People v. District Court, City & County of Denver

PEOPLE of the State Petitioner, Colorado, COURT, CITY AND

The DISTRICT DENVER; and one of the COUNTY OF thereof, Judges Morris Ben Honorable Hoffman, Respondents.

No. 97SA337. Colorado, Supreme En Banc. Jan. court erred as a matter of law

dent when it People’s objec- a bench ordered over Accordingly, make tion. we the rule abso- lute.

I. charges

The ease stemmed issue a involving police from car chase Denver Finley officers and a vehicle which was traveling as a passenger. According to the officers, prosecution, police who observed Finley stretching his hands across the roof of vehicle, Finley attempting believed was nearby traveling to shoot at a car the same Ritter, Jr., Attorney, A. District William police finally direction. After the stopped District, Reeve, Henry Second Judicial R. vehicle, Finley attempted away. to walk Denver, Deputy Attorney, District for Peti- police apprehended The him subsequent- and tioner. ly fully 12-gauge found a shotgun loaded Vela, David F. State Colorado Public De- awith short barrel under the passenger’s fender, Davis, Deputy L. Richard State Pub- seat. Defender, Denver, for Defendant lic Edward People On November Finley. Finley possession weapon with by a prior' pursuant 18-12-108, to offender section

Justice MULLARKEY delivered the (1997) (the statute), 6 C.R.S. Opinion of the Court. respondent information filed in the court.1 original proceeding filed this alleged Finley information had two pursuant seeking to C.A.R. 21 a writ in the felony convictions: menacing prohibition compel- nature of mandamus and conviction, 18-3-206, (1997), § see 6 C.R.S. ling respondent, the Denver District and a 1993 POWPO conviction. Because (the Court, court), respondent proceed to convictions, had two the People trial in Finley, with Edward charge also included an habitual offender No. 97CR202. We issued rule to show 16-13-101, § the information. See why C.R.S. August cause (1997). Finley plea guilty of not requiring 1997 order a bench trial entered to should not respon- charges be vacated. We now hold that the in the information. People charged Finley deadly violating weapon

1. The with of force sub- or the use of a and the (1), (2)(c), 5(f)(4) (1) sections and of section 18-12- violation of of this section subsection oc- (1997). provide: 6 C.R.S. subsections These curs as follows: (1) person possession (I) A crime commits the years From the date of conviction to ten weapon by previous conviction, offender if the person after the date if the uses, person knowingly possesses, or carries incarcerated; or upon person his or firearm her as described (II) years From the date ten l(3)(h) any weapon in section 18-1-90 or other confinement, after the date of release from if subject provisions that is subsequent to the of this article or, person subject was incarcerated person's to the conviction for supervision imposed a result of felony, subsequent person's or convic- years supervi- ten after of release from the date attempt conspiracy tion for or to commit a sion. felony, any under other Colorado or state's law or under federal law. (5) subsequent A second or offense under (b) (c) (2) paragraphs of subsection (2)(c) person felony A class 5 commits if the (b) (c) (4) paragraphs of subsection person violates subsection of this section felony. section is a class 4 person’s previous and the conviction was for § 6 C.R.S. arson, burglary, any involving the use trial, Finley we section to waive his P.2d at construed Prior moved 18-1-406(2), 6 pursuant to section 18-1- 16-10-101 section C.R.S. right to (1997), (1997),3 406(2), proceed grants and to which a defendant the C.R.S. Finley argued harmonizing if the trial sections waive a trial. bench 18-1-406(2), jury, explained proceeded in front of 16-10-101 and felony menacing People may hear evidence of refuse consent trial, so request jury to waive conviction and his POWPO comports long those convictions relatéd to the felo- as that with a defen- as refusal charge. process in as in the ny rights provided due conviction element the POWPO dant’s felony menacing 1992 Because the United States and Colorado Constitutions. Court, charge People here at 11. was similar to the POWPO and v. District 843 P.2d identical, the 1993 conviction was stated: POWPO We of those asserted uphold prose- unqualified cannot [W]e unduly prejudice him prior convictions would requirement cution where an ac- consent eyes in the when it considered the subjected pro- cused to an unfair and, might charges consequently, current ceeding jury. In such before a biased subject proceeding. him unfair to an cases, right a fair trial as accused’s to guaranteed by process due would be violat- Finley’s opposing motion for a bench ed_ Thus, where the ob- People attempted to exercise their jects by jury, to defendant’s waiver of trial right request to refuse a defendant’s to waive by jury and a contends trial 16-10-101, pursuant trial to section violation, process would result in a due People that Fin- argued C.R.S. The to waiver then with the decision as rests ley’s argument due arise in would upon trial It is incumbent a defen- court. any underlying similar situation where the dant, waiver, in seeking pro- due to raise charge to cess in the trial The trial concerns court. or POWPO conviction violent offense. subsequently court must determine wheth- court, respondent relying The on our deci- impartial er a trial would be and fair Court, in People sion v. District 843 P.2d 6 accord due right in with the accused’s to (Colo.1992), in the ruled defendant’s favor. law. Agreeing Finley that him requiring to added) (citations (emphasis footnotes Id. proceed front of a violate would omitted). process rights, respondent due court granted Finley’s request a bench trial. A.

