People v. Chavez, No. 79SA358

Docket NºNo. 79SA358
Citation621 P.2d 1362
Case DateJanuary 05, 1981

Page 1362

621 P.2d 1362
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Robert CHAVEZ, Defendant-Appellant.
No. 79SA358.
Supreme Court of Colorado.
Jan. 5, 1981.
Rehearing Denied Jan. 26, 1981.

Page 1363

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Kathleen M. Bowers, Asst. Atty. Gen., Denver, for plaintiff-appellee.

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

DUBOFSKY, Justice.

The defendant, Robert Chavez, appeals his jury conviction for first-degree criminal trespass, section 18-4-502, C.R.S.1973 (now in 1978 Repl.Vol. 8), and conspiracy to commit second-degree burglary, section 18-2-201, C.R.S.1973 (1978 Repl.Vol. 8). The defendant was also charged with second-degree

Page 1364

burglary, section 18-4-203, C.R.S.1973 (1978 Repl.Vol. 8), and with four counts of habitual criminality, section 16-13-101, C.R.S.1973 (1978 Repl.Vol. 8). The jury acquitted him on the second-degree burglary charge, and the trial court granted a motion for judgment of acquittal on the habitual criminal charges. We reverse the convictions for first-degree criminal trespass and conspiracy to commit second-degree burglary.

At the close of the prosecution's case on the substantive charges, the defendant moved to exclude any testimony he might give in defense of the substantive charges from the habitual criminal proceedings. The trial court ruled that impeachment evidence of the defendant's prior convictions elicited or offered by the prosecution during the trial of the substantive offense could be used for substantive purposes in the habitual criminal trial. On appeal the defendant argues that the trial court's denial of his motion unconstitutionally burdened his right to take the witness stand in his own defense. 1 We agree.

The defendant chose not to testify and was acquitted of the habitual criminal charges; however, he was convicted, without testifying, of first-degree criminal trespass and conspiracy to commit second-degree burglary. Had he chosen to testify in his own defense on the trespass and burglary charges, he understood that an admission of the prior convictions charged in the habitual criminal counts would, upon conviction of the substantive crime, lead to automatic imposition of a life sentence under the habitual criminal statute. 2

It is useful to review the habitual criminal statute, particularly section 16-13-103, C.R.S.1973 (1978 Repl.Vol. 8), to understand the defendant's constitutional claim.

"(4) If the defendant denies that he has been previously convicted as alleged in (the habitual criminal counts) ... the jury impaneled to try the substantive offense shall determine by separate verdict whether the defendant has been convicted as alleged. The procedure in any case in which the defendant does not become a witness in his own behalf upon the trial of the substantive offense shall be as follows:

(a) The jury shall return a verdict upon the issue of guilt or innocence;

(b) If the verdict is that the defendant is guilty of a felony, then the same jury shall forthwith proceed to try the issues as to whether the defendant has been previously convicted as charged. The prosecuting attorney has the burden of proving beyond a reasonable doubt that the defendant has been convicted as charged. 3

(5) If upon the trial of the issues upon the substantive offense, the defendant takes the witness stand in his own defense and denies that he has been previously convicted as alleged, the defendant, and the prosecuting attorney on rebuttal, shall present all evidence relevant to the issues of previous convictions, and the jury shall return verdicts on all issues relating to previous convictions if the defendant is found guilty of the substantive offense. " (Emphasis added.)

The statute does not explicitly delineate the procedures to be followed at trial if the defendant takes the witness stand and admits that he has been convicted previously as alleged. However, subsections (1) and (3) appear to obviate the necessity of proving the previous convictions alleged in the habitual criminal counts if the defendant admits them during his testimony on the substantive charges:

Page 1365

"(1) If the fact of previous convictions of other offenses is included in an indictment or information, the jury, if it finds a verdict of guilty of the offense with which he is charged, unless the defendant admits the previous convictions, shall also find whether or not he has suffered such previous convictions.

(3) Upon arraignment of the defendant he shall be required to admit or deny that he has been previously convicted of the crimes identified in the (habitual criminal charges).... If the defendant stands mute it shall be treated as a denial by him that he has been convicted as alleged. 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 an habitual criminal."

Moreover, we have said that if the defendant chooses to admit his prior felony convictions in the trial on the substantive charges, "his opponent is relieved of the necessity for proving any fact so admitted" in connection with habitual criminal counts. Hackett v. Tinsley, 143 Colo. 203, 352 P.2d 799, cert. denied, 364 U.S. 874, 81 S.Ct. 118, 5 L.Ed.2d 96 (1960). 4

If the defendant wishes to testify on the substantive charges, he must anticipate cross-examination about his prior criminal record. 5 This prospect confronts him with a dilemma. On cross-examination, he may deny his prior felony convictions and face submission to the jury in the trial on the substantive charge of all evidence relevant to the issues of previous convictions, section 16-13-103(5), or he may admit his prior criminal record and, by testifying to matters which he believes will disprove the substantive charges against him, attempt to avoid the mandatory life sentence to which his admission and a conviction of the substantive offense would otherwise lead. (A defendant cannot be sentenced as an habitual criminal until he is convicted of the underlying substantive charge, section 16-13-103(4)(b).)

