*1 Colorado, The PEOPLE of the State
Plaintiff-Appellee, CHAVEZ, Defendant-Appellant.
Robert
No. 79SA551. Colorado,
Supreme Court
En Banc.
Aug. 10, 1981. *2 Walta, Gregory
J. Cоlorado Public State Defender, Gilman, Shelley Deputy State Defender, Denver, defendant-ap- Public for pellant.
QUINN, Justice. defendant, (defend- Robert Chavez ant), appeals his conviction of two counts of degree burglary dwelling, second of a sec- 18-4-203, (1978 Repl. tion C.R.S. 1973 Vol. 8). alleges He that the trial court erred in denying pretrial prohibit pros- motion to ecutorial use of conviction evidence as substantive criminal habitual charges. He further asserts that the court suppress denying erred in his motion to various items of еvidence taken from him during shortly and in after his arrest denying a custodial motion statement made to the officers. challenges Lastly, he the court’s instruction possession stolen property. Chavez, basis of
On the (1981), denied, - cert. -, 26, 1981), (1981), we conclude (May pretrial the defendant’s the denial prohibit motion testimony as substantive using his trial criminality violated proof of habitual process by impermissibly of law bur due dening testify his constitutional charges. burglary Because a defense necessary and because the is new trial is propriety of the sues of and the trial court jury instruction will confront the issues again, we elect to address these once potential for error in order to reduce upon retrial. Proceedings
I. The District Court charged information Brown, Atty., degree Nolan L. Frederick Dist. B. with two counts of second Skillem, Golden, Deputy Atty., alleged prior felony Dist. for convictions several charges.1 plaintiff-appellee. as the basis for habitual criminal offense, 16-13-101, (1978 years preceding 1. Under section has C.R.S. 1973 the date Repl. sep- Supp.), every persоn previously Vol. 8 and 1980 convicted of felonies been twice arately brought adjudged felony convicted of a penalty which the maximum and tried shall be for who, punished by years confinement exceeds five within ten habitual criminal 38th Avenue. Detective noted this charges residential Stewart arose out of two of Benton description began in the 4000 block stores canvass the Colorado, Ridge, between Wheat Street in the immediate area for information p. hours 12:45 m. on of 11:45 a. m. and suspect. Ridge about the clerk of the *3 March 1977. Drug told the a man detective that Store pur- this matching description had earlier Benton street in a Street is a dead-end blueberry bottle of and had brandy chased a neighborhood. Mr. and quiet residential in Den- Clay asked for directions to Street Mohesky Benton Mrs. resided at 4005 Street clerk east on ver. The directed the man Mrs. Edith Albasini lived across the and stop. to a 38th bus Officer Stewart Street at The three of street 4060 Benton Street. this information to other officers. radioed burglaries them were at church when leave thеir preparing While to occurred. the radio Officers Cassa and Chism heard church, for was at- homes their attention burglary report, of the dispatch initial by walking a man and forth tracted back description suspect, and Officer suspiciously lingering by various houses and follow-up They drove broadcast. Stewart’s block. outside her home Mrs. Once Park, to Amusement was on Elitch's which appeared He again. Albasini saw the man Street, approxi- 38th Avenue and Wolff parties hiding waiting and for resi- mately burglarized ten blocks from the neighbor the area. Tiege, leave Mr. a who dences, person a and combed the area for Albasini, two lived doors south of Mrs. also Initially they matching description. observed this man on after the the block man stopped jacket, a with a short tan took Moheskys and Mrs. had left for Albasini possible to the burglary him back scene for church. victims, by then re- identification and When the Mrs. Moheskys and Albasini Upon leased him. their to the return approximately returned from church at m., park shortly p. amusement before 1:30 m., p. they burglar- 12:45 found their homеs Spanish they parking in the observed lot a Moheskys The two ized. determined male, height, American about 5'8" in with watches, checks, security social an Exxon hair, wearing three-quarter black and a money credit card and some had been sto- jacket pants. length tan and dark blue Missing len. from Mrs. Albasini’s home person Apparent- This was the defendant. watch, a rings, plate, two a a silver realizing watched, the ly being he was de- money. silverware set and The some fendant ducked behind and between cars Ridge Department Wheat Poliсe was called continuing while saw walk. The officers responded ap- and officers scene at carrying pair gloves that he was a his proximately p. 1:00 m. keeping hand while hand in left pocket. approached When the officers
Officer Sadar took almost identical de- vehicle, in their walked he scriptions Teige from Mrs. Mr. Albasini and away faster and then trotted from them.2 of the man observed them. earlier They stopped the told him defendant and immediately dispatched officer the follow- descriptiоn had been a the area ing radio: there police over the a Spanish male, and of the age years, description American 30-40 matched the tall, build, suspect. Upon frisking they 5'8" medium black long hair to him recovered collar, wearing light partially empty brandy tan white three- a from his bottle quarter length pants, pocket pair gloves coat and blue took the from his dark proceeding south on Benton toward hand. twenty-five plain for term of not less nor more than Cassa and Chism were Officers fifty years. person driving pоlice than If the convicted has vehicle. clothes and unmarked However,
