People v. Oliver , 2018 COA 146 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 4, 2018
2018COA146
No. 15CA1722 People v. Oliver — Crimes — Possession of
Weapons by Previous Offenders; Constitutional Law — Sixth
Amendment — Right to Trial by Jury
A division of the court of appeals concludes that entry of a
conviction for possession of a weapon by a previous offender
(POWPO) violated the defendant’s constitutional right to trial by
jury. The defendant did not personally waive his right to have the
jury return a verdict on the POWPO charge, even if counsel
attempted to waive this right on the defendant’s behalf. Thus, the
conviction must be reversed and the case remanded for a new trial
on this charge.
COLORADO COURT OF APPEALS 2018COA146
Court of Appeals No. 15CA1722
City and County of Denver District Court No. 14CR4171
Honorable Martin F. Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John R. Oliver,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WEBB
Harris and Welling, JJ., concur
Announced October 4, 2018
Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 This case calls on us to distinguish between defense counsel’s
power to stipulate to an element of an offense and the defendant’s
sole prerogative to personally waive the right to trial by jury on that
offense. After a jury trial on two felony menacing charges against
defendant, John R. Oliver, the jury acquitted him on one count and
hung on the other. Then the trial court entered a judgment of
conviction for possession of a weapon by a previous offender
(POWPO) — a charged offense on which the jury had not been
instructed. The court did so based only on the jury’s “yes” answer
to a special interrogatory, which had been approved by Oliver’s
counsel, that asked whether Oliver had possessed a firearm, plus
counsel’s stipulation that Oliver was a previous offender.
¶2 We conclude that because Oliver did not personally waive his
right to have the jury return a verdict on the POWPO charge, even if
counsel attempted to waive this right on Oliver’s behalf, entry of the
POWPO conviction violated Oliver’s constitutional right to trial by
jury. We further conclude that the conviction must be reversed and
the case remanded for a new trial on this charge.
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I. Background
¶3 Investigating a report of a shooting with gang overtones, police
officers obtained from the participants — none of whom had been
hit — differing accounts of what had happened. Ultimately, the
police arrested Oliver and the prosecution charged him with three
counts of felony menacing (deadly weapon) and one count of
POWPO. The victims of the alleged menacing were G.M., T.M., and
D.B. Jr. Later, the prosecution dismissed the count involving G.M.
¶4 Before trial, the parties agreed to bifurcate the POWPO count,
with the defense objective being to avoid the jury learning that
Oliver was a prior offender while it decided the menacing counts.
Thus, POWPO was not mentioned in voir dire or opening
statements. Oliver defended on the theory that, while he did
possess a firearm, which his counsel admitted in opening
statement, because he feared the victims were gang members, he
was entitled to possess the firearm for self-defense.
¶5 Near the end of the trial, however, defense counsel agreed with
the court’s suggestion of using a special interrogatory on possession
instead of having a separate trial on the POWPO count after the
jury returned its verdict on the menacing counts. Then counsel
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stipulated that Oliver’s juvenile adjudication for sexual assault on a
child satisfied the prior offender element of POWPO, apparently to
avoid possible prejudice from the jury speculating about the
conduct underlying the adjudication.
¶6 The trial court gave the jury a special interrogatory on
possession, which included choice of evils. (Although Oliver had
discussed self-defense with the court, he does not challenge this
aspect of the instruction on appeal.) But neither Oliver’s prior
adjudication nor POWPO was mentioned in any instruction, during
trial, or in closing arguments.
¶7 The jury found Oliver not guilty of having menaced T.M., left
blank the verdict form for the count involving D.B. Jr., and
answered “yes” to the special interrogatory, thereby rejecting the
choice of evils defense. The trial court declared a mistrial as to the
menacing count involving D.B. Jr., which was later dismissed on
the prosecution’s motion. Then the court entered a judgment of
conviction for POWPO, which it based on the special interrogatory
answer and the stipulation.
¶8 Oliver appeals on the sole basis that the jury never returned a
guilty verdict on the POWPO charge. Instead, he contends, the trial
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court effectively directed a verdict in violation of his federal and
state constitutional rights to trial by jury, which he did not
personally waive.
