People v. Thompson, No. 03CA1017.

• Decision Date: 03 October 2005
• Docket Number: No. 03CA1017.
• Citation: 121 P.3d 273
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Lee THOMPSON, Defendant-Appellant.
• Court: Colorado Supreme Court

121 P.3d 273

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Lee THOMPSON, Defendant-Appellant.

No. 03CA1017.

Colorado Court of Appeals, Division III.

March 24, 2005.

Certiorari Denied October 3, 2005.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by: Judge DAILEY.

Defendant, Michael Lee Thompson, appeals the judgment of conviction entered upon the trial court's determination, following a bench trial, that he was guilty of attempted second degree murder, first degree assault on a peace officer, felony menacing, carrying a concealed weapon, and two counts of crime of violence. We affirm.

I. Facts

When a police officer attempted to restrain him, defendant drew a .380 caliber semi-automatic handgun and pointed it at the officer's head at very close range. The officer wrestled him to the ground, and the gun was retrieved from underneath defendant's body. When the gun was recovered, its slide was open, exposing part of the barrel, and a round was jammed in the breech.

The primary issue at trial was whether defendant had attempted to fire the gun while pointing it at the officer. The officer testified that, in the split second he saw the gun, he (1) observed "a slight bit of the barrel" — "less than a quarter inch" — "protruding" from the slide of the gun, and (2) heard a "click" which, in his experience, was the sound of "a hammer striking the [firing] pin of the handgun as if the trigger [had] been pulled."

The gun was admitted into evidence. Two prosecution experts demonstrated to the court how that gun, and that type of gun, functions. On a semi-automatic handgun, the slide moves backward and forward on top of the barrel to chamber and eject rounds, and to cock the hammer. Between them, the experts related how the slide on the gun works, how it could jam in an open position, how far it could open and still permit a pull on the trigger to activate the hammer mechanism (whether or not the safety is on), and how a clicking sound is produced when a pull on the trigger activates the hammer mechanism.

According to these experts, the slide does not naturally rest in an open position or expose any part of the barrel. When the gun was recovered, its slide was held open because of the round jammed in the breech. This jam could have been caused by an attempt to slowly feed the round into the chamber of the gun, or by the application of abrupt force upon the gun.

According to these experts, the slide could be open up to an eighth of an inch without interfering with the operation of the trigger-to-hammer mechanism; any greater opening of the slide would disconnect the hammer from the trigger, thereby preventing the trigger from releasing the hammer.

As recovered, the slide of the gun was jammed open "a lot more" than an eighth of an inch. One expert testified that, in this condition, the hammer mechanism could not have been activated; thus, the expert concluded that no clicking sound could have been made by the hammer.

The officer, however, testified that, when recovered, the gun was not in the same condition it had been in when defendant pointed it at him.

In closing, the prosecution argued alternative theories for finding that defendant tried to shoot the officer: (1) the officer was mistaken that the slide was open, the click sound occurred when defendant pulled the trigger without taking the safety off, and the gun jammed when the officer subsequently wrestled defendant to the ground; or (2) for some reason, the slide was initially open, as related by officer, but only up to a length that would have permitted the gun's hammer to fall and cause a click sound, as related by the officer.

After deliberating, the trial court concluded that defendant had tried to shoot the officer, based on its findings that (1) the officer saw a barrel "protruding" from the gun; (2) the officer heard a "click"; (3) "the sound made was not necessarily the sound of a hammer falling"; and (4) "the sound, whatever it was, was caused by the trigger being pulled" by defendant.

Alleging that the trial court could not have made some of these findings without having improperly experimented with the gun, defendant moved for a new trial. The trial court denied defendant's motion.

II. Waiver of Jury Trial

Initially, defendant contends that his conviction should be reversed because the record does not adequately reflect that he voluntarily, knowingly, and intentionally waived his fundamental right to a jury trial. We are not persuaded.

A defendant may, with the prosecution's consent, waive the right to a jury trial, either in writing or orally in court. Crim. P. 23(a)(5); Rice v. People, 193 Colo. 270, 271, 565 P.2d 940, 941 (1977); see § 16-10-101, C.R.S.2004 (the People have the right to refuse consent to defendant's waiver of the right to a trial by jury).

