People v. Peterson, 81SC189

• Decision Date: 10 January 1983
• Docket Number: No. 81SC189,81SC189
• Citation: 656 P.2d 1301
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Billy Wayne PETERSON, Respondent.
• Court: Colorado Supreme Court

Page 1301

656 P.2d 1301

The PEOPLE of the State of Colorado, Petitioner, v. Billy Wayne PETERSON, Respondent.

No. 81SC189.

Supreme Court of Colorado,

En Banc.

Jan. 10, 1983.

Rehearing Denied Jan. 31, 1983.

Robert L. Russel, Dist. Atty., David H. Zook, Chief Deputy Dist. Atty., Colorado Springs, for petitioner.

J. Stephen Price, Colorado Springs, for respondent.

DUBOFSKY, Justice.

We granted the People's petition for a writ of certiorari to review the judgment of the Court of Appeals in People v. Peterson, 633 P.2d 1088 (Colo.App.1981). The Court of Appeals remanded the case for a new trial because of the district court's failure to sever trial of the substantive criminal charges from trial of the charge of possession of a weapon by a previous offender. We affirm in part, reverse in part, and reinstate the judgment of the district court.

The defendant, Billy Wayne Peterson, was tried in El Paso County District Court in December, 1976, and was convicted of second degree burglary, second degree assault, three counts of felony menacing, and possession of a weapon by a previous offender. The defendant, who was on bond, did not appear in court after the first day of his trial. The trial continued, and after the return of the jury's verdict, defense counsel filed a timely motion for a new trial based upon the continuation of the trial in the defendant's absence and upon the court's refusal to grant the defense a pre-trial continuance. The court denied the motion for a new trial on January 10, 1977, and no appeal was perfected.

The defendant was returned to custody in the summer of 1977 and was sentenced on September 6, 1977. ¹ The trial court advised the defendant of his right to appeal "pursuant to Rule 35." The defendant through new counsel then filed Crim.P. 35(b) motions denominated motion for rehearing of motion for new trial and motion to vacate jury verdict, both grounded on claims of ineffectiveness of trial counsel. Both motions were denied and no appeal was taken from the denials.

On November 1, 1977, the defendant attempted for the first time to file a direct appeal of the sentence imposed on September 6 by filing a request to file delayed notice of appeal of the sentence. In support thereof, defense counsel stated that her preoccupation with the 35(b) motions and with other cases caused her to miss the deadline for a direct appeal of the sentence. The request was denied, and an appeal was taken. On December 5, 1978, the Court of Appeals ruled that the trial court's erroneous instruction that the defendant had a right to appeal "pursuant to Rule 35" justified giving the defendant an additional 20 days to file a motion for new trial. Moreover, the Court of Appeals construed Crim.P. 32(c) as permitting the defendant to raise objections in his new trial motion to "any aspect of the conviction and sentencing." ²

On remand, the defendant filed a motion for a new trial based upon the grounds alleged in the first motion for a new trial, the severity of the sentence, and the following additional, new grounds: the failure of the trial judge to disqualify himself; the denial of the defendant's pretrial motion to dismiss; the failure of the trial court to sever the possession of a weapon count from the other charges; and the admission of evidence of a prior conviction. After a hearing, the trial court denied the new trial motion on January 29, 1979. The defendant appealed.

The Court of Appeals reversed the defendant's convictions on all counts but that for possession of a weapon by a previous offender ³ and remanded for a new trial on those charges. The basis for the holding was that the introduction of evidence of the defendant's prior felony conviction in proving one element of the weapons count so tainted the proceeding that a fair trial on the other charges was impossible. The Court of Appeals determined that the evidence supporting the weapons count was unequivocal and that the weapons conviction was sound.

We granted certiorari to review the Court of Appeals' holding that the defendant should be retried on the charges of burglary, assault, and menacing. We hold that the Court of Appeals lacked jurisdiction to consider the issue of whether the defendant was prejudiced by the failure to sever the weapons count because that issue was not raised in a timely motion for a new trial. ⁴ Crim.P. 33(a) provides:

The party claiming error in the trial of any case must move the trial court for a new trial, and the trial court may not dispense with the necessity for filing such a motion but may dispense with oral argument on the motion after it is filed. Only questions presented in such motion will be considered by the appellate court on review.