previously spot lights been three its side convicted of or more the vehicle had tried, separately brought pun- large and, according felonies and a rear antenna imprisonment. testimony, ishment is life it was Officer Cassa’s very obviously police vehicle. valid respect was handcuffed and arrest. With defendant the defend- placed police verbally vehicle and ant’s motion to his statement Cassa, advised of His Miranda3 He refused Offiсer the court ruled that to talk to the officers at this time. knowing, statement was made after a intel- driving the defendant back to the scene of ligent voluntary waiver of Miranda rights.5 burglaries, Cassa asked him Officer objects The various recovered where he obtained the bottle. and his Officer statement to responded purchased that he it at Cassa were admitted into trial. evidence at and, Country accord- Gentleman’s Store also denied the defend- testimony to the trial pretrial prohibit prose- ant’s motion to officers, replied he further that he had been using cution from substantive day in the but area *4 charges the any habitual criminal testimoni- the offi- committed When had not them. prior al to admissions convictions which he cers arrived at the 4000 block Benton of' might testimony in his on the make trial Street, they emp- directed the defendant to burglary.6 substantive counts of The court ty pockets place his on the contents the ruled the that if defendant should elect to police complied hood of the vehicle. He testify burglary at trial in defеnse of the placed vehicle, various items includ- counts, prosecution permitted the would be ring, a watch and several coins. Mr. impeach by prior felony to Tiege Mrs. Mohesky, Albasini and Mr. convictions and could utilize the defendant’s there and the identified defendant the admission to those convictions as substan- person previously by morn- seen them that charges. ing.4 tive of the habitual criminal Mohesky Mr. also identified the watch, ring, and Mrs. Albasini the as items testify The defendant elected not to burglaries. stolen from their homes the burglary in his dеfense on the trial of the court, counts. the defendant’s over court denied the trial defendant’s objection, jury on eviden- instructed the the pretrial motion to the various tiary possession of of stolen effect per- items of evidence recovered from his charges. the son, property burglary on concluding proba- that the officers had of guilty returned verdicts of both counts ble cause arrest the defendant at Elitch’s present the then burglary that Amusement Park and the items taken from him were seized the course оf a ed its on the habitual criminal evidence he had to me that “he indicated defendant] [the 3. burglary been in area of the earlier the burgla- day, but that had not committed testimony 4. At hearing the ries." Officer Chism’s trial Officer Cassa tes- that, reply question tified to his had been in area about the the “stated he the brandy, the defendant pulled burglaries.” indicated that “he had earlier but he no purchased Country Store, it at the Gentleman’s which was in the burgla- immediate area of the suppressed the out-of-court The trial court ry.” It is unclear by whether the words “which Mr. identifications of the defendant made was in the burglary” immediate area of the Mohesky, Tiege at the Mrs. Albasini and Mr. represented the defendant’s actual immediately showup after the at Benton Street question merely the were added Officer and, arrest their in-court iden- also Cassa to describe the former location the tifications. store. sion suppres- Officer Cassa testified at the hearing Country the Gentleman’s 4, 1977, that, requested regardless 6. The defendant also prior Store had closed to March the testify testify of his election to or not to day arrest, of the replaced by and had been counts, burglary defense of the on pool trial pool hall. The hall was across street charges habitual criminal be bifurcated Ridge Store, Drug from the where Detective Stewart, burglary shortly the trial trial on counts. The burglaries, after the inter- court matching viewed the clerk description denied the defendant’s motion. Because about a man burglar. cannot retried on habitual be charges, At criminal we issue trial both need address the Officer Cassa and Officer Chism denying testified to a defendant’s whether erred in somewhat different his version of reply. According Cassa, request to Officer for bifurcated trial. own his ultimately defense and constitutional charges. The court dismissed charges proof.7 a failure of prove these due to to have the State elements Subsequently the court sentenced the de- criminality. habitual If he chooses to fendant to consecutive terms of 35 past record, testify prosecu- about his years each conviсtion.8 tion is of its proving relieved burden of criminality. elements of habitual Charges II. The Habitual Criminal statutory procedure here suffers from We same Supreme first address the defendant’s conten- flaw the United States respect tion with trial court’s denial Court condemned in Simmons v. United pretrial prohibit his prose- States, motion using cution from his testimonial admis- (1968): L.Ed.2d 1247 it creates an intoler- prior felony sions to convictions as substan- able tension between two constitutional tive criminality. evidence of habitual sions
constitutional
its deliberatiоns on the habitual criminal
use of the defendant’s testimonial admis-
own defense on the
held
insufficient to
trial, although
fronting
viction
charges. Recognizing the dilemma con-
criminality and
recent decision
dence of his
the
defendant
that
tutional
We
which involved this same defendant.
