People v. Chavez

¶1concurring and specially concurring:

¶2I concur in the well-reasoned opinion of the court written by Justice Dubofsky. That opinion is based on sound and long-established judicial precedent. It applies that precedent in a manner that accords the defendant his constitutional due and responsibly salvages the habitual criminal statute from what otherwise would have been an irreparable constitutional infirmity.

¶3A charge of habitual criminality is sui generis. The legislature recognized the unique nature of this status by establishing strict statutory procedures for its determination, including proof of the prior convictions beyond a reasonable doubt. Section 16-13-103(4)(b), C.R.S.1973 (1978 Repl. Vol. 8). With good reason this court consistently has construed these statutory procedures strictly in favor of the accused. See, e. g., People v. Lucero, Colo., 615 P.2d 660 (1980); Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978); DeGesualdo v. People, 147 Colo. 426, 364 P.2d. 374 (1961); Smalley v. People, 116 Colo. 598, 183 P.2d 558 (1947). Short of a conviction for a capital offense, no more serious adjudication can befall an accused in our criminal justice system. In contrast to the Federal Dangerous Special Offender Act, 18 U.S.C. § 3575, which incorporates a principle of proportionality and allows sentencing discretion, see Rummel v. Estelle, 445 U.S. 263, 299-30 and n.20, 100 S.Ct. 1133, 1152-53 and n.20, 63 L.Ed.2d 382, 407 and n.20 (1980) (Powell, J., dissenting), a *1368person adjudged a habitual criminal under section 16-13-101(2), C.R.S.1973 (1979 Supp.) “shall be punished by imprisonment in a correctional facility for the term of his or her natural life.”

¶4I.

¶5That the majority holding is consistent with the doctrine of unconstitutional conditions cannot be questioned. In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court found reversible constitutional error in a California constitutional provision authorizing the court to instruct jurors that they may draw unfavorable inferences from a defendant’s failure to explain or deny matters within his knowledge. The court said of such procedure: “It is a penalty imposed by the courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” 380 U.S. at 614, 85 S.Ct. at 1232-33, 14 L.Ed.2d at 109-110. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that a defendant’s suppression testimony may not be admitted against him at trial as evidence of guilt because to do so would deter the defendant “from presenting the testimonial proof ... necessary to assert a Fourth Amendment claim.” 390 U.S. at 392-93, 88 S.Ct. at 975, 19 L.Ed.2d at 1258. Under these circumstances the court found it “intolerable that one constitutional right should have to be surrendered in order to assert another.” 390 U.S. at 394, 88 S.Ct. at 976, 19 L.Ed.2d at 1259. Again this principle was applied in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). There, the Supreme Court found the death penalty provision of the Federal Kidnapping Act' unconstitutional because it needlessly chilled the exercise of the defendant’s basic constitutional right to a jury trial:

“The question is not whether the chilling effect is ‘incidental’ rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear.

… *

“Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnapping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.

… *

“A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right.” 390 U.S. at 582-83, 88 S.Ct. at 1216-17, 20 L.Ed.2d at 147-48.

¶6It is also an axiom no longer debatable that an accused has the constitutional right to require the state to prove his guilt beyond a reasonable doubt on every essential element of a criminal charge. E. g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); accord, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Smith v. Smith, 454 F.2d 572 (5th Cir. 1971); cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972); Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968); cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). In fact, this court in People v. District Court, 165 Colo. 253, 439 P.2d 741 (1968), had no difficulty in concluding that a statutory provision relieving the prosecution of that burden was constitutionally flawed under state due process doctrine. Implicit in the concept of due process is the fundamental principle that the state must prove to the satisfaction of the jury beyond a reasonable doubt all the material elements necessary to constitute the offense charged. People v. District Court, supra; Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962); Kent v. People, 8 Colo. 563, 9 P. 852 (1885). A statutory scheme relieving the state of that burden would collide headon with Article II, Section 25, of the Colorado Constitution. People v. District Court, supra.

