Cummings v. People, 785 P.2d 920

Cummings v. People

785 P.2d 920

Colo.

1990

Check Treatment

*1 CUMMINGS, Petitioner, Pete James of the State of

The PEOPLE

Colorado, Respondent.

No. 88SC368. Colorado,

Supreme Court

En Banc. 16, 1990.

Jan. 12, 1990.

Rehearing Denied Feb. 15,

As Modified Feb.

rеjected arguments. his part We affirm in part. and reverse in .

j 4, 1984, September police On discovered Joseph bodies Watkins and Denean parked Dean in an automobile a few blocks defendant, from the residence of the Pete Cummings, Falls, James and Gloria day, common-law wife. Later that the de- fendant called the Depart- Aurora Police ment and stated that he had seen a tele- report vision describing the discovery the bodies and thought that he he knew people “the requested involved.” He the police сome to his house and discuss the matter. police arrived,

When the told the officers that Watkins and Dean had September 3, been to his house on 1984,for dinner with him and Falls and had left at approximately p.m. 11:00 Further investigation by police led to the issuance of a warrant for a search of Wotan, Jr., Loveland, Leo petitioner. for the defendant’s home. Certain items were recovered, including: jar of .22 caliber Woodard, Atty. Gen., Duane Charles B. ammunition, knife, blood-stained furni- Howe, Gen., Deputy Atty. Chief Richard H. ture, and a semi-automatic .22 caliber rifle Forman, Gen., Sol. Engle, and Clement P. which was garage. found concealed in the Gen., Atty. Denver, respondent. Asst. charged defendant was with two Justice ROVIRA delivered the first-degree counts of murder and Falls Opinion of the Court. charged being was accessory with an police crimes.1 Falls told that she This appeal ease involves defendant’s had seen the defendant shoot Watkins and from his jury conviction entered on a ver- dispose Dean and of their bodies. finding guilty dict him of two counts of first-degree murder. He defendant, contends that he claiming Prior to deprived wife, effective assistance of that Falls was his common-law moved his trial counsel’s prevent failure to to testifying against Falls from prior felony attack his convic- him. The basis his claim was the statu- aggravated tion for assault in a tory privilege. 13-90-107(l)(a), marital § manner. He also contends that his attor- evidentiary 6A C.R.S. After an ney’s opening accusing hearing, the trial court concluded that a dant’s wife of the marriage murders did not consti- common-law existed between the implied Falls, tute an privi- waiver of the marital grаnted defendant and and the de- lege. The appeals court of prohibit fendant’s motion to Falls from tes- Cummings, (Colo.App.1988), tifying. charged pleaded guilty being accessory