The defendant
II,
court’s
U.S. Const.
The trial of this case occurred before our
Sec.
prosecution
agree.
case,
evidence for substantive
ruling
25, by
Chavez that
prior
as
by
Amend.
here,
prior felony
could consider this
burden
relieve
eliciting
violates due
unduly
convictions
in Chavez v.
desirous of
was entitled to
testify
contends
the trial court ruled that
substantive
inappropriate,
XIV;
the bifurcation of charged
the impermissibly
burdening
in his own defense.
Colo.
introducing evi-
imposed
testifying
convictions and
the substantive
process
People, supra,
with
impeach
charges,
purposes
Const. Art.
his consti-
prior
the trial
still was
habitual
on his
in his
con-
law,
un-
we
convictions,
Colo. -,
or duly authenticated records of those
independent
tions elicited from the defendant
consider
credibility
proving beyоnd a reasonable doubt
defendant’s
stantive
nection with his
that
ceeding, the trial court should have ruled
tion’ of the
behalf and
expressed
ceeding was
ed
tive
charges,
remedy.
“The trial court’s
the defendant’s
during
[******]
purposes
it would
would
offense
Instead,
[citation
prior
requested
jury’s
desire
in the habitual criminal
admissions of
[citation
(1)
trial on
must meet
error which
only
convictions
testimony
admissible for substan
deliberations failed to
defendant’s
at
omitted],
instruct
when the defendant
ruling
1365,
testify
a bifurcated
convictions
omitted].”
the substantive
they
1367.
that evidence
its burden
prior
by
its ‘bifurca
on his
testimony
affect his
evidence
jury
(2)
convic
elicit
con
sub
own
pro
-
*5
pro
testify
constitutional
in his own
Our
in Chavez
decision
mandates
defense:
that the defendant’s convictions of
“The
facing
habitual crimi-
the trial
reversed. Since
court dismissed
charges
nal
is forced to choose
charges
between
habitual criminal
for insuffici
attached,
constitutional
to testify
ency
proof
in his
jeopardy
after
had
criminality.
7. The failure of
stemmed from
tion of
the testi-
habitual
See section 16-
mony
13-101,
(1978
of a
Repl.
court clerk who was unable to suffi-
C.R.S.
Voi. 8 and
ciently
Supp.).
establish the date of one of three
felony convictions. The other two convictions
years preced-
had been incurred
than ten
more
are
The defendant claims that the sentences
the commission
the two
we
excessive. Because
and remand for
reverse the convictions
4, 1977, and, therefore, upon
March
the dis-
trial,
unnecessary
new
it is
missal of the third conviction for failure for
us to address
issue of excessiveness.
proof,
lеgal
adjudica-
there was no
basis for an
vicinity
person
defendant cannot be retried in this case
of the crimes for a
criminality
matching
description
for habitual
based on the same
the broadcast
habitual criminal counts
in the
suspect.
probable
involved
The determination of
Massey,
first trial.
v.
See Greene
437 U.S.
cause under these circumstances must be
19,
2151,
(1978);
98 S.Ct.
170 Colo.
during and shortly after his arrest. We are markedly
suspect.
similar to those of the
unpersuaded by his claim.
arresting
officers also knew that
presence
at that
location was
Probable cause to arrest exists
consistent with the
by
route taken
the man
where the facts and
within
circumstances
purchased brandy
who
had
in a
knowledge
officer’s
are suffi
nearby drugstore
physical ap
and whose
cient to
prudent person
warrant a
in believ
pearance closely
that of
resembled
the sus
ing that
the defendant has committed a
pected burglar.
Finally,
the defendant’s
See, e.g., Michigan
DeFillippo,
crime.
hide,
gestures
furtive
and efforts to
al
In this case the officers first advised of report rights, any received the of to make statement two commit refused thereafter, while be promptly police.9 ted Moments reconnoitered Chism, suppression hearing rights, 9. At the Officer him his Miranda testified advised of describing after how he arrested the defendant as follows: 580 up burgla reply question and down in
ing transported to the scene
whether
ries,
questioned
waiver).
he was
about where he
wanted to talk
he
constitutes
purchased
and he incriminated
unquestionably
The evidence
establishes
having
by admitting
himself
been in
exercise of his
that
the defendant’s initial
day.10
burglaries earlier
area of the
right to
was followed
constitutional
silence
de
totally
record is
We conclude that
up
question calcu-
directly with an officer’s
any
evidence from which
void
incriminating response.
to elicit an
lated
a waiver
reasonably could infer
Innis,
See, e.g., Rhode
v.