¶7Nor can anyone seriously question the constitutional right of an accused in a criminal case to testify in his own defense. The United States Supreme Court in Brooks v. *1369Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358, 364 (1972), noted that “[wjhether the defendant is to testify is an important tactical decision as well as a matter of constitutional right.” See also, e. g., Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The Second Circuit Court of Appeals characterized this right “as having an importance similar to the right to be present at one’s trial and to present a defense.” United States v. Bentvena, 319 F.2d 916, 943 (2d Cir. 1963), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). This right is so inherently personal and fundamental that it can be waived only by the defendant and not his attorney. Winters v. Cook, 489 F.2d 174 (5th Cir. 1973). No defendant should “be deprived of exercising that right and conveying his version of the facts to the court or jury .... ” Hughes v. State, 513 P.2d 1115, 1119 (Alaska 1973); accord, State v. Noble, 109 Ariz. 539, 514 P.2d 460 (1973); People v. Robles, 2 Cal.3d 205, 466 P.2d 710, 85 Cal.Rptr. 166 (1970). In short, the right to testify in one’s own defense cannot be eroded or needlessly chilled without running afoul of the Due Process Clause of the United States and Colorado Constitutions. U.S. Const. Amend. XIV; Colo.Const. Art. II, Sec. 25.

¶8In this case the defendant was put to a Hobson’s choice. He could decline to testify and thereby relinquish his constitutional right to convey his version of the facts to the jury, or he could take the stand and thereby forego his constitutional right to require the state to prove his habitual criminality. A defendant in a criminal case is entitled to all his constitutional rights. “[H]e cannot be forced to barter one for the other. When the exercise of one right is made contingent upon the forbearance of another, both rights are corrupted.” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3d Cir. 1977).

¶9The dissenting opinions notwithstanding, the plain and simple fact is that the unrestricted prosecutorial use of a defendant’s testimonial admission of prior convictions— the impeachment use on the principal charge and the substantive use on the charge of habitual criminality—would needlessly penalize the defendant for asserting his constitutional right to testify in his own defense on the principal charge. The construction of the habitual criminal statute formulated by Justice Dubofsky is absolutely essential to the constitutional viability of that statutory scheme.

¶10II.

¶11I also agree with the majority that “it was not inappropriate for the trial court to ‘bifurcate’ the proceedings in this case.” However, I would go a step further. Because of the innuendo of depravity that is implicit in the charge of habitual criminality, all trials involving that status determination should be bifurcated, whether the defendant elects to testify on the principal charge or not. Only if and when the jury finds the defendant guilty of the principal charge should the jury be advised of and hear evidence on the separate counts of habitual criminality. It is my belief that “[tjhe statutory procedures mandate a bifurcated trial ... precisely to obviate the prejudicial effect of prior convictions on the trial of the substantive offense.” People v. Lucero, Colo., 615 P.2d 660, 666 (1980).

¶12Although admittedly the defendant’s pri- or felony convictions will be admitted for impeachment purposes when he testifies in defense of the principal charge, the jury nevertheless will be clearly instructed at that point that this evidence should be considered by them for the purpose of evaluating the defendant’s credibility as a witness and for no other purpose. It is quite another matter, however, to inform the jury, prior to the resolution of the principal charge, that upon his conviction of that charge the defendant stands charged with habitual criminality due to his past misdeeds. With the defendant facing the prospect of life imprisonment for habitual criminality upon conviction of the principal charge, section 16-13-101(2), C.R.S.1973 *1370(1979 Supp.), fundamental fairness requires no less than strict bifurcation in these cases.

¶13I am authorized to say that ERICKSON, J., joins me in this concurring and special concurring opinion.

¶14dissenting.

¶15I join in the dissent of HODGES, C. J.

¶16In my view, no valid reason has been advanced why the conviction in this case should be overturned.

¶17Preliminarily, it should be noted that the defendant’s guilt was overwhelmingly es*1372tablished. The defendant was observed by five officers breaking and entering into the house which he was accused of burglarizing. He was captured as he left by the rear door, attempting to avoid capture by the arresting officers. The conviction should not be reversed unless substantial prejudicial error occurred in the trial. None has been demonstrated in my view.

¶18I concur in the Chief Justice’s exposition of the procedural requirements under the habitual criminal statute. The trial judge’s ruling, in my view, conformed with such requirements. The record of the colloquy between defendant, his counsel, and the court clearly indicates that the court’s ruling fully protected the defendant’s right to a fair trial on the substantive offense. There is nothing in the record to indicate that the trial jury had any knowledge whatsoever of the pending habitual criminal charges. It is apparent that throughout the prosecution’s case no mention had been made to the jury of those charges or of the defendant’s prior criminal record.

