No. 97CA0400Colorado Court of Appeals. Div. V.
August 6, 1998 Petition for Rehearing DENIED October 19, 1998 Petition for Writ of Certiorari DENIED. EN BANC. May 17, 1999
Appeal from the District Court of Arapahoe County, Honorable Michael J. Watanabe, Judge, No. 95CR1536.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS.
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Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney
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General, Richard A. Westfall, Solicitor General, Miles D. Madorin, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Division V
Opinion by JUDGE VOGT
[1] Defendant, Lawrence Bielecki, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree burglary, second degree burglary, and third degree assault. He also challenges his adjudication as a habitual criminal. We affirm in part, reverse in part, and remand with directions. [2] On July 8, 1995, while investigating a reported burglary, police officers saw a person who matched the description given by the victim running away from the area. The police arrested defendant and, upon searching him, discovered jewelry which he admitted belonged to the victim. [3] After initially pleading not guilty, defendant changed his plea in December 1995 to not guilty by reason of insanity and impaired mental condition. He subsequently filed a motion requesting a bifurcated trial on the issues of sanity and guilt, and asking the court to declare unconstitutional the statutes providing for a unitary trial on these issues. The motion was denied. [4] Defendant was convicted and sentenced as a habitual criminal to concurrent terms of forty-eight years on the burglary counts and two years on the assault count. I. Ex Post Facto Violation
[5] Defendant first argues that application of the unitary trial statutes in his case violated constitutional prohibitions against ex post facto laws. Specifically, he asserts that because the offenses with which he was charged were committed on July 8, 1995, it was constitutionally impermissible to hold a single trial on sanity and guilt pursuant to statutory provisions enacted January 31, 1996, and made applicable to offenses committed on or after July 1, 1995. We do not agree.
(Colo.App. 1995). [8] Under the Colorado statutory scheme in effect prior to July 1, 1995, the issues raised by a plea of not guilty by reason of insanity, i.e., guilt and sanity, were to be tried separately to different juries, with the defendant’s sanity to be tried first. However, in March 1995, as part of a broad-ranging revision of the criminal statutes governing assertion and trial of insanity pleas, the General Assembly amended the statute that had previously provided for separate trials on sanity and guilt by adding a sentence stating: “This section shall apply only to offenses committed before July 1, 1995.” Colo. Sess. Laws 1995, ch. 26, 16-8-104 at 74-75. [9] Although the General Assembly did away with separate trials for sanity and guilt during the 1995 legislative session, it did not spell out the procedures to be followed under the new unitary trial system until the following year. It is the application of these 1996 provisions which defendant challenges here as an ex post facto violation. [10] H.B. 96-1145, Colo. Sess. Laws 1996, ch. 2 at 3-6, was approved January 31, 1996, and made applicable to offenses committed on or after July 1, 1995. Among the provisions which were enacted at that time, and which
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defendant asserts should not have been applied in his case, were 16-8-104.5, C.R.S. 1997 (requiring a single trial on sanity and guilt) and 16-8-105.5, C.R.S. 1997 (setting forth procedures after acceptance of a plea of not guilty by reason of insanity). Both of these were characterized by the General Assembly in 1996 in its statement of legislative intent as “clarifying provisions” relating to the 1995 enactments. Section 16-8-101.3, C.R.S. 1997.
[11] We conclude that application of these 1996 “clarifying provisions” in defendant’s case did not violate constitutional proscriptions against ex post facto laws. At the time defendant committed the offenses of which he was convicted, and at the time he entered his insanity plea, he had no right to separate trials on sanity and guilt. That right had been eliminated by the March 1995 enactment, effective July 1, 1995. Thus, the 1996 statutes which defendant contends were erroneously applied in his case neither deprived him of a defense available at the time his offenses were committed, see People v. District Court, supra, nor changed the legal consequences of his acts. See People v. Zapotocky, supra. [12] Further, even if we accept defendant’s contention that he was disadvantaged by having to try sanity and guilt in a single proceeding, this does not without more constitute a violation of constitutional prohibitions against ex post facto laws. Nor does the fact that procedures for the new unitary trials were not spelled out until 1996 mean that the trial court should have applied the old, bifurcated trial procedures, as defendant asserts. At the time of the crime and at the time he pled not guilty by reason of insanity, defendant had fair warning that the right to separate trials had been taken away, and that he thus might be required to try guilt and sanity in a single proceeding. See Gasper v. Gunter, 851 P.2d 912 (Colo. 1993); People v. Bowring, supra; see also Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (retroactive application of new Florida death sentencing procedures was not ex post facto violation where it did not affect the quantum of punishment, even though it might work to the disadvantage of the defendant).II. Additional Constitutional Challenges
[13] Defendant next raises three related challenges to the constitutionality of the unitary trial statutes. In addressing these issues, we note at the outset that all statutes, including penal statutes, are presumed to be constitutional, and the burden of establishing unconstitutionality is on the party challenging the statute’s validity. Rickstrew v. People, 822 P.2d 505 (Colo. 1991); People in Interest of R.W.V., 942 P.2d 1317 (Colo.App. 1997).