An accused in a state criminal trial has a Fourteenth Amendment due process right to testify in his own behalf. Faretta v. California, 422 U.S. 806, 819 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975). A defendant also has a constitutional due process right to proof by the prosecution of all elements of the crime charged against him. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973). The defendant facing habitual criminal charges is forced to choose between his constitutional right to testify in his own defense and his constitutional right to have the State prove the elements of habitual criminality. If he chooses to testify about his past record, the prosecution is relieved of its burden of proving the elements of habitual criminality. 6 The statutory procedure here suffers from the same flaw the United States Supreme Court condemned in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968): it creates an intolerable tension between two constitutional rights. See also People v. Coleman, 13 Cal.3d 867, 533 P.2d 1024, 120 Cal.Rptr. 384 (1975); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); People v. Rosenthal, Colo., 617 P.2d 551 (1980).

As a remedy for this constitutional dilemma, the defendant argued to the trial court,

Page 1366

first, that he was entitled to a bifurcated proceeding on the habitual criminal counts notwithstanding a decision to testify in his own behalf at his trial on the substantive offenses and, second, that any evidence of prior convictions elicited from him during the first stage of the trial should be excluded from the subsequent habitual criminal proceedings. The trial court ruled that it would conduct bifurcated proceedings whether or not the defendant took the witness stand, but held that the district attorney was entitled to impeach the defendant's testimony 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.

The trial judge recognized that the statute and case law construing it 7 dispense with a bifurcated proceeding if the defendant chooses to testify; however, the judge ruled that the existence of habitual criminal charges were to be kept from the jury until it reached a verdict on the substantive counts. 8 Once the jury returned a verdict of guilty, the trial court would submit the habitual criminal counts to the jury in what the court characterized "a bifurcated proceeding." By withholding the habitual criminal counts from the jury until it had reached a verdict on the substantive charges, the trial court presumably meant to dispel the prejudicial effect foreknowledge of those counts might otherwise exert on the jury's deliberations. 9 The trial court did not specify the steps to be followed in the habitual criminal proceeding other than stating that prior conviction evidence could be considered by the jury for substantive purposes in its deliberations on the habitual criminal counts.

Because the Habitual Criminal statute fails to explicitly delineate the procedures trial courts are to adopt if a defendant chooses to testify in connection with the substantive charges against him and admit his prior convictions, it was not inappropriate for the trial court to "bifurcate" the proceedings in this case. 10 However, the court's ruling failed to cure the fundamental defect in the statutory scheme. As we have noted above, that infirmity...

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56 practice notes
  • State v. Douglas
    • United States
    • Supreme Court of Oregon
    • 10 Febrero 1982
    ...minutiae, and to leave to future courts the task of applying those principles in specific cases. * * * " 31 People v. Chavez, Colo., 621 P.2d 1362 (1981); Hughes v. State, 513 P.2d 1115 (Alaska 1973); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980); Ingle v. State, 92 Nev. 104, 546 ......
  • Webb v. State, 3 Div. 329
    • United States
    • Alabama Court of Criminal Appeals
    • 28 Abril 1987
    ...prohibit altogether the later substantive use of that testimony to prove an element of habitual criminality. See, e.g., People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (leading case); State v. Archunde, 91 N.M. 682, 579 P.2d 808 (C......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Abril 1984
    ...682 (1948); see also United States v. Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978); accord People v. Chavez, 621 P.2d 1362, 1368 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (Quinn, J., concurring). This court has stated on several occa......
  • People v. Thompson, Court of Appeals No. 09CA2784
    • United States
    • Colorado Court of Appeals of Colorado
    • 4 Mayo 2017
    ...testimony of a defendant or of a defendant's expert. See, e.g. , Perez v. People , 745 P.2d 650, 653 (Colo. 1987) ; People v. Chavez , 621 P.2d 1362, 1365 (Colo. 1981).)¶ 51 Third, I submit that it is, at the very least, unclear whether Simmons is still viable in this regard, and, if so, ho......
  • Request a trial to view additional results
56 cases
  • State v. Douglas
    • United States
    • Supreme Court of Oregon
    • 10 Febrero 1982
    ...minutiae, and to leave to future courts the task of applying those principles in specific cases. * * * " 31 People v. Chavez, Colo., 621 P.2d 1362 (1981); Hughes v. State, 513 P.2d 1115 (Alaska 1973); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980); Ingle v. State, 92 Nev. 104, 546 ......
  • Webb v. State, 3 Div. 329
    • United States
    • Alabama Court of Criminal Appeals
    • 28 Abril 1987
    ...prohibit altogether the later substantive use of that testimony to prove an element of habitual criminality. See, e.g., People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (leading case); State v. Archunde, 91 N.M. 682, 579 P.2d 808 (C......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Abril 1984
    ...682 (1948); see also United States v. Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978); accord People v. Chavez, 621 P.2d 1362, 1368 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (Quinn, J., concurring). This court has stated on several occa......
  • People v. Thompson, Court of Appeals No. 09CA2784
    • United States
    • Colorado Court of Appeals of Colorado
    • 4 Mayo 2017
    ...testimony of a defendant or of a defendant's expert. See, e.g. , Perez v. People , 745 P.2d 650, 653 (Colo. 1987) ; People v. Chavez , 621 P.2d 1362, 1365 (Colo. 1981).)¶ 51 Third, I submit that it is, at the very least, unclear whether Simmons is still viable in this regard, and, if so, ho......
  • Request a trial to view additional results

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