II. In seeking pursuant relief to C.A.R. requires People Our ease resolution us assert 16-10-101, interpret jurisdiction. to section exceeded its exercised C.R.S. We have (1997),2 right original gives People jurisdiction which under C.A.R. refuse consent to a trial waiver all a trial its determine whether court exceeded right jurisdiction cases which a defendant has the or its when we abused discretion request People appellate remedy v. found District have that an (1997), by jury 2. Section which C.R.S. has trial in all cases in which the unchanged request remained since we last construed it Court, by jury. accused a trial has the 8-12, People in provides: v. District 843 P.2d at 18-1-406(2), (1997), 3. Section which C.R.S. person accused of who is unchanged has remained since we last construed offense other than noncriminal traffic infrac- Court, it in District P.2d at v. offense, municipal tion or or other than provides: provided charter or ordinance violation as felonies, Except person to class 1 ac- 16-10-109(1), by jury section a trial have is cused of a or waive a misdemeanor pro- inviolate and a matter of substantive by jury by express filed written instrument distinguished "prac- cess of law as from one of open of record court procedure”. people tice announcement in shall also appearing have the to refuse to consent waiver of record. attached”). inadequate. Second, Kourlis v. District have we conclude that Court, (Colo.1997). 1330 n. respondent court erred as a matter of explained original jurisdic We have also interpreted law when it section 16-10-101 appropriate tion under C.A.R. “when require District Court to appeal provide plain, speedy, would not People’s bench over the objection, be- adequate remedy.” People Young, respondent cause the court determined that a (Colo.1991). A trial court ex jury trial would violate jurisdiction contrary ceeds its when it acts rights impartial to an jury.4 While the re- statute, though even court retains spondent court certainly gener- maintains its general jurisdiction over case. See Busta jurisdiction al over the 97, 107, mante District 138 Colo. jurisdiction exceeded its ordering a 1013, 1018 (“[A] prohi writ of bench trial aas result of its erroneous inter- proper, bition only in eases where the pretation of law. legal lower tribunal has authority no to act at all, but also in cases wherein such inferior B. tribunal, although having general jurisdiction matter, As an initial we do not view Fin- cases, particular over a class of has exceeded ley’s process argument due here as one that jurisdiction in the case. specific is limited to the facts of Therefore, this case. prohibition may prevent issue to presented The defendant prej- no evidence of proceeding court from ... against the ex udice other than _”) (omis the elements of press prohibition charges of a statute pled. (citation as We see no difference original) omitted), sion in between the overruled argument part argument made here and an grounds, County on raised Court different Ruth, by 352, any other facing' v. 194 Colo. the same Fullerton, charges who was People 97, previously See also v. 186 Colo. convicted of a 1166, (1974) (hold felony. 525 P.2d POWPO or a violent 1167-68 This conclusion ing by is jurisdic respondent that the trial court underscored exceeded its fi- court’s ruling pre-trial nal tion when it jury proceeding ordered bifurcated trial in where it a POWPO case stated: based oh the defendant’s informing jury assertion that of the de I think Court: that the harm is prior

fendant’s criminal unduly record would marginalized a talking bit we’re about a jury). influence the stipulation just said —or an instruction just said Mr. had been convict- original jurisdiction Our exercise of prior ed of two qualify felonies that appropriate under C.A.R. is in this case. felony statute, convictions under this with- First, post-trial appeal by successful saying they out menacing posses- are People inadequate would be princi because weapon. sion of a But I don’t think that ples jeopardy of double preclude retry problem. solves the problem is that ing Finley jury. before a See Barela v. jury given given is — information from 1249, (Colo.1992) (ex People, 826 P.2d they might which conclude that Mr. Fin- plaining jeopardy attaches in a trial to ley person is a bad because he two suffered sworn). the court when the first witness is felony convictions. People Court, See also v. District 793 P.2d (Colo.1990) 163, added.) (exercising jurisdiction (Emphasis Thus, proper view of under C.A.R. 21 and explaining whether, that “the inquiry here is in a POWPO defendant could not be though retried even due is violated as a conse- prosecution appealed the quence sanction admitting order question as a jeopardy of law because would POWPO-or other violent offense conviction in question 4. A constitutional standard is of law will learn of a defendant’s POWPO convic- subject appeal. to de novo review on See Evans felony tion or other violent conviction in the Romer, 1270, (Colo.1993). v. As interpre- course aof POWPO trial. Because this explain infra, we we view the law, purely tation is a matter of ruling interprets as one that stan- apply we a de novo standard of review. preclude dards to trial because the when, judge if either attorney and trial proceed in our therefore and of itself. We consent, simply that the result is proposi- refuses considering, general as a analysis by subject impartial to an the defendant tion, charged with a defendant thing by jury very Con- convic- and who has —the guarantees him. or stitution statute for violating the POWPO tion can be tried other violent offense some at 790. See Singer, U.S. at process. offending due without front Clapps, F.2d also United States Cir.1984) (3d (explaining that there 1151-52 C. impediment to Federal no constitutional re- Procedure which Rule of Criminal noting deci begin by We of both the quires consent considering the nature of a defendant’s sions trial); to waive a United reviewing After right to waive a Moon, Myung 718 F.2d v. Sun States history right to waive of defendant’s Cir.1983) (2d (stating, “Nothing in the Davis, explained right se- guarantees one the (Colo.1990), Constitution right that the speedy tribunal or the lect his own con guaranteed the state “is not a impartial public a fair and stitution, characterized as but rather must be judge.”). subject regulation a common law legislature.” abrogation Supreme a similar The Utah made explained similarly District Studham, in determination State contexts, recognized we have while some (Utah 1982), 669, closely a case resem- 671 jury right to waive a trial the common law here, up- it bling the one we consider when recognized have a and in other contexts we prosecu- requiring a law both the held Utah statutory right, the Colorado Constitution jury court’s consent to waive a tion’s and trial right to waive a a does afford defendants Studham, jury In convicted the trial.5 Court,