1. The defendant was with two counts of Falls murder, first-degree 18-3-102(l)(a), crime, 18-8-105, (1986), § 8B C.R.S. § 8B C.R.S. (1986), subject provisions to the of section 16- two-year received a deferred sentence. 11-309, provides 8A C.R.S. mandatory sentences for violent crimes. killed impaneled claiming his wife Watkins jury had been After Dean, privilege. had the marital attorney waived district defendant, statement, objection the dеfendant’s counsel2 Over the *3 during which a court found that there had been trial and Dean had he conceded that Watkins privilege permit- and waiver of the marital living the the room of been murdered the call Falls as a witness. ted to that, home and aside from the defendant’s the testified the defendant shot Falls that victims, only Falls the defendant had and the and the bodies from victims removed Counsel admitted that present. been house. attempted to had conceal defendant prosecution’s At the conclusion protect had donе to his wife. crime and so case-in-chief, sought to col- the defendant relationship discussing After between laterally prior felony attack conviction his defendant, victims, Falls, and the coun- in 1978. aggravated assault Kansas sel said: prosecutor objected, noting that defen- The evening after Later on that discussions counsel had made aware of dant’s been going as was to have sex with to who more conviction than seven months before left, who, Cummings to the Mr. went this raised and issue should have been police you store. The will tell аlso that trial. before fact, he stated he went to a Eleven. In Defense admitted he had that he He came back some time later. did. “long a known of Kansas conviction for When he came into the home at 1909 time,” only that but he had been informed Street, again, Lansing ladies and approximately the defendant two weeks it; gentlemen, there’s no doubt about it’s grounds trial as before to the for collateral- a he came into that crime scene. When ly attacking the conviction. Counsel stated home, particular Falls wаs there. Gloria there bases he that were two on which upset. Gloria Falls was Gloria Falls to wished attack the Kansas conviction. fact a rifle in her hand. had First, had he claimed that in, he also there was When walked to adequately right not been advised of his Dean and Watkins. The dif- Denean Joe testify prior proceeding; second- that Denean Dean and Joe ference is now ly, that the defendant had received ineffec- dead. Watkins were fact tive assistance of counsel. The trial court denied the defendant’s said, gentlemen, Like I ladies and what conviction, challenge to request mystery here is a like the we have not holding that the issue should have been attorney What have district has said. we got raised trial “so that we’ve story gentlemen that wants here is plenty proper time in which to amake free, his rather wife to be that would everyone of this and determination afford wife, rap helped hide take the opportunity fairly against or defend items. present justify setting evidence to aside Cummings Mr. no doubt —there’s ” any previous conviction.... stupidity. this This is whatsoever maybe pervert your mind what [sic] being After advised But at help tried to do to this woman. stand, take the trial would not the witness Cummings guilty Mr. of ac- the most if court advised him that he wanted fact, cessory nothing after the more. prevent one him from do- testify no could first-degree guilty of murder of He’s not so, prior felony conviction but that guilty Dean. not of first- Denean He’s jury jury be disclosed to could degree Joseph He’s murder Watkins. convic- instructed to consider the would be guilty trying protect a one. loved only as it related to the defendant’s tion ad- credibility. The defendant was also requested The the court then right testify. not to The defen- that because the defendant was vised of find appeal. represented 2. The defendant is new counsel testify evidentiary hearing that he would not on the merits of the dant then stated prior felony. because of the defendant’s claim could be held. Here, however, defense counsel waited II until the conclusion of the state’s case-in- The defendant contends but for his notify prose- chief to the trial court and the trial counsel’s failure to attack the Kansas cutor that he wished to attack manner, conviction in a such attack conviction, prior felony defendant’s so would have been impeach it could not be used to the defen- court; successful, he would have dant, if he elected to *4 right exercised his to He also court held that the collateral attack had not might claims that the outcome of the trial timely been asserted. The court noted that By different if he have been had testified. constitutionality a determination of the of relief, way requests of the defendant conviction, the defendant’s Kansas at this the case be remanded the trial court for to trial, stage of the require would either a hearing admissibility prior a on the delay substantial in the proceedings or conviction, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍granted and that a new trial be would, effect, deprive prosecutor the of prior if the conviction is found to be consti- adequate opportunity an prepare to a re- tutionally infirm. challenge.3 buttal to the defendant’s Convictions which involve the viola A similar situation was the rights tion of fundamental constitutional Murray, United States v. court in 492 F.2d may subsequent proceedings not be used denied, 178, 196-97 (9th Cir.1973), cert. guilt support punishment to or enhance the U.S. 95 S.Ct. 42 L.Ed.2d 87 Roybal, the of defendant. request which held that the defendant’s P.2d 1121 Such convictions ruling, trial, a such the midst of came reliability “abridge are of limited Murray too late. The court noted that the very government charter from which the challenged defendant could have the validi authority prosecute anyone.” draws its to ty prior of his convictions before trial. The Germany, court held that the time which would be required evidentiary to conduct such an In Apodaca People, 712 P.2d 467 hearing would involve “an intolerable inter (Colo.1985), the trial court refused to rule was, event, ruption any in what to be a motion,

