People v. Meyers

• Decision Date: 06 October 1980
• Docket Number: No. 80SA75,80SA75
• Citation: 617 P.2d 808
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron Eugene MEYERS, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 808

617 P.2d 808

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron Eugene MEYERS, Defendant-Appellant.

No. 80SA75.

Supreme Court of Colorado, En Banc.

Oct. 6, 1980.

Rehearing Denied Oct. 27, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Richard G. Seymour, Designated Counsel, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Robert Breindel, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

Defendant-appellant, Byron Eugene Meyers (defendant), appeals his conviction of first degree burglary, claiming that prosecutorial misconduct before the grand jury vitiated the indictment returned against him and the prosecution's impeachment-use of a prior felony conviction during trial deprived him of due process of law. We reverse and remand due to the admission of a constitutionally infirm prior felony conviction.

On December 27, 1977, three adult males entered the apartment of a couple in Colorado Springs, Colorado. Once the intruders were inside, a shooting spree resulted and one of the intruders was killed and both occupants wounded. The grand jury indicted the defendant on two counts of first degree assault, section 18-3-202(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8); first degree burglary, section 18-4-202, C.R.S. 1973 (now in 1978 Repl. Vol. 8); second degree burglary, section 18-4-203, C.R.S. 1973 (now in 1978 Repl. Vol. 8); attempt to commit aggravated robbery, sections 18-2-101 and 18-4-302, C.R.S. 1973 (1978 Repl. Vol. 8); and commission of a crime of violence, section 16-11-309, C.R.S. 1973 (1978 Repl. Vol. 8).

The defendant filed a motion to quash the indictment on grounds of prosecutorial misconduct before the grand jury. The alleged misconduct consisted of the district attorney's reference, at one point in the grand jury proceeding, to the defendant as a "perpetrator"; his statement that the defendant had been arrested and jailed for the incident on December 27, 1977; and, finally, his use of the expression "I believe" when pointing out the significance of the evidence presented. The trial court denied the motion to quash.

Prior to trial the defendant filed a motion to suppress a Mississippi conviction for burglary in 1975 when he was 19 years old. The principal grounds of the suppression motion were that (1) the automatic admission of his prior felony conviction for impeachment purposes under section 13-90-101, C.R.S. 1973, violates due process of law unless the statute is construed to grant judicial discretion in the matter of admissibility, and (2) the defendant's 1975 conviction was obtained as a result of a guilty plea in derogation of his right to counsel and its admission at trial would violate due process of law.

At the hearing on the motion, the defendant testified that after his arrest in Mississippi he remained in the county jail for approximately seven months before appearing in court. He was unrepresented by counsel during this confinement. About ten minutes before his scheduled court appearance, an attorney appointed by the court contacted him. Apparently, a plea and sentence agreement had been arranged between the attorney and the prosecutor whereby the defendant would be credited with time served upon a plea of guilty to burglary. The attorney advised the defendant of this disposition in their brief discussion before appearing in court. The defendant pled guilty and received credit for time served in the county jail.

The defendant's testimony constituted the only evidence presented at the motion to suppress. Neither a transcript of the guilty plea nor a judgment of conviction was offered by the prosecution. The district attorney and defense counsel entered a stipulation, based on a telephone conference with the court reporter in Mississippi, that the defendant was not advised of the basic constitutional rights he waived by pleading guilty, nor the elements of the offense; however, the Mississippi judge did find the plea to be voluntary.

The trial court denied the motion to suppress. It concluded that the belated appointment of an attorney prior to the defendant's plea of guilty was sufficient, by itself, to satisfy the defendant's constitutional right to effective assistance of counsel. Also, the court attached no significance to the failure of the Mississippi court to advise the defendant of basic constitutional rights waived by the defendant upon pleading guilty and the elements of the offense.

