Nathaniel SPEARMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A04-0006-CR-261.
Court of Appeals of Indiana.
March 6, 2001.
Rehearing Denied April 24, 2001.
744 N.E.2d 545
BAKER and BROOK, JJ., concur.
Karen M. Freeman-Wilson, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
KIRSCH, Judge
Nathaniel Spearman appeals his conviction for unlawful possession of a firearm by a serious violent felon,1 a class B felony. On appeal he raises the following issue, which we restate as: whether the trial court violated Spearman‘s rights to due process under the Fourteenth Amendment to the United States Constitution when it denied Spearman‘s motion to bifurcate portions of the proceedings.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of September 28, 1999, officers of the Indianapolis Police Department responded to the report of an altercation between Spearman and Michael Hardin at Hardin‘s mother‘s home. When the police officers arrived, Hardin told them that Spearman had brandished a gun and then placed it in the trunk of the car in which he had arrived at the home. With Spearman‘s consent, the police officers searched the car and found a handgun in the trunk.
Spearman was arrested. Because Spearman had a previous conviction for criminal confinement, the State charged him with unlawful possession of a firearm by a serious violent felon.2 A second charge, pointing a firearm at another person,3 as a class D felony, was dismissed prior to Spearman‘s trial.
Three days prior to trial, Spearman moved for bifurcated proceedings so that the jury would not be told of his criminal confinement conviction before it determined whether he was in possession of a firearm. The trial court denied the motion. Spearman raised the issue again in an oral motion at the commencement of his jury trial. After a considerable amount of discussion by the judge and attorneys out of the presence of the jury, the trial court confirmed its prior ruling and ordered the cause to be tried without bifurcation. Record at 116-19, 121.
During the jury trial, Spearman stipulated that he had been convicted of criminal confinement in Marion Superior Court on February 4, 1999. Id. at 175. The jury convicted Spearman of possession of a firearm by a serious violent felon. He now appeals.
DISCUSSION AND DECISION
On appeal, Spearman contends that his right to due process was violated when the trial court did not conduct bifurcated proceedings. Specifically, he maintains that trying him under circumstances that allowed his prior felony conviction for criminal confinement to be introduced during
In 1999, the legislature enacted
(a) As used in this section, “serious violent felon” means a person who has been convicted of:
(1) committing a serious violent felony in:
(A) Indiana;
...
(b) As used in this section, “serious violent felony” means:
...
(7) criminal confinement (
IC 35-42-3-3 );...
(c) A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony.
Spearman‘s bifurcation argument rests, in part, on our court‘s approval of bifurcation when a defendant is charged as an habitual offender and in cases where prior convictions serve to elevate a present crime or enhance the penalty for a present conviction.4 See Shelton v. State, 602 N.E.2d 1017, 1019-20 (Ind. 1992) (bifurcation where prior conviction used by jury to adjudge the defendant an habitual offender); Landis v. State, 693 N.E.2d 570, 571-72 (Ind. Ct. App. 1998), aff‘d, 704 N.E.2d 113 (Ind. 1998) (bifurcation where prior conviction served to elevate current offense); Johnson v. State, 544 N.E.2d 164, 168 (Ind. Ct. App. 1989), trans. denied (bifurcation required where prior conviction used to enhance a present conviction). Spearman correctly notes that evidence of prior convictions is generally inadmissible because such evidence ” ‘has no tendency to establish the guilt or innocence of the accused’ ” during the phase to determine whether the defendant is guilty of the underlying felony. Shelton, 602 N.E.2d at 1019 (quoting Lawrence v. State, 259 Ind. 306, 310, 286 N.E.2d 830, 832 (1972)); see also Landis, 693 N.E.2d at 571; Johnson, 544 N.E.2d at 168. The only effect of such evidence during the determination of guilt or innocence is to ” ‘prejudice or mislead or excite the minds and inflame the passions of the jury.’ ” Shelton, 602 N.E.2d at 1019 (quoting Lawrence, 259 Ind. at 310, 286 N.E.2d at 832); see also Landis, 693 N.E.2d at 571; Johnson, 544 N.E.2d at 168.
While bifurcation is appropriate in the above circumstances, the rationale for inadmissibility of prior convictions breaks down when the evidence of the prior conviction not only has the “tendency” to establish guilt or innocence but also is essential to such determination. Our supreme court has stated:
“The admission or rejection of evidence is not a matter of judicial grace. It is a legal right. To be admissible, evidence must logically tend to prove a material fact. Accordingly, evidence of prior crimes is generally inadmissible in a criminal case, because it has no tendency to establish the guilt or innocence of the accused.... Evidence of prior crimes is admissible, however, if it is relevant to some issue in the case, such as intent, motive, knowledge, plan, identity, or credibility.... The admissibili-
ty of prior convictions in such cases is justified only by their relevance to the issues. The undesirable tendency to prejudice remains, but the overriding interests of the State in arriving at the truth prevails.”