Failure to raise an issue in the motion for a new trial deprives the appellate court of jurisdiction to consider it unless the issue is one involving plain error affecting the substantial rights of the defendant. Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978). The severance issue was not raised in the defendant's December 22, 1976 motion for a new trial. Therefore, our inquiry is limited to whether failure to sever the weapons count from the other charges amounts to plain error. ⁵

Each case in which it is argued that plain error has been committed must be resolved in light of its particular facts and the law that applies to those facts. People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976). It is not possible to find under the circumstances of this case that failure to order a severance was plain error. Rather, it is at least equally likely that defense counsel made a strategic decision not to seek severance. See ABA Standards for Criminal Justice, Joinder and Severance § 13 at 4-5 (2d ed. 1982) (tactical considerations affecting joinder and severance). When defense counsel's strategy backfires, the resultant error cannot be urged as grounds for reversal on appeal. People v. Mann, 646 P.2d 352 (Colo.1982); People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973).

The defendant's retained private counsel was a former member of the District Attorney's staff whom the trial court found, in a post-trial hearing, to have conducted a vigorous and able defense. Still, defense counsel did not make a motion to sever the weapons count from the remaining charges prior to trial, nor did he renew the motion at the close of all of the evidence. At both stages, the failure to make a formal motion results in a waiver of the point on appeal. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972); ABA Standards, supra, § 13-3.3. ⁶ Allowing a defendant to contend that the trial court's failure to grant severance sua sponte constitutes plain error would encourage defense counsel to not request severance in order to preserve potential error on appeal. Where the record indicates competent representation, defense counsel's silence must be interpreted as acquiescence in the joinder of counts.

Defense counsel did recognize the danger inherent in reading the weapons count, with its mention of the defendant's prior conviction for manslaughter, to the jury. Just before the jury was seated, and after the defendant's disappearance, defense counsel argued that the People were barred from bringing the weapons charge unless the defendant voluntarily took the witness stand in his own behalf. ⁷ The rationale for this argument, the defense maintained, was similar to that for bifurcating prosecutions under the habitual criminal statute, section 16-13-101, C.R.S.1973 (1978 Repl.Vol. 8), which is to obviate the prejudicial effect of prior convictions on the trial of the substantive offense. The district court overruled the objection and allowed the reading of the weapons count to the jury and the introduction of evidence of the defendant's prior conviction.

The Court of Appeals described this objection as "inartful," but ruled that it sufficiently raised the severance issue to warrant appellate review. This analysis is incorrect. As is discussed above, an issue which is not set out in a timely new trial motion must constitute plain error to be considered on review. The Court of Appeals, while finding the issue "basic," did not hold that it approached plain error. We also decline to find plain error under the circumstances of this case. Plain error is error which is "obvious and grave," People v. Mills, supra. This is not a case of an obvious instance of plain error, such as the failure to instruct the jury on one of the essential elements of the crime charged. People v. Butcher, 180 Colo. 429, 506 P.2d 362 (1973). In such a case, the failure to object to the inadequate instructions can serve no strategic purpose. On the other hand, the considerations affecting a decision whether or not to sever are complex. "Given the facts of the same case, ... similarly situated defendants could often disagree on whether joint or separate trials should be requested." ABA Standards, supra, § 13 at 4. ⁸

We agree with the Court of Appeals that where a defendant is charged with a substantive offense and with possession of a weapon by a previous offender under section 18-12-108, procedural safeguards such as separate trials or a bifurcated procedure should be available to ensure a fair trial. People v. Peterson, supra, 633 P.2d at 1090. It has also been suggested that a defendant proffer a stipulation as to his felony record to avoid bringing the taint of a prior conviction before the jury. State v. Moore, 274 N.W.2d 505 (Minn.1979). However, our analysis of the facts of this case persuades us that it is the defendant who must make a tactical decision whether to invoke such procedures and that the defendant must exercise the right to these procedures by means of a timely, pre-trial motion. ⁹ Accord State v. Moore, supra. Like a defendant in an habitual criminal proceeding, the defendant charged under section 18-12-108 may waive the right to separate proceedings by taking the witness stand. And, as a tactical...