People v. Walker

• Decision Date: 20 June 1983
• Docket Number: No. 82SA166,82SA166
• Citation: 666 P.2d 113
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ernest WALKER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 113

666 P.2d 113

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ernest WALKER, Defendant-Appellant.

No. 82SA166.

Supreme Court of Colorado,

En Banc.

June 20, 1983.

Rehearing Denied July 18, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Enforcement Section, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Susan L. Fralick, Deputy State Public Defender, Denver, for defendant-appellant.

NEIGHBORS, Justice:

The defendant, Ernest Walker, appeals from the judgment entered by the Denver District Court on guilty verdicts to charges of first-degree assault, ¹ aggravated robbery, ² and conspiracy to commit aggravated robbery. ³ Pursuant to a plea agreement reached after the jury verdicts were returned, the defendant entered pleas of guilty to two of seven counts of habitual criminality. ⁴

Walker urges four grounds for reversal: (1) He was denied his constitutional right to testify in defense of the substantive crimes. (2) The in-court identification of him by one of the victims should have been suppressed. (3) All Staff Inspection Bureau files of three police officer witnesses should have been produced for an in camera inspection by the trial court. (4) His cross-examination of the assault victim was improperly limited.

We affirm the trial court's rulings on issues (2) and (4), and reverse as to issues (1) and (3). Therefore, the judgment is reversed and the case is remanded for a new trial.

I.

At approximately 10:00 p.m. on October 5, 1978, the Tower Bar located at 710 South Broadway in Denver, Colorado was robbed by three black men. Two of the men were armed with shotguns and the third robber carried a revolver. The defendant was identified by Emily Boehler at trial as one of the perpetrators of the armed robbery. The bar is owned by Mrs. Boehler's husband, William Boehler, and his brother. She was working in the establishment at the time of the incident. Mr. and Mrs. Boehler were standing behind the bar when the robbery began. The robbers ordered the patrons and employees to lie on the floor. As Mr. Boehler tried to push the "robbery button," the defendant ordered him to "keep your hands high and come towards me." Mr. Boehler complied with the command and approached the defendant who struck him in the head with the shotgun. Mr. Boehler collapsed to his knees. The defendant ordered Mr. Boehler to lie on the floor. When Mrs. Boehler went to the aid of her husband, the defendant placed his gun in her back and ordered her into the office. The defendant left Mrs. Boehler alone in the office momentarily and she pushed the burglar alarm. The defendant returned and asked Mrs. Boehler "where the money was." She showed him the cash drawer and opened a box which contained money. Mrs. Boehler testified that the defendant "then seemed to get rattled and started throwing things around, looking in everything, turning the boxes of cigarettes we had in the back room, the files, the checks, everything on the floor." As the defendant and Mrs. Boehler were leaving the office, he picked up her husband's coin purse and "jammed" the money into a blue National City Bank money bag. The office cash was wrapped in a band with a teller stamp from National City Bank. The defendant took Mrs. Boehler back into the bar and ordered her to lie down on top of her husband.

The robbers also took the currency from the cash register, football pool money lying next to the register, and a customer's cash which was on the top of the bar. Mr. Boehler later determined that $2,573.97 had been stolen. After the robbery was completed, the defendant left the bar through the front door while his confederates went out the back door.

