People v. District Court, City & County of Denver , 1998 Colo. J. C.A.R. 327 ( 1998 )

Justice MULLARKEY

delivered the Opinion of the Court.

The People filed this original proceeding pursuant to C.A.R. 21 seeking a writ in the nature of mandamus and prohibition compelling the respondent, the Denver District Court, (the respondent court), to proceed with a jury trial in People v. Edward Finley, No. 97CR202. We issued a rule to show cause why the respondent court’s August 19, 1997 order requiring a bench trial should not be vacated. We now hold that the respondent court erred as a matter of law when it ordered a bench trial over the People’s objection. Accordingly, we make the rule absolute.

I.

The charges at issue in this ease stemmed from a car chase involving Denver police officers and a vehicle in which Finley was traveling as a passenger. According to the prosecution, the police officers, who observed Finley stretching his hands across the roof of the vehicle, believed Finley was attempting to shoot at a nearby car traveling in the same direction. After the police finally stopped the vehicle, Finley attempted to walk away. The police apprehended him and subsequently found a fully loaded 12-gauge shotgun with a short barrel under the passenger’s seat.

On November 7, 1996, the People charged Finley with possession of a weapon by a prior' offender pursuant to section 18-12-108, 6 C.R.S. (1997) (the POWPO statute), by information filed in the respondent court.¹ The information alleged that Finley had two prior convictions: a 1992 felony menacing conviction, see § 18-3-206, 6 C.R.S. (1997), and a 1993 POWPO conviction. Because Finley had two prior convictions, the People also included an habitual offender charge in the information. See § 16-13-101, 6 C.R.S. (1997). Finley entered a plea of not guilty to the charges in the information.

Prior to trial, Finley moved to waive his right to a jury trial pursuant to section 18-1-406(2), 6 C.R.S. (1997), and to proceed with a bench trial. Finley argued that if the trial proceeded in front of the jury, the jury would hear evidence of his prior felony menacing conviction and his prior POWPO conviction, as those convictions relatéd to the prior felony conviction element in the POWPO charge. Because the 1992 felony menacing conviction was similar to the POWPO charge here and the 1993 POWPO conviction was identical, Finley asserted that the evidence of those prior convictions would unduly prejudice him in the eyes of the jury when it considered the current charges and, consequently, might subject him to an unfair proceeding.

In opposing Finley’s motion for a bench trial, the People attempted to exercise their right to refuse a defendant’s request to waive a jury trial pursuant to section 16-10-101, 6 C.R.S. (1997). The People argued that Finley’s due process argument would arise in any similar situation where the underlying prior felony to the POWPO charge was a prior POWPO conviction or violent offense.

The respondent court, relying on our decision in People v. District Court, 843 P.2d 6 (Colo.1992), ruled in the defendant’s favor. Agreeing with Finley that requiring him to proceed in front of a jury would violate his due process rights, the respondent court granted Finley’s request for a bench trial.

II.

Our resolution of this ease requires us to interpret section 16-10-101, 6 C.R.S. (1997),² which gives the People the right to refuse to consent to a jury trial waiver in all cases in which a defendant has the right to request a jury trial. In People v. District Court, 843 P.2d at 7-12, we construed section 16-10-101 and section 18-1-406(2), 6 C.R.S. (1997),³ which grants a defendant the right to waive a jury trial. In harmonizing sections 16-10-101 and 18-1-406(2), we explained that the People may refuse to consent to the defendant’s request to waive a jury trial, so long as that refusal comports with a defendant’s due process rights as provided in the United States and Colorado Constitutions. See People v. District Court, 843 P.2d at 11. We stated:

[W]e cannot uphold the unqualified prosecution consent requirement where an accused may be subjected to an unfair proceeding before a biased jury. In such cases, the accused’s right to a fair trial as guaranteed by due process would be violat-ed_ Thus, where the prosecution objects to defendant’s waiver of trial by jury, and a defendant contends that trial by jury would result in a due process violation, the decision as to waiver then rests with the trial court. It is incumbent upon a defendant, in seeking waiver, to raise due process concerns in the trial court. The trial court must subsequently determine whether a jury trial would be fair and impartial in accord with the accused’s right to due process of law.

Id. (emphasis added) (citations and footnotes omitted).

A.

