People v. Oliver

• Decision Date: 04 October 2018
• Docket Number: Court of Appeals No. 15CA1722
• Citation: 452 P.3d 112
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John R. OLIVER, Defendant-Appellant.
• Court: Colorado Court of Appeals

452 P.3d 112

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.John R. OLIVER, Defendant-Appellant.

Court of Appeals No. 15CA1722

Colorado Court of Appeals, Division III.

Announced October 4, 2018

Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WEBB

¶ 1 This case calls on us to distinguish between defense counsel’s power to stipulate to an element of an offense and the defendant’s sole prerogative to personally waive the right to trial by jury on that offense. After a jury trial on two felony menacing charges against defendant, John R. Oliver, the jury acquitted him on one count and hung on the other. Then the trial court entered a judgment of conviction for possession of a weapon by a previous offender (POWPO)—a charged offense on which the jury had not been instructed. The court did so based only on the jury’s "yes" answer to a special interrogatory, which had been approved by Oliver’s counsel, that asked whether Oliver had possessed a firearm, plus counsel’s stipulation that Oliver was a previous offender.

¶ 2 We conclude that because Oliver did not personally waive his right to have the jury return a verdict on the POWPO charge, even if counsel attempted to waive this right on Oliver’s behalf, entry of the POWPO conviction violated Oliver’s constitutional right to trial by jury. We further conclude that the conviction must be reversed and the case remanded for a new trial on this charge.

I. Background

¶ 3 Investigating a report of a shooting with gang overtones, police officers obtained from the participants—none of whom had been hit—differing accounts of what had happened. Ultimately, the police arrested Oliver and the prosecution charged him with three counts of felony menacing (deadly weapon) and one count of POWPO. The victims of the alleged menacing were G.M., T.M., and D.B. Jr. Later, the prosecution dismissed the count involving G.M.

¶ 4 Before trial, the parties agreed to bifurcate the POWPO count, with the defense objective being to avoid the jury learning that Oliver was a prior offender while it decided the menacing counts. Thus, POWPO was not mentioned in voir dire or opening statements. Oliver defended on the theory that, while he did possess a firearm, which his counsel admitted in opening statement, because he feared the victims were gang members, he was entitled to possess the firearm for self-defense.

¶ 5 Near the end of the trial, however, defense counsel agreed with the court’s suggestion of using a special interrogatory on possession instead of having a separate trial on the POWPO count after the jury returned its verdict on the menacing counts. Then counsel stipulated that Oliver’s juvenile adjudication for sexual assault on a child satisfied the prior offender element of POWPO, apparently to avoid possible prejudice from the jury speculating about the conduct underlying the adjudication.

¶ 6 The trial court gave the jury a special interrogatory on possession, which included choice of evils. (Although Oliver had discussed self-defense with the court, he does not challenge this aspect of the instruction on appeal.) But neither Oliver’s prior adjudication nor POWPO was mentioned in any instruction, during trial, or in closing arguments.

¶ 7 The jury found Oliver not guilty of having menaced T.M., left blank the verdict form for the count involving D.B. Jr., and answered "yes" to the special interrogatory, thereby rejecting the choice of evils defense. The trial court declared a mistrial as to the menacing count involving D.B. Jr., which was later dismissed on the prosecution’s motion. Then the court entered a judgment of conviction for POWPO, which it based on the special interrogatory answer and the stipulation.

¶ 8 Oliver appeals on the sole basis that the jury never returned a guilty verdict on the POWPO charge. Instead, he contends, the trial court effectively directed a verdict in violation of his federal and state constitutional rights to trial by jury, which he did not personally waive.

II. Preservation and Standard of Review

¶ 9 Oliver concedes that his jury trial contention was not raised in the trial court. Still, he asserts that review is de novo and, because structural error occurred, we must remand for a new trial on the POWPO charge. The Attorney General responds that, assuming the error was structural, Oliver’s counsel waived his contention, as did Oliver. But even if the contention was not waived, the Attorney General continues, we should review only for plain error and the record does not show prejudice. Oliver replies that his counsel could not waive his right to a jury trial and he did not personally do so. Oliver is correct.

