People v. Clouse, 91CA0563

• Decision Date: 19 November 1992
• Docket Number: No. 91CA0563,91CA0563
• Citation: 859 P.2d 228
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Eugene CLOUSE, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 228

859 P.2d 228

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven Eugene CLOUSE, Defendant-Appellant.

No. 91CA0563.

Colorado Court of Appeals Div. II.

Nov. 19, 1992.

Rehearing Denied Jan. 14, 1993.

Certiorari Denied Oct. 4, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, CO, for plaintiff-appellee.

Jeffrey O. Saufley, Colorado Springs, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Steven Eugene Clouse, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of first degree criminal trespass, second degree forgery, two counts of second degree burglary, three counts of theft, and four counts of habitual criminal. We affirm.

A police officer noticed an expensive automobile with a window partially rolled down in the parking lot of a motel. The motel was located in a high-crime area and the officer questioned why that type of vehicle was in the area unsecured. As a result, the officer conducted a computer check on the vehicle, which indicated that it was stolen. The officer subsequently called for back-up.

The officer then contacted the motel manager and asked who was driving the vehicle. The manager provided the name of "Michael Reardon" and the room in which he was staying. A telephone inquiry to the police station on the Reardon name revealed that there was an outstanding municipal arrest warrant for that individual.

The police knocked on the door of the room designated by the manager and defendant opened the door. An officer stepped into the doorway to conduct a "pat-down" or "frisk" of defendant for weapons. Then, the officer asked defendant if he and the other officers could talk to him. Defendant said "sure" and invited them into the room by stepping back from the doorway.

At that point, the officers noticed a black shoulder holster on the floor and a revolver on the nightstand. The police immediately handcuffed defendant for safety reasons and provided Miranda warnings. After defendant was handcuffed, an officer observed a switchblade knife on the top of a dresser. Defendant was then advised that he was going to be transported to the police station. Defendant asked the officer to open one of the dresser drawers to retrieve his money. The officer did so and found other items.

The officers conducted a search of the room for other people or more weapons. During the search, an officer looked under the bed and found a plastic bag, a camera, and a hunting knife. While looking through the bag for weapons, the officer noticed some credit cards issued to persons other than "Michael Reardon."

As they were leaving, the officers collected some of the personal property in the room for safekeeping, including two leather jackets. The officers also seized the items found under the bed and in the drawer.

Defendant later identified himself by his correct name. And, a subsequent inventory of the property taken from the room revealed that many of the items were stolen including the leather jackets. The vehicle was confirmed as being stolen from one of the residences as well.

Thereafter, defendant asked the police to return to the motel to secure his remaining personal property. By that time, the manager had placed defendant's property in a locker. The police retrieved the items from the locker.

I.

Initially, defendant argues that the trial court erred in failing to inform him that, if he testified, any admissions of prior felony convictions made by him during the substantive phase of the trial could not be used as proof of the habitual offender charges. We perceive no reversible error.

Procedural safeguards are imposed to ensure that a waiver of defendant's right to testify is done knowingly, voluntarily, and intentionally. People v. Curtis, 681 P.2d 504 (Colo.1984). Specifically, a trial court must advise a defendant that:

[H]e has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.

People v. Curtis, supra, 681 P.2d at 514.

Further, defendants facing habitual criminal charges are entitled to advance notice that a jury can consider admissions of prior convictions only on the issue of credibility and that the prosecution cannot use such admissions to prove the habitual offender charges. People v. Tafoya, 654 P.2d 1342 (Colo.App.1982).

Neither Curtis nor Tafoya, however, address the minimum requirements necessary to effect a valid waiver of a defendant's right to testify. See Roelker v. People, 804 P.2d 1336 (Colo.1991); People v. Ball, 813 P.2d 759 (Colo.App.1990). Rather, in determining whether a defendant has made a valid waiver of that right, the totality of the circumstances must be considered. And, the trial court's determination that there has been a valid waiver will be upheld as long as there has been substantial compliance with the Curtis requirements. Roelker v. People, supra; People v. Allaire, 843 P.2d 38 (Colo.App.1992).

As pertinent here, the following colloquy took place between the court and defendant:

THE COURT: And you understand, sir, that if you choose to testify, the district attorney will be able to cross-examine you as to any felony convictions which you might have. You understand that also?

THE DEFENDANT: Yes, sir, I do.

....

THE COURT: And you understand that if you choose to testify and if the district attorney is allowed to cross-examine you with regard to prior felony convictions the jury can be instructed that you're to be tried on this case and only this case and that any testimony regarding prior felony convictions is to be used by the jury only as to the determination of your credibility or believability as a witness and not as to whether you committed this crime or not. You understand that?

THE DEFENDANT: Yes.

(emphasis added)

We conclude that this advisement was adequate without a specific reference to the habitual offender charge. There is no indication in the record that defendant did not understand that use of the felony convictions would be confined to credibility. Indeed, after deciding not to testify, defendant stated:

[T]oday I'm going to have to say no, I can't testify because of my past priors, because I entered past guilty pleas when I never was told that this could haunt me some day--that it could [be] used to discredit my word, that I'm being called a liar every time I turn around.

And, unlike in People v. Chavez, 832 P.2d 1026 (Colo.App.1991) (cert. granted July 7, 1992), here, the trial court advised defendant that it was his personal decision to choose not to testify, regardless of counsel's advice.

II.

Defendant moved for continuance of the habitual phase of the proceeding, and indicated that he would waive his right to have the evidence heard by the jury. The prosecution objected contending that the applicable statute mandated that the jury hear the evidence and the trial court agreed. Defendant contends that the trial court erred in ruling that he could not waive his right to a jury trial for the habitual offender phase of the trial. We disagree.

The right to waive a trial by jury is not a right guaranteed by the state constitution. People v. District Court, 843 P.2d 6 (Colo.1992). Rather, that right is characterized as a common law right subject to regulation or abrogation by the General Assembly. People v. Davis, 794 P.2d 159 (Colo.1990); see also People v. Brisbin, 175 Colo. 428, 488 P.2d 63 (1971) (in first degree murder prosecution, statute requiring prosecutorial consent as a condition of waiver of jury trial on question of sanity was constitutional).

In determining whether the General Assembly intended to regulate or abrogate the right to waive a jury trial, we must look to the plain and ordinary meaning of statutory language. See Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980) (legislative intent to exclude prosecutorial consent requirement from statute governing right to jury trial).

Section 16-13-103(1), C.R.S. (1986 Repl.Vol. 8A), the applicable statute governing habitual criminal proceedings, states as follows:

If the allegation of previous convictions of other felony offenses is included in an indictment or information and if a verdict of guilty of the substantive offense with which the defendant is charged is returned, the court shall conduct a separate sentencing hearing to determine whether or not the defendant has suffered such previous felony convictions. As soon as practicable, the hearing shall be conducted by the trial court before the jury impaneled to try the substantive offense charged; except that, if trial by jury was waived or if the defendant pleaded guilty, the hearing shall be conducted before the trial court.

This language is ambiguous as to whether a defendant can waive his right to a jury trial in an habitual offender proceeding once that jury has convicted him of the underlying offense. However, this ambiguity is resolved by § 16-13-103(4), C.R.S. (1992 Cum.Supp.) and § 16-13-103(4)(a) and (b), C.R.S. (1986 Repl.Vol. 8A), which provide:

If the defendant denies that he has been previously convicted as alleged in any count of an information or indictment, the jury impaneled to try the substantive offense charged shall determine by separate hearing and verdict whether the defendant has been convicted as alleged.... The procedure in any...