Cummings v. People
| Decision Date | 16 January 1990 |
| Docket Number | No. 88SC368,88SC368 |
| Citation | 785 P.2d 920 |
| Parties | Pete James CUMMINGS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Leo Wotan, Jr., Loveland, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.
This case involves defendant's appeal from his conviction entered on a jury verdict finding him guilty of two counts of first-degree murder. He contends that he was deprived of effective assistance of counsel by his trial counsel's failure to collaterally attack his prior felony conviction for aggravated assault in a timely manner. He also contends that his attorney's opening statement accusing defendant's wife of the murders did not constitute an implied waiver of the marital privilege. The court of appeals in People v. Cummings, 768 P.2d 718 (Colo.App.1988), rejected his arguments. We affirm in part and reverse in part.
On September 4, 1984, police discovered the bodies of Joseph Watkins and Denean Dean in an automobile parked a few blocks from the residence of the defendant, Pete James Cummings, and Gloria Falls, his common-law wife. Later that day, the defendant called the Aurora Police Department and stated that he had seen a television report describing the discovery of the bodies and that he thought he knew "the people involved." He requested that the police come to his house and discuss the matter.
When the police arrived, the defendant told the officers that Watkins and Dean had been to his house on September 3, 1984, for dinner with him and Falls and had left at approximately 11:00 p.m.
Further investigation by the police led to the issuance of a warrant for a search of the defendant's home. Certain items were recovered, including: a jar of .22 caliber ammunition, a knife, blood-stained furniture, and a semi-automatic .22 caliber rifle which was found concealed in the garage.
The defendant was charged with two counts of first-degree murder and Falls was charged with being an accessory to these crimes. 1 Falls told police that she had seen the defendant shoot Watkins and Dean and dispose of their bodies.
Prior to trial, the defendant, claiming that Falls was his common-law wife, moved to prevent Falls from testifying against him. The basis of his claim was the statutory marital privilege. § 13-90-107(1)(a), 6A C.R.S. (1987). After an evidentiary hearing, the trial court concluded that a common-law marriage existed between the defendant and Falls, and granted the defendant's motion to prohibit Falls from testifying.
After the jury had been impaneled and the district attorney made his opening statement, the defendant's trial counsel 2 made an opening statement during which he conceded that Watkins and Dean had been murdered in the living room of the defendant's home and that, aside from the victims, only Falls and the defendant had been present. Counsel admitted that the defendant had attempted to conceal the crime and had done so to protect his wife. After discussing the relationship between the defendant, Falls, and the victims, counsel said:
Later on that evening after discussions as to who was going to have sex with who, Mr. Cummings left, went to the store. The police will tell you also that he stated he went to a 7 Eleven. In fact, he did. He came back some time later.
When he came into the home at 1909 Lansing Street, which again, ladies and gentlemen, there's no doubt about it; it's a crime scene. When he came into that particular home, Gloria Falls was there. Gloria Falls was upset. Gloria Falls in fact had a rifle in her hand.
When he walked in, also there was Denean Dean and Joe Watkins. The difference is that now Denean Dean and Joe Watkins were in fact dead.
....
Like I said, ladies and gentlemen, what we have here is not a mystery like the district attorney has said. What we have here is a story of a gentlemen that wants his wife to be free, that would rather take the rap for his wife, that helped hide these particular items.
Mr. Cummings--there's no doubt whatsoever this was stupidity. This is maybe in your mind pervert [sic] what he tried to do to help this woman. But at the most Mr. Cummings is guilty of accessory after the fact, nothing more. He's not guilty of first-degree murder of Denean Dean. He's not guilty of first-degree murder of Joseph Watkins. He's guilty of trying to protect a loved one.
The prosecution then requested the court to find that because the defendant was claiming that his wife killed Watkins and Dean, he had waived the marital privilege. Over the objection of the defendant, the trial court found that there had been a waiver of the marital privilege and permitted the People to call Falls as a witness. Falls testified that the defendant shot the victims and removed the bodies from the house.
