter unless the actor is aware that his conduct poses a risk to children as opposed to anyone, adult or child. Therefore, Deskins argues, the statute requires that the jury find that he was aware that children were in the car that his vehicle struck in order for him to be found guilty of reckless child abuse resulting in death or serious bodily injury. We disagree.
We have long recognized that the General Assembly is entitled to provide for more severe penalties for different crimes, so long as the classification of crimes reflects substantial differences in the proscribed conduct which have a reasonable relationship to the public purpose sought to be achieved. Otherwise, the statute may violate the constitutional principle of equal protection. People v. Montoya, 196 Colo. 111, 113, 582 P.2d 673, 675 (1978). Both Taggart and Christian concerned this type of equal protection challenge to the child abuse statute.
In Taggart, the defendant was charged with and convicted of child abuse resulting in serious bodily injury. Taggart, 621 P.2d at 1379. The defendant in Taggart argued that the child abuse statute violated equal protection because it proscribed the same conduct forbidden by the criminally negligent homicide statute but carried a disproportionately greater penalty. Id. at 1381. We rejected this argument and held in Taggart that the child abuse statute and the criminally negligent homicide statute did not proscribe identical conduct. Unlike the general terms of criminally negligent homicide, we pointed out that "the proscriptions of the child abuse statute encompass conduct that is particularly abusive to children, that is directed specifically at a child, and that results in injury to that child." Id. at 1382. In other words, the crimes were distinct for equal protection purposes because the proscriptions of the child abuse statute were directed specifically to children.
The other case cited by the defendant, People v. Christian, 632 P.2d 1031 (Colo. 1981), is very similar. In Christian, the defendant was charged with and convicted of both child abuse and reckless manslaughter. Christian, 632 P.2d at 1033. Again, the defendant argued that application of the child abuse statute violated equal protection because it resulted in a higher penalty for the same conduct. Id. at 1035. For the purposes of equal protection, we held that "there are significant differences between the legislative proscription of specifically defined acts of child abuse resulting in serious injury . . . and the general proscription of reckless conduct resulting in death to anyone, adult or child . . . ." Id. at 1036.
Deskins argues that the equal protection discussions in Taggart and Christian actually require a previously unrecognized or unacknowledged "knowing" or "awareness" mens rea requirement for reckless child abuse. In our view, neither Taggart nor Christian requires that the actor be aware that the specific person injured was a child and not an adult. In these cases, the court was simply concerned with whether the requirements of the statutes satisfied equal protection. We concluded that equal protection was satisfied because, unlike the more general statutes, the child abuse statute required conduct affecting children. Therefore, the holding of the court of appeals in this case is not in conflict with our decisions in Taggart and Christian.
As part of his argument, Deskins contends that the standard for a reckless act requires that the actor be conscious of the risk involved. According to Deskins, a conscious disregard of the risk involved in this case requires the actor's awareness of the presence of children. We agree that the plain language of the statutory definition of recklessness requires that the actor consciously disregard a substantial and unjustifiable risk. § 18-1-501(8), 8B C.R.S. (1986). We also agree that conscious disregard necessitates an awareness of what the risks are. However, the awareness required for reckless child abuse is simply the risk that one's conduct could result in an injury to a child's life or health. § 18-6-401(1), 8B C.R.S. (1996 Supp.). Therefore, the risk in this case was not that children might be in the actual car that Deskins' vehicle hit that night. On the contrary, what Deskins consciously disregarded when he drove while drunk was the risk that children would be passengers in any of the cars on the road that night. In our view, the record was sufficient for the jury to conclude that Deskins disregarded this risk and that the risk was substantial and unjustifiable.
The defendant essentially contends that he should be relieved of criminal liability because he was not "aware" of the age of his victims. A similar argument has been rejected in cases involving abuse of the elderly. In People v. Suazo, 867 P.2d 161 (Colo.App. 1993), the defendant was charged with assault of the elderly. The applicable statute defined the elderly as being over 60 years old. The defendant argued in Suazo that at the time of the assault he was not aware that the victim was over 60 years old and therefore should not be held criminally liable. Suazo, 867 P.2d at 169. The court of appeals held in Suazo that actual knowledge or awareness that his victim was over sixty years of age was not required. Id. at 170. See also People v. Davis, No. 94CA1132, slip op. at 6-7 (Colo.App. July 11, 1996) (applying rationale of Suazo to robbery of an "at-risk-adult"). The court of appeals reasoned that when the victim's age is a part of the offense, "the General Assembly has the prerogative to determine if a reasonable mistake of age shall be a defense to the crime . . . ." Id.
We find the rationale of the Suazo decision equally applicable here. In this case, the language of the statute requires that Deskins disregard a substantial and unjustifiable risk that his conduct may cause death or injury to a child. The legislature has indicated that the victim's age is part of the offense of child abuse by defining a child as a person under sixteen years old. § 18-6-401(2), 8B C.R.S. (1986). As in Suazo, the General Assembly had the prerogative to determine if a mistake of age defense was appropriate and did not do so. Therefore, we hold that the standard for reckless child abuse does not require the actor's awareness that the victim was a child.
III
For these reasons, we affirm in part and we reverse in part the judgment of the court of appeals. We remand the case with directions to the court of appeals to address the appellate issues which it did not reach in its earlier opinion because of its disposition of the Curtis issue.
JUSTICE MULLARKEY delivered the Opinion of the Court.
JUSTICE SCOTT concurs in part and dissents in part.
JUSTICE KIRSHBAUM dissents, and JUSTICE LOHR joins in the dissent.