concurring and specially concurring:
I 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.
A 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.”
I.
That 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.
It 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.
Nor 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.
In 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).
The 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.
II.
I 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).
Although 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.
I am authorized to say that ERICKSON, J., joins me in this concurring and special concurring opinion.