446 U.S.
Island
rights.
291,
1682,
(1980);
64
297
100
L.Ed.2d
S.Ct.
intelligent
knowing,
vol
A
Lee, Colo.,
(1981);
People v.
1013 Miranda advisement and from excluded question should be response by affirmative he Cassa’s rights, understood the defendant’s head nod evidence. “Q. any atAnd that time did he make state- The statement constituted an admission presence ments? defendant of his in the area of the sir, No, “A. he wouldn’t talk to us.” day they and, on the same occurred sense, hardly in this the statement can be char- People argue event,
10. In brief exculpatory. any their that even if acterized as be- erroneously the trial court admitted the defend- reversing cause we are the defendant’s convic- statement, ant’s the the error was harmless due to grounds, tions on other we argument. do address the exculpatory character of the statement. People’s harmless error
581
HODGES, C.J.,
ROVIRA, J.,
V. The
on
Instruction
Reсent Possession
dissent.
neces
a retrial of this case is
Since
LEE, J.,
part
concurs in
and dissents in
sary, we address the defendant’s claim of
part.
error in
connection with the instruction
ROVIRA, Justice, dissenting.
possession
property.
stolen
respectfully
I
dissent.
challenged instruction stated as follows:
set
exclusive,
For
reasons
out in the dissents of
unexplained possession
“The
HODGES, C.J.,
LEE, J.,
property
of stolen
recently after a bur-
glary
Chavez, Colo.,
(1981)
serves to create an inference or
cert.
-
incriminating
denied,
circumstances that
the De-
-,
U.S.
fendant stole such property and that such
(1981),
joined,
L.Ed.2d 398
in which I
I
evidence, if
beyond
established
a reasona-
dissent
from Part
majority
II of
doubt,
ble
is sufficient in and of itself to opinion.
justify
guilty
a verdict of
in the absence
I
majori-
also dissent
Part
IV of the
explanation
of an
derived from the evi-
ty opinion, in which the record in this case
raising
dence in the case
a reasonable
insufficient,
law,
is held
as a matter of
guilt.”
doubt to his
support the trial court’s determination that
350, 356,
In Weils v.
knowing
the defendant made a
and intelli-
(1979),
P.2d
which was decided
gent
right
waiver of his constitutional
case,
after
the trial of this
we stated:
police
remain silent in
face
custodial
[Although
“. . .
the instruction uses the
interrogation.
‘inference,’
word
read as a whole it al-
The majority treats the defendant’s ini-
compels
most
guilt
jury
verdict of
if the
tial refusal
to make a statement
possession
exclusive,
finds
to be
police
upon
sole evidentiary
factor
unexplained.
recent and
It does not alert
finding
which it reverses the
trial court’s
may accept
reject
that it
or
However,
momеntary
waiver.
such
silence
inference
surrounding
based on all the
equivocal meaning,
at most
has
See
circumstances.
Arizona,
86 S.Ct.
“Another
challenged
failure in the
in-
582 Id.;
Lowe,
People
(1980).
rounding
interrogation.
He
v.
indication ren subtle, especially susceptible psy
der him chological pressure; deny he did not rights;
understood his constitutional and there was no indication that he lacked adе of W. In the Matter of the Petition quate capacity comprehend his situation A.,D. rights. or his P., Adoption Adult, of an A. G. For the presume court did not that the Petitioners-Appellants, silence, warnings after Miranda given, constituted a waiver. Mi- See DENVER, AND The CITY COUNTY OF Instead, supra. randa v. the trial Jansen, Anthony Zoning H. Administra consciously question focused on the of City Denver; County tor for knowing whether defendant made Adjustment-Zoning and The Board of intelligent waiver of his constitutional City Denver, County for the Re Louisiana, Tague Cf. spondents-Appellees. 62 L.Ed.2d No. 80SA191. suspect’s
A сriminal waiver Miranda rights explicit, may need not be but Colorado, Supreme Court of inferred from the actions words of the En Banc. person interrogated. Carolina v. North Aug. Butler, waiver, question L.Ed.2d case, such is to be determined
particular facts and circumstances sur- finding missing. At least 1. This court. See one officer smelled odor the trial majority opinion beverage emanating 7 in footnote which re- of alcoholic fendant; from the de- *9 felony flects convictions. but there is no on the rec- indication when ord defendant was inter- intoxicated pos- rogated. 2. The bottle of in the defendant’s open session and some of contents were its