People v. Fullerton, 26510

• Decision Date: 26 August 1974
• Docket Number: No. 26510,26510
• Citation: 186 Colo. 97,525 P.2d 1166
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Robert P. FULLERTON, District Judge, and the District Court In and For theSecond Judicial District of the State of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 1166

525 P.2d 1166

186 Colo. 97

The PEOPLE of the State of Colorado, Petitioner, v. Robert P. FULLERTON, District Judge, and the District Court In and For theSecond Judicial District of the

State of Colorado, Respondents.

No. 26510.

Supreme Court of Colorado, En Banc.

Aug. 26, 1974.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke, Wunnicke, Chief Deputy Dist. Atty., Denver, for petitioner.

Robert P. Fullerton, Duncan W. Cameron, Denver, for respondents.

ERICKSON, Justice.

The defendant was charged with possession of a weapon by a previous offender (Felon With a Gun Statute), 1971 Perm.Supp., C.R.S.1963, 40--12--108. His counsel filed a motion for a bifurcated trial, alleging that the two elements of the offense, possession and prior felony record, should be tried separately before the same jury. He argued that to impart knowledge of the defendant's prior record to the jury would unduly influence a verdict and finding on the issue of possession. The trial court agreed and granted his motion. In this original proceeding, the district attorney seeks relief in the nature of a writ of prohibition, alleging that the court's order for a bifurcated trial was in excess of its jurisdiction. We issued a rule to show cause and now make the rule absolute.

Bifurcated trials are permitted in prosecutions for second or subsequent offenses when the prior convictions are alleged as a basis for imposition of a harsher sentence and are relevant only to punishment. Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969). The weight of modern authority calls for a mandatory two-stage trial for the trial of the collateral issue of enhanced punishment to avoid prejudice to the defendant in the initial determination of the issue of guilt. See, e.g., Routa v. People, 117 Colo. 564, 192 P.2d 436 (1948); United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3d Cir. 1962); Model Penal Code § 210.6 (Proposed Official Draft, 1962). This is not a case where the information charged a substantive offense and, in addition, a prior conviction unrelated to the substantive offense. If such were the case, proof of the prior conviction could not be admitted prior to proof of the substantive offense. Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953). The limitations set forth in the Heinze case do not apply here.

This case does not involve a collateral issue of enhanced punishment. Under the Felon With a Gun Statute, the prior conviction does not go merely to the punishment to be imposed, but rather is an element of the substantive offense charged. The distinction is critical.

The potential prejudice to the defendant from a unitary trial of the issues must be weighed against the need to prevent undue interference with the administration of criminal justice. The trial judge has a duty to safeguard the rights of the accused and to ensure the fair conduct of the trial. American Bar Association Standards for Criminal Justice Relating to The Functions of the Trial Judge § 1.1. In the furtherance of that duty, he has broad discretion under Crim.P. 14 to order a...