At the conclusion of the prosecution's case-in-chief, the defendant sought to collaterally attack his prior felony conviction for aggravated assault in Kansas in 1978. The prosecutor objected, noting that defendant's counsel had been made aware of the conviction more than seven months before trial, and this issue should have been raised before trial.
Defense counsel admitted that he had known of the Kansas conviction for a "long time," but that he had only been informed by the defendant approximately two weeks before trial as to the grounds for collaterally attacking the conviction. Counsel stated that there were two bases on which he wished to attack the Kansas conviction. First, he claimed that the defendant had not been adequately advised of his right to testify in the prior proceeding; and secondly, that the defendant had received ineffective assistance of counsel.
The trial court denied the defendant's request to challenge the prior conviction, holding that the issue should have been raised prior to trial "so that we've got plenty of time in which to make a proper determination of this and afford everyone the opportunity to fairly defend against or present evidence to justify setting aside any previous conviction...."
After being advised that the defendant would not take the witness stand, the trial court advised him that if he wanted to testify no one could prevent him from doing so, but that the prior felony conviction could be disclosed to the jury and the jury would be instructed to consider the conviction only as it related to the defendant's credibility. The defendant was also advised of his right not to testify. The defendant then stated that he would not testify because of the prior felony.
The defendant contends that but for his trial counsel's failure to attack the Kansas conviction in a timely manner, such attack would have been considered by the trial court; and if successful, he would have exercised his right to testify. He also claims that the outcome of the trial might have been different if he had testified. By way of relief, the defendant requests that the case be remanded to the trial court for a hearing on the admissibility of the prior conviction, and that a new trial be granted if the prior conviction is found to be constitutionally infirm.
Convictions which involve the violation of fundamental constitutional rights may not be used in subsequent proceedings to support guilt or enhance the punishment of the defendant. People v. Roybal, 618 P.2d 1121 (Colo.1980). Such convictions are of limited reliability and "abridge the very charter from which the government draws its authority to prosecute anyone." People v. Germany, 674 P.2d 345, 349 (Colo.1983).
In Apodaca v. People, 712 P.2d 467 (Colo.1985), the trial court refused to rule upon defendant's pretrial motion, which requested a ruling as to whether the prosecution could use a prior conviction to impeach the defendant if he elected to testify, until such time as the district attorney actually sought to use the conviction for impeachment purposes. We held that the trial court's failure to rule impermissibly burdened the defendant's constitutional right to testify and remanded the case for a determination as to whether the prior conviction was constitutionally valid. Similarly, in Bales v. People, 713 P.2d 1280 (Colo.1986), we found the trial court erred in denying defendant's motion, filed on the first day of trial, to collaterally attack his prior conviction. Accordingly, we remanded the case to the district court so that an evidentiary hearing on the merits of the defendant's claim could be held.
Here, however, defense counsel waited until the conclusion of the state's case-in-chief to notify the trial court and the prosecutor that he wished to collaterally attack defendant's prior felony conviction, so that it could not be used to impeach the defendant, if he elected to testify. The trial court held that the collateral attack had not been timely asserted. The court noted that a determination of the constitutionality of the defendant's Kansas conviction, at this stage of the trial, would either require a substantial delay in the proceedings or would, in effect, deprive the prosecutor of an adequate opportunity to prepare a rebuttal to the defendant's challenge. 3
A similar situation was considered by the court in United States v. Murray, 492 F.2d 178, 196-97 (9th Cir.1973), cert. denied, 419 U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974), which held that the defendant's request for such a ruling, in the midst of trial, came too late. The Murray court noted that the defendant could have challenged the validity of his prior convictions before trial. The court held that the time which would be required to conduct such an evidentiary hearing would involve "an intolerable interruption in what was, in any event, to be a long jury trial." Id. at 197. See also United States v. Cook, 608 F.2d 1175,...
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