Officers Dock Foster, III, and Vincent DiManna arrived at the Tower Bar in response to the stick-up alarm. Officer Foster saw a black male walking away from the rear of the bar, wearing a light colored jacket and a ski cap and carrying a shotgun. Officer Foster walked between two buildings to the back of the bar but saw no one. He started running north on Lincoln Street where he saw a pickup truck driven by John Diaz. John Diaz's brother, Daniel Diaz, was a passenger in the pickup. The Diaz brothers stopped when they saw Officer Foster. They told him that they had seen a man running east on Exposition Avenue who was wearing a red stocking cap, a white tunic-type shirt, and black gloves. Officer Foster, who was armed with a shotgun, jumped into the back of the pickup. John Diaz drove east on Exposition Avenue and turned into an alley located just past Sherman Street, where Officer Foster got out of the truck. The Diaz brothers returned to the 700 block of South Sherman Street and stopped when they saw the suspect they had been chasing standing close to a house. The suspect pointed a gun at Daniel Diaz and the Diaz brothers immediately drove away. Daniel Diaz observed the suspect run behind the houses on South Sherman Street. Daniel Diaz saw Officer Foster in the alley, and yelled to him "He's gone to the rear." Officer Foster stationed himself behind a travel trailer in the alley behind Sherman Street. He heard loud noises in the bushes and saw a man entering the backyard at 718 South Sherman Street. Officer Foster recognized the man as the same person he had seen behind the Tower Bar. As the man approached the gate leading to the alley, Officer Foster pointed his shotgun at the suspect and shouted: "Police. Hold it!" The suspect released his hand from the gate and started to aim his gun at Officer Foster. Officer Foster immediately fired his shotgun and dropped to his knees. Almost simultaneously, the suspect fired his gun at Officer Foster, who then fired two more shots in the direction of the suspect. Foster heard moaning and asked a woman who was looking out her window to call the police. Officers Scott, Gimeno, and Murphy arrived almost immediately. The defendant was identified at trial as the man Officer Foster had shot. The coin purse belonging to Mr. Boehler was taken from the defendant when he was searched. The blue zippered money bag containing cash wrapped in a National City Bank band was also found in the backyard, close to the defendant.

Dr. Peter Murr testified that he treated the defendant in the emergency room at Denver General Hospital. He diagnosed the defendant's injuries as multiple gunshot wounds, including a shotgun wound through the left shoulder, right neck, right shoulder, right forearm, and right posterior abdomen. The trauma to the abdomen appeared to have been caused by a large caliber bullet. The wound to the left shoulder was consistent with the trauma caused by a shotgun blast. In his written history, Dr. Murr indicated there were .38 caliber gunshot wounds to the defendant's right side. Officer Foster denied ever shooting the defendant with his .357 magnum service revolver which contained .38 caliber ammunition.

The defendant was sentenced to a term of twenty-nine to thirty-one years on each offense. The trial court ordered that the sentences run concurrently and that the defendant be given credit for 676 days of presentence confinement.

II.

The charges against the defendant were tried to a jury in 1980, before we announced our decision in People v. Chavez, 621 P.2d 1362 (Colo.1981), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (Chavez I ). At the time of the defendant's trial, the state of the law was such that any admissions of prior felony convictions made by a defendant during the substantive phase of his trial could be used by the People to prove the habitual offender counts. Hackett v. Tinsley, 143 Colo. 203, 352 P.2d 799 (1960), cert. denied, 364 U.S. 874, 81 S.Ct. 118, 5 L.Ed.2d 96 (1960); O'Day v. People, 114 Colo. 373, 166 P.2d 789 (1946); section 16-13-103(1) and (3), C.R.S.1973 (1978 Repl.Vol. 8).

Our decision in Chavez I requires reversal of the defendant's convictions. In Chavez I, we held that a defendant's right to testify in his own defense on the substantive charges is unconstitutionally burdened where evidence of prior felony convictions is admissible to impeach the defendant when he testifies and his admissions then may be used as substantive proof in the habitual criminality phase of the trial. We stated:

"The defendant facing habitual criminal charges is forced to choose between his constitutional right to testify in his own defense and his constitutional right to have the State prove the elements of habitual criminality. If he chooses to testify about his past record, the prosecution is relieved of its burden of proving the elements of habitual criminality. The statutory procedure here suffers from the same flaw the United States Supreme Court condemned in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968): it creates an intolerable tension between two constitutional rights." (Footnote omitted.)

621 P.2d at 1365.

In this case, the trial court properly advised the defendant of his right to testify and explained the effect of his testimony upon the habitual criminal charges. Defense counsel informed the court that the defendant elected not to testify in defense of the substantive charges solely because evidence of his prior felony convictions could be used to prove the habitual criminal charges. The defendant also told the court that he wanted to testify but would not do so because of the negative impact of his testimony on the habitual criminal counts alleged in the information. The defendant had earlier filed motions to dismiss and for a bifurcated trial directed to the habitual criminal counts. Therefore, we conclude that the defendant has properly preserved the issue for appellate review.

The People first invite us to overrule Chavez I. We decline to do so. The arguments advanced by the People were considered and rejected by the majority of this court in Chavez I.

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