jury People v. District trial. See defendant, parolee from the Utah State Hence, People’s refusal at the 8. Prison, weapon possession dangerous of a of request to consent to a defendant’s waive person aggravated as- a restricted itself, not, implicate jury consti trial does Studham, at See 670. sault. tutional concerns. argued rights impar- to an defendant his jury process were violated when tial and due considering the Federal and state cases request to waive the trial court denied right jury to waive a nature of a defendant’s jury trial. id. at 671. The Utah the See no constitutional basis trial also have found explaining that Supreme disagreed, Court States, right. Singer v. United for that In state nor the constitutions neither the federal 783, 24, 13 L.Ed.2d 630 U.S. 85 S.Ct. jury guaranteed right to him a to waive a (1965), explained: Supreme the trial. See id. right con- only A constitutional defendant’s impar- cerning the method of trial is to D. by jury. no constitution- tial trial We find that a defendant has no constitution- impediment conditioning al a waiver of Given jury, question is prosecuting right al to waive a the next on the consent of the statutory differs Colorado’s statute in is distinct from waiver statute from Colorado’s scheme Assembly expressly General enacted most states in that the. limits waiver to instances in that it granting consent, the defendant the one statute prosecution and trial court which the trial, 18-1-406(2), jury § 6 C.R.S. 669, waive see Studham, P.2d at the Studham see (1997), granting prosecu- the and another statute directly applicable analysis here. Ac- court's jury see tion the consent to refuse Court, prosecu- cording v. District the § dis, Annotation, T. 6 C.R.S. See Debra Lan- proceed refuse to with a bench so tion Accused, Right in State Crimi- process. long due as that refusal does offend Trial, Insist, nal over Prosecutor's or Court's 843 P.2d at 11. v. District Jury, Objection, by Court Without on Trial Hence, only the Utah rule difference between 304, (1985) (categorizing A.L.R.4th vari- 310-42 Utah, the trial the Colorado rule is that in jury provisions according ous states’ waiver trial court must also consent to trial waiver. schemes). statutory Although Utah’s possibility because of is violated some collateral prejudice procedure a POWPO one of the the Texas trial in case because is rendered is a offense unconstitutional under the Due elements POWPO Process interpreted ap- conviction and that Clause as it has been be, plied as in past for POWPO viola- cases. violent tion or other offense. Id. at at 654. S.Ct. See also Marshall 422, 438 Lonberger, 6,103 U.S. n. Texas, 554, 563-68, Spencer 385 U.S. S.Ct. 853 n. 74 L.Ed.2d 646 648, 653-56, (1967), 17 L.Ed.2d 606 S.Ct. (reaffirming Spencer and.explaining that “the Supreme States Court found no United permit Due Process Clause does not fed very violation in a much like case finely courts to in a engage eral tuned review Although Spencer we consider here. one rules”). evidentiary wisdom of state then-existing Texas involved recidivist statutes, procedure closely the Texas resem- Our law is case consistent with bled the under Colora- Fullerton, Spencer. we overturned a trial Spencer, do statute. At time of ruling which ordered a bifurcated is true under and as the Colorado POWPO trial of the two elements the POWPO statute, prosecutor a Texas was allowed to offense, possession weapon and a jury trying pending Colo, inform the criminal Fullerton, felony record. See at charges prior felony of a defendant’s convic- 99-101, 525 P.2d at 1167-68. As ar- Spencer, at tions. 385 U.S. here, gues argued Fullerton Specifically, prosecu- at 649-51. S.Ct. informing the defendant’s tion, through allegations in the indictment unduly record influence fully proof, introduction of informed jury’s consideration whether the de- jury trying charge criminal pending possessed weapon fendant on the occasion past felony conviction or alleged in the information. See id. at convictions, including identical or similar con- rejected P.2d at 1167. propensity We See id. at victions. 649-50. argument emphasized in Fullerton that jury guilty If a found that the defendant was proper way “[t]he the trial pre- court to underlying substantive offense and possibility vent the that the evidence offered requisite prior that the defendant had the to establish one element of the will crime convictions, felony conviction or the act- jury findings influence as to the other ele- ing required impose senteneer as the ments is give thorough jury careful and higher punishment. certain levels of See id. 101, instructions.” Id. at at 1168. 1, 11, 1, at 556 n. 566 n. at 649 n. S.Ct. Following reasoning Spencer, the of n. 11. ; enacting cannot find that in the POWPO petitioners Spencer argued in that the statute, Assembly the an General created Due Process Clause of the Fourteenth automatically requires offense that removal required preju- Amendment the exclusion of a case from a whenever the elemental convictions, prior dicial evidence the even felony prior or prior conviction is a POWPO though provided limiting the trial court Spencer, other violent As stated in offense. purpose instruction and the state valid had possibility prejudice of collateral is not seeking prevent in repeat- criminals from enough to render the trial unconstitu- 563, ing See id. at at offenses. S.Ct. 562, Spencer, tional. See 385 U.S. at Rejecting the notion that fundamental fair- argument “the (rejecting at required two-stage jury ness when the is-infringed United States Constitution sim- state seeks invoke an habitual offense ply type because the a[of defen- statute, 564-65, see id. at 87 S.Ct. at prejudicial dant’s felonies] explained: limiting inadequate instructions to vitiate effects”). legitimate face of purpose prejudicial legislature state Just as the long-standing widespread legitimate preventing per- and the use has interest procedure committing that attend the under attack sons of crimes from convicted here, impossible say through we find it additional crimes enactment or other violent conviction the one at POWPO such as offender statutes

habitual legiti may pursue it have a other alternatives. Spencer, so too does issue felons preventing convicted limiting interest in request mate can The defendant People v. weapons. See possessing from informing with Fullerton struction consistent 108, 110, 563 P.2d Gallegos, 193 Colo. con jury that it can consider purpose of (explaining that determining purpose of only for the victions possession to “limit the 18-12-108 is section predi committed the the defendant who, by past con their of firearms those Colo, Fullerton, felony. See cate duct, unfitness to be have demonstrated Spencer, 1168. See also at 525 P.2d at instrumentali dangerous entrusted with such 556, 563-65, 87 at S.Ct. 385 U.S. Trujillo, 178 Colo. People v. (quoting ties” as violative (refusing to strike down 653-54 (1972))). 147, 150, 497P.2d 2-3 existing Texas recid the then that, in a trial Accordingly, we hold whereby procedure ivist trial violation, the fact solely involving a POWPO pending criminal jury trying a informed the hear evidence that the will past convictions charge of the defendant’s prior conviction offense or other POWPO limiting in provided and the trial court not render involving a violent offense does consider directing the not to struction holding, In so trial unconstitutional. assessing the de previous convictions the limitation we recognize we continue cur innocence under the guilt fendant’s or People v. District Court established in indictment). Abney generally rent deny consent States, 651, 665, 97 S.Ct. 431 U.S. United jury trial when to waive a motion (1977) (“We 2034, 2043, can 52 L.Ed.2d rights the defendant’s due jury disregarded these assume that the jury.6 in front of a by proceeding violated instructions and re unambiguous clear and at 11. People v. District finding first guilty without turned a verdict has not shown the defendant proved both had Government He has not exception applicable. that that [alleging charged in the indictment crimes pre example, the existence alleged, for conspiracy attempt to violate the Hobbs not be addressed publicity which could (citation beyond a reasonable doubt.” Act] That the definition by change of venue. Wiles, omitted)); F.3d United States proof of the requires the crime (10th Cir,1996)(“We pre must 1062-63 proof demon even when jurors loyal to their remained sume that previously com strates that conscientiously followed the dis oaths and offense, other violent mitted a assumption is court’s instructions. This alone, trict not, require a standing bench does (citations system justice.” to our vital