In seeking relief pursuant to C.A.R. 21, the People assert that the trial court exceeded its jurisdiction. We have exercised our original jurisdiction under C.A.R. 21 to determine whether a trial court exceeded its jurisdiction or abused its discretion when we have found that an appellate remedy would be inadequate. See Kourlis v. District Court, 930 P.2d 1329, 1330 n. 1 (Colo.1997). We have also explained that original jurisdiction under C.A.R. 21 is appropriate “when appeal would not provide a plain, speedy, and adequate remedy.” People v. Young, 814 P.2d 834, 838 (Colo.1991). A trial court exceeds its jurisdiction when it acts contrary to statute, even though the trial court retains general jurisdiction over a case. See Bustamante v. District Court, 138 Colo. 97, 107, 329 P.2d 1013, 1018 (1958) (“[A] writ of prohibition is proper, not only in eases where the lower tribunal has no legal authority to act at all, but also in cases wherein such inferior tribunal, although having general jurisdiction over a particular class of cases, has exceeded such jurisdiction in the particular case. Therefore, prohibition may issue to prevent a court from ... proceeding against the express prohibition of a statute _”) (omission in original) (citation omitted), overruled in part on different grounds, County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1978). See also People v. Fullerton, 186 Colo. 97, 99-101, 525 P.2d 1166, 1167-68 (1974) (holding that the trial court exceeded its jurisdiction when it ordered a bifurcated jury trial in a POWPO case based oh the defendant’s assertion that informing the jury of the defendant’s prior criminal record would unduly influence the jury).

Our exercise of original jurisdiction under C.A.R. 21 is appropriate in this case. First, a successful post-trial appeal by the People would be inadequate because principles of double jeopardy would preclude retrying Finley before a jury. See Barela v. People, 826 P.2d 1249, 1253 (Colo.1992) (explaining that jeopardy attaches in a trial to the court when the first witness is sworn). See also People v. District Court, 793 P.2d 163, 166 (Colo.1990) (exercising jurisdiction under C.A.R. 21 and explaining that “the defendant could not be retried even though the prosecution appealed the sanction order as a question of law because jeopardy would have attached”). Second, we conclude that the respondent court erred as a matter of law when it interpreted section 16-10-101 and People v. District Court to require a bench trial, over the People’s objection, because the respondent court determined that a jury trial would violate Finley’s due process rights to an impartial jury.⁴ While the respondent court certainly maintains its general jurisdiction over the case, the respondent court exceeded its jurisdiction by ordering a bench trial as a result of its erroneous interpretation of law.

B.

As an initial matter, we do not view Finley’s due process argument here as one that is limited to the specific facts of this case. The defendant presented no evidence of prejudice other than the elements of the charges as pled. We see no difference between the argument made here and an argument raised by any other defendant facing' the same charges who was previously convicted of a POWPO or a violent felony. This conclusion is underscored by the respondent court’s final ruling in the pre-trial proceeding where it stated:

The Court: I think that the harm is marginalized a bit if we’re talking about a stipulation that just said — or an instruction that just said Mr. Finley had been convicted of two prior felonies that qualify as felony convictions under this statute, without saying they are menacing and possession of a weapon. But I don’t think that solves the problem. The problem is that the jury is given — given information from which they might conclude that Mr. Finley is a bad person because he suffered two felony convictions.

(Emphasis added.) Thus, a proper view of the inquiry here is whether, in a POWPO trial, due process is violated as a consequence of admitting evidence of a prior POWPO- or other violent offense conviction in and of itself. We therefore proceed in our analysis by considering, as a general proposition, whether a defendant charged with a POWPO and who has a prior felony conviction for violating the POWPO statute or for some other violent offense can be tried in front of a jury without offending due process.

C.

We begin by noting our prior decisions considering the nature of a defendant’s right to waive a jury trial. After reviewing the history of a defendant’s right to waive a jury trial, we explained in People v. Davis, 794 P.2d 159, 211 (Colo.1990), that the right “is not a right guaranteed by the state constitution, but rather must be characterized as a common law right subject to regulation or abrogation by the legislature.” In People v. District Court, we similarly explained that, while in some contexts, we have recognized the common law right to waive a jury trial and in other contexts we have recognized a statutory right, the Colorado Constitution does not afford defendants a right to waive a jury trial. See People v. District Court, 843 P.2d at 8. Hence, the People’s refusal to consent to a defendant’s request to waive a jury trial does not, in itself, implicate constitutional concerns.

Federal and state cases considering the nature of a defendant’s right to waive a jury trial also have found no constitutional basis for that right. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the Supreme Court explained:

A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.