Lawrence, 259 Ind. at 309-10, 286 N.E.2d at 832-33 (citations omitted); see also Johnson, 544 N.E.2d at 168 (evidence of other crimes may be offered to show the defendant‘s intent, motive, knowledge, malice, sanity, scheme or plan, or capacity to commit the offense, or the criminal actor‘s identity).
The Indiana General Assembly has prohibited those convicted of a serious violent felony from knowingly or intentionally possessing a firearm.
It is not practical, or even possible, to bifurcate the proceedings in this case. Before trial, the State dropped the charge of pointing a handgun. The only charge Spearman faced was as a serious violent felon who knowingly or intentionally possessed a firearm. The court could not hold a guilt phase as to the possession of a firearm before holding a guilt phase regarding the existence of a prior conviction that constitutes a serious violent felony because, without more, one is not “guilty” of possession of a firearm. The court could not tell the jury that the defendant is charged with possessing a firearm because that in and of itself is insufficient to constitute a crime. In the absence of the serious violent felony conviction there is no unlawful possession component.
Federal law contains a statute similar to
Although only persuasive, the federal courts’ reasoning is helpful to our analysis. In Collamore and Barker, defendants were each charged with being a felon in possession of a firearm in violation of
“First, when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime. The present case is a stark example. Possession of a firearm by most people is not a crime. A juror who owns or who has friends and relatives who own firearms may wonder why [the defendant‘s] possession was illegal. Doubt as to the criminality of [the defendant‘s] conduct may influence the jury when it considers the possession element.”
Similarly, in Mangum,5 Jacobs,7 and Birdsong,6 the defendants were each convicted of being a felon in possession of a firearm in violation of
We understand that prejudice may arise when a jury is informed of a prior conviction under
Since Collamore, the federal courts have addressed the balance between evidence that is both probative and prejudicial by encouraging proof of a prior felony element through a redacted record, testimony by a clerk, stipulation, a defendant‘s affidavit or other similar technique whereby the jury is informed only of the fact of the prior felony conviction, but not of the nature or substance of the conviction. United States v. Tavares, 21 F.3d 1, 4 (1st Cir. 1994), appeal on remand on different issue, 93 F.3d 10 (1st Cir. 1996), cert. denied, 519 U.S. 955 (1996). In Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the United States Supreme Court refined the reasoning concerning a stipulation, holding that where a defendant offers to stipulate his status as a felon in a prosecution for being a felon in possession of a firearm, the trial court abuses its discretion under Rule 403 of the Federal Rules of Evidence by permitting the prosecution to introduce the full record of the defendant‘s prior felony conviction. The Supreme Court found that where the prior conviction was being used only to prove status, the introduction of the record for the prior conviction was more prejudicial than probative. Id. at 191.
This court in Sams v. State, citing Old Chief with approval and noting the identical nature of Rule 403 of the Federal Rules of Evidence and Rule 403 of the
As these cases reveal, the trial court in exercising its discretion under
In this appeal, Spearman does not assert that his substantive due process rights were violated by the legislature‘s decisions to refer to the designated group of felonies as “serious violent felonies” and to the crime as possession by a “serious violent felon.” We reserve such issue for another day. Nevertheless, while we hold that the element of the prior felony cannot be bifurcated from the possession element in a prosecution under
Affirmed.
FRIEDLANDER, J., concurs.
DARDEN, J., concurs in part and dissents in part with separate opinion.
DARDEN, Judge, concurring in part and dissenting in part.
I would respectfully disagree with the majority‘s interpretation of the statute. I believe that without bifurcation, the statute is unconstitutional as applied in this case. Because the accused is clothed with a presumption of innocence, it is antithetical to our system of jurisprudence to label one accused of a crime as a “serious violent felon” during proceedings to determine guilt. By labeling the accused a “serious violent felon”9 from the outset and for the duration of the proceedings, it is a likelihood—almost a certainty—that the jury will lose sight of the statute‘s foundational elements: whether the accused knowingly or intentionally possessed a firearm. See
The statute, as construed by the majority, lessens the State‘s burden at trial by labeling the accused a “serious violent felon,” thereby vitiating the presumption of innocence. By labeling Spearman from the outset, the jury was invited to engage
That the legislature could not intend such a result is obvious to me. “[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 1911, 146 L.Ed.2d 902 (2000) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909)). Through bifurcation we can avoid the grave constitutional questions that arise under the statute. As
In my view, evidence of the predicate elements must be presented to the jury before it is informed of the accused‘s status as a serious violent felon. If the jury determines that the evidence is sufficient to establish beyond a reasonable doubt that the accused knowingly or intentionally possessed a firearm,10 then, as in the case of habitual offender enhancement, the jury would be informed of the second portion of the proceedings. In that manner, the accused‘s right to the presumption of innocence will not be trammeled by references to a previous serious violent felony conviction, as occurred here.