upon pretrial defendant’s which re long jury trial.” Id. at 197. See also Unit quested ruling prosecu a as to whether the Cook, ed States v. (9th 608 F.2d prior impeach tion could use a conviction to denied, Cir.1979), cert. U.S. testify, the defendant if he elected to until (1980) (approving 62 L.Ed.2d 670 attorney actually such time as the district Murray decision on this issue and not sought impeach to use the conviction for “encourage[s] such a rule counsel to purposes. ment We held that the trial early make the motion in order to obtain impermissibly court’s failure to rule bur pretrial rulings”); 3 J. M. Ber Weinstein & right dened the defendant’s constitutional 609(11) (1988); Evidence ger, at D. § testify a to and remanded the case for Evidence Mueller, Federal Louisell & C. prior determination as to whether the con Jansen, (1979); cf., People 324 at 380 § constitutionally viction was valid. Similar (motion (Colo.1986) to 912 n. 8 (Colo. People, Bales v. ly, suppress filed fruits of search should be 1986), we found the trial court erred in descriptive ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prior adequately to trial and motion, be denying filed defendant’s on and the court so that both the day first of attack his will be on of the issues be decid prior Accordingly, conviction. we remand notice ed). so ed case the district court motion, proceeding likely prior

3. In order to consider this it is who were involved transcript proceedings that a require significant of the Kansas would also a amount of time. required. Contacting would have been- those convictions). 12(b)(1) prior discretion provides “[a]ny exclude This resolve, capable objection defense which is the court to or is intended to enable gen manner, determination without the trial of infinite equitable may eral be raised motion.”4 Re issue through variety of which arise situations solving types issues trial However, judicial process. out considerations, important policy furthers In Peo not unlimited. discretion is broad interruption because it avoids Pronovost, (Colo.1989), ple v. process by auxiliary consideration held its we court abused inquiries mаy adversely affect which excluding expert’s discretion defense attention, jury’s continuity of testimony comply failure to with the personal cause serious incon discovery we used court’s deadline. There jurors venience to both and witnesses. balancing a multifactor test to determine Further, types of these of issues resolution court the trial exceeded enables to trial both factors con bounds its discretion. The effectively pre and the prosecution more here, Pronovost sidered are relevant *5 United pаre example, For for trial. modification, some to with the determina Jackson, 627 1198, States v. F.2d 1209 of its tion whether the court abused (D.C.Cir.1980), “[gen the court noted discretion it denied when the defendant’s erally, question of the which convictions collaterally prior motion to attack conv his credibility will be usable to attack should iction.5 prior be determined to trial. Counsel needs ruling to what the will be on know this first factor is the reason for important they matter so can make degree culpability and the of associated appropriate tactical decisions." See also with the failure this at defense’s to raise Oakes, 170, United v. States 565 F.2d 171 pretrial Here, tack in a motion. defense (1st Cir.1977) (the regard decision court’s counsel had all the needed to information prior the for use of convictions im prior attack the defendant’s signifi peachment purposes “may have a conviction trial. of the before Our review cant impact on statements provides why record no indication as this to witnesses”). questioning of Whenever matter was not at that time. feasible, these matters should be resolved prior to trial. Secondly, consider and to we whether what extent this failure to raise the issue given The trial court is broad discre prejudiced prosecution’s opportunity to regarding tion the administration of court effectively prepare for The nondis trial. See, e.g., People v. Prono proceedings. closure defendant’s intention to collat vost, (Colo.1989); see also conviction, erally prior attack after until Halbert, v. United States 668 F.2d 489 case, prejudiced denied, rested its 934, (10th Cir.), cеrt. 456 U.S. 102 prosecution by effectively depriving it 1989, (1982) (consider L.Ed.2d 72 453 pre time given which would be needed to able discretion should to trial be United States pare challenge. courts in their of motions In resolution 609, prior application attack of a Rule Collateral defendant’s convic- of Federal of Evidence tion, may impeach- not adopted so that it be used for has Sub- not been Colorado. purposes Clark, 1017, ment in the event the defendant elects sequently, People v. P.2d 705 cert, normally may testify, is an issue which be denied, (CоIo.App.1985), the court of See, e.g., Apodaca resolved to trial. appeals support cited Luce in of its conclusion People, 712 P.2d 467 testify that the failure at trial defendant's ruling precluded appeal of the court’s States, argue People 5. The that Luce v. United fingerprint evidence could be used for im- 460, 105 S.Ct. L.Ed.2d U.S. peachment purposes if he elected to (1984), People, applicable Apodaca v. is here. In application Because the multifactor of our (Colo.1985), 473 n. 9 we noted P.2d Pronovost, balancing adopted in we find it test the result reached in Luce was not constitution- Instead, unnecessary applicability ally Supreme to consider the Court mandated. was resolving dispute among holding. the circuits as to the Luce (7th Cir.), guilt, Fountain, created a reasonable doubt about his 642 F.2d denied, testify not 101 S.Ct. and because the defendant did cert. proof the court noted that as to what his 68 L.Ed.2d 854 and made no offer of been, interest of planning testimony “advance the best have the court was would judicial system.... parties preju- and of the to determine whether was unable produce good Trial ambush anec representation. The diced his counsel’s lawyers exchange at bar con dotes also noted that since there was no court ventions, counterproductive tends but to be way ascertaining (Citations judicial economy.” in terms of prior felony would have dant’s conviction omitted.) suppressed, it was unable to deter- been mine the record whether the result applied in The third factor Pronovost would have different defendant’s been occurring сonsiders “whether events subse- conviction in counsel had attacked quent mitigate to the defendant’s [actions] Cummings, manner. prejudice prosecution.” (Colo.App.1988). Pronovost, Here, adequate opportu- of an absence leads us to Our review of the record prepare challenge nity to for the defense evidentiary hearing that an is nec- conclude only mitigated by could have been a sub- essary to resolve the defendant’s claim of interruption stantial in the trial. Trial ineffective assistance counsel. proof counsel did not make offers of as to Finally, examined Pronovost we why prior felony unconstitutionally whether there was a reasonable and less *6 obtained, and what the defendant’s testimo- drastic alternative available. We believe ny if he had taken the would have been reasonable, that there was not a less dras- stand. The record this case does not tic alternative available to the trial court. establish the basis for trial counsel’s deci- Allowing the defendant to at- sion not to raise the issue nor before tack the Kansas conviction in the why proof disclose offers of were not midst of trial would have either resulted We that the claim of inef- delay proceedings made. believe a substantial or fective assistance of counsel under these required proceed without initially adequately the information it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would need to circumstances should be evaluated challenge. by upon adequate Alterna- the trial court record. meet the defendant’s tively, barring hearing, the use of defendant’s After a the trial court should thеn impeachment purposes specific findings conviction for would make as whether deprive jury probative performance objec- information attorney’s fell below an reasonableness, and, so, evaluation of the defendant’s needed for tive standard credibility. performance the deficient resulted prejudice the defendant. See Strick- analysis of these factors leads to the Our Washington, land trial court acted within conclusion that the (1984). 2052, 80 L.Ed.2d 674 it of its discretion when denied the bounds collaterally attack dеfendant’s motion to Ill Having concluded Kansas conviction. err, trial court did not we now The defendant also contends that claim that he was consider the defendant’s erred it held that the the trial court when of counsel deprived of effective assistance by statements made defense counsel in his his trial counsel’s failure because of opening a waiver of statement constituted in a collaterally attack his conviction privilege. privi The marital the marital him manner, prevented this failure statutorily de lege, which in Cоlorado is impeachment testifying for fear of fined, derives from the much criticized com prior conviction. testimony, spousal mon-law rule which bars regardless of its content. See appeals rejected The court Lucero, 665-67 showing

