People v. Skufca, No. 02CA2233.

• Decision Date: 01 December 2005
• Docket Number: No. 02CA2233.
• Citation: 141 P.3d 876
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Stephen Mark SKUFCA, Defendant-Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

141 P.3d 876

The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Stephen Mark SKUFCA, Defendant-Appellee and Cross-Appellant.

No. 02CA2233.

Colorado Court of Appeals, Div. I.

December 1, 2005.

Rehearing Denied April 27, 2006.^*

Certiorari Granted August 28, 2006.^**

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado; Paul R. McLimans, District Attorney, David M. Waite, Deputy District Attorney, Craig, Colorado, for Plaintiff-Appellant and Cross-Appellee.

David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

ROY, J.

Defendant, Stephen Mark Skufca, appeals from the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance (methamphetamine), possession of marijuana, possession of drug paraphernalia, and introduction of contraband in the first degree. The prosecution appeals the sentence imposed. We reverse and remand for a new trial.

On September 21, 2000, deputies with the Moffat County Sheriff's Department obtained a warrant for defendant's arrest in connection with a traffic offense. The deputies located defendant's car in a parking lot, initiated surveillance of the car, and, upon defendant's return to the car, arrested him. Incident to the arrest, the deputies conducted a routine pat-down search and discovered a black knife and three $100 bills.

Defendant's car was also searched, and the deputies found one small bag containing 2.86 grams of methamphetamine and two other plastic bags containing collectively 33.35 grams of marijuana. The search also revealed a scale and a shortened pen tube that appeared to have drug residue on it.

At the jail, defendant was again searched. The deputies found a folded paper bindle containing a small amount of methamphetamine in defendant's sock upon which two telephone numbers had been written.

Earlier on the day of his arrest, defendant had assisted an undercover Drug Enforcement Administration (DEA) agent in purchasing 9.6 grams of methamphetamine from an unnamed source and one pound of marijuana from another unnamed source. Defendant was permitted to keep a small amount of each purchase. The undercover agent's phone numbers were written on the bindle of methamphetamine found in defendant's sock, the drugs found in defendant's possession were the type of drugs involved in the transactions, and the cash in defendant's possession was traced to the undercover agent. Separate federal charges were filed as to these morning drug transactions which remained pending at the time of defendant's trial here.

In this case, defendant was charged with one count each of possession of a schedule II controlled substance (methamphetamine) with intent to distribute, a class three felony, § 18-18-405(1)(a), (2)(a)(I)(A), C.R.S.2005; possession of marijuana with intent to distribute, a class four felony, § 18-18-406(8)(b)(I), (III)(A), C.R.S.2005; introducing contraband in the first degree, a class four felony, § 18-8-203(1)-(2), C.R.S.2005; and possession of drug paraphernalia, a class two petty offense, § 18-18-428(1)-(2), C.R.S. 2005.

The first trial ended in a mistrial. Following the second trial, defendant was convicted of the lesser included offense of possession of methamphetamine, § 18-18-405(1), (2)(a)(I)(A), C.R.S.2005; the lesser included offense of possession of more than one but less than eight ounces of marijuana, § 18-18-406(4)(a)(I), C.R.S.2005; and the remaining offenses, introducing contraband in the first degree and possession of drug paraphernalia, as charged.

After the verdict, and over defense objections, the court held a habitual offender hearing; defendant was convicted of three counts of being a habitual offender, § 18-1.3-801, C.R.S.2005. The trial court then held a combined sentencing hearing and abbreviated proportionality review and concluded that the imposition of the prescribed twenty-four-year term in the Department of Corrections would be grossly disproportionate to defendant's offenses. The court then sentenced defendant to concurrent terms of twelve years each on the possession of methamphetamine and introduction of contraband counts, and six months on the possession of marijuana.

The prosecution's appeal of the sentence and defendant's cross-appeal of his conviction followed.

I.

Defendant's primary contention on cross-appeal is that the trial court impermissibly burdened his constitutional right to testify in his own defense by admitting the evidence of the morning drug transactions as res gestae evidence and refused to limit the prosecution's cross-examination of him with respect to those transactions had he decided to testify. We agree.