Singer, 380 U.S. at 36, 85 S.Ct. at 790. See also United States v. Clapps, 732 F.2d 1148, 1151-52 (3d Cir.1984) (explaining that there is no constitutional impediment to Federal Rule of Criminal Procedure 23, which requires consent of both the prosecution and trial court to waive a jury trial); United States v. Sun Myung Moon, 718 F.2d 1210, 1217 (2d Cir.1983) (stating, “Nothing in the Constitution guarantees one the right to select his own tribunal or the right to a speedy and public trial by a fair and impartial judge.”).

The Utah Supreme Court made a similar determination in State v. Studham, 655 P.2d 669, 671 (Utah 1982), a case closely resembling the one we consider here, when it upheld a Utah law requiring both the prosecution’s and trial court’s consent to waive a jury trial.⁵ In Studham, a jury convicted the defendant, a parolee from the Utah State Prison, of possession of a dangerous weapon by a restricted person and aggravated assault. See Studham, 655 P.2d at 670. The defendant argued that his rights to an impartial jury and due process were violated when the trial court denied his request to waive the jury trial. See id. at 671. The Utah Supreme Court disagreed, explaining that neither the state nor the federal constitutions guaranteed to him a right to waive a jury trial. See id.

D.

Given that a defendant has no constitutional right to waive a jury, the next question is whether due process is violated by a jury trial in a POWPO case because one of the elements of a POWPO offense is a prior felony conviction and that prior conviction may be, as in this case, for a POWPO violation or other violent offense.

In Spencer v. Texas, 385 U.S. 554, 563-68, 87 S.Ct. 648, 653-56, 17 L.Ed.2d 606 (1967), the United States Supreme Court found no due process violation in a case very much like the one we consider here. Although Spencer involved the then-existing Texas recidivist statutes, the Texas procedure closely resembled the jury trial process under the Colorado POWPO statute. At the time of Spencer, and as is true under the Colorado POWPO statute, a Texas prosecutor was allowed to inform the jury trying pending criminal charges of a defendant’s prior felony convictions. See Spencer, 385 U.S. at 556-58, 87 S.Ct. at 649-51. Specifically, the prosecution, through allegations in the indictment and the introduction of proof, fully informed the jury trying the pending criminal charge of a defendant’s past felony conviction or convictions, including identical or similar convictions. See id. at 556, 87 S.Ct. at 649-50. If a jury found that the defendant was guilty of the underlying substantive offense and that the defendant had the requisite prior felony conviction or convictions, the jury acting as the senteneer was required to impose certain higher levels of punishment. See id. at 556 n. 1, 566 n. 11, 87 S.Ct. at 649 n. 1, 655 n. 11. ;

The petitioners in Spencer argued that the Due Process Clause of the Fourteenth Amendment required the exclusion of prejudicial evidence of the prior convictions, even though the trial court provided a limiting instruction and the state had a valid purpose in seeking to prevent criminals from repeating offenses. See id. at 563, 87 S.Ct. at 653. Rejecting the notion that fundamental fairness required a two-stage jury trial when the state seeks to invoke an habitual offense statute, see id. at 564-65, 87 S.Ct. at 654, the Court explained:

In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases.

Id. at 564, 87 S.Ct. at 654. See also Marshall v. Lonberger, 459 U.S. 422, 438 n. 6,103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 (1983) (reaffirming Spencer and.explaining that “the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules”).

Our prior case law is consistent with Spencer. In Fullerton, we overturned a trial court ruling which ordered a bifurcated jury trial of the two elements of the POWPO offense, possession of a weapon and a prior felony record. See Fullerton, 186 Colo, at 99-101, 525 P.2d at 1167-68. As Finley argues here, the defendant in Fullerton argued that informing the jury of the defendant’s prior felony record would unduly influence the jury’s consideration of whether the defendant possessed a weapon on the occasion alleged in the information. See id. at 99, 525 P.2d at 1167. We rejected the propensity argument in Fullerton and emphasized that “[t]he proper way for the trial court to prevent the possibility that the evidence offered to establish one element of the crime will influence jury findings as to the other elements is to give careful and thorough jury instructions.” Id. at 101, 525 P.2d at 1168.