omitted)); People Sepeda, 196 Colo. E. (explaining that and follow jury presumed a to understand facing single A defendant instructions).7 Alternatively, cautionary previous underlying an charge based on by jury assertion waiving jury trial. A defendant’s violated During session for the motion ap- colloquy jury proceeding with the court People raises the in front (i.e., peared our statement in to focus on process possibility due violation uphold cannot the un- District Court that "we rights) may process jury his due violate requirement where qualified prosecution consent prosecution’s refusal insufficient to override may subjected pro- to an unfair an accused Rather, jury trial waiver. to consent People jury.” v. District ceeding Court, a biased before prosecu- that the must demonstrate defendant added). (emphasis Howev- 843 P.2d at 11 subsequently mo- to consent to the defendant's tion’s refusal er, paragraph in the same stated the defen- trial will violate tion to waive "whether a trial court must determine that the process rights. dant’s impartial in accord trial would fair process to due of law.” with the accused's emphasize the distinction between 7. We added). (emphasis use of the word Id. case, charge a POWPO which involves open possi- "may" only to hold was intended charge, in which from the case habitual offender bility was able to a bench trial if the defendant charged with another substantive rights a defendant is prove would be that his or her SCOTT, J., the defendant does not want concurs.

know the nature of the MARTINEZ, J., BENDER, dissents and stipulate defendant can offer to that he has J., joins in the dissent. been of an convicted offense that satisfies identifying element without Justice SCOTT concurring: particular felony conviction. Restricting A review of the interlocutory record preserves these measures proceeding indicates that the defendant did legislature’s legitimate expression of any not upon articulate fact which we can public policy permitting to refuse uphold the trial court’s determination that a waiver, to consent as ex jury might subject trial before a the defen pressed in section 6 C.R.S. Therefore, dant to an unfair proceeding. I (1997), holding and also clarifies our in Peo join majority’s judgment opinion. and its ple v. People’s District Court that I separately, however, write to make clear to refuse only consent is restricted when a my record, view on this this case can be jury trial would violate a defendant’s due by answering decided a single question: process rights. whether a defendant is entitled to a bench trial in every case where the offense holding that a due violation includes' ás an element a conviction for does occur when a pro- defendant must similar crime. v. District one, ceed to a trial in a case such as this (Colo.1992), 843 P.2d 6 adopt we did not cognizant we are of the United States Su- per se rule and I today. would not do so preme Court’s recent decision Old Chief Hence, agree I that the trial court erred and States, United 519 U.S. that we should make our rule absolute. however, Chief, L.Ed.2d 574 Old decision, was not a constitutionally based but interpretation

rather concerns of a federal I. evidentiary Chief, rule. See Old 519 U.S. at agree “felony with the dissent that I con- -, 117 S.Ct. at 650. our Because concern may unduly victions jury’s influence deci- case is with a defendant’s due sion on guilt,” the defendant’s op. dis. at 194 rights, require Old does not a different Chief (Martinez, dissenting) added), J. (emphasis result from the one we reach here. More- and that such a result occur on “a over, holding Supreme follows occasions,” added). myriad of (emphasis id. Court’s more relevant pro- discussion of due However, myriad” because “a does con- Spencer cess in rejection and the Court’s every stitute and because the defendant process argument similar due raised has failed to specific articulate a fact basis as Spencer, that ease. See U.S. why might he impar- be denied a fair and 87 S.Ct. at 653-56. question tial quite before us is

different than that which the dissent ad- dresses. proper inquiry here is not III. whether the Due Process Clause ever reasons, For the foregoing we now make be violated the admission of evidence of a the rule to show cause absolute. We vacate similar crime that constitutes an ele- the of order court requiring whether, ment of charged, a the offense but as bench trial and remand consequence with directions to set a of the admission of such jury. the matter for trial conduct, to a process always is I violated.1 19, 1997, charge. offense in addition to a August In hearing, At the the trial court case, "problem may request latter characterized the issue a defendant as that’s in- bifurcation herent whenever a defendant is with a .charge of the substantive offense and the POWPO previous crime that involves as an element a Peterson, charge. See 656 P.2d which is this situation.... (Colo.1983). requests If a defendant bifur- is, dealing only pos- The issue when we’re cation, however, charge the POWPO must still be weapon by previous session of a offender and holding tried to in accordance with our in element, being previous offender is an how we this case. problem jurors handle that inherent know- event, any judge, gatekeeper, the trial as at not. In we answered that since think Court, in as well very question People v. District 843 trial limit the form manner of as (Colo.1992) (Erickson, J., specially P.2d 6 the extent to which evidence of concurring), controlling. which The an jury. introduced before unanimous; rejected (Colo. was swer then Spoto, statutory on the prosecution’s facial attack 1990). Court,

right. People v. District 7, 12. at 11 n. B.

II. evidentiary appropriate time for con- this, however, on a as siderations record such A. not, suggests, is at as the defendant matter, trial interlocutory In this court in prior to trial to determine whether order propensi- ruling upon “risk of a based its judge. jury or a I the trial will be before a verdict,” “unacceptable.” ty which it found opinion majority understand as do not court, however, rely upon The trial did not any power imposing new limitation on the and, such, as our rules of evidence CRE proof judge prosecution’s the trial limit the Hence, us. are not before while dissent- regarding prior convictions. The defendant’s opinion provides explanation ing an accurate judge, trial of sound discre- exercise that should control the considerations tion, from may choose to witnesses testi- bar pursuant admission evidence at fying underlying as to the facts 404(b), 403 and CRE those CRE consider- prevent previous offenses or even to were not the of the trial ations bases from names of revealing the nor, event, any they ruling, should be hand, to the the other jury. crimes On persuasive upon as on this relied record. prose- to allow the choose Thus, evidentiary I not import consid- regarding testimony cution to introduce de- quo erations as the sine non to determine past permit bad acts or to fendant’s whether or not trial be had before a will names but to hear the of the offenses court, based on due concerns. event, background. any their factual upon In this court called proof as to the must decision mode 18-1-406(2), to construe sections 6 C.R.S. instance, by the trial first made court (1997), based C.R.S. overstepping our role and we would on defendant’s assertions that he could not intimating any view as to the correct course jury. receive a full and fair trial before a evidentiary concerning of action these deter- upon rule The trial was not asked to minations. yet to be offered admission evidence begun. trial that had not defendant III. prove offer of claimed the evidence to certain elements of the crime to which he was Finally, because I view defendant Edward deny charged would him trial in accor- a fair challenge previ- Finley’s motion as a facial process. Sharing that dance with due con- ously by People decided v. District cern, light court agreed. the trial of this pre- not a case the defendant which record, however, the trial court erred. specific sented facts and circumstances —oth- pleaded— charges here, er than elements of

