People v. District Court, City & County of Denver

Justice SCOTT

concurring:

A review of the record in this interlocutory proceeding indicates that the defendant did not articulate any fact upon which we can uphold the trial court’s determination that a trial before a jury might subject the defendant to an unfair proceeding. Therefore, I join the majority’s judgment and its opinion. I write separately, however, to make clear my view that, on this record, this case can be decided by answering a single question: whether a defendant is entitled to a bench trial in every case where the charged offense includes' ás an element a prior conviction for a similar crime. In People v. District Court, 843 P.2d 6 (Colo.1992), we did not adopt such a per se rule and I would not do so today. Hence, I agree that the trial court erred and that we should make our rule absolute.

I.

I agree with the dissent that “felony convictions may unduly influence a jury’s decision on the defendant’s guilt,” dis. op. at 194 (Martinez, J. dissenting) (emphasis added), and that such a result may occur on “a myriad of occasions,” id. (emphasis added). However, because “a myriad” does not constitute every case, and because the defendant has failed to articulate a fact specific basis as to why he might be denied a fair and impartial jury trial, the question before us is quite different than that which the dissent addresses. The proper inquiry here is not whether the Due Process Clause may ever be violated by the admission of evidence of a similar prior crime that constitutes an element of the offense charged, but whether, as a consequence of the admission of such prior conduct, due process is always violated.1 I *192think not. In any event, we answered that very question in People v. District Court, 843 P.2d 6 (Colo.1992) (Erickson, J., specially concurring), which is controlling. The answer then was unanimous; we rejected a facial attack on the prosecution’s statutory right. See People v. District Court, 843 P.2d at 11 n. 7, 12.

II.

A.

In this interlocutory matter, the trial court based its ruling upon the “risk of a propensity verdict,” which it found “unacceptable.” The trial court, however, did not rely upon CRE 403 and, as such, our rules of evidence are not before us. Hence, while the dissenting opinion provides an accurate explanation of the considerations that should control the admission of evidence at trial pursuant to CRE 403 and CRE 404(b), those considerations were not the bases of the trial court’s ruling, nor, in any event, should they be relied upon as persuasive on this record. Thus, I would not import evidentiary considerations as the sine quo non to determine whether or not trial will be had before a jury or to a court, based on due process concerns.

In this case, the trial court was called upon to construe sections 18-1-406(2), 6 C.R.S. (1997) and 18-10-101, 6 C.R.S. (1997), based on defendant’s assertions that he could not receive a full and fair trial before a jury. The trial court was not asked to rule upon the admission of evidence yet to be offered at a trial that had not begun. The defendant claimed the offer of evidence to prove certain elements of the crime to which he was charged would deny him a fair trial in accordance with due process. Sharing that concern, the trial court agreed. In light of this record, however, the trial court erred.

When, as here, a defendant has failed to articulate a specific basis for claiming his due process rights have been violated — other than a claim that the admission of evidence of prior similar conduct is on its face unduly prejudicial — it is inappropriate for the trial court to deny the prosecution its right to object to a bench trial. This is especially so since the trial judge, as gatekeeper, may at trial limit the form and manner of as well as the extent to which evidence of a prior felony conviction is introduced before a jury. See People v. Spoto, 795 P.2d 1314, 1321 (Colo. 1990).

B.

The appropriate time for evidentiary considerations on a record such as this, however, is at trial, and not, as the defendant suggests, prior to trial in order to determine whether the trial will be before a jury or a judge. I do not understand the majority opinion as imposing any new limitation on the power of the trial judge to limit the prosecution’s proof regarding defendant’s prior convictions. The trial judge, in the exercise of sound discretion, may choose to bar witnesses from testifying as to the facts underlying defendant’s previous offenses or even to prevent the prosecution from revealing the names of the prior crimes to the jury. On the other hand, the trial court may choose to allow the prosecution to introduce testimony regarding defendant’s past bad acts or to permit the jury to hear the names of the offenses but not their factual background. In any event, the decision as to the mode of proof must be made by the trial court in the first instance, and we would be overstepping our role by intimating any view as to the correct course of action concerning these evidentiary determinations.

III.

Finally, because I view defendant Edward Finley’s motion as a facial challenge previously decided by People v. District Court, and not a case in which the defendant presented specific facts and circumstances — other than the elements of charges as pleaded— indicating that undue prejudice would result from a jury trial, it is not necessary to discuss the burden upon a defendant who by pretrial motion attempts to raise due process concerns. As I read the majority opinion and its footnote 7, the majority’s reference to the terms “may” and “would” as used in *193People v. District Court, is not intended to establish a standard of proof to be applied by trial courts. See maj. op. at 190 n. 6. That is, I do not understand the majority to require that a defendant, to succeed, must “prove that his or her due process rights would be violated by a jury trial.” Id. Rather, I understand the majority to make clear that to be entitled to trump the prosecution’s objection to defendant’s waiver of a jury trial, a defendant must assert particular facts or circumstances that present a significant propensity to affect juror deliberations. After such a conforming motion by the defendant, not present in this case, the trial court may then engage in a delicate assessment of the inferences a reasonable juror — or an actual juror whose views are revealed through voir dire — would draw from a given set of facts and evidence at trial, in light of surrounding circumstances. Of course, the trial judge, as the gate keeper as to admissible evidence, also has the ability to address concerns raised by the defendant or prosecution by pretrial conference or evidentiary rulings, which can alleviate some due process concerns. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). However, the trial court’s ultimate determination as to the trial of the case before or without a jury must be supported by factual findings which can be reviewed on appeal.

IV.

On this record, there was essentially nothing more before the trial judge than a facial attack upon the relevant statutes. Hence, our precedent in People v. District Court controls.

Accordingly, I too would make the rule absolute.

. At the August 19, 1997, hearing, the trial court characterized the issue as a "problem that’s inherent whenever a defendant is charged with a crime that involves as an element a previous felony conviction, which is this situation.... The issue is, when we’re dealing only with possession of a weapon by a previous offender and being a previous offender is an element, how we handle that inherent problem of the jurors know-*192mg that Mr. Finley is a prior felon.” (Emphasis added.)