People v. Chavez

621 P.2d 1362, 1981 Colo. LEXIS 567

• Court: Supreme Court of Colorado
• Decided: January 5, 1981
• Docket: No. 79SA358
• Status: Published

Opinions

DUBOFSKY, Justice.

The defendant, Robert Chavez, appeals his jury conviction for first-degree criminal trespass, section 18-4-502, C.R.S.1973 (now in 1978 Repl.Vol. 8), and conspiracy to commit second-degree burglary, section 18-2-201, C.R.S.1973 (1978 Repl.Vol. 8). The defendant was also charged with second-degree burglary, section 18-4-203, C.R.S.1973 (1978 Repl.Vol. 8), and with four counts of habitual criminality, section 16-13-101, C.R. S.1973 (1978 Repl.Vol. 8). The jury acquitted him on the second-degree burglary charge, and the trial court granted a motion for judgment of acquittal on the habitual criminal charges. We reverse the convictions for first-degree criminal trespass and conspiracy to commit second-degree burglary-

At the close of the prosecution’s case on the substantive charges, the defendant moved to exclude any testimony he might give in defense of the substantive charges from the habitual criminal proceedings. The trial court ruled that impeachment evidence of the defendant’s prior convictions elicited or offered by the prosecution during the trial of the substantive offense could be used for substantive purposes in the habitual criminal trial. On appeal the defendant argues that the trial court’s denial of his motion unconstitutionally burdened his right to take the witness stand in his own defense.¹ We agree.

The defendant chose not to testify and was acquitted of the habitual criminal charges; however, he was convicted, without testifying, of first-degree criminal trespass and conspiracy to commit second-degree burglary. Had he chosen to testify in his own defense on the trespass and burglary charges, he understood that an admission of the prior convictions charged in the habitual criminal counts would, upon conviction of the substantive crime, lead to automatic imposition of a life sentence under the habitual criminal statute.²

It is useful to review the habitual criminal statute, particularly section 16-13-103, C.R.S.1973 (1978 Repl.Vol. 8), to understand the defendant’s constitutional claim.

“(4) If the defendant denies that he has been previously convicted as alleged in [the habitual criminal counts] .... the jury impaneled to try the substantive offense shall determine by separate verdict whether the defendant has been convicted as alleged. The procedure in any case in which the defendant does not become a witness in his own behalf upon the trial of the substantive offense shall be as follows:

(a) The jury shall return a verdict upon the issue of guilt or innocence;

(b) If the verdict is that the defendant is guilty of a felony, then the same jury shall forthwith proceed to try the issues as to whether the defendant has been previously convicted as charged. The prosecuting attorney has the burden of proving beyond a reasonable doubt that the defendant has been convicted as charged.[³]

(5) If upon the trial of the issues upon the substantive offense, the defendant takes the witness stand in his own defense and denies that he has been previously convicted as alleged, the defendant, and the prosecuting attorney on rebuttal, shall present all evidence relevant to the issues of previous convictions, and the jury shall return verdicts on all issues relating to previous convictions if the defendant is found guilty of the substantive offense.” [Emphasis added.]

The statute does not explicitly delineate the procedures to be followed at trial if the defendant takes the witness stand and admits that he has been convicted previously as alleged. However, subsections (1) and (3) appear to obviate the necessity of proving the previous convictions alleged in the habitual criminal counts if the defendant admits them during his testimony on the substantive charges:

“(1) If the fact of previous convictions of other offenses is included in an indictment or information, the jury, if it finds a verdict of guilty of the offense with which he is charged, unless the defendant admits the previous convictions, shall also find whether or not he has suffered such previous convictions.

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(3) Upon arraignment of the defendant he shall be required to admit or deny that he has been previously convicted of the crimes identified in the [habitual criminal charges],... If the defendant stands mute it shall be treated as a denial by him that he has been convicted as alleged. If the defendant admits that he has been convicted as alleged in any one or more of the counts charging previous convictions, no proof thereof is required, and upon conviction of the substantive offense, the court shall pass sentence upon the defendant as an habitual criminal.”

