Apodaca v. People

• Decision Date: 16 December 1985
• Docket Number: No. 83SC105,83SC105
• Citation: 712 P.2d 467
• Parties: Anthony Gilbert APODACA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 467

712 P.2d 467

Anthony Gilbert APODACA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 83SC105.

Supreme Court of Colorado En Banc.

Dec. 16, 1985.

As Modified on Denial of Rehearing Jan. 27, 1986.

David F. Vela, State Public Defender, Margaret L. O'Leary, Lyndy Ohneck, Michael J. Heher, Deputy State Public Defenders, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores S. Atencio, Asst. Atty. Gen., Denver, for respondent.

QUINN, Chief Justice.

We granted certiorari to review the decision of the court of appeals in People v. Apodaca, 668 P.2d 941 (Colo.App.1982), which affirmed the conviction of the defendant, Anthony Gilbert Apodaca, for second degree kidnapping, second degree assault, felony menacing, and a crime of violence. The court of appeals held that the refusal of the trial court to timely rule on the defendant's motion to prohibit prosecutorial use of prior conviction evidence for impeachment purposes was harmless error, and also that the trial court properly rejected the defendant's tendered instruction on the lesser included offense of attempted second degree kidnapping. We conclude that the trial court impermissibly burdened the defendant's constitutional right to testify in his own defense by declining to rule on the constitutional admissibility of prior conviction evidence until such time as the defendant actually testified at trial and that such error cannot be deemed harmless under the present state of the record. We also conclude that, because there was no rational basis in the evidence for the jury to acquit the defendant of the completed crime of second degree kidnapping and still convict him of the lesser included offense of attempted second degree kidnapping, the trial court properly refused to instruct on the lesser included offense of attempted second degree kidnapping. We thus affirm in part and reverse in part, and we remand the case to the court of appeals with directions to return the case to the trial court for further proceedings.

I.

The defendant was charged with second degree kidnapping, ¹ second degree assault, ² felony menacing, ³ and a crime of violence, ⁴ all of which were alleged to have been committed on June 1, 1980 in Huerfano County, Colorado. Prior to the commencement of jury selection, the defendant filed a motion requesting the trial court to rule on whether the prosecution could properly use two prior convictions for impeachment purposes in the event the defendant elected to testify at trial in his own defense. One of the asserted convictions was a 1974 delinquency adjudication, when the defendant was seventeen years old, and the other was a 1976 military conviction for rape, which resulted in a three-year sentence to the disciplinary barracks in Fort Leavenworth, Kansas, and a dishonorable discharge. The defendant claimed that a ruling on the admissibility of such evidence in advance of his trial testimony was essential to permit him to make a knowing, intelligent, and voluntary decision on whether to take the witness stand in his own defense. The defendant argued to the court that the military conviction did not qualify as a felony under section 13-90-101, 6 C.R.S. (1973), and that it was also obtained in violation of due process of law and was thus constitutionally inadmissible. Although the trial court indicated that it would not permit the prosecution to use the juvenile adjudication, it refused to rule on the admissibility of the military conviction in advance of the defendant's taking the witness stand in his own defense. The court stated that if the defendant did indeed testify at trial and if the district attorney sought to question the defendant about the military conviction, the court would then conduct an in camera hearing in order to determine whether the district attorney could use the military conviction to impeach the defendant.

The trial evidence established that on June 1, 1980, the defendant attended a wedding dance in Walsenburg, Colorado. Present at the dance was the female victim, with whom the defendant had been acquainted since high school. The defendant and the victim danced together and later played pool at a local tavern. The victim left the tavern alone and on foot shortly before 2:00 a.m. After she had walked approximately halfway to her home, the defendant drove up beside her in his pickup truck. He conversed with her for approximately ten minutes and offered her a ride home. When the victim refused the ride and began to walk away, the defendant stepped out of his truck and approached her on the sidewalk. He grabbed her around the neck and by the hair, placed a knife against her ribs, and threatened to stab her if she did not get into the truck.

