The People of the State of Colorado v. Delton John Bergstrom
No. 26168
Supreme Court of Colorado
December 22, 1975
Rehearing denied January 26, 1976
544 P.2d 396
En Banc.
MR. JUSTICE LEE delivered the opinion of the Court.
Appellant Delton John Bergstrom was convicted for violation of
The case arises out of the following events. Appellant was on parole. On February 28, 1972, his parole had been suspended and on June 19, 1972, it was revoked. Thereafter, a parole agent of the Colorado Division of Parole notified the Larimer County Sheriff‘s office that appellant had absconded from supervision and was wanted. In response, two sheriff‘s deputies, Officers Urista and Forsythe, proceeded to the trailer where appellant was said to reside. They knocked and were told to enter. Inside, they found appellant and informed him that he was under arrest for parole violation. Appellant requested and was granted permission to put on shoes and a fresh shirt. Officer Urista accompanied him to his bedroom to keep an eye on him while he changed. Upon returning to the living room, appellant reached into his pants pocket and attempted to hand an object to one Gayle Downing, a friend who had just entered the room. Before the transfer could be completed, the officer discovered the object to be a gun, a derringer, of which Downing claimed ownership. The weapon was seized. Though not loaded when taken from appellant‘s possession, it was operational, as demonstrated by a subsequent police firing.
It was established at trial that appellant had been convicted of robbery, a felony in Colorado, in 1966. The jury returned a verdict of guilty on the charge of possession of weapons by a previous offender.
A second proceeding was thereupon commenced under the habitual criminal statute. The People‘s evidence showed appellant had been previously convicted of grand larceny in Colorado, in 1963, of automobile theft in Nebraska, in 1964, of simple robbery in Colorado, in 1966, and of burglary in Colorado, in 1967. Appellant took the stand in his own defense to
Additional facts will be set forth in this opinion insofar as relevant to the contentions of error raised by appellant.
I.
We reject appellant‘s first argument, that the felon with a gun statute is unconstitutional, for the reasons stated in People v. Blue, Brown and Ulibarri, 190 Colo. 95, 544 P.2d 385 (1975).
II.
Another of appellant‘s contentions can also be dismissed briefly—that the imposition of a penalty under the habitual criminal statute violates his right under the Eighth and Fourteenth Amendments to the United States Constitution. We held in People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975), that, absent a showing of discrimination based on race or other arbitrary criteria, the selective use of the habitual criminal act does not deny any defendant equal protection of the laws; nor does it constitute cruel and unusual punishment within the meaning of the Eighth Amendment.
Appellant argues further, however, that the imposition of the life sentence, with respect to him, is excessively harsh, and hence violates the
III.
Appellant next argues that the trial court erred in failing to declare a mistrial on the ground that certain portions of the prosecution‘s closing statement were unduly prejudicial and inflammatory because the district attorney referred to the gun in this case as a “Saturday night special or a cop killer.” While we do not approve the comment of the district attorney, we do not believe it to be sufficiently prejudicial to warrant reversal. The descriptive terms were used by the district attorney in rebuttal to defense counsel‘s argument—“There is no evidence that this weapon is some sort of weapon like a garrot, or, as far as I can see, it is just an ordinary small pistol.”
Upon objection by defense counsel, the jury was instructed by the court to disregard the district attorney‘s remarks.
IV.
Appellant‘s next contention is that the trial court erred in allowing his 1966 robbery conviction to be used both to establish an element of the substantive offense (possession of a weapon by a previous offender) and to enhance punishment under the habitual criminal statute. For this proposition he relies on State v. Ware, 201 Kan. 563, 442 P.2d 9 (1968), which contains the following language:
“The previous conviction of felonious assault which was relied on as a necessary element and ingredient in order to constitute the offense under the firearms statute (K.S.A. 21-2611), may not be used and relied on to invoke the habitual criminal statute.”
This language must, however, be viewed in the context in which it was used. Kansas had a firearms statute (akin to our felon with a gun statute) which provided for imprisonment up to five years for persons previously convicted of one felony, who owned or kept guns. It also had an habitual criminal statute under which a person‘s second conviction was punishable by not less than double the penalty normally imposed for the offense. There was an obvious conflict between these statutes since anyone convicted under the firearms act was by definition a previous offender, and the firearms conviction rendered him guilty of a second offense which brought the habitual criminal statute into play. To apply the habitual criminal act upon conviction under the firearms act would have had the practical effect of nullifying the penalty provisions of the firearms statute.
No such statutory conflict exists in Colorado. Our habitual criminal statute is not operative unless there are at least two prior felony convictions. Hence, we are not persuaded by the rationale of the Kansas Supreme Court. We agree with the holding in Hollander v. Warden, 86 Nev. 369, 468 P.2d 990 (1970), where the court refused to follow State v. Ware because Nevada‘s habitual criminal act required (like Colorado‘s) at least two prior felony convictions. We find no merit to this argument.
V.
Appellant argues that the sheriff‘s officers lacked probable cause to arrest him, as authorized by
Appellant argues, however, that his arrest was invalid because the arresting officers did not themselves know the circumstances underlying the parole officer‘s request and thus they did not have probable cause. We reject this argument. Under the “fellow officer rule,” the sheriff‘s deputies were entitled to rely upon and accept the information supplied by the parole officer. By definition in the Colorado Criminal Code, the parole officer is a “peace officer.”
VI.
Appellant asserts that his 1964 Nebraska conviction for car theft should not have been used for the purpose of enhancing punishment under the habitual criminal act, for the reason that the People failed to prove that the Nebraska car theft would have been a felony if committed in Colorado, as required by
The People have conceded that the Nebraska conviction was neither pleaded nor proved to be a felony if committed in Colorado. However, the error in failing to exclude the conviction from the jury‘s consideration was harmless beyond a reasonable doubt in view of the undisputed evidence proving three other previous felony convictions in Colorado, in 1963, 1966, and 1967.
VII.
Appellant further argues that he was adjudicated an habitual criminal under a repealed statute, and that therefore such conviction was a nullity. The habitual criminal act to which reference was made in the information was codified as
An information is sufficient if it advises the defendant of the nature and cause of the accusation against him so that he can adequately defend himself.
We have considered appellant‘s other arguments, which he contends require reversal. We find them to be without merit.
The judgment is affirmed.
MR. JUSTICE GROVES and MR. JUSTICE ERICKSON concur in part and dissent in part.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE DAY dissent in part and concur in part.
MR. JUSTICE GROVES and MR. JUSTICE ERICKSON concur in part and dissent in part:
We dissent as to point I of the opinion and concur as to the remainder.
MR. CHIEF JUSTICE PRINGLE dissenting in part and concurring in part:
I respectfully dissent to that portion of the majority opinion which holds that the Habitual Criminal Act in this case was constitutionally applied. In all other respects I concur with the majority opinion.
As pointed out in the opinion, the Appellant was convicted of an offense which was a Class 5 Felony and, if the Habitual Criminal Act were not applied, it would carry only a penalty of an indeterminate to five year sentence. This Court has repeatedly held that the Habitual Criminal Act provides no new crime, but is merely an enhancement of the sentence on the crime for which the person has been convicted. People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975); Vigil v. People, 137 Colo. 161, 322 P.2d 320 (1958).
In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Supreme Court of the United States noted that punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute cruel and unusual punishment under the
So here it seems to me that imposing life imprisonment under the circumstances of this case, where ordinarily the penalty would be at most five years, is so grossly disproportionate as to constitute cruel and unusual punishment under the Eighth Amendment.
I am authorized to say that MR. JUSTICE DAY concurs in this dissent.