The majority reasons that possessing a firearm would not be a crime absent the “serious violent felon” element. However, it is also true that absent the predicate elements of knowingly or intentionally possessing a firearm, it is not a separate offense to be a “serious violent felon.” The majority‘s decision alters the focus of our system of justice. The majority focuses on the State‘s right to present, and the jury‘s right to hear, evidence as to all elements. One need not look beyond the Indiana Rules of Evidence to observe the firmly entrenched proposition that many forms of evidence are withheld from a jury‘s consideration simply because the evidence is too prejudicial or irrelevant to the ultimate issue. The constitutional rights of the accused are paramount in proceedings to determine guilt.
While it is true that the evidence as to the “serious violent felon” status would be necessary to prove the crime, there is no reasonable justification for tainting the entire proceedings with references to and evidence of that element prior to a determination on the predicate elements. To do so robs the accused of the presumption of innocence and, contrary to our system of justice, impermissibly shifts the burden to the accused to present evidence to overcome the label.
(B) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury.
(C) Submission to Jury in Stages. The Court upon its own motion or the motion of any party for good cause shown may allow the case to be tried and submitted to the jury in stages or segments including, but not limited to, bifurcation of claims or issues of compensatory and punitive damages.
In the context of explaining the rationale for the bifurcation requirement when a defendant is charged as an habitual offender, our supreme court stated:
Evidence of prior convictions “is generally inadmissible in a criminal case, because it has no tendency to establish the guilt or innocence of the accused but, if effective at all, could serve only to prejudice or mislead or excite the minds and inflame the passions of the jury.” In Lawrence [v. State, 259 Ind. 306, 286 N.E.2d 830 (1972)] we concluded that any state interest in having the prior conviction evidence heard in the same phase as evidence of the felony is outweighed by the injustice to a defendant from a jury determining his guilt or innocence with knowledge of his prior conviction.
In Shepler [v. State, 274 Ind. 331, 412 N.E.2d 62, 69 (1980)], we explained the rationale underlying the bifurcation requirement: “The purpose of ... bifurcated proceeding[s] is to prevent the jury from being tainted by knowledge of the defendant‘s prior felony convictions, in determining his guilt or innocence of the charge before them.” By separating the consideration of prior convictions from the jury‘s initial guilt/innocence determination, the defendant is provided a fair and impartial jury to determine his guilt or innocence on the underlying felony charge.
Shelton v. State, 602 N.E.2d 1017, 1019 (Ind. 1992) (some citations omitted). The court explained that the rationale has been extended beyond habitual offender statutes and applied to statutes that require charge elevation based upon a prior conviction. Id. at 1019-20.
The rationale should apply with equal force to crimes wherein a prior conviction is an element of the offense. The serious violent felon statute is rife with the potential for jurors to focus on the defendant‘s status as someone who has committed other crimes. Endemic in the statute, and specifically as applied in this case, is the fact that the defendant already has been convicted of at least one other crime, that the crime was a felony, and that the crime was both serious and violent.
In Spearman‘s case, the jury was told numerous times throughout the proceedings that he previously had been convicted of a serious violent felony. The record discloses that information with regard to the previous conviction permeated the proceedings from the charging information and preliminary instructions to final instructions.11 Cf. Thompson v. State, 690 N.E.2d 224, 236-37 (Ind. 1997) (determin-
It is inconceivable that under the circumstances of this case the jury was able to keep discrete the knowledge of Spearman‘s prior conviction for a serious violent felony from its determination of whether he possessed a firearm. Conflicting evidence was presented as to Spearman‘s knowledge and possession of the gun, as well as his ability to control the gun found in the trunk of a car he did not own. Cf. Sanders v. State, 724 N.E.2d 1127, 1133 (Ind. Ct. App. 2000) (because credibility of witnesses was only issue, attempt to bolster State‘s witnesses by portraying prosecutor as pursuer of justice was impermissible). Absent bifurcation, the accused is doubly damaged. By bombarding the jury with information that Spearman was a convicted serious violent felon, the jury was invited to engage in forbidden inferences that Spearman was not credible and had a propensity to commit serious violent crimes, thereby denying Spearman any real ability to present a defense, and lessening the State‘s burden to present evidence beyond a reasonable doubt on the current offense.
