People v. Chavez

• Decision Date: 10 August 1981
• Docket Number: No. 79SA551,79SA551
• Citation: 632 P.2d 574
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert CHAVEZ, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 574

632 P.2d 574

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert CHAVEZ, Defendant-Appellant.

No. 79SA551.

Supreme Court of Colorado, En Banc.

Aug. 10, 1981.

Nolan L. Brown, Dist. Atty., Frederick B. Skillern, Deputy Dist. Atty., Golden, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Shelley Gilman, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Robert Chavez (defendant), appeals his conviction of two counts of second degree burglary of a dwelling, section 18-4-203, C.R.S. 1973 (1978 Repl. Vol. 8). He alleges that the trial court erred in denying his pretrial motion to prohibit prosecutorial use of prior conviction evidence as substantive proof of habitual criminal charges. He further asserts that the court erred in denying his motion to suppress various items of evidence taken from him during and shortly after his arrest and in denying his motion to suppress a custodial statement made to the arresting officers. Lastly, he challenges the court's instruction to the jury on possession of recently stolen property.

On the basis of People v. Chavez, Colo., 621 P.2d 1362 (1981), cert. denied, --- U.S. ----, 101 S.Ct. ----, 69 L.Ed.2d --- (1981), 49 U.S.L.W. 3878 (May 26, 1981), we conclude that the denial of the defendant's pretrial motion to prohibit the prosecution from using his trial testimony as substantive proof of habitual criminality violated due process of law by impermissibly burdening his constitutional right to testify in defense of the burglary charges. Because a new trial is necessary and because the issues of suppression and the propriety of the jury instruction will confront the trial court once again, we elect to address these issues in order to reduce any potential for error upon retrial.

I. The District Court Proceedings

The information charged the defendant with two counts of second degree burglary and alleged several prior felony convictions as the basis for habitual criminal charges. ¹ The charges arose out of two residential burglaries in the 4000 block of Benton Street in Wheat Ridge, Colorado, between the hours of 11:45 a. m. and 12:45 p. m. on March 4, 1977.

Benton Street is a dead-end street in a quiet residential neighborhood. Mr. and Mrs. Mohesky resided at 4005 Benton Street and Mrs. Edith Albasini lived across the street at 4060 Benton Street. The three of them were at church when the burglaries occurred. While preparing to leave their homes for church, their attention was attracted by a man walking back and forth and suspiciously lingering by various houses on the block. Once outside her home Mr. Albasini saw the man again. He appeared to be hiding and waiting for the parties to leave the area. Mr. Tiege, a neighbor who lived two doors south of Mrs. Albasini, also observed this man on the block after the Moheskys and Mrs. Albasini had left for church.

When the Moheskys and Mrs. Albasini returned from church at approximately 12:45 p. m., they found their homes burglarized. The Moheskys determined that two watches, social security checks, an Exxon credit card and some money had been stolen. Missing from Mrs. Albasini's home were a watch, two rings, a silver plate, a silverware set and some money. The Wheat Ridge Police Department was called and officers responded to the scene at approximately 1:00 p. m.

Officer Sadar took almost identical descriptions from Mrs. Albasini and Mr. Teige of the man observed earlier by them. The officer immediately dispatched the following description over the police radio: a Spanish American male, age 30-40 years, 5'8 tall, medium build, long black hair to collar, wearing a light tan or white three-quarter length coat and dark blue pants, and proceeding south on Benton toward 38th Avenue. Detective Stewart noted this description and began to canvass the stores in the immediate area for information about the suspect. The clerk of the Ridge Drug Store told the detective that a man matching this description earlier had purchased a bottle of blueberry brandy and had asked for directions to Clay Street in Denver. The clerk directed the man east on 38th Street to a bus stop. Officer Stewart radioed this information to other officers.

