People v. Bernabei

• Decision Date: 15 October 1998
• Docket Number: No. 96CA1538,96CA1538
• Citation: 979 P.2d 26
• Parties: 98 CJ C.A.R. 5368 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James A. BERNABEI, Sr., Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 26

979 P.2d 26

98 CJ C.A.R. 5368

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James A. BERNABEI, Sr., Defendant-Appellant.

No. 96CA1538.

Colorado Court of Appeals, Div. I.

Oct. 15, 1998.

Rehearing Denied Nov. 27, 1998.

Certiorari Denied July 6, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Laurie A. Booras, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, James A. Bernabei, Sr., appeals the judgment of conviction entered on a jury verdict finding him guilty of distribution of an imitation controlled substance and adjudicating him an habitual criminal. We affirm.

An undercover police officer accompanied by a confidential informant purchased marijuana at the home of defendant's son on December 14, 1994. A similar purchase of marijuana occurred at the same home on December 27. Defendant was not involved in either transaction.

However, later on December 27, the same undercover police officer went back to the son's house and bought a substance purporting to be methamphetamines, but which later turned out to be an imitation. Defendant was present during that transaction and his involvement therein resulted in the convictions at issue here.

I.

Defendant first contends the trial court erred in granting the prosecution's challenge for cause of a prospective juror without establishing that the prospective juror was biased against the prosecution. We disagree.

Even if a trial court does grant the prosecution a challenge for cause to which it is not entitled, reversal is not required unless the prosecution exhausted its peremptory challenges. In such cases, the erroneous dismissal of the prospective juror gives the prosecution an additional peremptory challenge. Bustamante v. People, 133 Colo. 497, 500, 297 P.2d 538, 540 (1956) ("[B]eing excused for cause ... when the People's statutory number of peremptory challenges had been exhausted, was in effect an additional peremptory challenge and was an abuse of discretion that affected or could have affected the substantial rights of the defendant").

Here, however, the prosecution only used two of its allotted six challenges. Thus, even if the trial court had denied the challenge for cause, the prosecution could have removed the juror by exercising one of its remaining peremptory challenges. Under these circumstances, we conclude that any error, if such occurred, was harmless.

II.

Next, defendant asserts the trial court erred by admitting as res gestae evidence the two uncharged and independent drug transactions that occurred on December 14 and earlier on December 27. We disagree.

Absent a showing of an abuse of discretion, a trial court's determination on the admissibility of evidence will not be reversed. People v. Lowe, 660 P.2d 1261 (Colo.1983).

Res gestae evidence is "matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without knowledge of which the main fact might not be properly understood." Woertman v. People, 804 P.2d 188 (Colo.1991) (fn.3).

Evidence of other offenses or acts that is not extrinsic to the offense charged, but is part of the criminal episode or transaction with which the defendant is charged, is admissible to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred. People v. Quintana, 882 P.2d 1366 (Colo.1994). Such res gestae evidence can include prior episodes which provide necessary background for the charged offense. People v. Allen, 944 P.2d 541 (Colo.App.1996). See People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

Res gestae evidence is generally linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. People v. Quintana, supra.

To be admissible, such evidence must be relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice. People v. Rollins, 892 P.2d 866 (Colo.1995). It is within the trial court's discretion to determine whether the prejudicial effect of proffered evidence outweighs its probative value. People v. Czemerynski, supra.

Here, the prosecution offered the evidence of the two prior marijuana drug transactions to set the stage for the December 27 transaction in which defendant was involved. The prosecution's theory was that: (1) the two prior transactions explained how the undercover officer came to be at the house of defendant's son; and (2) defendant was not involved in selling marijuana, but he became involved when "harder" drugs were requested.

The trial court determined the earlier incidents were admissible to explain the circumstances under which the charged drug transaction took place, and were close enough in time to constitute res gestae evidence. We agree that the marijuana transaction on December 27 was sufficiently near in time to the charged crime to constitute res gestae evidence in defendant's case.

Although the admissibility of the December 14 transaction was marginal because of its remoteness from the charged offense, previous appellate rulings nevertheless have, under certain circumstances, permitted the admission of evidence of other transactions relating back over a period of weeks. See People v. Czemerynski, supra (allowing evidence of hundreds of phone calls allegedly made by defendant before and after charged offense); People v. Cooper, 950 P.2d 620 (Colo.App.1997) (admitting evidence of incident which led to the issuance of restraining order occurring one week prior to charged incident); People v. Allen, supra (admitting evidence of events leading to issuance of restraining order in case with history of continual domestic abuse).

Because the jury was also informed by the court that neither transaction involved defendant, we perceive no manifest abuse of discretion by the court in allowing such evidence and in finding that the prejudicial effect of the evidence did not outweigh its probative value.

III.

Defendant next asserts the habitual criminal adjudication cannot stand because certain unfairly prejudicial and inadmissible information contained in "pen packs" and the "court packs" was admitted into evidence. We disagree.

A. Pen Packs

A penitentiary or "pen" pack is a certified record containing the mittimus, fingerprints, and photograph of inmates discharged from the Department of Corrections. A court pack is a certified record containing minute orders, the information, judgment of conviction, and sentence. These records were submitted by the prosecution to prove that defendant had been convicted of prior felonies in order to satisfy the elements of the habitual criminal statute, § 16-13-101, C.R.S.1998.

Although it is necessary under the habitual criminal statute to prove prior convictions, earlier charges which do not result in convictions are irrelevant and should not be admitted. People v. Reed, 42 Colo.App. 275, 598 P.2d 148 (1979). But, even if charges that were not pursued are admitted, reversal is not required so long as there is ample evidence establishing the defendant's prior convictions and the jury is instructed as to the presumption of innocence and the fact that the information is not evidence of guilt. People v. Montoya, 640 P.2d 234 (Colo.App.1981).

This principle was invoked in People v. Moore, 841 P.2d 320 (Colo.App.1992), in which exhibits were admitted containing charges for which the defendant was not convicted. A division of this court concluded that reversal was not required because there was ample evidence establishing the prior convictions and the jury was properly instructed regarding the evidence. See also People v. Copeland, 976 P.2d 334, (Colo.App. 1998); People v. Penrod, 892 P.2d 383 (Colo.App.1994) (no reversible error in admitting fingerprint cards that noted parole violations, aliases, FBI case numbers, tattoos, and parole dates along with copies of court registers of action noting revocation of probation proceedings, plea bargaining, transfer from one county jail to another, and a consecutive sentence imposed).

Here, there was ample evidence of defendant's prior convictions and the trial court also instructed the jury regarding the presumption of innocence for prior convictions and the fact that such charges were not evidence. Accordingly, we reject defendant's contention.

B. Court Packs

We also reject defendant's related contention that the court erred by allowing the prosecutor to introduce evidence contained in the court packs regarding admissions made by defendant. The admissions were made at a sentencing hearing conducted after one of defendant's earlier convictions. It is not clear why such admissions were in the court packs. At the sentencing hearing, defendant advised the court that he had two prior felonies.

According to defendant, prior felony convictions in the context of a sentencing hearing cannot be used as prior felonies for the purpose of proving an habitual criminal charge because, for purposes of sentencing, prior felonies are not required to be separately brought and tried as they are for purposes of an habitual criminal adjudication. Because we are persuaded there was sufficient proof that all prior felonies were separately brought and tried, we reject defendant's contention.

In order for the prosecution to convict defendant as an habitual criminal, the underlying felony convictions relied upon by the prosecution must be based "upon charges separately brought and tried, and arising out of separate and distinct criminal episodes." Section 16-13-101(...