II. Preservation and Standard of Review
¶9 Oliver concedes that his jury trial contention was not raised in
the trial court. Still, he asserts that review is de novo and, because
structural error occurred, we must remand for a new trial on the
POWPO charge. The Attorney General responds that, assuming the
error was structural, Oliver’s counsel waived his contention, as did
Oliver. But even if the contention was not waived, the Attorney
General continues, we should review only for plain error and the
record does not show prejudice. Oliver replies that his counsel
could not waive his right to a jury trial and he did not personally do
so. Oliver is correct.
¶ 10 To begin, the Attorney General is correct that raising
structural error only gets Oliver so far. After all, “even fundamental
rights can be waived, regardless of whether the deprivation thereof
would otherwise constitute structural error.” Stackhouse v. People,
2015 CO 48, ¶ 8. But because the jury trial right is one of the few
rights that can only be waived by a defendant personally, whether
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his counsel’s actions constituted waiver is immaterial. See People v.
Bergerud, 223 P.3d 686, 693-94 (Colo. 2010) (“Decisions such as
whether to . . . waive a jury trial . . . are so fundamental to a
defense that they cannot be made by defense counsel, but rather
must be made by the defendant himself.”).
¶ 11 Further, and contrary to the Attorney General’s argument for
plain error review, entry of a judgment of conviction absent a jury
verdict of guilty is structural error that cannot be rendered
harmless, despite the weight of the evidence. See, e.g., Sanchez v.
People, 2014 CO 29, ¶ 18 (“[T]he entry of a judgment of conviction
for a crime not supported by a unanimous verdict beyond a
reasonable doubt rises to the level of structural error.”); Medina v.
People, 163 P.3d 1136, 1141 (Colo. 2007) (“Instead of receiving an
impartial jury verdict convicting her of all elements beyond a
reasonable doubt, the trial court essentially judged Medina guilty of
a new and different crime.”).
¶ 12 Alternatively, the Attorney General argues that either we
should conclude that Oliver personally waived this right on the
existing record or the question whether he did so must be decided
5
on an additional record developed under Crim. P. 35(c). This
argument misses the mark in two ways.
¶ 13 First, the Attorney General relies on various discussions
among counsel and the trial court, all in Oliver’s presence, about
what would be resolved by stipulation and what would be left for
the jury to decide. To be sure, Oliver said nothing during this
colloquy. But a defendant’s waiver of the jury trial right must be
affirmative, not an inference of acquiescence from the defendant’s
silence. See Rice v. People, 193 Colo. 270, 272, 565 P.2d 940, 942
(1977) (“[A] requirement that the defendant personally waive the
right to a trial by jury alleviates the difficult task presented to an
appellate court that is seeking to determine the meaning of the
defendant’s silence.”); see also Boykin v. Alabama, 395 U.S. 238,
243 (1969) (“We cannot presume a waiver of [the right to a jury
trial] from a silent record.”).
¶ 14 Second, a defendant can challenge waiver under Crim. P. 35(c)
on the basis of facts “that are not contained in the direct appeal
record.” People v. Walker, 2014 CO 6, ¶ 11 (citation omitted). But
Oliver does not point to any such facts and for good reason — the
record is devoid of the requisite affirmative waiver. In other words,
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he is not challenging the efficacy of such a waiver. And the
Attorney General is arguing only that further evidence could show
his counsel explained to him the effect of the stipulation. But such
evidence would be irrelevant because even well-informed silence
does not constitute a waiver. See Rice, 193 Colo. at 271, 565 P.2d
at 941 (“If a waiver could be implied from a defendant’s failure to
object to his counsel’s statement, there would be an increased
danger of misinterpretation with respect to a right considered one of
the most important in our democracy.”).
¶ 15 For these reasons, the dispositive question is whether Oliver’s
POWPO conviction was entered in violation of his right to a jury
trial. This is a question of law subject to de novo review. People v.
Laeke, 2012 CO 13, ¶ 11 (“A defendant’s right to a jury trial is an
issue of law.”). And if such an error occurred, it is structural.
People v. Munsey, 232 P.3d 113, 118 (Colo. App. 2009).