claim, no holding that there was to shield the privilege The is intended hold- testimony have would that the defendant’s his wife he testified that privilege when disclosure of the nonconsensual er from for which he the murder scope of the had committed The privileged information. that: charged. The court noted to confidential com- is not limited privilege Id. at 665. The Colorado munications. incredible to us that It seems pertinent part: provision provides in disclos- could fail to realize dant had told ing what he claimed the wife (1) relations There are murder, him, he was in- a confession of policy of the law to en- it which to her viting response from the wife as preserve and to it courage confidence it would therefore, of the conversation ... inviolate; person shall not be version can, spouse irony the ultimate if one fоllowing be as a witness examined on the guise “squealing” under cases: other, response to his silence the other’s (a) examined A shall not be husband charges.... her con- against his wife without for or sent, against or her hus- a wife for nor Worthington, Cal.Rptr. at 326. consent; during nor band without Here, open attorney, in his the defense either be marriage or afterward shall statement, the defen in effect accused of the oth- without the consent examined Falls, wife, dant’s common-law Gloria any er as to communications committing murders. An during marriage.... one tо the other jury statement informs the of what 13-90-107(l)(a), 6A C.R.S. § expects the evidence to show. Bustos, (Colo.App. privilege may, The holder of the 1986). however, party protections. its waive seeking privilege bears to overcome Defense counsel’s privilege holder showing that the burden of theory of the case outlined the defendant’s forsaken his “expressly impliedly or has attempted substantiate confidentiality respect with to the claim of privilege throughout the trial. The marital Clark v. Dis question.” information waived the acts or omissions of be Court, See trict *7 Dien, States v. See United trial counsel. Court, 834, also Miller v. District 737 P.2d 1038, (2d Cir.1979) (failure 609 F.2d 1044 Deadmond, People v. (Colo.1987); 683 838 suppression privilege invoke marital at v. Bond District 763, (Colo.1984); P.2d 771 hearing privi a waiver of the constituted Court, 33, (Colo.1984). P.2d 38 682 Burkhart, United States v. lege); F.2d 501 denied, 993, (6th Cir.1974), cert. liability by the 995 420 general A denial of 946, 1326, 95 43 L.Ed.2d 424 a waiver of U.S. S.Ct. defendant does not constitute Court, (1975) (“Any privilege v. District 668 marital Clark privilege. Instead, (Colo.1983). appellant have existed was waived when 3, it must P.2d 9-10 holder, during statements by words or introduced wife’s be shown government wit conduct, claim of confi cross-examination of the has abandoned Court, nesses.”); Figueroa-Paz, States v. v. District United Miller See dentiality. (9th Cir.1972) (failure v. District F.2d 1055 Clark (Colo.1987); 468 P.2d 737 834 objection privi Court, make waived marital 3, (Colo.1983). The hold P.2d 8 668 States, lege); Canaday v. United 354 permitted to F.2d privilege not be er of the will 849, (8th Cir.1966) (privilege waived liability and at the 857 “absolve himself timely objection to make in order to counsel’s failure privilege same time assert witness); Paul being called as a ascertaining spouse party from prevent the other State, 85, (Ala.Crim. v. v. District son 455 So.2d 88 the claim.” Clark thе truth of (counsel privilege by also App.1984) waived ask Court, See 3, 10 668 P.2d Court, 33, ing spouse about defendant’s criminal ac 38 Bond v. District People v. marriage); tivity occurring after v. example, in For Odmann, 693, Cal.App.2d 322, 160 Cal.Rptr. 38 Cal. Worthington, 113 (failure (1958) object spouse being that the court held App.3d 359 a as a witness constituted waiver of called the marital impliedly waived