When, as has failed to indicating prejudice would result undue specific claiming articulate basis for necessary to from a it is not dis- rights been violated —other have who upon cuss the burden a defendant than a claim that the admission pretrial attempts motion to raise due unduly similar on its face conduct is opinion majority As I prejudicial for the concerns. read the inappropriate —it 7, majority’s deny its footnote reference to prosecution court to its and “may” object especially to a bench terms “would” as used in trial. This is so the and added.) (Emphasis mg Finley that Mr. felon.”

People v. District is not majority give proper intended fails to deference to proof applied by ease, establish standard to be the trial ruling this respect- I maj. op. fully trial courts. See at 190 n. 6. That dissent.

is, majority I do understand to re- defendant, succeed, quire that a must I. “prove his rights that or her due ease, The facts of this subject which are by jury be violated trial.” Id. Rath- ape dispute, some forth set here to assist an er, majority I understand to make clear understanding of the fact-based decision trump prosecution’s that to be entitled to by made the trial court. undisputed The objection to defendant’s waiver of a portion of the facts establish that the defen- trial, a defendant must assert facts dant, Finley, Edward was a passenger in a present significant or circumstances that by ear driven Damon Birch. The car was propensity juror to affect Af- deliberations. traveling high speed at a rate Finley and ter conforming by such a motion the defen- sitting was on passenger door window dant, present the trial court ear, seal when stopped by was Denver engage then in a delicate assessment of police dispute officers. The arises as to juror the inferences a reasonable an ac- —or what, if anything, Finley doing was while juror tual whose through views are revealed seated police on the window seal. The offi- voir given dire —would draw from a set allege cers they stopped the car because facts light and evidence at of sur- they Finley observed holding something in rounding course, circumstances. Of the trial stretching hands while his arms across judge, gate keeper as the as to admissible the roof of the car. The officers believed evidence, ability also has the to address con- gun the defendant had and was at- by cerns raised the defendant or tempting adjacent to shoot at an Finley car. pretrial by evidentiary conference or rulings, contends that nothing he had in his hands which can alleviate some con- while seated on the window seal. stop- After States, cerns. See Old v. United Chief car, ping police searched the vehicle U.S. 136 L.Ed.2d 574 shotgun found a under passenger (1997). However, the trial court’s ultimate seat. determination as to the trial of the case

before or without a supported must be Finley was arrested carrying a con- findings factual which can be reviewed on weapon possession cealed dangerous appeal. (a weapon shotgun).1 short After the officers Finley learned that had a convic- IV. tion, charged possession he was with record, essentially On there was noth- weapon (“POWPO”). previous offender ing more before the trial judge (1997). than a facial §See 6 C.R.S. The infor- upon Hence, attack the relevant statutes. alleged Finley mation had two precedent in People v. District Court felony convictions: one for menacing with a controls. deadly weapon possession other for (the of weapon by previous offender I Accordingly, too would make the rule charged offense proceeding). Based absolute. convictions, on Finley these also charged being with two counts of an habitual Justice MARTINEZ dissenting: offender. majority holds that erred as a of law ac- Finley matter Before statutory invoked his cepting waiver of his § waive a trial. 18-1- objection 406(2), trial over the prosecu- C.R.S. based his maj. op. tion. See at 185. I Because believe motion knowledge on his concern that of his 1. carrying plea driver was charge. unlawful weapon subsequently guilty entered a 194 presents greater dan improperly per- This evidence even could

previous convictions of previous it relates crimes ger the offense when to he committed suade Thus, charged similar to offense. nature and therefore could at issue case adoption prior to the of the Colorado Rules right to a fair compromise his due (“CRE”), decisional of Evidence Colorado II. The discussion Part trial. See infra exclusionary principle law followed previous about felonies be- would learn subject exceptions, narrow the inherent to an element of the cause a conviction is Thus, prejudice “other-crimes” evidence renders charge. relying theory on the pros in criminal such evidence inadmissible judge likely to be influ- a trial is less Garner, 366, People considerations, v. 806 P.2d ecution. See by inappropriate enced (Colo.1991); People Honey, v. 198 Colo. right to 372 attempted to waive his 751, (1979).2 64, 67, 596 P.2d 753-54 response, in- jury trial. statutory force a trial. its to voked CRE, adoption this After the of the § 6 Whether C.R.S. to four-part articulated test determine obliged proceed court was to the trial is whether evidence acts admissible. in the these facts and face on 1314, Spoto, v. People 795 P.2d 1318 motions, subject competing is the of these (Colo.1990). incorporates The CRE 401 test rule to show cause. asking tends by first whether the evidence (i.e. fact

prove the existence of a material relevant). logically evidence II. Then, 404(b), Spoto test turns CRE of a defen- It is well-settled that evidence prohibits of evidence of oth- which admission may unduly convictions dant’s prove character of er crimes “to the bad jury’s on the influence decision defendant’s person in order to that he acted in show have guilt. Colorado federal courts ac- conformity must therewith.” A court deter- myriad of knowledged this axiom on a occa- logical mine whether the relevance of the problem with this evidence is sions. independent evidence is of the intermediate based on that it lead to a decision prohibited by CRE bad character inference improper grounds, such as 404(b). Spoto, Finally, 795 P.2d at 1318. first even the evidence survives the three generalizing a earlier bad act analysis, parts Spoto a court to as directs taking into bad rais- character probative consider whether the value bad ing the odds that he did the later act (or, worse, substantially outweighed calling pre- evidence now IcL; prejudice. unfair see CRE happen danger of if he should ventive even momentarily). to be innocent States, Thus, 172, prejudice potential v. 519 U.S. because its Old United Chief