III. The Trial Court’s Entry of a Judgment of Conviction on POWPO
Deprived Oliver of His Right to Have a Jury Return a Verdict on this
Charge
¶ 16 Oliver contends the POWPO conviction violated his
constitutional right to a jury trial because the jury did not know
that he was charged with POWPO, the jury was not instructed on
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the POWPO element of prior offender status, and the jury did not
return a verdict finding him guilty of POWPO. The Attorney General
responds that where a stipulation has narrowed determining guilt
or innocence to a single factual question, allowing the jury to
answer only that question — here POWPO — satisfies this right.
Again, Oliver is correct.
A. Law
¶ 17 In criminal cases, the constitutional guarantee of a trial by
jury permits conviction only on a jury verdict finding the defendant
guilty of having committed every element of the crime charged.
Sanchez, ¶ 13. Stated differently, a court is prohibited from
“entering a conviction for an offense other than that authorized by a
jury’s verdict, or directing a verdict for the State, no matter how
overwhelming the evidence.” Id.
¶ 18 In addition, “the trial court has a duty to instruct the jury
properly on all of the elements of the offenses charged.” People v.
Wambolt, 2018 COA 88, ¶ 38 (quoting People v. Bastin, 937 P.2d
761, 764 (Colo. App. 1996)). And “[t]he jury cannot decide a charge
on which it was not instructed.” Id.
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B. Analysis
¶ 19 True, Oliver’s POWPO conviction required only three facts to
be determined: previous offender status, stipulated to by defense
counsel but not considered by the jury; possession of a firearm,
admitted by defense counsel in opening statement, which to no
one’s surprise the jury found; and lack of justification under the
choice of evils doctrine, defendant’s sole defense throughout the
trial, which the jury also resolved against him. But regardless of
the stipulation and the jury’s resolution of the two remaining facts,
the jury was never told that it was deciding the POWPO charge.
¶ 20 A similar problem arose in Wambolt, albeit in a more
complicated setting. There, the defendant was tried for driving
under the influence (DUI) and for driving after revocation prohibited
(DARP). The jury was given a special interrogatory verdict form on
aggravated driving after revocation prohibited (ADARP). The jury
convicted him of DARP but hung on DUI, so it did not complete the
special interrogatory.
¶ 21 In a second trial for DUI and ADARP, the jury found Wambolt
guilty of driving while ability impaired (DWAI), as a lesser included
offense of DUI. Then the trial court told the jury that it would now
9
consider a second offense, aggravated driving after revocation
prohibited. However, the jury was not given an instruction on
ADARP. Instead, the court gave an instruction listing the DARP
elements and a special interrogatory asking whether the
prosecution had proven those elements as well as DWAI. After the
jury answered this interrogatory “yes,” the court convicted the
defendant of DWAI and ADARP.
¶ 22 On appeal, the division concluded that the defendant had
essentially been tried again for DARP, which was a double jeopardy
violation. As relevant here, it eliminated the ADARP conviction from
the double jeopardy analysis because
the trial court did not instruct the jury on the
elements of the charged offense: ADARP. The
only “instruction” even indicating that [the
defendant] had been charged with ADARP was
the special interrogatory, and even the
interrogatory did not refer to the offense as
ADARP.
Id. at ¶ 38.
¶ 23 Unlike in this case, the division did not explain defense
counsel’s role — if any — in the procedures followed at the second
trial. But, as discussed above, this is a difference not a distinction
because counsel cannot waive a defendant’s right to a jury trial.
10
¶ 24 The cases also differ in that Wambolt’s counsel had not
stipulated to any of the elements of ADARP. (DARP and ADARP
differ only in the need to prove DUI or DWAI for ADARP.) And
Oliver argues that one of the two ways in which his counsel gave
away his right to a jury trial was in stipulating to the element of his
prior offender status. Regardless, we do not consider that
difference sufficient to depart from Wambolt.1
¶ 25 In declining to distinguish Wambolt on this basis, we agree
with the Attorney General that Colorado law suggests counsel can
stipulate to an element. See People v. Roy, 948 P.2d 99, 102 (Colo.