927 (1972) (trial fully de- State, court 492 553 v. privilege); marital Simms of counsel fendant’s ineffective assistance denied, 516, (Wyo.),cert. P.2d 521 trial); People a new claim motion for (1972) 104, 142 886, L.Ed.2d 34 93 S.Ct. 25, (Colo.App.1985); P.2d Loggins, 709 pretriаl con (statement by counsel at Hernandez, People v. express waiver of ference constituted misconduct); (Colo.App.1984)(juror Com- By accusing his privilege). the marital Bannister, Mass.App. monwealth murders, invited wife of the (1983)(“ 443 N.E.2d ‘[t]o necessarily could have response which motion that the defendant’s extent [for conclude that the only come from her. We new trial based on ineffective assistance when it held trial court was correct was based on facts were counsel] privilege a waiver of the marital there wаs agreed upon apparent neither nor on permitted her to record, face of the he had the burden of the court Accordingly, judgment ”) (quoting proving such facts’ Common- part, reversed appeals is affirmed 13, 15, Bernier, 359 Mass. wealth the court case is remanded to part, and the (1971)). alleging N.E.2d “In cases inef- to remand this appeals with directions counsel, the trial court fective assistance of pro- court for further cause to the district judge must the reasonableness of the attor- opinion ceedings with the consistent ney’s conduct on the basis of all of the court. factual circumstances of the case, light prevailing viewed in stan- VOLLACK, J., part concurs minimally acceptable professional dards of part. dissents challenged at the time of the con- conduct Pozo, ERICKSON, J., duct.” joins in the (Colo.1987) Strickland, (citing at U.S. and dissent. concurrence 2066). If 104 S.Ct. at a criminal concurring part Justice VOLLACK a rea- dant can demonstrate that there is dissenting part: that, probability but for counsel’s sonable majority’s holding I concur errors, unprofessional pro- the result of the correctly the trial held that defense court different, ceeding. he is would have been constituted a counsel’s under 33. entitled to a new trial privilege. Maj. op. marital at waiver of the Strickland, 466 U.S. at See majority’s holding I concur in the also at 2068. did not abuse its discre- that the trial court may also obtain a A criminal defendant the defendant’s motion tion when it denied hearing on his claim of ineffective assist- *8 collaterally attack his Kansas conviction. attacking by collaterally ance of counsel however, with Maj. op. disagree, at 925. I 35(c). When a his conviction under Crim.P. holding that the trial court majority’s makes a motion for criminal defendant hearing hold a to determine must 35(c)he post-convictionrelief under Crim.P. consti- performance was defense counsel’s evidentiary hearing “un- to an is entitled tutionally under deficient Strickland motion, files, and the record of less 2052, 668, 104 S.Ct. Washington, 466 U.S. allega- ‘clearly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the the case establish L.Ed.2d 674 80 in the defendant’s motion presented tions may make ineffec- post- defendants Criminal and do not are without merit warrant ” post-tri- assistance of counsel claims tive v. Denver Dist. conviction relief.’ White 632, (Colo.1988) under Court, (quot- the trial court al motions before P.2d 388, 391, Hutton, If defendant’s motion is 33. 183 Colo. ing People Crim.P. Pozo, (1973)); ineffective assistance of counsel see also on based (remanding for further the truth of must establish 746 P.2d at 530 that defendant 35(c)motion evidentiary hearing mo- in Crim.P. allegations on which he bases his inef- grounds of brought by defendant on produce evidence of tion for a new trial counsel). A defendant Maynes fective assistance ineffectiveness. See his counsel’s was denied that he 88, 93, is able to establish who People, 178 Colo. say that I am authorized to as- right to effective amendment his sixth ERICKSON, J., joins in this under the standards of counsel sistance Strickland, 466 U.S. and dissent. concurrence announced relief under entitled to S.Ct. 35(c)(3). inef- to raise an chooses