-, 650, 644, jury unfairly, 136 L.Ed.2d 574 the similar crimes States, (1997); generally also v. is not admissible in a criminal see Michelson United 218-19, 469, 213, regardless of its In the relevance. instant 335 U.S. S.Ct. (1948); Gilliam, ease, danger prejudice prompted v. L.Ed. United States (2d 97, Cir.1993); waive his F.2d United 100-03 (10th Shomo, especially present facts of States v. 786 F.2d 985-86 case Moccia, Cir.1986); high jury may risk that a be influenced United F.2d States (1st Cir.1982); Quintana, prejudice impermissible because the defen- (Colo.1994); one, 1366, 1372-73 felo- was convicted of not but two 882 P.2d v. dant nies, (Colo.1994); ten- Snyder, arguably display both of which (Colo. Gutierrez, dency specific to commit offense at issue People v. 1981).' here. 278, 284, inject People, Colo. tends to collateral issues into criminal

2. See also Stull (1959) ("evidence of similar acts unlikely case which are not to confuse lead likely inhering damning has beget prejudice in it innuendo jury”). astray the jurors, and ... the minds

195 prosecution prosecutorial in plans a even The behavior that face of Court, gun opposition. at at Finley wielding attribute to District 843 P.2d at ll.4 car, prior seeking A similar to defendant such a waiver on passing is process process menacing deadly weap- grounds with a must conviction for “raise due con- jury may A conclude that cerns in the trial court.” on. Id. We decided in “ that, ..., guilty simply judge in District of the behavior this case trial ‘[T]he by judicial process, the nature of our is in because he has been convicted of similar Moreover, Finley past. position in the was best behavior assure that by possession weapon right substantially also to a fair trial ... will convicted be ” offender, protected.’ previous very charged (quoting Stapleton Id. v. offense Dis- Court, 187, 193, 310, in this case. The defendant’s concerns trict 179 Colo. (1972)). preju- previous might unduly majority convictions 312 removes now this eyes dice him in the reason- decision from-the were court we believed was position able.3 the better to assure a fair trial. maj. at op. See 187. expression prejudice With this of the at- crimes, tendant to evidence similar Having previously that this de- determined with treat- reference to historical discretion, cision is within trial court’s evidence, ment I of this now examine wheth- appropriate question in this case is properly er the trial court dealt with this whether the trial court its abused discretion. issue in the case us. before especially This of review is standard suitable in the context of original proceeding III. pursuant proceed- C.AR. 21. An original A ing threshold matter this ease is the 21 is not for under C.AR. a substitute statutory pronouncement appeal inquiry that a defendant is limited to an into may right only jurisdic- her waive his or trial whether the trial court its exceeded if prosecution consents to the waiver. tion or abused its discretion. See (1997). Court, § Eagle G.R.S. In County, District In and For Court, (Colo.1992), (Colo.1995); Hayes District 843 P.2d 6 P.2d Court, (Colo. held that the Colorado Constitution does District P.2d 1993); prosecution Court, an unqualified abide re- County consent Halliburton v. Court, (Colo.1983). quirement. P.2d at See-District Because the Const, 11; II, §§ generally clearly see Colo. art. trial court is initial may 25. “an responsibility cases where accused to decide whether there is a subjected violation, proceeding jurisdiction to an unfair before it has the decision, jury,” process right biased the accused’s due decision make even to a fair denying wrong.5 trial is violated waiver of focus Our should be on Supreme 3. As the United States Court has held: in cases where his or her to due compromised by jury trial. dealing specific problem with the raised gun [the federal with a its statute] felon respondent majority 5.The holds that the element, ques- there can be no jurisdiction making court exceeded its this due tion that of the name or nature maj. op. at decision. See 187. The generally offense carries a risk of unfair majority provides two bases for conclusion. prejudice to the defendant.... Where a First, respondent as a “the court erred matter of gun conviction was similar crime or one Second, although law.” Id. a trial court charges pending in a risk of other case the jurisdiction general particular have over a class prejudice especially unfair would be obvi- case, jurisdiction trial court exceeds its ous .... contrary case where it acts to stat- at-, Chief, Old 186-187; 519 U.S. 117 S.Ct. at 652. ute. at Bustamante v. See id. see also 97, 105, District Colo. agree proposition, Thus, 4. I with the discussed majority holds al- majority, normally jurisdiction that a though defendant does not has jurisdiction have a to waive a constitutional its over this class it exceeded maj. op. holding by ordering process grounds Our in District bench trial on due Court, however, that a does a trial court establishes because section 16-10-101 forbids by jury making have constitutional to waive trial from this decision where Clause, An than the Due Process Old abused abuse rather its discretion.6' only occurs when a require majority of discretion to reach does Chief manifestly arbitrary unreason- ruling is This conclusion is a different result. See id. Munson, Co., Boettcher Inc. v. able. See & undeniably correct. (Colo.1993). 199, 211 P.2d 854 However, the fact that Old does not Chief compel this court to reach a certain result

