Moore v. People

• Decision Date: 15 October 1985
• Docket Number: No. 83SC357,83SC357
• Citation: 707 P.2d 990
• Court: Colorado Supreme Court
• Parties: James F. MOORE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Page 990

707 P.2d 990

James F. MOORE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 83SC357.

Supreme Court of Colorado En Banc.

Oct. 15, 1985.

Rehearings Denied Nov. 12, 1985.

Specially Concurring Opinion Nov. 12, 1985.

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

LOHR, Justice.

We granted certiorari to review the judgment of the Colorado Court of Appeals in People v. Moore, No. 82CA1342 (September 1, 1983) (not selected for official publication). In this case, the district court denied the defendant's motion for post-conviction relief by which he sought vacation of that part of his judgment of conviction determining that he had committed four prior felonies and therefore was an habitual criminal. ¹ The court of appeals affirmed. In so doing, it held that the defendant was not entitled to relief from his adjudication as an habitual criminal even though the trial court found him guilty of the habitual criminal charges without submitting them to the jury for determination, a practice of which we disapproved in People v. Mason, 643 P.2d 745 (Colo.1982). The court of appeals based its holding on a factual distinction between Mason and this case. Although we do not agree that the factual differences between this case and Mason justify a different legal result, we decline to give retroactive effect to Mason so as to invalidate the defendant's adjudication and sentence as an habitual criminal. Accordingly, we affirm the judgment of the court of appeals.

I.

On December 4, 1975, an information was filed in the District Court for the City and County of Denver charging defendant James Franklin Moore with one count of unlawful possession of a narcotic drug for sale ² and four counts collectively alleging that Moore had four prior felony convictions--the habitual criminal charges. Moore entered a plea of not guilty to all counts.

Trial was to a jury in June of 1976. During the prosecution's case-in-chief on the substantive possession for sale charge, a police officer testified that after Moore's arrest for possession of a narcotic drug, Moore made an oral statement admitting the crime and stating that "he wanted to do whatever he could to help himself out on this case because he couldn't take a fall on a heroin case because he was a habitual criminal." Moore objected to the police officer's reference, in front of the jury, to Moore's purported admission that he was an habitual criminal, and moved for a mistrial. Moore's argument, as he more fully developed it later, was that he was forced to choose between testifying to explain his past or exercising his right not to testify with the result that the prejudicial remark would stand unexplained. The trial court denied the motion. Moore subsequently testified on his own behalf and admitted that he had been convicted of the four felonies that gave rise to the habitual criminal counts.

After the completion of the presentation of the evidence on the substantive offense, the following exchange took place between the trial court and Moore's attorney out of the presence of the jury:

THE COURT: All right. One other thing I think we should consider. That is, since there are habitual criminal counts pending here under 16-13-103, Subsection 3, it states: 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 a habitual criminal.

Then there is a case of Hackett vs. Tinsley, 143 Colo. 203, 352 P.2d 799, certiorari denied at 364 U.S. 874, 81 S.Ct. 118, 5 L.Ed.2d 96, which is a 1960 case that states that: In a prosecution under the habitual criminal section, prior convictions of felonies established by the admissions of the accused on the witness stand relieve the prosecution of the necessity of other proof thereof.

Since the defendant has stated from the witness stand that he has other prior convictions, Mr. DeVito [Moore's attorney], would you agree that it won't be necessary to have this jury then hear any evidence about his prior convictions and have a separate trial, if he is convicted, subsequent to the conviction on the present offense?

MR. DeVITO: I would agree that is my reading of the law. However, I would object to that procedure being utilized on the basis of, again, we had no alternative but to put the defendant on the stand. Again, at that particular time in the prosecution's case in chief, evidence as to his past felony record was improperly presented. Therefore, I do agree that to be the proceeding or the way the proceeding should go forth, but I would, for the record, object to the utilization of that proceeding here.

THE COURT: That is the only reason? Because of the information that came out about his prior felonies?