App. 1997) (rejecting the argument that “[n]otwithstanding his
stipulation, defendant contends that, by advising the jurors that
they ‘must,’ rather than ‘may,’ regard the stipulated fact as
conclusively proven, the court removed an essential element from
the jury’s consideration”).
¶ 26 As well, other jurisdictions recognize that counsel may do so.
See United States v. DeLeon, 247 F.3d 593, 598 (5th Cir. 2001)
1Although the decision of an earlier division does not bind a second
division, “the later division should give the prior decision some
deference.” People v. Bondsteel, 2015 COA 165, ¶ 14 (cert. granted
Oct. 31, 2016).
11
(“[T]he jury charge did not list the quantity of marijuana as an
element of the offenses. Such an omission cannot be plain error,
however, where as here, the defendant stipulated at trial that the
substance seized was 1035.2 pounds (469.47 kilograms) of
marijuana.”); United States v. Mason, 85 F.3d 471, 472 (10th Cir.
1996) (“[T]he jury need not resolve the existence of an element when
the parties have stipulated to the facts which establish that
element. In the latter circumstance, the judge has not removed the
consideration of an issue from the jury; the parties have. More
specifically, by stipulating to elemental facts, a defendant waives his
right to a jury trial on that element.”); United States v. James, 987
F.2d 648, 656 (9th Cir. 1993) (“A stipulation as to an essential
element of an offense, however, waives a defendant’s right to a jury
decision on the existence of that element. Whether or not the jury
knew of the stipulation is immaterial. Had the jury been told of the
stipulation, it would have been required to consider that the facts in
the stipulation had been conclusively proved.”) (citation omitted);
State v. Olin, 725 P.2d 801, 815 (Idaho Ct. App. 1986) (“Some cases
hold that failure to instruct on a necessary element may be
harmless if the element in question has been conceded by the
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defendant, either by stipulation or by the plain thrust of his own
evidence. E.g., Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72
L. Ed. 2d 367 (1982); People v. Ford, 60 Cal. 2d 772, 36 Cal. Rptr.
620, 388 P.2d 892 (1964).”).2
¶ 27 But we part ways with the Attorney General based on
Wambolt’s holding — to return a verdict, the jury must have been
instructed on the offense. And this is the other way in which Oliver
argues that his counsel gave away his right to a jury trial, even if
counsel acted properly in stipulating to his prior offender status.
¶ 28 Although the Wambolt division did not cite authority
supporting this aspect of its decision, other jurisdictions are in
accord. See, e.g., Commonwealth v. Durham, 57 S.W.3d 829, 837
(Ky. 2001) (“Trial courts’ jury instructions in criminal cases
cannot . . . consist solely of the fact-based interrogatories and/or
special verdicts . . . .”); State v. Douglas, 676 S.E.2d 620, 624 (N.C.
Ct. App. 2009) (“[T]he jury did not fulfill its constitutional
responsibility to make an actual finding of defendant’s guilt” where
the “verdict form . . . only required the jury to make factual findings
2 The better practice would be to instruct the jury on all elements of
the offense, then further instruct the jury on any stipulations.
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on the essential elements of the charged crimes and . . . the jury did
not make an actual finding of defendant’s guilt.”).
¶ 29 In the end, just as in Wambolt, the trial court never told
Oliver’s jury that it was deciding the POWPO charge. And this
anomaly requires reversal, even if his counsel properly stipulated to
the prior offender element. For these reasons, the trial court’s entry
of a judgment of conviction on this charge violated Oliver’s
constitutional right to a jury trial.3
IV. Conclusion
¶ 30 The judgment is reversed and the case is remanded for a new
trial on this charge.
JUDGE HARRIS and JUDGE WELLING concur.
3 In so holding, we acknowledge that POWPO charges are often
bifurcated from the trial of other charges. As well, defense counsel
frequently seek to remove prejudicial evidence from the jury’s view
by stipulation. But if either approach leaves the trial court poised
to impose a judgment of conviction without the benefit of a jury
verdict on that offense, then the court must advise the defendant
and obtain a constitutionally adequate, affirmative, knowing, and
intelligent waiver of the right to a jury trial.
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