Additionally, absent bifurcation, a defendant may be forced to choose to forgo the right to a jury trial in an effort to minimize the damage to the presumption of innocence incurred by informing a jury of prior convictions for serious violent felonies. See People v. District Court, Denver, 953 P.2d 184 (Colo. 1998) (holding prosecution‘s unqualified right to oppose jury waiver abrogated where defendant sought waiver of jury trial so that his prior convictions for felony menacing and possessing a firearm as a convicted felon would not be presented to jury).
The majority suggests ways to lessen the impact of the evidence of a prior conviction for a serious violent felony. I believe that in order to preserve the accused‘s presumption of innocence and ability to present a defense, bifurcation is the answer. Even if precautions are taken to lessen the impact of the evidence, any evidence of a previous conviction that does not bear upon the accused‘s guilt in the new proceeding is unnecessary and may taint the proceeding.
As noted by the majority, the tactical considerations for presentation of evidence of prior convictions were explored in Old Chief v. United States, 519 U.S. 172, 174, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). There, the Court concluded that a district court abused its discretion by rejecting the defendant‘s offer to stipulate as to the matter of a prior conviction “when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.” Id. Relying upon Old Chief, this court in Sams v. State, 688 N.E.2d 1323 (Ind. Ct. App. 1997), and in
It is generally true that the prosecution is entitled to prove its case by evidence of its own choice, and a criminal defendant may not stipulate his way out of the full evidentiary force of the case to be presented against him. Sams [v. State, 688 N.E.2d at 1325] (based on Old Chief, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574). However, this general rule has virtually no applicability where the point at issue is a defendant‘s legal status independent of the criminal conduct charged. Sams, 688 N.E.2d at 1325. Thus, when a defendant objects to the admission of evidence of the collateral misconduct which resulted in the legal status and offers to concede the legal status at issue, the risk of unfair prejudice flowing from the admission of the uncharged misconduct will necessarily outweigh its probative value. Id. at 1326. The Old Chief court held that, where defendant had offered to concede his status as a felon in a prosecution for being a felon in possession of a firearm, the trial court abused its discretion under Evid.R. 403 by permitting the prosecution to introduce the full record of Old Chief‘s prior felony conviction. 519 U.S. at 190-94, 117 S.Ct. at 655-56. Similarly, in Sams, we held that, where defendant offered to stipulate that his operator‘s license had been suspended for life in a prosecution for driving while suspended for life, the trial court abused its discretion under Evid.R. 403 by permitting the State to introduce defendant‘s entire driving record. 688 N.E.2d at 1325-26.
Although Spearman stipulated to the evidence of his prior conviction for a serious violent felony, any tactical advantage was obliterated by the repetitive and pervasive use of the label “serious violent felon” throughout the proceedings. Under the circumstances, he was denied the ability to present a defense or maintain his innocence. Cf. Lloyd v. State, 448 N.E.2d 1062, 1068 (Ind. 1983) (introduction of evidence, even if error, was harmless in that it did not constrict his counsel in his choice of defense tactics). The conundrum can be avoided through bifurcation.
In short, bifurcation is practical and should be required when a defendant is charged with knowingly or intentionally possessing a firearm as a serious violent felon, even though the previous conviction for a serious violent felony is an element of the charge. I acknowledge that in the federal setting, bifurcation has been rejected in the context of the federal statute proscribing possession of a firearm by a felon.13 See, e.g., United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993) (bifurcation of possession of firearm and the evidence of prior convictions not allowed when prior convictions constitute element of offense), opinion modified on denial of reh‘g 20 F.3d 365 (9th Cir. 1994); but see United States v. Tavares, 21 F.3d 1, 4 (1st Cir. 1994), appeal after remand, 93 F.3d 10 (1st Cir. 1996) (limiting decision in United States v. Collamore, 868 F.2d 24 (1st Cir. 1989), the Tavares court noted that it is generally inappropriate to give information beyond the existence of a previous conviction even though the conviction is an element of the new offense). However, Indiana is free to provide protections under Indiana‘s Constitution in addition to those prescribed by the federal constitution. See Richardson v. State, 717 N.E.2d 32, 48-50 (Ind. 1999) (Indiana Constitution provides double jeopardy protections in addition to those under United States Constitution).
Although the evidence here was conflicting, the State presented testimony that Spearman brandished a gun and placed