Following the reasoning of Spencer, we cannot find that in enacting the POWPO statute, the General Assembly created an offense that automatically requires removal of a case from a jury whenever the elemental prior felony conviction is a prior POWPO or other violent offense. As stated in Spencer, the possibility of collateral prejudice is not enough to render the jury trial unconstitutional. See Spencer, 385 U.S. at 562, 87 S.Ct. at 653 (rejecting the argument that “the United States Constitution is-infringed simply because the type of evidence [of a defendant’s prior felonies] may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects”). Just as the legislature has a legitimate interest in preventing persons convicted of crimes from committing additional crimes through the enactment of habitual offender statutes such as the one at issue in Spencer, so too does it have a legitimate interest in preventing convicted felons from possessing weapons. See People v. Gallegos, 193 Colo. 108, 110, 563 P.2d 937, 939 (1977) (explaining that the purpose of section 18-12-108 is to “limit the possession of firearms by those who, by their past conduct, have demonstrated an unfitness to be entrusted with such dangerous instrumentalities” (quoting People v. Trujillo, 178 Colo. 147, 150, 497 P.2d 1, 2-3 (1972))).

Accordingly, we hold that, in a trial solely involving a POWPO violation, the fact that the jury will hear evidence of a prior POWPO offense or other prior conviction involving a violent offense does not render the jury trial unconstitutional. In so holding, we continue to recognize the limitation we established in People v. District Court that the People may not deny consent to the defendant’s motion to waive a jury trial when the defendant’s due process rights would be violated by proceeding in front of a jury.⁶ See People v. District Court, 843 P.2d at 11. In this case, the defendant has not shown that that exception is applicable. He has not alleged, for example, the existence of pretrial publicity which could not be addressed by a change of venue. That the definition of the crime requires proof of the prior felony conviction, even when such proof demonstrates that the defendant previously committed a POWPO or other violent offense, does not, standing alone, require a bench trial.

E.

A defendant facing a single POWPO charge based on an underlying previous POWPO conviction or other violent felony conviction may pursue other alternatives. The defendant can request a limiting instruction consistent with Fullerton informing the jury that it can consider the prior convictions only for the purpose of determining whether the defendant committed the predicate prior felony. See Fullerton, 186 Colo, at 101, 525 P.2d at 1168. See also Spencer, 385 U.S. at 556, 563-65, 87 S.Ct. at 649-50, 653-54 (refusing to strike down as violative of due process the then existing Texas recidivist trial procedure whereby the prosecution informed the jury trying a pending criminal charge of the defendant’s past convictions and the trial court provided a limiting instruction directing the jury not to consider the previous convictions in assessing the defendant’s guilt or innocence under the current indictment). See generally Abney v. United States, 431 U.S. 651, 665, 97 S.Ct. 2034, 2043, 52 L.Ed.2d 651 (1977) (“We cannot assume that the jury disregarded these clear and unambiguous instructions and returned a guilty verdict without first finding that the Government had proved both crimes charged in the indictment [alleging conspiracy and attempt to violate the Hobbs Act] beyond a reasonable doubt.” (citation omitted)); United States v. Wiles, 102 F.3d 1043, 1062-63 (10th Cir,1996)(“We must presume that the jurors remained loyal to their oaths and conscientiously followed the district court’s instructions. This assumption is vital to our system of justice.” (citations omitted)); People v. Sepeda, 196 Colo. 13, 23, 581 P.2d 723, 730 (1978) (explaining that a jury is presumed to understand and follow cautionary instructions).⁷ Alternatively, if the defendant does not want the jury to know the nature of the prior conviction, the defendant can offer to stipulate that he has been convicted of an offense that satisfies the prior felony element without identifying the particular felony conviction. Restricting the defendant to these measures preserves the legislature’s legitimate expression of public policy permitting the People to refuse to consent to a jury trial waiver, as expressed in section 16-10-101, 6 C.R.S. (1997), and also clarifies our holding in People v. District Court that the People’s right to refuse consent is restricted only when a jury trial would violate a defendant’s due process rights.

In holding that a due process violation does not occur when a defendant must proceed to a jury trial in a case such as this one, we are cognizant of the United States Supreme Court’s recent decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Old Chief, however, was not a constitutionally based decision, but rather concerns interpretation of a federal evidentiary rule. See Old Chief, 519 U.S. at -, 117 S.Ct. at 650. Because our concern in this case is with a defendant’s due process rights, Old Chief does not require a different result from the one we reach here. Moreover, our holding follows the Supreme Court’s more relevant discussion of due process in Spencer and the Court’s rejection of the similar due process argument raised in that ease. See Spencer, 385 U.S. at 563-68, 87 S.Ct. at 653-56.

III.

For the foregoing reasons, we now make the rule to show cause absolute. We vacate the order of the respondent court requiring a bench trial and remand with directions to set the matter for trial to a jury.

SCOTT, J., concurs. MARTINEZ, J., dissents and BENDER, J., joins in the dissent.