¶19At the conclusion of the prosecution’s evidence, the court advised the defendant that it would bifurcate the trial of the habitual criminal charges from the trial of the substantive offense. It further advised the defendant that if he took the stand to testify in his own behalf evidence of the prior convictions would be admissible for the purposes of impeachment only during the substantive trial. This conformed to defense counsel’s understanding as to the procedural requirements. The record shows that, after so being advised by the court, the defendant consulted with his counsel. Thereafter, he indicated to the court that he understood the consequences of testifying and being cross-examined concerning his prior convictions. He then elected not to testify in his own defense.

¶20An important consideration is the concept that the Habitual Criminal Act does not create a substantive crime. Casias v. People, 148 Colo. 544, 367 P.2d 327 (1961), cert. denied, 369 U.S. 862, 82 S.Ct. 952, 8 L.Ed.2d 20 (1963); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947). The Act only prescribes circumstances where one found guilty of a specific substantive offense shall be more severely penalized if he has been previously convicted of crimes. As a sentence enhancement statute, the process concerns only the historical fact of the defendant’s previous convictions.

¶21The burden of proving that fact beyond a reasonable doubt is upon the prosecution. Section 16-13-103(4)(b), C.R.S.1973 (1978 Repl.Vol. 8). This may be established by testimony, documentary evidence, section 16-13-102, or by a judicial admission, either at arraignment or in testimony, section 16-13-103(3), (4), and (5).

¶22The significant underlying consideration in pursuing the determination of habitual criminality is the formulation of a procedure which guards against the jury trying the substantive offense from being improperly exposed to the knowledge of the existence of the habitual counts or of evidence of the prior convictions before that jury has determined the issue of the defendant’s guilt of the substantive offense. Fundamental fairness and due process mandate that a defendant only be convicted on evidence relevant to the offense of which he is accused and being tried. Evidence of prior convictions is not relevant to prove guilt except in very limited circumstances. People v. Honey, Colo., 596 P.2d 751 (1979); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).

¶23In the present case, the procedures which the court ruled it would follow afforded the defendant the protection that he could only be convicted of the substantive offense upon evidence properly admitted. Of course, if the defendant elected to testify, the impeachment evidence based on his prior convictions—the same evidence which formed the basis of the habitual counts— could properly be admitted. Section 13-90-101, C.R.S.1973.

¶24Initially, the defendant must elect whether he will subject himself on cross-examination to exposure of his prior criminal convictions by testifying in his own behalf at his trial on the substantive offense. This hard decision is created by his own prior criminal *1373conduct since under the long-established rule of evidence prior criminal convictions are held to bear upon the credibility of the witness. If he elects to testify and admit those facts, simply because they bear only upon his credibility in no way diminishes their character as judicial admissions of the historic fact of prior convictions. Because the court here ruled that the guilt trial should be totally separated from the habitual criminal proceedings, and since the use of the judicial admissions would not occur until after a jury verdict of guilty at the trial of the substantive offense, the use of the judicial admissions in aid of proof of the habitual counts could in no way offend due process or the fundamental fairness required at trial. Such judicial admissions are no less competent to prove the facts admitted than are admissions of the habitual counts at arraignment, or if obtained in any other separate judicial proceeding.

¶25In my view, the ban of the use of the habitual proceeding of impeachment evidence of prior convictions admitted by a defendant while testifying as a witness in his own behalf does not afford a defendant any additional protection against unjustly being convicted on inadmissible evidence at the substantive trial.

¶26The majority has applied the rationale of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to reach the conclusion that the trial court erred in ruling that, if the defendant elected to testify at the guilt trial, any admissions resulting from cross-examination as to prior convictions would be admissible as evidence at the habitual criminal proceeding to establish the fact of the prior convictions. The majority has concluded that, if such evidence were admissible to prove the historical fact of prior convictions, an “intolerable tension” between two constitutional rights would be created, resulting in a forced waiver of one of those rights: either the defendant must give up his constitutional right to testify, or give up his right to have the prosecution prove beyond a reasonable doubt that the defendant had previously been convicted as alleged in the habitual criminal counts.

¶27In my view, the “intolerable tension” doctrine of Simmonshas no application to this case. In Simmonsthe tension created related to two constitutional rights involved at a critical state of the substantive case. We do not have that situation here. Our concern is with the use of evidence lawfully admitted in the guilt trial for impeachment purposes, which also proves the historical fact of prior convictions at the sentence enhancement proceedings.

