People v. Barajas, Court of Appeals No. 17CA2332

Docket NºCourt of Appeals No. 17CA2332
Citation2021 COA 98, 497 P.3d 1078
Case DateJuly 22, 2021
CourtCourt of Appeals of Colorado

497 P.3d 1078
2021 COA 98

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Jose BARAJAS, Defendant-Appellant.

Court of Appeals No. 17CA2332

Colorado Court of Appeals, Division VII.

Announced July 22, 2021

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne Teodorovic, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GROVE

¶ 1 Defendant, Jose Barajas, appeals the judgment entered on a jury verdict finding

497 P.3d 1081

him guilty of possession of a weapon by a previous offender (POWPO). We affirm.

I. Background

¶ 2 Police executed a warrant to search for drugs at a house in Denver where Barajas was believed to be staying. The officers found Barajas inside the house, along with several methamphetamine pipes, a loaded handgun, and, in Barajas's front pocket, a small bag of suspected methamphetamine. Barajas was arrested and charged with one count of possession of a controlled substance and two counts of POWPO.

¶ 3 Before trial, Barajas moved for separate trials on the POWPO and drug possession counts. In a written order, the trial court decided to "sever the drug possession count (Count 1) from the weapons counts (Counts 2 and 3)" but denied the request for "separate trials, rather than bifurcation." Thus, the court ruled, it would "have a single jury first hear the drug charge and then hear the weapons charges."

¶ 4 Trial began on a Tuesday, and before voir dire began the court informed the prospective jurors that "for planning purposes, you should all plan to be here through the rest of this week, through Friday, although the evidence we think will be finished Thursday, and you may even begin to begin your deliberations late Thursday." The court did not inform the jurors that the trial would consist of two phases.

¶ 5 The trial's first phase, relating to the drug possession charge, took a day and a half. The jury deliberated on Thursday morning and found Barajas not guilty. The trial then proceeded immediately to its second stage — the POWPO charges — and after another day of testimony and deliberations the jury found Barajas guilty.

¶ 6 Barajas now challenges the judgment entered on the POWPO verdict, arguing that the trial court erred by (1) bifurcating the trial into two parts tried to one jury, instead of severing the charges into two trials with separate juries; (2) beginning voir dire before Barajas had arrived at the courthouse; (3) admitting testimony from a DNA analyst who "neither supervised nor certified the results of the DNA tests conducted"; and (4) allowing witnesses to testify to statements made by an undisclosed confidential informant. We review each argument in turn below.

II. Bifurcated Trial

¶ 7 Barajas contends that "the bifurcated procedure employed by the trial court constituted a misapplication of the law." We disagree.

A. Bifurcation or Severance

¶ 8 Barajas moved to sever the charges against him and have each tried to a separate jury. He argued that "an entirely separate trial, with separate jury panels ... and not mere bifurcation with the same jury" was required because "prior felony convictions ... are an imperative topic for jury selection." The court ultimately decided to bifurcate the trial and have the same jury sit for both phases.

¶ 9 A motion for separate trials before different juries is "addressed to the sound discretion of the trial court," and we review the trial court's ruling on that motion for an abuse of discretion. People v. Robinson , 187 P.3d 1166, 1175 (Colo. App. 2008) (citation omitted). While "procedural safeguards" are necessary to ensure a fair trial where a defendant is charged with a substantive offense and POWPO, a trial court has latitude to determine whether severance or bifurcation is an appropriate remedy. See People v. Peterson , 633 P.2d 1088, 1090 (Colo. App. 1981), aff'd in part , rev'd in part , 656 P.2d 1301 (Colo. 1983).

¶ 10 Citing Robinson , 187 P.3d at 1176, the trial court rejected Barajas's argument that bifurcation would chill his attorney "from asking in voir dire about whether prospective jurors could follow the court's instructions on the limited purposes for which evidence of prior convictions might be admitted." The scope of voir dire, the trial court wrote, "is a strategic decision that does not in and of itself render the bifurcation process unfair." We agree with this reasoning. As Robinson held, bifurcation may require "counsel to make difficult decisions regarding

497 P.3d 1082

what information to disclose to potential jurors and what questions to ask," but, nonetheless, bifurcated proceedings "have been expressly endorsed by the supreme court as a mechanism for avoiding prejudice to defendants in circumstances such as those in this case." Id. We are therefore not persuaded that the trial court's decision to bifurcate Barajas's trial instead of trying the charges to separate juries was an abuse of discretion.