IV. reasoning mean of Old does not that the prosecution must In a POWPO the of is of no to the resolution this value Chief prior in order to substanti prove conviction prior of dealt with admission ease. Old Chief the offense. the context of the federal ate of a felon crimes evidence the context with statute, counterpart to Colorado’s here, There, gun as the fact of a statute. that, where number of courts have held the prior conviction an element of of- was proving is to the prior conviction essential There, here, as fense. the defendant raised crime, unfairly prejudicial it to is intro jury might unduly that the concern See, prior evidence of the conviction. duce There, here, prejudiced by this as evidence. (9th Barker, e.g., v. 1 F.3d 957 United States that, prosecution because the claimed Gilliam, Cir.1993); 994 United States F.2d prior conviction of the was an element of- (2d Cir.1993). Nonetheless, in this same fense, unduly prejudicial. it could never context, Supreme the United Court States There, prosecution’s rejected the Court has held that the name and nature argument. Because the defendant had ad- unfairly prejudicial un conviction are to the fact of mitted 403 of Rules of Evi der Rule the Federal held that name and nature of dence, of where an to the fact admission Chief, presented legitimate pro- conviction is available. See Old no at -, 117 value, U.S. S.Ct. at 655. merely served bative instead to unfairly prejudice jury against the defen- majority acknowledges that the The hold- , Chief, dant. See Old 519 U.S. at-: — preju- the unfair ing of Old deals with Chief Thus, 117 S.Ct. at 654-56. Old has Chief attendant similar dice evidence value, case, in persuasive determining crimes, but declines to address the merits of prosecution’s whether the need introduce Instead, maj. op. that case. See at 191. Finley’s of the nature of evidence name and that, majority concludes because Old Chief Finley’s prevail with Federal Rule of Evidence convictions should over at- dealt Cook, (10th Cir.1991), objects. § 949 F.2d See 6 C.R.S. If only section 16-10-101 were the relevant law which held the determination of whether a issue, bearing upon agree. ques- applied legal I would Howev- court standard is a correct er, Lafferty our decision District Court established that tion of law. Neither Evans held that nor jurisdiction findings a trial court does have the to make legal relevant to a factual decision, novo, despite provisions this due de determination should be reviewed even majori- Consequently, section applicable legal 16-10-101. where the standard is constitu- ty’s holding premise Thus, is the inaccurate tionally-based. founded on trial court’s that, whenever a as a matter trial court errs finding unduly preju- factual will be decision, making law in diced the facts see of this discussion jurisdiction IV, loses its otherwise valid make this great Part should be accorded the defer- infra decision. ordinarily findings ence of fact. See extended 11; People at District P.2d Rodri- (Colo.1996) guez, (responsibili- Romer, P.2d majority cites 6. The Evans v. ty assuring jurors impartial (Colo.1993), are fair is treating authority as judge judge's is vested in trial decision dis- strictly decision the trial court as one of law. however, Evans, only upon showing turbed tion). of abuse of maj. op. discre- at See n. 4. majority where inapposite concedes court’s decision here because that unduly prejudiced, that a strictly court finds will be it as treat constitutional issue before process. maj. a trial offends due was that the issue one law based on fact factual, op. (stating by jury only legal, ques- at 190 offends opposed that trial concerned Evans, pre-trial publici- at As where defendant shows tions. 1274-75. au- decision, thority Lafferty ty impossible). for this Evans relied on renders fair trial unlikely trial before a udicial that the will be able to tempts to avoid an unfair bi- (citations jury.7 it from their omit- ased erase minds’” Madson, ted)); People v. presented The trial court below (“We (Colo.1981) ignore practical cannot light to consider in competing these concerns jury system and human limitations of the ... right to a fair trial. constitutional jurors [separate For the in this case the due discussed component probative from its with the and the defen- concerns unduly prejudicial component] is a feat be- length. Some detail these discus- dant yond ‘ability certainly their almost be- give context to the trial sions useful to ” (citations omitted)); yond their willingness.’ rulings judge’s to the and understand (Colo.1981) Lee, 583, People v. 630 591 P.2d narrow focus on case. The this (“[T]he cautionary trial court’s instruction to arguments preju- the trial court heard .about jury the is not under thése prior sufficient circum- nature of the convic- dicial tions, inflammatory to stances offset the nature of and tried to ascertain whether the testimony likely prosecution present to evidence of this effect intended and its on the Although deliberations.”); jury’s felonies at trial. the POWPO see both also 406, requires prosecution prove 410, to Goldsberry, statute the the 181 Colo. 509 P.2d felony only prior (1973); one the fact People, Edmisten v. 176 Colo. preserved present prosecution its to the 262, 276, (1971); 490 P.2d prior name and nature of convictions. both Gillispie, 780 (Colo.App.1988). investigated bifurcating The trial court also Furthermore, limiting jury instructions charge, so that the elements of the the always a to were sufficient method handle prior would not hear the felonies evidence evidence, prejudicial CRE and CRE unless and until it that the decided 404(b) unnecessary. would be CRE 403 actually possessed weapon, and concluded gives authority a trial court to the exclude precludes option. this that caselaw jury’s evidence from the consideration where Fullerton, People v. 186 Colo. probative the value of the evidence- is sub- stantially outweighed by danger the of unfair The trial employing court also considered a prejudice. The trial court would have no limiting jury instruction address the dan- if jury occasion to exclude such evidence of an Both ger unfair trial. the U.S. Su- adequate always instructions were to cure preme frequently have and this court danger prejudice. Similarly, the of unfair that, acknowledged limiting jury while in- trial court no reason the would have to ex- adequate to structions are often deal with prior clude crimes under CRE evidence potentially prejudicial evidence: 404(b) simply if the court could ade- [Tjhere are some contexts which the quately disregard instruct the not, cannot, risk that the will follow pertains as it to bad character evidence great, instructions so and the conse- propensity conformity to act therewith. defendant, quences of failure so vital the Clearly, jury instructions are “curative” practical that the and human limitations of always adequate. Finley’s so to avoid desire jury system ignored. be cannot fear, supported by reflected States, 123, 135, CRE, limiting jury in- caselaw and the Bruton v. United U.S. 1620, 1627, (1968); adequately might structions 88 S.Ct. 20 L.Ed.2d 476 address the (Colo. Vigil danger of an in his People, unfair trial ease. Be- see 1987) (noting limiting jury misgivings cause it shared about the instructions “ inadequate prej- sufficiency limiting jury where evidence is instructions in ‘such so this Indeed, jury,” proceeding biased determination whether a fair before a the ac unfair, fundamentally trial is in violation of due cused’s Court, is violated. District 11; process, part impartiality 843 P.2d at also turns in on see Mutual Pacific 1, 41, jury. Haslip, We U.S. should be when the Co. v. 111 S.Ct. concerned Life Insur. 1032, 1055, (1991) J„ (Kennedy, probative hears evidence the value of which is 113 L.Ed.2d ("A substantially outweighed danger concurring judgment) of unfair verdict returned prejudice. jury. prejudiced jury no Such could bias a a biased or process”). doubt violates due evidence subjected “Where an accused to an un try “third how to this

case, that such be his choice of the trial court determined appropriate option. not an instructions were [case].” reaching ruling, the initial trial court its prosecution then asked (1) following: preju- cognizant of