A waiver of the right to a jury trial is effective only if it is made understandingly, voluntarily, and intentionally. It is the duty of the prosecution to establish a prima facie case of effective waiver by the defendant of the right to a jury trial. Once this prima facie case is established, however, the defendant must present evidence from which it could be reasonably inferred that the waiver was not voluntary, knowing, and intentional. People v. Norman, 703 P.2d 1261, 1271 (Colo.1985); People v. Porterfield, 772 P.2d 638, 639 (Colo.App.1988).

In Norman, the defendant executed a written waiver of his right to a jury trial, which stated that defendant, "being advised of the nature of the charges against him and of his right to trial by jury, hereby waives his right to be tried by jury, and consents that trial shall be to the Court without a jury." People v. Norman, supra, 703 P.2d at 1271. At the providency hearing, the court merely confirmed it was the defendant's signature on the form without inquiring as to the defendant's understanding of the right being waived. The supreme court determined that the defendant's confirmation of his signature established a prima facie case of effective waiver; because the defendant did not assert to the trial court that he misunderstood the form's explanation of his right to a jury trial, the court had no duty to reconfirm that explanation on the record.

In Porterfield, there was no written waiver; rather, the defendant announced in open court his intention to waive his right to a jury trial. The court asked him (1) whether it was his intention to waive the right to a jury, (2) whether he assented to the trial court being the sole finder of fact, and (3) whether he had an opportunity to discuss the waiver with his attorney, all of which he answered in the affirmative. On appeal, a division of this court rejected the defendant's argument that he should have been more fully advised, noting that the defendant did not present any evidence to rebut the prima facie case and that he presented nothing indicating he actually lacked the information necessary to make a valid waiver.

Here, defendant's counsel filed a motion, on defendant's behalf, to waive defendant's right to a jury trial. In that motion, counsel related that he had confirmed with defendant "that it [was defendant's] desire to waive the jury trial." And when the matter was raised in open court, counsel stated that he had discussed with defendant "tactical issues concerning the type of evidence in this case and its, quote, jury appeal, or not." Addressing defendant, the court informed him that he had a right to a jury trial and the right to waive his right to a jury trial. The court cautioned him about deciding which right to invoke based on anyone's predictions as to how the court might decide his case. The court then asked whether defendant "persisted in [his] desire to waive the jury," to which defendant responded, "Yes, your Honor."

During trial, and even after trial in his motion for a new trial, defendant never attempted to retract his waiver or to argue that his waiver was invalid.

In light of defense counsel's written motion, as well as the statements made by counsel, the court, and defendant on the record in open court, we conclude that the circumstances are such as to establish a prima facie case under Norman and Porterfield of an effective waiver of the right to jury trial.

In so deciding, we necessarily reject defendant's contention that a valid waiver of the right to jury trial presupposes extensive, on-the-record advisements of the kind set out in United States v. Robertson, 45 F.3d 1423, 1432-33 (10th Cir.1995). The court in Robertson nowhere intimates that such advisements are constitutionally required for an effective waiver, and the division in People v. Porterfield, supra, 772 P.2d at 639, held that they are not.

III. Use of Exhibit During Deliberations

Defendant next contends that his constitutional rights to due process, to be present, to counsel, to notice of the nature of the accusation, to confrontation, and to public trial were violated by the manner in which the trial court examined the handgun during its deliberations. We disagree.

After reviewing the trial court's findings, defendant moved for a new trial, alleging that (1) there was no evidence presented that a "clicking" sound could have occurred, apart from the hammer falling on either the safety or the firing pin; and thus (2) the court's finding in that regard had to be the product of its experimentation with or testing of the gun during its deliberations. At a hearing held upon the motion, the court admitted that it had examined the gun and, after reviewing the trial testimony, "decided that everybody was wrong" and "that it wasn't really all that important" when and how the gun jammed; with the slide exposing an eighth of an inch of barrel, a pull on...