If a defendant counsel claim for assistance of

fective evidentiary appeal, without an

first time on court, he must still

hearing at the stan- that his claim satisfies

establish Strickland, dards announced a defendant 2052. Such peril on the to stand

elects at own of ineffec- grounds for his claim record as CONSTRUCTORS, PLAINS MOUNTAIN has This court of counsel. tive assistance INC., corporation, a Colorado preference for hav- expressed a previously Petitioner, claims of counsel ing ineffective assistance proceed- or in post-trial motions resolved People, Stone v. In 35. ings under Crim.P. Torrez, Vonne TORREZ Gilbert 504, 512, 174 Colo. individually, and GT’s d/b/a time on asserted for the first Lounge, Respondents. assist- appeal that he received ineffective that, “[ojrdinar- ance of counsel. We noted No. 88SC487. expected have been ily, a defendant would coun- competency the matter of to raise Colorado, Supreme Court 35(b)1 earlier sel Crim.P.] [motion].” [his En Banc. ex- We Id., P.2d at 498-99. at 29, 1990. Jan. raise his the defendant’s failure to cused of counsel claim ineffective assistance 35(b) motion, however, on the

his Crim.P. that at the time he filed the motion

ground represented by the same counsel he was Id., him trial. represented

that had at held that P.2d at We then circumstances, “[u]nder urge continue to

the defendant wishes to incompetency ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of counsel point preventing

reason of further testifying, do so

35(b) in the trial court.” In the proceeding through counsel

present case the defendant *9 raised for the first