¶28The assertion that the burden of proving beyond a reasonable doubt the fact of prior convictions at a sentence enhancement proceeding is a constitutional right is in my view a faulty concept. Sentence enhancement proceedings were unknown at common law and are of statutory origin. Smalley v. People, 116 Colo. 598, 183 P.2d 558 (1947). The statute does not create a new or independent crime but merely provides that in sentencing a defendant after conviction the court must consider former convictions and impose a more severe sentence. Casias v. People, supra. Since the sentence enhancement proceedings are of a statutory origin, the General Assembly could have established a lesser burden of proof upon the prosecution had it chosen to do so. This is borne out by the decision in United States v. Inendino, 463 F.Supp. 252 (N.D.Ill.1978), aff’d 604 F.2d 458 (7th Cir. 1979), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).

¶29In Inendino the court was concerned with the constitutional validity of 18 U.S.C. § 3575, the “dangerous special offender” statute, a sentence enhancement statute. The attack on the statute related to the constitutional validity of the burden of proof standard prescribed by Congress, that of “preponderance of the information.” The court upheld that standard in face of the constitutional attack. The court noted that the United States Supreme Court has drawn a fine line between pre-conviction and post-conviction proceedings, and has approved post-conviction proceedings which provide less than the full panoply of trial rights. See generally Williams v. New *1374York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); United States v. Stewart, 531 F.2d 326 (6th Cir. 1976). In commenting on the due process rights in such proceedings, the Court stated:

“However, in recognition of the fact that these procedures may result in a substantial deprivation of liberty, the Court has held that the defendant is entitled to representation of counsel, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), and to notice and opportunity to be heard, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Although the exact dimensions of these rights have not been fully articulated, courts have held that they do not include the right to trial by jury, see Turnbough v. Wyrick, 551 F.2d 202 (8th Cir. 1977); James v. Twomey, 466 F.2d 718 (7th Cir. 1972), nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh’g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942).” United States v. Inendino, supra.

¶30In affirming the district court, the United States Court of Appeals for the Seventh Circuit stated:

“The defendant contends that Section 3575 is constitutionally infirm because the statute authorizes findings of fact ‘by [the] preponderance of the information,’ rather than by the constitutionally mandated standard of beyond a reasonable doubt. This section, however, does not create a separate criminal charge but instead provides for the enhancement of the penalty for the defendant’s criminal conviction. Also, the courts of appeals have uniformly found that the proof of dangerousness by a preponderance of the information is constitutional. United States v. Williamson, 567 F.2d 610 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). See generally United States v. Neary, 552 F.2d 1184 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977).” (Emphasis added.) United States v. Inendino, 604 F.2d 458 (7th Cir. 1979), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).

¶31The treatment of the federal sentence enhancement statute, 18 U.S.C. § 3575,1 by the federal courts clearly demonstrates that the constitutional right of a defendant to have the prosecution prove the elements of a crime beyond a reasonable doubt does not apply to post-conviction proceedings such as sentence enhancement hearings. Thus, it is clear that the standard of proof at the post-conviction sentence enhancement proceeding is statutory and does not rise to the constitutional level attributed to it by the majority opinion. For this reason, I do not believe that the procedure set down by the trial court in this case creates an “intolerable tension” between two constitutional rights, and the Simmonsrationale is misapplied to the posture of the present case.

¶32The purported burden—the chill—if any, on the defendant’s constitutional right to *1375testify did not, in my opinion, arise from any ruling of the trial court in formulating the guidelines for proceeding under the habitual criminal statute or from the announced procedures to be followed, but rather was the result of defendant’s own predicament arising from his past lawless conduct, a consequence which every citizen who chooses to engage in such activity ought to anticipate.

¶33The procedures formulated by the trial court conformed to the requirements of due process. The defendant was afforded a separate hearing on the habitual criminal charges with the burden of proof beyond a reasonable doubt placed upon the prosecu-' tion. He could be present with counsel, have the opportunity to be heard, to confront the witnesses against him, to cross-examine them, to offer evidence in his own behalf, and to have the findings of the prior convictions made by a jury. This procedure clearly afforded the defendant more protection than the mínimums required by Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

¶34The conviction should be affirmed.

¶35I am authorized to say that HODGES, C. J., and ROVIRA, J., join in this dissenting opinion.