B. Juror Qualifications

¶ 11 In a related argument, and as a matter of first impression in Colorado, Barajas contends that the court's refusal to sever the counts violated the Colorado Uniform Jury Selection and Service Act (UJSSA), specifically section 13-71-120, C.R.S. 2020. Under that statute, "a trial juror whose deliberation ended with a verdict shall not be required to participate in a second trial" as part of the same jury call. Id. In a related provision, the UJSSA states that "[a] prospective trial ... juror shall be disqualified" if he or she has served as an impaneled trial juror "within the preceding twelve months." § 13-71-105(2)(f), C.R.S. 2020. Because the jurors who heard the POWPO charge had just reached a verdict on the drug possession charge, Barajas argues that their continued service violated the UJSSA. And a violation of the UJSSA, he argues, is a structural error that requires reversal of his conviction.1

1. Standard of Review

¶ 12 Whether the jurors’ continued service during the second phase of the trial violated the UJSSA is a question of statutory interpretation. We review such questions de novo. See People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695.

2. The UJSSA and Bifurcated Trials

¶ 13 Barajas contends that his POWPO conviction must be reversed because all of the jurors who sat for the second phase of the trial had previously deliberated to a verdict on the drug possession charge and were thus statutorily disqualified from serving as jurors for another year. We reject this argument because it confuses bifurcation, which results in a single trial divided into phases and entry of a single judgment, and severance, which results in multiple trials and entry of multiple judgments.

¶ 14 A bifurcated trial is "a trial that is divided into two stages." Black's Law Dictionary 1735 (10th ed. 2014); see also People v. Fullerton , 186 Colo. 97, 100, 525 P.2d 1166, 1168 (1974) (describing bifurcated proceedings as "two-part jury trials") (citation omitted); State v. Ward , 364 N.C. 157, 694 S.E.2d 729, 733 (2010) ("[E]ven bifurcated, a hearing is still treated as the same single proceeding or trial."). In the event of a conviction, a bifurcated trial results in one — and only one — appealable verdict. See, e.g. , State v. Craig , 159 Ohio St.3d 398, 151 N.E.3d 574, 578 (2020) ("This court has on numerous occasions indicated that all counts of an indictment must be resolved before a judgment entry of conviction may become a final, appealable order ... ‘disposing of all’ charges.") (citation omitted); cf. Stevenson v. Gen. Motors Corp. , 513 Pa. 411, 521 A.2d 413, 416 (1987) ("If a bifurcated trial were considered two distinct trials, rather than two halves of one trial, the finding of liability would be treated as a judgment, subject to post-trial review and appeal. This treatment does not withstand scrutiny under general principles relating to impermissible interlocutory appeals.").

¶ 15 Severance, on the other hand, involves "[t]he separation of criminal charges or criminal defendants for trial." Black's Law Dictionary 1583; see also Crim. P. 14 (providing that if a joinder of offenses will prejudice the defendant, the court "may order an election or separate trials of counts"). Once severed, criminal counts proceed on separate tracks and, in the event of a conviction, are subject to independent appeals. See, e.g. ,

497 P.3d 1083

United States v. Leichter , 160 F.3d 33, 36 (1st Cir. 1998) ("[W]hen a severance occurs under [Fed. R. Crim. P.] 14, each conviction on the separate count should be separately appealable upon the imposition of sentence.").2 That is, a defendant who is found guilty of counts that have been severed will have a separate judgment of conviction reflecting each such verdict.

¶ 16 Because the court bifurcated the trial, rather than granting Barajas's request for separate trials, the jurors who deliberated during the first phase of the trial did not participate in a "second trial" in violation of section 13-71-120. Indeed, holding otherwise would raise questions about the propriety of any prosecution with multiple counts. Taken to its extreme, Barajas's theory — that "the disqualifying...

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