Officers Cassa and Chism heard the radio dispatch of the initial burglary report, the description of the suspect, and Officer Stewart's follow-up broadcast. They drove to Elitch's Amusement Park, which was on 38th Avenue and Wolff Street, approximately ten blocks from the burglarized residences, and combed the area for a person matching the description. Initially they stopped a man with a short tan jacket, took him back to the burglary scene for possible identification by the victims, and then released him. Upon their return to the amusement park shortly before 1:30 p. m., they observed in the parking lot a Spanish American male, about 5'8 in height, with black hair, and wearing a three-quarter length tan jacket and dark blue pants. This person was the defendant. Apparently realizing he was being watched, the defendant ducked behind and between cars while continuing to walk. The officers say that he was carrying a pair of gloves in his right hand while keeping his left hand in his pocket. When the officers approached the defendant in their vehicle, he walked faster and then trotted away from them. ² They stopped the defendant and told him that there had been a burglary in the area and that he matched the description of the suspect. Upon frisking him they recovered a partially empty brandy bottle from his pocket and took the pair of gloves from his hand.

The defendant was handcuffed and placed in the police vehicle and verbally advised of his Miranda ³ rights. He refused to talk to the officers at this time. In driving the defendant back to the scene of the burglaries, Officer Cassa asked him where he obtained the brandy bottle. The defendant responded that he purchased it at the Country Gentleman's Store and, according to the trial testimony of the arresting officers, he further replied that he had been in the area of the burglaries that day but had not committed them. When the officers arrived at the 4000 block of Benton Street, they directed the defendant to empty his pockets and place the contents on the hood of the police vehicle. He complied and placed various items on the vehicle, including a ring, a watch and several coins. Mr. Mohesky, Mrs. Albasini and Mr. Tiege were there and identified the defendant as the person previously seen by them that morning. ⁴ Mr. Mohesky also identified the watch, and Mrs. Albasini the ring, as items stolen from their homes in the burglaries.

The trial court denied the defendant's pretrial motion to suppress the various items of evidence recovered from his person, concluding that the officers had probable cause to arrest the defendant at Elitch's Amusement Park and that the items taken from him were seized in the course of a valid arrest. With respect to the defendant's motion to suppress his statement to Officer Cassa, the court ruled that the statement was made after a knowing, intelligent and voluntary waiver of Miranda rights. ⁵ The various objects recovered from the defendant and his statement to Officer Cassa were admitted into evidence at trial.

The trial court also denied the defendant's pretrial motion to prohibit the prosecution from using as substantive proof of the habitual criminal charges any testimonial admissions to prior convictions which he might make in his trial testimony on the substantive counts of burglary. ⁶ The court ruled that if the defendant should elect to testify at trial in defense of the burglary counts, the prosecution would be permitted to impeach the defendant by prior felony convictions and could utilize the defendant's admission to those convictions as substantive proof of the habitual criminal charges.

The defendant elected not to testify in his defense on the trial of the burglary counts. The court, over the defendant's objection, instructed the jury on the evidentiary effect of possession of recently stolen property on the burglary charges. The jury returned verdicts of guilty to both counts of burglary and the prosecution then presented its evidence on the habitual criminal charge. The court ultimately dismissed these charges due to a failure of proof. ⁷ Subsequently the court sentenced the defendant to consecutive terms of 35 to 40 years on each burglary conviction. ⁸

II. The Habitual Criminal Charges

We first address the defendant's contention with respect to the trial court's denial of his pretrial motion to prohibit the prosecution from using his testimonial admissions to prior felony convictions as substantive evidence of his habitual criminality. The defendant contends that the trial court's ruling violates due process of law, U.S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25, by unduly burdening his constitutional right to testify in his own defense. We agree.

The trial of this case occurred before our recent decision in Chavez v. People, supra, which involved this same defendant. In that case, as here, the trial court ruled that the prosecution was entitled to impeach the defendant by eliciting or introducing evidence of his prior felony convictions and that the jury could consider this prior conviction evidence for substantive purposes in its deliberations on the habitual criminal charges. Recognizing the dilemma confronting a defendant charged with habitual criminality and desirous of testifying in his own defense on the substantive charges, we held in Chavez that the bifurcation of the trial, although not inappropriate, still was insufficient to relieve the impermissibly unconstitutional burden that the substantive use of the defendant's testimonial admissions to prior convictions imposed on his constitutional right to testify in his own defense:

"The defendant facing habitual criminal charges is forced to choose...