Moreover, we have said that if the defendant chooses to admit his prior felony convictions in the trial on the substantive charges, “his opponent is relieved of the necessity for proving any fact so admitted” in connection with habitual criminal counts. Hackett v. Tinsley, 143 Colo. 203, 352 P.2d 799, cert. denied, 364 U.S. 874, 81 S.Ct. 118, 5 L.Ed.2d 96 (1960).⁴

If the defendant wishes to testify on the substantive charges, he must anticipate cross-examination about his prior criminal record.⁵ This prospect confronts him with a dilemma. On cross-examination, he may deny his prior felony convictions and face submission to the jury in the trial on the substantive charge of all evidence relevant to the issues of previous convictions, section 16-13-103(5), or he may admit his prior criminal record and, by testifying to matters which he believes will disprove the substantive charges against him, attempt to avoid the mandatory life sentence to which his admission and a conviction of the substantive offense would otherwise lead. [A defendant cannot be sentenced as an habitual criminal until he is convicted of the underlying substantive charge, section 16-13-103(4)(b).]

An accused in a state criminal trial has a Fourteenth Amendment due process right to testify in his own behalf. Faretta v. California, 422 U.S. 806, 819 n.15, 95 5.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975). A defendant also has a constitutional due process right to proof by the prosecution of all elements of the crime charged against him. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973). The defendant facing habitual criminal charges is forced to choose between his constitutional right to testify in his own defense and his constitutional right to have the State prove the elements of habitual criminality. If he chooses to testify about his past record, the prosecution is relieved of its burden of proving the elements of habitual criminality.⁶ The statutory procedure here suffers from the same flaw the United States Supreme Court condemned in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968): it creates an intolerable tension between two constitutional rights. See also People v. Coleman, 13 Cal.3d 867, 533 P.2d 1024, 120 Cal.Rptr. 384 (1975); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); People v. Rosenthal, Colo., 617 P.2d 551 (1980).

As a remedy for this constitutional dilemma, the defendant argued to the trial court, first, that he was entitled to a bifurcated proceeding on the habitual criminal counts notwithstanding a decision to testify in his own behalf at his trial on the substantive offenses and, second, that any evidence of prior convictions elicited from him during the first stage of the trial should be excluded from the subsequent habitual criminal proceedings. The trial court ruled that it would conduct bifurcated proceedings whether or not the defendant took the witness stand, but held that the district attorney was entitled to impeach the defendant’s testimony by eliciting or introducing evidence of his prior felony convictions and that the jury could consider this prior conviction evidence for substantive purposes in its deliberations on the habitual criminal charges.

The trial judge recognized that the statute and case law construing it⁷ dispense with a bifurcated proceeding if the defendant chooses to testify; however, the judge ruled that the existence of habitual criminal charges were to be kept from the jury until it reached a verdict on the substantive counts.⁸ Once the jury returned a verdict of guilty, the trial court would submit the habitual criminal counts to the jury in what the court characterized “a bifurcated proceeding.” By withholding the habitual criminal counts from the jury until it had reached a verdict on the substantive charges, the trial court presumably meant to dispel the prejudicial effect foreknowledge of those counts might otherwise exert on the jury’s deliberations.⁹ The trial court did not specify the steps to be followed in the habitual criminal proceeding other than stating that prior conviction evidence could be considered by the jury for substantive purposes in its deliberations on the habitual criminal counts.

Because the Habitual Criminal statute fails to explicitly delineate the procedures trial courts are to adopt if a defendant chooses to testify in connection with the substantive charges against him and admit his prior convictions, it was not inappropriate for the trial court to “bifurcate” the proceedings in this case.¹⁰ However, the court’s ruling failed to cure the fundamental defect in the statutory scheme. As we have noted above, that infirmity is not the prejudice to a defendant which ordinarily accompanies evidence that he has committed other crimes. Cf. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); People v. Honey, Colo., 596 P.2d 751 (1979).¹¹ The law is settled that, notwithstanding its inherent prejudiciality, evidence of prior criminal convictions may properly be admitted to impeach the credibility of a defendant’s testimony. See section 13-90-101, C.R.S.1973. Rather, the basic defect in the Habitual Criminal statute is the intolerable tension it creates between a defendant’s twin constitutional rights to testify in his own defense and to have the prosecution prove each element of the several counts with which he is charged. The impeachment use of an admission of prior convictions elicited from a defendant who chooses to testify is permissible. However, the substantive use of that same evidence to relieve the prosecution of its statutory and constitutional burden of proving the elements of a separate status, habitual criminality, by introducing evidence independent of the defendant’s testimony such as duly authenticated records of a defendant’s prior convictions,¹² impermissibly burdens the exercise of a defendant’s right to testify in his own behalf. This tension can only be alleviated by compelling the prosecution to shoulder the burden of proving those convictions, either in the manner specified by the statute or by independent evidence, irrespective of the evidence elicited from a defendant who chooses to answer the substantive charges against him by testifying in his own behalf.¹³

