People v. Peterson

• Decision Date: 16 April 1981
• Docket Number: No. 78-083,78-083
• Citation: 633 P.2d 1088
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Billy Wayne PETERSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1088

633 P.2d 1088

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Billy Wayne PETERSON, Defendant-Appellant.

No. 78-083.

Colorado Court of Appeals, Div. II.

April 16, 1981.

Rehearing Denied May 14, 1981.

Certiorari Granted Sept. 14, 1981.

David H. Zook, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellee.

J. Stephen Price, Colorado Springs, for defendant-appellant.

SMITH, Judge.

Defendant, Billy Wayne Peterson, appeals his conviction of second decree burglary, second degree assault, three counts of felony menacing, and possession of a weapon by a previous offender. We affirm in part, reverse in part, and remand the cause for a new trial.

I.

Defendant contends that the trial court erred in ordering a single trial on all six counts alleged in the information. Defendant argues that count six, "possession of a weapon by a previous offender," should have been tried separately because of the prejudice that might arise from the necessity of proving defendant's prior felony conviction, in order to present a prima facie case on that count. The People argue that the issue of severance was not preserved for appeal since defendant failed to request at trial that count six be severed. While we find that defense counsel's purported motion to sever was inartful, it is our view that the issue was sufficiently raised at trial to preserve it for our consideration.

Prior to the commencement of trial, defense counsel requested that the court utilize a procedure similar to the procedure used in a habitual criminal proceeding to obviate the prejudice that might result to defendant if the jury were to be informed at the outset that defendant was a convicted felon. Defense counsel stated in pertinent part:

"Your Honor, if it please the court, before the jury comes in, there is another matter I forgot, which pertains, possibly, to jury selection, and that is, one of the six counts pertains to an allegation of a prior offense. It's highly prejudicial that the jury be informed of that charge prior to the case going to the jury. And I would compare it with a habitual criminal proceeding where the habitual criminal charges are not read to the jury preliminarily...."

While it is clear from the record that defense counsel did not make a formal motion for separate trials, or specifically for a bifurcated trial, we conclude that counsel's comments with regard to the prejudice involved in trying all counts together, along with his request that the jury not be informed of the prior felony conviction prior to the presentation of evidence on the weapon possession charge were sufficient to raise the severance issue. Because this issue is such a basic one, we therefore consider it to be necessary to address it on appeal, albeit acknowledging that under the technical rules of preserving issues for appeal, defendant may not have done all that we would normally require as a prerequisite to appellate review.

At the commencement of jury selection, the trial court read to the jury all six counts, including count six which reads as follows:

"(T)hat on or about the 29th day of April, 1976, Billy Wayne Peterson allegedly having been previously convicted of the crime of voluntary manslaughter on May 7, 1971, ... did unlawfully and feloneously (sic) possess, use and carry upon his person a firearm and other weapon, to-wit: A gun; in violation of Colorado Revised Statutes § 18-12-108, alleging the crime of Possession of Weapon by a Previous Offender."

The prior conviction was emphasized by the prosecutor who paraphrased count six of the information in his opening statement as follows:

"And lastly, he is charged with possessing a gun as a former convicted felon. He is charged with having been convicted of the offense of voluntary manslaughter on the 7th day of May, 1971, and possessing a firearm since that conviction would be a violation of the law."

Thereafter, the prosecution called the defendant's mother as a witness, who testified that she was present in court when her son pleaded guilty to the charge of voluntary manslaughter. The prosecution also called the police officer who testified that defendant was on parole for voluntary manslaughter. Finally, the trial court took judicial notice of the court file establishing defendant's prior conviction for voluntary manslaughter.

Our Supreme Court has observed on numerous occasions that evidence of prior criminality casts a "damning innuendo likely to beget prejudice in the minds of juries." People v. Lucero, Colo., 615 P.2d 660 (1980); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). A danger exists that a presumption of guilt may be generated against an accused by showing that he committed a prior crime. Jurors may consider such evidence as indicative that he is a depraved person who likely would commit the crime for which he is currently being tried. Stull v. People, supra. Hence, the general rule is that evidence is not admissible which shows or tends to show that the accused has committed a crime wholly independent of offense for which he is on trial. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965).

Here, the disclosure to the jury panel at the inception of this case of the defendant's prior conviction for voluntary manslaughter so tainted the trial with the defendant's prior criminality that a fair trial on the first five counts became impossible. Cf. People v. Lucero, supra, the references to, and discussion of, the prior conviction were unnecessary and served no useful purpose in the trial of the first five counts.

Where, as here, a defendant is charged with a substantive offense and with...