1 . The People charged Finley with violating subsections (1), (2)(c), and 5(f)(4) of section 18-12-108, 6 C.R.S. (1997). These subsections provide:

(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-90 l(3)(h) or any other weapon that is subject to the provisions of this article subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.

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(2)(c) A person commits a class 5 felony if the person violates subsection (1) of this section and the person’s previous conviction was for burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (1) of this section occurs as follows:

(I) From the date of conviction to ten years after the date of conviction, if the person was not incarcerated; or

(II) From the date of conviction to ten years after the date of release from confinement, if such person was incarcerated or, if subject to supervision imposed as a result of conviction, ten years after the date of release from supervision.

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(5) A second or subsequent offense under paragraphs (b) and (c) of subsection (2) and paragraphs (b) and (c) of subsection (4) of this section is a class 4 felony.

§ 18-12-108, 6 C.R.S. (1997).

2 . Section 16-10-101, 6 C.R.S. (1997), which has remained unchanged since we last construed it in People v. District Court, 843 P.2d at 8-12, provides:

The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter or ordinance violation as provided in section 16-10-109(1), to have a trial by jury is inviolate and a matter of substantive due process of law as distinguished from one of "practice and procedure”. The people shall also have the right to refuse to consent to a waiver of a trial by jury in all cases in which the accused has the right to request a trial by jury.

3 . Section 18-1-406(2), 6 C.R.S. (1997), which has remained unchanged since we last construed it in People v. District Court, 843 P.2d at 7-12, provides:

Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.

4 . A constitutional standard is a question of law subject to de novo review on appeal. See Evans v. Romer, 854 P.2d 1270, 1275 (Colo.1993). As we explain infra, we view the respondent court’s ruling as one that interprets due process standards to preclude a jury trial because the jury will learn of a defendant’s prior POWPO conviction or other violent felony conviction in the course of a POWPO trial. Because this interpretation of due process is purely a matter of law, we apply a de novo standard of review.

5 . Colorado’s statutory scheme is distinct from most states in that the. General Assembly enacted one statute granting the defendant the right to waive a jury trial, see § 18-1-406(2), 6 C.R.S. (1997), and another statute granting the prosecution the right to refuse consent to a jury trial, see § 16-10-101, 6 C.R.S. (1997). See Debra T. Lan-dis, Annotation, Right of Accused, in State Criminal Trial, to Insist, over Prosecutor's or Court's Objection, on Trial by Court Without Jury, 37 A.L.R.4th 304, 310-42 (1985) (categorizing various states’ jury trial waiver provisions according to statutory schemes). Although Utah’s jury trial waiver statute differs from Colorado’s statute in that it expressly limits waiver to instances in which the prosecution and trial court consent, see Studham, 655 P.2d at 669, the Studham court's analysis is directly applicable here. According to People v. District Court, the prosecution may refuse to proceed with a bench trial, so long as that refusal does not offend due process. See People v. District Court, 843 P.2d at 11. Hence, the only difference between the Utah rule and the Colorado rule is that in Utah, the trial court must also consent to a jury trial waiver.

6 . During the motion session for waiving a jury trial, the colloquy with the respondent court appeared to focus on our statement in People v. District Court that "we cannot uphold the unqualified prosecution consent requirement where an accused may be subjected to an unfair proceeding before a biased jury.” People v. District Court, 843 P.2d at 11 (emphasis added). However, we subsequently stated in the same paragraph that the trial court must determine "whether a jury trial would be fair and impartial in accord with the accused's right to due process of law.” Id. (emphasis added). The use of the word "may" was intended only to hold open the possibility of a bench trial if the defendant was able to prove that his or her due process rights would be violated by a jury trial. A defendant’s assertion that proceeding in front of a jury raises the possibility of a due process violation (i.e., that a jury trial may violate his due process rights) is insufficient to override the prosecution’s refusal to consent to a jury trial waiver. Rather, a defendant must demonstrate that the prosecution’s refusal to consent to the defendant's motion to waive a jury trial will violate the defendant’s due process rights.

7 . We emphasize the distinction between this case, which involves a POWPO charge and an habitual offender charge, from the case in which a defendant is charged with another substantive offense in addition to a POWPO charge. In the latter case, a defendant may request bifurcation of the substantive offense .charge and the POWPO charge. See People v. Peterson, 656 P.2d 1301, 1305 (Colo. 1983). If a defendant requests bifurcation, however, the POWPO charge must still be tried to a jury in accordance with our holding in this case.