A. Self-Incrimination
[14] Defendant contends that because the unitary trial provisions required him to choose between exercising his right to remain silent and cooperating with psychiatrists in order to establish his insanity defense, these provisions violated his constitutional right against self-incrimination and his rights to due process and a fair trial. We disagree.
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admissible on the issue of sanity. Pursuant to 16-8-107(1.5), C.R.S. 1997, evidence acquired for the first time from a communication during the course of a court-ordered sanity examination is generally admissible only as to the issues raised by the defendant’s insanity plea, and the jury, at the request of either party, is to be so instructed.
[17] Here, the jury was instructed that evidence concerning defendant’s statements during his sanity examination was to be considered only to determine whether the defendant had the capacity to form or did form the requisite culpable mental state and for no other purpose. Where, as here, there is nothing in the record to suggest the contrary, the jury is presumed to have followed the instruction. See People v. McKibben, 862 P.2d 991(Colo.App. 1993).
B. Effective Assistance of Counsel
[18] Defendant also contends that, under the statutory scheme applicable to his unitary trial, he was denied his federal and state constitutional rights to the effective assistance of counsel. Specifically, he asserts that because he was forced to waive any claim of privilege as to his psychiatric examinations, his counsel’s ability to prepare an effective insanity defense was compromised. We are not persuaded.
C. Presumption of Innocence
[22] We likewise disagree with defendant’s contention that the unitary trial procedures violated his right to due process and a fair trial because they deprived him of the presumption of innocence.
III. Jury Instruction and Special Interrogatories
[26] Defendant next challenges a jury instruction and special interrogatories which, he asserts, precluded the jury from finding him not guilty by reason of insanity as to some but not all of the offenses charged. We agree that a portion of the challenged jury instruction was incorrect, but conclude that the error does not require reversal of defendant’s conviction.
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[27] Defendant initially pled not guilty by reason of “insanity and impaired mental condition.” However, he gave notice prior to trial that he would be asserting insanity pursuant to 16-8-101.5(1)(b), C.R.S. 1997, which refers to a mental disease or defect preventing a person from forming a culpable mental state that is an essential element of a crime charged, and thus encompasses what was formerly the affirmative defense of impaired mental condition. See People v. Bolton, 859 P.2d 311 (Colo.App. 1993) (effect of affirmative defense of impaired mental condition is to negate the existence of an element of the crime charged). [28] Jury instruction 14 stated:[29] The trial court gave this instruction over defendant’s objection, finding it consistent with the statutory language regarding insanity pleas applicable to offenses occurring on or after July 1, 1995. The court also gave the jury a verdict form with special interrogatories asking, as to each charge, whether the jury found the defendant not guilty by reason of insanity. Like jury instruction 14, the verdict form stated that the interrogatories were not to be answered if the jury found the defendant guilty of any of the charges. [30] The statute on which jury instruction 14 and the special interrogatories given in this case were based, 16-8-105.5(3), C.R.S. 1997, states:In this case, a separate offense is charged against the defendant in each count of the information. Each count charges a separate and distinct offense, and the evidence and the law applicable to each count should be considered separately, uninfluenced by your decision as to any other count. The fact that you may find the defendant guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against the defendant.
The defendant may be found guilty or not guilty of any one or all of the offenses charged. However, if the defendant is found guilty of any one or more of the offenses charged, he cannot be found not guilty by reason of insanity as to any other offense charged, and the special verdict forms containing the interrogatories on the issue of insanity shall remain blank.
When the affirmative defense of not guilty by reason of insanity has been raised, the jury shall be given special verdict forms containing interrogatories. The trier of fact shall decide first the question of guilt as to felony charges that are before the court. If the trier of fact concludes that guilt has been proven beyond a reasonable doubt as to one or more of the felony charges submitted for consideration, the special interrogatories shall not be answered. Upon completion of its deliberations on the felony charges . . . the trier of fact shall consider any other charges before the court in a similar manner; except that it shall not answer the special interrogatories regarding such charges if it has previously found guilt beyond a reasonable doubt with respect to one or more felony charges. The interrogatories shall provide for specific findings of the jury with respect to the affirmative defense of not guilty by reason of insanity.
1. Direction Not to Answer Special Interrogatories
[31] Defendant first asserts that jury instruction 14 was erroneous because he was entitled to have the jury fill out the special interrogatories on insanity so that he would know the basis for the jury’s verdict on each charge. We reject this argument based on People v. Collins, 752 P.2d 93 (Colo. 1988).
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enable the trial court to determine whether an acquitted defendant should be (1) released outright or (2) committed for treatment because impaired mental condition was the sole reason for the acquittal. A finding of guilt on one or more felony counts rendered the interrogatories irrelevant since, once the jury had found the defendant guilty of a felony, he was subject to incarceration in the Department of Corrections at the trial court’s discretion, and the reasons for finding him not guilty of other charges were no longer important.