The victim unsuccessfully attempted to take the knife from the defendant and received several deep cuts on the fingers of her left hand. When the defendant again ordered her into the truck, she entered the driver's side and moved over to the other side of the front seat as the defendant stepped in and closed the door. After the truck moved a short distance down the street, the victim opened the door next to her and jumped from the moving truck. As she left the truck, the defendant accelerated rapidly and drove away. As a result of her escape from the truck, she suffered injuries to her head, shoulder, and knee. The defendant was arrested a short time later in downtown Walsenburg while still in his pickup truck.

After the prosecution concluded its case, the defendant presented two witnesses. His first witness was a doctor who testified that the victim when last examined had no complaints about her left hand and that the hand appeared basically normal. The other witness was the defendant's brother, who testified that in his opinion both the defendant and the victim were intoxicated at the wedding dance. The defendant did not testify in his own defense.

At the conclusion of the evidence the defendant tendered an instruction on attempted second degree kidnapping as a lesser included offense of second degree kidnapping. The trial court refused the instruction. The jury returned guilty verdicts to second degree kidnapping, second degree assault, felony menacing, and a crime of violence. After denying the defendant's motion for a new trial, the court sentenced the defendant to concurrent terms of four years.

In affirming the convictions, the court of appeals held that, although it was error for the trial court to refuse to rule on the defendant's motion challenging the admissibility of prior conviction evidence for the purpose of impeachment, the error was harmless because the military conviction for rape qualified as a "felony conviction" under section 13-90-101, 6 C.R.S. (1978), and thus would have been clearly admissible for impeachment purposes if the defendant had elected to testify at trial. The court of appeals also held that the trial court properly refused to instruct the jury on attempted second degree kidnapping, since there was no rational basis in the evidence for the jury to acquit the defendant of the greater inclusive offense of second degree kidnapping and yet still convict him of the lesser offense of attempted second degree kidnapping. We granted certiorari to consider the following two issues: (1) whether the trial court's refusal to rule, in advance of the defendant's decision to testify, on his motion to prohibit the prosecution from using the military conviction as impeachment evidence impermissibly burdened the defendant's constitutional right to testify in his own defense at trial; and (2) whether the trial court erred in refusing to instruct the jury on the lesser included offense of attempted second degree kidnapping.

II.

We first address whether the trial court improperly burdened the defendant's right to testify in his own defense at trial when it refused to rule on the admissibility of the 1976 military conviction until such time as the district attorney sought to use the prior conviction for the purpose of impeaching the defendant. Acknowledging that the trial court erred in refusing to timely rule on the defendant's motion, the court of appeals nonetheless concluded that the error was harmless because the military conviction would indeed be admissible as impeachment evidence under section 13-90-101, 6 C.R.S. (1973), if the defendant had testified in his own defense. The court of appeals' conclusion of harmless error, however, proceeded from the unsupported assumption that the military conviction also satisfied the constitutional standards of admissibility applicable to prior conviction evidence. While we agree that the military conviction for rape constitutes a felony conviction under section 13-90-101, 6 C.R.S. (1973), there is nothing of record that provides an answer to the issue of constitutional admissibility. If the military conviction was not obtained in accordance with constitutional standards, it would not be admissible for the purpose of impeaching the defendant, thus rendering the trial court's failure to rule on the defendant's motion an impermissible burden on the defendant's right to testify. Because neither the trial court nor the court of appeals ruled on this aspect of the case, it is necessary to remand the case to the court of appeals with directions to return the case to the district court for a determination of whether the defendant's prior military conviction was constitutionally valid and thus admissible as impeachment evidence. ⁵

A.

Section 13-90-101, 6 C.R.S. (1973), states, as pertinent here, that "the conviction of a person for any felony may be shown for the purpose of affecting the credibility of such witness." A felony is defined by the Colorado Constitution as "any criminal offense punishable by death or imprisonment in the penitentiary, and none other." Colo. Const. art. XVIII, § 4. Military offenses, however, are...