¶ 10 To begin, the Attorney General is correct that raising structural error only gets Oliver so far. After all, "even fundamental rights can be waived, regardless of whether the deprivation thereof would otherwise constitute structural error." Stackhouse v. People , 2015 CO 48, ¶ 8, 386 P.3d 440. But because the jury trial right is one of the few rights that can only be waived by a defendant personally, whether his counsel’s actions constituted waiver is immaterial. See People v. Bergerud , 223 P.3d 686, 693-94 (Colo. 2010) ("Decisions such as whether to ... waive a jury trial ... are so fundamental to a defense that they cannot be made by defense counsel, but rather must be made by the defendant himself.").

¶ 11 Further, and contrary to the Attorney General’s argument for plain error review, entry of a judgment of conviction absent a jury verdict of guilty is structural error that cannot be rendered harmless, despite the weight of the evidence. See, e.g. , Sanchez v. People , 2014 CO 29, ¶ 18, 325 P.3d 553 ("[T]he entry of a judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error."); Medina v. People , 163 P.3d 1136, 1141 (Colo. 2007) ("Instead of receiving an impartial jury verdict convicting her of all elements beyond a reasonable doubt, the trial court essentially judged Medina guilty of a new and different crime.").

¶ 12 Alternatively, the Attorney General argues that either we should conclude that Oliver personally waived this right on the existing record or the question whether he did so must be decided on an additional record developed under Crim. P. 35(c). This argument misses the mark in two ways.

¶ 13 First, the Attorney General relies on various discussions among counsel and the trial court, all in Oliver’s presence, about what would be resolved by stipulation and what would be left for the jury to decide. To be sure, Oliver said nothing during this colloquy. But a defendant’s waiver of the jury trial right must be affirmative, not an inference of acquiescence from the defendant’s silence. See Rice v. People , 193 Colo. 270, 272, 565 P.2d 940, 942 (1977) ("[A] requirement that the defendant personally waive the right to a trial by jury alleviates the difficult task presented to an appellate court that is seeking to determine the meaning of the defendant’s silence."); see also Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ("We cannot presume a waiver of [the right to a jury trial] from a silent record.").

¶ 14 Second, a defendant can challenge waiver under Crim. P. 35(c) on the basis of facts "that are not contained in the direct appeal record." People v. Walker , 2014 CO 6, ¶ 11, 318 P.3d 479 (citation omitted). But Oliver does not point to any such facts and for good reason—the record is devoid of the requisite affirmative waiver. In other words, he is not challenging the efficacy of such a waiver. And the Attorney General is arguing only that further evidence could show his counsel explained to him the effect of the stipulation. But such evidence would be irrelevant because even well-informed silence does not constitute a waiver. See Rice , 193 Colo. at 271, 565 P.2d at 941 ("If a waiver could be implied from a defendant’s failure to object to his counsel’s statement, there would be an increased danger of misinterpretation with respect to a right considered one of the most important in our democracy.").

¶ 15 For these reasons, the dispositive question is whether Oliver’s POWPO conviction was entered in violation of his right to a jury trial. This is a question of law subject to de novo review. People v. Laeke , 2012 CO 13, ¶ 11, 271 P.3d 1111 ("A defendant’s right to a jury trial is an issue of law."). And if such an error occurred, it is structural. People v. Munsey , 232 P.3d 113, 118 (Colo. App. 2009).

III. The Trial Court’s Entry of a Judgment of Conviction on POWPO Deprived Oliver of His Right to Have a Jury Return a Verdict on this Charge

¶ 16 Oliver contends the POWPO conviction violated his constitutional right to a jury trial because the jury did not know that he was charged with POWPO, the jury was not instructed on the POWPO element of prior offender status, and the jury did not return a verdict finding him guilty of POWPO. The Attorney General responds that where a stipulation has narrowed determining guilt or innocence to a single factual question, allowing the jury to answer only that question—here POWPO—satisfies this right. Again, Oliver is correct.

A. Law

¶ 17 In criminal cases, the constitutional guarantee of a trial by jury permits conviction only on a jury verdict finding the defendant guilty of having committed every element of the crime charged. Sanchez , ¶ 13. Stated differently, a court is prohibited from "entering a conviction for an offense other than that authorized by a jury’s verdict, or directing a verdict for the State, no matter how overwhelming the evidence." Id.

¶ 18 In addition, "the trial court has a duty to instruct the jury properly on all of the elements of the...