People v. Oliver

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          City and County of Denver District Court No. 14CR4171, Honorable Martin F. Egelhoff, Judge

         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

         OPINION

         WEBB, JUDGE.

         [¶ 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.

          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

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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 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 ...