At trial the defendant testified that his role in the incident of December 27, 1977, consisted of pointing out the apartment house to his two companions so that one of them could purchase marijuana from the occupants. The defendant testified that he was not armed and merely crossed the threshold of the home and went no further. When he heard shots inside, he fled. On cross-examination the district attorney elicited from the defendant that he had been convicted of burglary in Mississippi in 1975. The jury found the defendant guilty of first degree burglary and the court sentenced him to a term of six to ten years.

I. The Grand Jury Proceeding

The defendant asserts that the court erred in denying his motion to quash the grand jury indictment because it was obtained through prosecutorial misconduct amounting to a violation of due process of law. U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25. We find no due process violation in this case.

A prosecutor must exercise due care to assure that he does not unduly influence the grand jury, ABA Standards Relating to the Prosecution Function § 3-3.5(b) (1979), and grand jurors must remain free to reach their own conclusions based on the facts presented to them, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). However, grand jurors, without legal assistance, often are unable to evaluate the massive amount of evidence presented to them. Section 20-1-106, C.R.S. 1973 (1978 Repl.Vol. 8), directs the district attorney to appear and advise the grand jury. People ex rel. Losavio v. Gentry, Colo., 606 P.2d 57 (1980). "Where the prosecutor is authorized to act as legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to its status as an independent legal body." ABA Standards Relating to the Prosecution Function § 3-3.5(a) (1979).

The defendant has failed to demonstrate any prosecutorial impropriety rising to the level of a due process violation. The prosecutor's statements-his reference to the defendant as a perpetrator; his mention that the defendant had been arrested and jailed; and his use of the statement "I believe" in referring to the significance of the evidence-were interspersed over several hours of grand jury proceedings. The challenged statements, within this context, are more akin to a legitimate attempt to assist the grand jury in evaluating the evidence than an improper attempt to influence its decision on that evidence. See, e. g., United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied sub nom., Valley Bell Dairy Co. v. United States, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957); United States v. Rintelen, 235 F. 787 (D.C.N.Y.1916); Turpin v. State, 206 Ind. 345, 189 N.E. 403 (1934). Moreover, the defendant has failed to make any showing of prejudice resulting from the prosecutor's statements and, in the absence of an evidential basis for relief, the motion to quash was properly denied. See, e. g., United States v. Chanen, 549 F.2d 1306 (9th Cir. 1977), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977); United States v. International Paper Company, 457 F.Supp. 571 (1978); People v. Estep, 196 Colo. 340, 583 P.2d 927 (1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1796, 60 L.Ed.2d 245 (1979); People v. Simbolo, 188 Colo. 49, 532 P.2d 962 (1975).

II. The Felony-Impeachment Statute

The defendant claims that section 13-90-101, C.R.S. 1973, deprives him of due process of law under the Fourteenth Amendment to the United States Constitution and Article II, Section 25, of the Colorado Constitution because the statute precludes the exercise of any judicial discretion in admitting prior felony convictions for purposes of impeachment. Consistently, we have rejected this argument and similar ones challenging the constitutionality of the statute. E. g., People v. Layton, Colo., 612 P.2d 83 (1980); People v. Griffith, 197 Colo. 544, 595 P.2d 231 (1979); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. Taylor, 197 Colo. 161, 591 P.2d 1017 (1979); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978); Velarde v. People, 179 Colo. 207, 500 P.2d 125 (1972). We are not persuaded that reconsideration of that issue is justified on the basis of the record here.

III. The Motion to Suppress

Lastly, the defendant contends that the admission of his 1975 Mississippi conviction for impeachment purposes violated due process of law under the federal and state constitutions. U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25. We conclude that the prior felony conviction was inadmissible for two reasons. First, the defendant made a prima facie showing that he was denied effective assistance of counsel in entering the plea of guilty and the prosecution offered no evidence to controvert that showing and to establish the constitutional admissibility of the prior felony. Second, the Mississippi court's failure to advise the defendant of his basic constitutional rights, and the elements of the crime to which he pled, rendered the plea constitutionally defective and the conviction thereon inadmissible.

A. The Right to Counsel

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the ...