MR. DeVITO: Yes, your Honor.

THE COURT: Otherwise, you are not attacking the application of the statute; is that correct?

MR. DeVITO: I think that's the statute.

THE COURT: Anything else you feel should be added?

MR. STARK [the prosecutor]: No, your Honor.

THE COURT: Any other motions or anything else that should go on the record before we conclude the case?

MR. DeVITO: Nothing further.

MR. STARK: I have nothing.

The jury was instructed as to the possession for sale charge and returned a verdict of guilty. After the jury was discharged, the prosecutor tendered to the court certified copies of the four convictions alleged in the habitual criminal counts. Moore's attorney again agreed with the trial court that it was not necessary for the prosecution to put on any more evidence concerning the habitual criminal allegations because Moore had admitted his prior convictions on the witness stand. However, Moore's counsel renewed his earlier objection to the admission of evidence concerning Moore's habitual criminality in the prosecution's case-in-chief because, he argued, it improperly forced Moore to testify and admit the convictions. The trial court then made the following statement:

The Court would make a finding then that these exhibits [the certified copies of Moore's convictions] will be admitted into evidence; that the defendant having taken the witness stand and admitted these four prior felonies that represent Counts 5, 6, 7 and 8, that there is no requirement that the People put on any evidence to the Court or to this same jury as provided by the statute, and the Court may sentence pursuant to the habitual criminal statute then without any further evidence being presented.

Pursuant to the requirements of the habitual criminal statute, Moore was sentenced to life imprisonment. ³

Moore appealed his conviction, raising, among other things, the trial court's failure to grant a mistrial because of the allegedly improper reference to Moore's habitual criminality by the police officer during the trial. The court of appeals affirmed the conviction in an unpublished opinion. People v. Moore, Colo.App. No. 76-796 (July 7, 1977). In that appeal, Moore did not challenge the procedure utilized by the trial court in implementing the habitual criminal statute.

On September 8, 1981, Moore filed a motion for post-conviction relief pursuant to Crim.P. 35(c). Prior to the filing of the motion, this court held, in People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981), that evidence of a defendant's prior convictions elicited from the defendant during trial on a substantive charge is not admissible for the purpose of proving habitual criminal charges against the defendant. Moore argued that Chavez should be applied retroactively to invalidate his adjudication as an habitual criminal. The district court denied Moore's motion for post-conviction relief, holding that Chavez was factually distinguishable and that Chavez, even if not distinguishable, would not be applied retroactively.

Moore appealed, arguing that his case was not distinguishable from Chavez in any legally significant respect and that Chavez should be given retroactive application. In his brief before the court of appeals, Moore also noted the decision of this court in People v. Mason, 643 P.2d 745 (Colo.1982), which was decided after Moore filed his motion for post-conviction relief. In Mason, we held that the habitual criminal statute guarantees to a defendant the right to a jury determination of the habitual criminal charges and that it is error for a trial court to refuse to submit habitual criminal charges to the jury even if the defendant admits his prior convictions while testifying during the trial on the substantive charge.

The court of appeals affirmed the denial of Moore's motion for post-conviction relief, holding that Chavez could not be applied retroactively to invalidate Moore's conviction and that the facts that were essential to our holding in Mason could be distinguished from the circumstances surrounding Moore's adjudication as an habitual criminal. People v. Moore, 82CA1342 (September 1, 1983) (not selected for official publication). We granted certiorari to review only the latter issue of the applicability of Mason, i.e., whether Moore should be afforded post-conviction relief because the trial court failed to submit Moore's habitual criminal counts to the jury for determination.

II.

In People v. Mason, the defendant was charged with fraud by check and with two habitual criminal counts. 643 P.2d at 748. Prior to trial, and also at the conclusion of the prosecution's case, Mason moved to prohibit the prosecution from examining him on his prior felony convictions in the event he decided to testify concerning the substantive fraud by check charge. The district court denied the motions. Mason testified...