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 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 judgment of conviction for
POWPO, which it based on the special interrogatory answer and
the stipulation.
¶
8 Oliver appeals on the sole basis that the jury never
returned a guilty verdict on the POWPO charge. Instead, he
contends, the trial court effectively directed a verdict in
violation of his federal and state ...