Spearman v. State , 2001 Ind. App. LEXIS 368 ( 2001 )

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 bad 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 erimi-nal 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 cireumstances that allowed his prior felony conviction for criminal confinement to be introduced during the trial violated his due process rights under the Fourteenth Amendment to the United States Constitution. We disagree.

In 1999, the legislature enacted IC 35-47-4-5 to proseribe the unlawful possession of a firearm by a serious violent felon. PL. 247-1999, SEC. 1. The statute defines "serious violent felon" and lists 26 crimes that constitute serious violent felonies. In pertinent part, IC 85-47-4-5 provides as follows:

(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;

[[Image here]]

(b) As used in this section, "serious violent felony" means:

[[Image here]]

(7) eriminal confinement (IC 85-42-3-3);

[[Image here]]

(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.⁴

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. 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, 698 N.E.2d 570, 571-72 (Ind.Ct.App.1998), aff'd, 704 N.E.2d 118 (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 810, 286 N.E.2d at 882); see also Landis, 698 N.E.2d at 571; Johnson, 544 N.E.2d at 168.

While bifureation is appropriate in the above cireumstances, 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 admissibility 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 8382-33 (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 eriminal actor's identity).

The Indiana General Assembly has prohibited those convicted of a serious violent felony from knowingly or intentionally possessing a firearm. IC 35-47-4-5. The legal status of the offender is an essential element of the crime, and the act-the possession-is illegal only if performed by one occupying that status. This is a very different situation from one in which the act itself is illegal without regard to the status of the offender, from one where the level of the illegal act is elevated based upon the offender's status, and from one where the punishment for the illegal act is enhanced based upon the offender's status. In each of these other instances, it is possible to bifurcate the trial because the jury can reasonably perform its function of determining whether the defendant committed an illegal act without hearing evidence of the defendant's legal status or prior crimes. Here, such bifurcation is not possible because the jury cannot determine if the defendant committed an illegal act without hearing such evidence.

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 IC 85-47-4-5. Under federal law, possession of a firearm by a convicted felon is a crime. 18 U.S.C. § 922(g)(1). In interpreting this statute, various federal courts of appeal have reasoned that because the pri- or conviction is an element of a crime, the prior conviction need not be, and in most cases should not be, bifurcated from the possession of the firearm element. See United States v. Mangum, 100 F.3d 164, 171 (D.C.Cir.1996); United States v. Jacobs, 44 F.3d 1219, 1222-23 (3rd Cir.1995), cert. denied, 514 U.S. 1101, 115 S.Ct. 18835, 131 L.Ed.2d 754 (1995); United States v. Barker, 1 F.3d 957, 959 (9th Cir.1998), modified on denial of reh'g, 20 F.3d 365 (9th Cir.1994); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.1998), cert. denied, 508 U.S. 980, 113 S.Ct. 2984, 125 L.Ed.2d 680 (1998); United States v. Collamore, 868 F.2d 24, 27-28 (1st Cir.1989); see also United States v. Aleman, 609 F.2d 298, 310 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 LEd.2d 780 (1980) (prior conviction allowed as element of crime of being a felon in possession of a firearm).

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 18 U.S.C. § 922(g) or its predecessor. Both defendants moved for, and the trial courts granted, bifurcation of the "possession" element from the "felon" element of the crime. On appeal, the First Cireuit and Ninth Circuit, acting under their mandamus powers, reversed their respective trial courts and held that the trial court could not bifurcate the elements of the crime of being a felon in possession of a firearm. Collamore, 868 P.2d at 27-28; Barker, 1 F.3d at 959-60. The Collamore court reasoned:

"First, when a jury is neither read the statute setting forth the crime nor told of all the elements of the erime, 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."

Collamore, 868 F.2d at 28.

Similarly, in Mangum,⁵ Jacobs⁶ and Birdsong,⁷ the defendants were each con-viected of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On appeal, the defendants argued that the trial court erred in failing to bifurcate the elements of § 922(g) because the jury should have decided the element of firearm possession before being informed that the defendant had a prior conviction. The D.C. Cireuit, Third Cireuit, and Eleventh Cireuit, respectively, agreed with the reasoning of Collamore and held that the trial court did not err in refusing to bifurcate the elements of the offense. Mangum, 100 F.3d at 171; Jacobs, 44 F.3d at 1222, 283; Birdsong, 982 F.2d at 482.

