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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 counsels power to stipulate to an element of an
offense and the defendants 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 jurys
"yes" answer to a special interrogatory, which had
been approved by Olivers counsel, that asked whether Oliver
had possessed a firearm, plus counsels 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 Olivers behalf, entry of the POWPO conviction
violated Olivers 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 courts 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 Olivers
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 Olivers 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 prosecutions motion. Then the court entered a
...