was accept willing if it the defendant’s generally with similar dice associated only admission to fact longstanding evidence Colorado’s acts Chief, 519 generally Old U.S. conviction. policy concerning admissibility restrictive at -, (finding “there (2) evidence, prejudice of such the enhanced cognizable is no difference between evi- specific associated felonies dentiary significance of an admission and of (3) fact that this probative component of legitimate present of both felonies might evidence conviction]”). prosecu official record [of unfair (thereby increasing the likelihood of initially rejected stipulation despite tion prejudice) prosecu- the fact that the noted, only the fact fact present all tion allowed to required prove concerning Finley’s prior at a convictions Finally, noting op charge.9 after proceeding related the habitual bifurcated preserving tion first was not its choice ruled, The court then all “[F]or counts. trial reasons, appeal I that its of these find Mr. to the trial initial proceeding may right to due accept prosecution agreed the to the ruling, by compromised proceeded if case this stipulation the fact of the to felo jury trial.” only. nies prosecution then moved the trial court The reconsider, point in the to At this motion motion, support this the to reconsider. In the trial court that it was inclined indicated presented prosecution various “less drastic” light initial In rely ruling. to on its of the prosecu- trial. The alternatives bench prosecution postpone of the to determination emphasized regardless also tion pursue original proceeding trial re- accepted any whether the trial court of the (as gardless stipulations of which were made alternatives, prosecution the in- proffered by prosecution’s expressed the in- evidenced appeal ruling. to the court’s tended initial appeal ruling), tent the trial court’s initial to prosecution stipula- presented various persuaded court was not that trial stipu- tions which called for the defendant to reconsider served this case motion to had fact to late to the of the convictions and this, Clearly productively. sensing the de- precise pros- names of the felonies. The deny fendant asked the court to the motion Finley proposed stipulate.to also that ecution to that he not reconsider indicated was fact and of one of the felonies name accept prosecution present willing stipulation to to the fact of and allow the to evidence felonies, jury. other such of the to Because “if the become aware stipulations nothing did little or to detailed of that.” prejudicial hearing

lessen the effect about Consequently, methodically after evaluat- convictions, the trial court did not ing to the alternatives a bench the trial proposals that ad- adequately believe these prosecution’s court denied the motion to re- Finley the due concerns.8 dressed emphasize to consider. The took care flatly reject stipula- these detailed did ruling peculiar turned its on facts of tions. indicated distaste for these case, every proposals, agreed they he and did not detailed but decide de- Furthermore, prosecution’s prosecution stipulate it 8. The reluctance indicated that anything less than the full names of the felonies may than offer more the official record convic- implies prosecution that the itself believed present tion at but also witnesses to provide the names the felonies more than discuss the nature of the convictions. simply an element of the POWPO offense. Evi- dently, the might prejudice believed that this infor- jury ways mation that the might not. mere fact felonies manifestly in a case has an and is not fendant uncondi- record unreason- this, by jury.10 trial tional to waive a able. In as in countless other instances involving application facts, of law to pre- careful This and exhaustive should leave trial courts the business of cisely what we asked sorting differences, any, out the between support District Court. There is in the rec- presented this case and factual situations and in the caselaw for the trial court’s ord future cases.11 decision, regardless whether our decision would be different. Under circumstances effect, the majority that a holds defen- ruling of this the trial court’s process right dant’s due is never violated manifestly arbitrary unreasonable. refusing grant waiver of Therefore, the court did not abuse its discre- prosecution objects, where the even in cases by allowing tion the defendant to waive his where a reasonable mind find that the prosecution’s trial over the ob- probative value to be admit- jection. substantially outweighed ted at trial is by danger prejudice. of unfair Chief, See Old V. -, U.S. at S.Ct. 655. The compelled briefly I feel address majority uncertainty creates majority’s expressed pro- view that the due jurisdiction have the courts to decide cess issue the trial court resolved and what will claims standard be used specific broader than the facts of this case. any to review decision a trial court makes. maj. op. at as- majority 187-188. contrast, District Court left this decision serts that it no difference between “see[s] within the sound discretion of the trial court. argument here an argument made by any pre- raised other defendant who was VI. viously convicted of a POWPO or a violent felony.” summarize, Id. no need in engage previously There is To we have decided speculation. present- The salient position issue that the trial court is in the best ed this case is process decision balance a defendant’s to due accept prosecution’s waiver of a trial is statutory right within the law with the words, case, discretion of the trial court. other force a trial. the instant there really support do mean we said in what District substantial for the trial court’s so, Therefore, If ruling Court? the trial ruling. then the trial court acted with- enjoys support should stand it in allowing whenever its discretion the defendant to ruling, promised proceeded by jury 10. In its initial the court stated: if this case trial and, therefore, Finley’s Mr. for a motion bench important I do think it’s I look at objection granted, People’s over the trial is nature of the two convictions. People’s over the insistence under 16-10-101 They possession weap- menacing are proceed jury. that we on, very charge Finley’s which is the Mr. charged I with here. think that increases Similarly, holding I do not believe the 11. case, process problem due in this increases the Spencer requires contrary Texas conclusion. chance that the would use this informa- 385 U.S. (1967). L.Ed.2d tion, though even it’s element of this of- majority support cites this case fense, propensity; any for and I don’t know proposition Due federal Process way get sensible around that. hearing Clause ever does forbid from only thing ... So the we’re left with to solve conviction while problem limiting this find, is a instruction. And I charge considering against a new the defendant. under the However, circumstances maj. op. at 188-190. the trial case, limiting that the kind instruction of the decide court did not that admission such evi- prosecutor] my Rather, that I [the articulated with per dence is se unconstitutional. it deter- colloquy would be with him insufficient —or Finley’s mined that two convictions in- may be insufficient to overcome in- Finley’s alleged this—this volved so similar behavior jurors problem punishing herent Fin- Mr. conduct the substantive as to offense create a ley, for what he’s with in Spencer’s violation in this case. past but holding my for what he’s done in cases. for all So consistent with view that reasons, may investigate of those I find Mr. courts whether this evidence proceeding may to due be corn- does violate in certain cases. Because I waive majority its discretion substitutes

believe court, in conflict with that of analysis, I re- abuse of discretion standard spectfully dissent.

BENDER, J., joins in this dissent. CORPORATION,

The LAUREN corporation, a Colorado Plaintiff-Appellee, CORPO- CENTURY GEOPHYSICAL corpora- RATION, an Oklahoma tion, Defendant-Appellant. 96CA0554.

No. Appeals, Colorado Court Div. I. Jan.

Case Details

Case Name: People v. District Court, City & County of Denver

Court Name: Supreme Court of Colorado

Date Published: Jan 20, 1998

Citation: 953 P.2d 184

Docket Number: 97SA337

Court Abbreviation: Colo.