The trial court’s ruling that evidence of the defendant’s prior convictions elicited during his trial on the substantive charges, would be admissible for substantive purposes in the habitual criminal proceeding was an error which its “bifurcation” of the jury’s deliberations failed to remedy. Instead, when the defendant expressed a desire to testify on his own behalf and requested a bifurcated proceeding, the trial court should have ruled that it would (1) instruct the jury to consider any admissions of prior convictions elicited from the defendant in connection with his testimony on the substantive offense only as they affect his credibility, Diaz v. People, 161 Colo. 172, 420 P.2d 824 (1966), and (2) that the prosecution must meet its burden of proving beyond a reasonable doubt the defendant’s prior convictions by evidence independent of the defendant’s testimony or duly authenticated records of those convictions. O’Day v. People, 114 Colo. 373, 166 P.2d 789 (1946).

Because the trial court’s ruling impermis-sibly burdened the defendant’s right to testify in his own defense by relieving the prosecution of the burden of proving the charges against him beyond a reasonable doubt, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

QUINN, J., concurs and specially concurs. ERICKSON, J., concurs and joins in special concurrence. HODGES, C. J., dissents, and LEE and ROVIRA, JJ., join in dissent.

LEE, J., dissents, and HODGES, C. J., and ROVIRA, J., join in dissent.

1 . The defendant also alleges that his conspiracy conviction was based upon insufficient evidence and was inconsistent with acquittal of second-degree burglary. We need not reach these contentions.

2 . Section 16-13-101(2), C.R.S.1973 (1978 Repl. Vol. 8).

3 . Bifurcation avoids prejudice to the defendant in the initial determination of the issue of guilt by keeping from the jury the defendant’s propensity to commit crimes. People v. Lucero, Colo., 615 P.2d 660 (1980); see People v. Fullerton, 186 Colo. 97, 525 P.2d 1166 (1974).

4 . Hackett was decided under the “Little Habitual Criminal Act,” section 39-13-1, C.R.S.1953. We over-rule all language in Hackett which is inconsistent with this opinion.

5 . Section 13-90-101, C.R.S.1973; People v. Layton, Colo., 612 P.2d 83 (1980); People v. Griffith, 197 Colo. 544, 595 P.2d 231 (1979); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979).

6 . Our statutory scheme discourages a defendant from testifying. Promotion of truthful testimony in a judicial proceeding serves “the imperative of judicial integrity.” See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960); Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1967).

7 . People v. Trujillo, 40 Colo.App. 220, 577 P.2d 297 (1977); Mitchell v. People, 137 Colo. 5, 320 P.2d 342 (1958); Wolff v. People, 123 Colo. 487, 230 P.2d 581 (1951); Routa v. People, 117 Colo. 564, 192 P.2d 436 (1948).

8 . Defense counsel recommended and the court adopted a procedure suggested by the dissenting opinion in Routa v. People, supra.

9 . Of course, the defendant would not be insulated from the prejudice attributable either to his testimonial admission of prior convictions or to other evidence of prior convictions adduced by the prosecution to impeach his testimony.

10 . To the extent they are inconsistent with this opinion, we over-rule People v. Trujillo, supra; Mitchell v. People, supra; Wolff v. People, supra; Routa v. People, supra.

11 . Under section 16-13-103(5), introduction of such evidence and a unitary trial are mandatory if a defendant takes the stand and denies that he was previously convicted as charged. Here the trial court apparently believed there was an additional, unacceptable risk that the jury’s deliberations on the substantive charges would be unduly swayed by instructing them that the defendant had also been charged as an habitual criminal. See People v. Lucero, supra.

12 . Sections 16-13-102 and 16-13-103(4)(b).

13 . It is well settled that whenever possible a statute should be construed to reduce constitutional infirmities. Section 2-4-201(1)(a), C.R.S.1973; People v. Washburn, 197 Colo. 419, 593 P.2d 962 (1979).