We understand that prejudice may arise when a jury is informed of a prior convietion under IC 85-47-4-5, but the focus cannot be placed solely on the question of the prejudicial effect of such evidence. Indeed, much of the evidence adduced at a criminal proceeding will be prejudicial to the defendant. Rather, the focus should be on whether the prejudice arising from evidence of prior crimes outweighs the probative value of such evidence.

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, 98 F.3d 10 (Ist Cir.1996), cert. denied, 519 U.S. 955, 117 S.Ct. 378, 136 L.Ed.2d 268 (1996). In Old Chief v. Unit, ed States, 519 U.S. 172, 117 S.Ct. 644, 1836 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, 117 S.Ct. at 656.

This court in Sams v. State, citing Old Chief with approval and noting the identical nature of Rule 408 of the Federal Rules of Evidence and Rule 408 of the Indiana Rules of Evidence, held that the trial court abused its discretion when it admitted into evidence the defendant's entire driving record to prove that his license had been suspended. 688 N.E.2d 1323 (Ind.Ct.App.1997), trans. denied (1998). The trial court, although noting it was extending the holding of Old Chief, followed the Supreme Court's reasoning and found that, because the defendant was willing to admit to the suspension, the probative value of the driving record, which contained many serious driving offenses, was substantially outweighed by the danger of unfair prejudice to the defendant. See also Herrera v. State, 710 N.E.2d 981 (Ind.Ct.App.1999) (agreeing with the reasoning in Sams and Old Chief, but finding the facts distinguishable}.

As these cases reveal, the trial court in exercising its discretion under Ind. Evidence Rules 408 and 611 can mitigate the prejudicial effect of evidence of a prior conviction by excluding evidence regarding the underlying facts of the prior felony and limiting prosecutorial references thereto. We hold that the trial court did not err in denying Spearman's request for bifurcation in this case. Here, the probative value of the evidence is essential to the proceeding and any prejudice to Spearman was minimized by allowing him to stipulate to the fact that he was convicted of the underlying felony of erimi-nal confinement.

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 IC 35-47-4-5, we are at the same time mindful of the prejudice that may arise in a jury trial when a defendant is identified and repeatedly referred to as a "serious violent felon." We urge trial courts to be attentive to this potential for prejudice and to exercise their discretion in crafting instructions and referring to the prior felony in ways which minimize the potential for such prejudice.⁸

Affirmed.

FRIEDLANDER, J., concurs. DARDEN, J., concurs in part and dissents in part with separate opinion.

1 . See IC 35-47-4-5.

2 . IC 35-47-4-5 prohibits a serious violent felon from knowingly or intentionally possessing a firearm. This statute deems, among others, one who is convicted of criminal confinement under IC 35-42-3-3 to be a serious violent felon. IC 35-47-4-5(b)(7).

3 . See IC 35-47-4-3.

4 . Because it is newly enacted, our court has analyzed IC 35-47-4-5 on only three occasions. See Wheeler v. State, No. 49402-0006 CR-372, 742 N.E.2d 560 (Memorandum Decision, Feb. 9, 2001); Hatchett v. State, 740 N.E.2d 920 (Ind.Ct.App.2000), trans. pending; Teer v. State, 738 N.E.2d 283 (Ind.Ct.App. 2000), trans. denied. Although the issue of bifurcation was «raised in Wheeler and Hatchett, we did not discuss it, finding in both cases that the defendants had waived the issue by failing to object to the lack of bifurcated proceedings at trial.

5 . In Mangum, the defendant was convicted of a firearm possession charge as the first of five counts. At the defendant's request, the trial court bifurcated the other four issues and tried this count separately. On appeal, the defendant argued that the trial court erred by {ailing to sever the "[elon" element from the "possession" element. The D.C. Circuit disagreed and upheld the trial court's decision.

6 . In addition to being charged with firearm possession, the defendant in Birdsong was charged with intent to distribute and possession of a firearm during and in relation to a drug trafficking crime. He was acquitted on the laiter two charges.

7 . The defendant in Jacobs was only charged with firearm possession.

8 . For example, trial courts may determine to reference the predicate felony as one "enumerated under IC 35-47-4-5" rather than as a "serious violent felony."