In a pretrial hearing, defendant objected to the admission of the evidence of the morning drug transactions as res gestae evidence and argued that if it was admissible at all it would be under CRE 404(b). The trial court disagreed and allowed the evidence as res gestae evidence.

During the trial and prior to the introduction of the morning drug transactions evidence, defendant requested that the trial court reconsider its ruling on the res gestae evidence on the ground that it chilled his right to testify in this case. In addition, defense counsel, while recognizing that defendant would be prohibited from testifying about the res gestae evidence, and that he would have to appropriately limit direct examination of defendant to avoid "opening the door," requested that the trial court prohibit any cross-examination of defendant as to the res gestae evidence. The trial court denied both requests.

Then, after the prosecution presented the evidence in its case-in-chief, the court advised defendant of his right to testify on his own behalf pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984). Defendant stated he could not testify because the federal charges were currently pending regarding the res gestae evidence, and the trial court's refusal to limit his cross-examination had placed him in the untenable position of choosing either to testify on his own behalf in this case or exercise his right not to incriminate himself in the federal criminal matter. Defendant now raises these same arguments on appeal.

Under both the Fourteenth Amendment to the United States Constitution and article II, section 25 of the Colorado Constitution, an accused in a criminal case has a due process right to testify in his or her own defense. Apodaca v. People, 712 P.2d 467 (Colo.1985). This right is fundamental, and the opportunity to decide to exercise it freely and without coercive influence is critical to the trial itself. Apodaca v. People, supra; see also People v. Curtis, supra.

A constitutional right may be impermissibly chilled when there is some penalty imposed for exercising it. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Apodaca v. People, supra. However, not all burdens placed on a defendant's choice of whether to testify constitute impermissible impediments to the exercise of the constitutional right to testify. A defendant's right to testify has generally been found to be impermissibly burdened only when there is an issue involving the constitutional admissibility of evidence or when the defendant is forced to choose between the right to testify and some other constitutional right. People v. Anderson, 954 P.2d 627 (Colo.App.1997).

In support of his claim, defendant has directed our attention to several Colorado cases in which the courts concluded that the defendant's right to testify or right against self-incrimination had been impermissibly burdened. See Bales v. People, 713 P.2d 1280 (Colo.1986)(trial court impermissibly burdened the defendant's right to testify when it refused to hold an evidentiary hearing to determine the constitutional admissibility of a prior conviction); Apodaca v. People, supra (trial court impermissibly burdened the defendant's right to testify by refusing to make a timely ruling on defendant's motion to suppress a prior conviction); People v. Chavez, 621 P.2d 1362 (Colo.1981)(trial court impermissibly burdened the defendant's right to testify by erroneously ruling that evidence of defendant's prior convictions elicited during trial of substantive charges would be admissible for substantive purposes at habitual criminal offender proceeding); People v. Rosenthal, 617 P.2d 551 (Colo.1980)(trial court impermissibly burdened the defendant's right against self-incrimination by allowing prosecution to present, at the trial on the merits, statements defendant had made to privately retained psychiatrist while preparing for sanity trial); People v. Kreiter, 782 P.2d 803 (Colo.App.1988)(trial court impermissibly burdened the defendant's right to testify and present a defense when it based its ruling on the admissibility of similar act evidence on an incorrect burden of proof). While these cases are instructive, they do not directly address the circumstances presented by these facts.

Defendant contends that his situation is unique, that is, this case involves the tension between exercising his Sixth Amendment right to testify in this case and his Fifth Amendment right not to incriminate himself with respect to the other pending charges. Our research has disclosed that only two jurisdictions have addressed this precise issue in published cases, and both support defendant's contention.

The leading case is People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865 (1987). In that case, the defendant was on trial for rape, with an unrelated burglary charge pending in another court. As pertinent here, the defendant, in a pretrial motion, requested that the prosecution be prohibited from cross-examining him concerning the burglary because, among other reasons, he would be forced to assert his Fifth...