[34] Here, too, defendant was not entitled to have the jury answer the special interrogatories. Once the jury found him guilty of one or more of the charges, the special verdict forms containing the interrogatories on the issue of insanity were irrelevant. It was thus proper to instruct the jury not to answer the interrogatories if it found defendant guilty of any of the charges. 2. Directed Verdict
[35] Defendant also contends that a portion of jury instruction 14 (“if the defendant is found guilty of one or more of the offenses charged, he cannot be found not guilty by reason of insanity as to any other offense charged”) in effect directed a verdict on all counts as to the issue of sanity once the jury found him guilty of any charge, and thereby deprived him of his right to trial by jury. We agree that inclusion of this language was error.
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[41] A lesser non-included offense instruction may be given only if the defendant requests it or consents to it; and a request for such instruction has been described as “in the nature of a strategy.” People v. Skinner, 825 P.2d 1045, 1047 (Colo.App. 1991). Had second degree burglary and third degree assault been properly treated at trial as lesser included offenses of first degree burglary, as defendant now asserts them to be, the jury would have been instructed that it could not consider these lesser included offenses until it decided to acquit defendant on first degree burglary. See People v. Skinner, supra. Thus, the jury would not have had to decide if defendant had the requisite mental state for third degree assault unless it had already acquitted defendant of the more serious charges; and defendant would have no basis for arguing on appeal that the jury had wanted to convict him of third degree assault but acquit him by reason of insanity of first degree burglary, but was precluded from doing so by jury instruction 14. [42] Any confusion on the part of the jury arising out of jury instruction 14 was the result of defendant’s strategic decision at trial to request that the jury be instructed on third degree assault as a lesser non-included offense of first degree burglary. Accordingly, because defendant invited the error, he is entitled to no relief on its account. See People v. McCoy, 944 P.2d 584 (Colo.App. 1996) (under doctrine of invited error, defendant who requested instruction on attempted reckless manslaughter as lesser included offense of first degree murder could not complain of his conviction on the lesser included offense as inconsistent with convictions for assault and conspiracy to commit murder).IV. Jury Instruction: Presumption of Sanity
[43] Defendant contends that the court’s jury instruction on the presumption of sanity, and the statute on which the instruction was based, impermissibly shifted the burden of proof to him. We reject this argument.
[45] The statutory requirement that some evidence of insanity be introduced to rebut the presumption of sanity is procedural in nature, and does not affect the defendant’s substantive right to raise an insanity defense. People v. Hill, supra (discussing identical language in 16-8-105(2), C.R.S. 1997). [46] In Hill, the supreme court rejected the defendant’s contention that a jury instruction stating that the law presumes everyone to be sane effectively directed a verdict against him. Similarly here, we conclude that the challenged instruction did not impermissibly shift the burden of proof from the prosecution to defendant. The instruction clearly states that the burden was on the People to prove beyond a reasonable doubt that defendant was sane at the time of the commission of the crimes charged; and each elemental instruction likewise indicated that the prosecution had to overcome the affirmative defense of insanity. [47] Absent a showing to the contrary, we presume the jury understood and heeded these instructions. See People v. Williams, 899 P.2d 306 (Colo.App. 1995) (rejecting defendant’s contention that instructions impermissibly shifted the burden of proof to him, where court had instructed jury that prosecution had burden of proof and there was no showing the jury had not heeded the instruction).The law presumes everyone to be sane. However, after some evidence of insanity is introduced, the burden of proof is upon the People to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant was sane at the time of the commission of the crimes charged.
V. Jury Instruction: Insanity Definition
[48] Defendant also contends that the court’s instruction on insanity was erroneous. We disagree.
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[49] The instruction in question stated in pertinent part:“Insanity” means a person is not accountable who:
Is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act.
— OR —
[50] Defendant does not dispute that the instruction accurately sets forth the insanity definitions in 16-8-101.5(1)(a) and 16-8-101.5(1)(b), C.R.S. 1997. Rather, he argues that at the time of trial he was contending only that he suffered from an impaired mental condition as described in 16-8-101.5(1)(b), and that the definition based on 16-8-101.5(1)(a) was thus irrelevant and should not have been included because it permitted the prosecutor to argue in closing that defendant knew the difference between right and wrong. [51] The decision to provide a jury with additional written instructions which properly state the law is a matter within the trial court’s sound discretion, and will not constitute reversible error absent manifest prejudice or a clear showing of abuse of discretion. People v. Baca, 852 P.2d 1302 (Colo.App. 1992) (additional definition of “knowingly” in jury instruction was unnecessary, but did not constitute reversible error); see also People v. Shearer, 650 P.2d 1293 (Colo.App. 1982) (giving of instruction claimed by defendant to be confusing and inapplicable to facts of case was not reversible error where instructions as a whole adequately informed jury of the law and defendant was not prejudiced). [52] Here, the trial court decided to include both prongs of the statutory sanity definition in its instruction because a psychiatrist called by the defense had testified extensively regarding both definitions of insanity and the relationship between the two. In light of that evidence, it was not an abuse of discretion for the court to give the jury the complete statutory definition of insanity. [53] Nor did defendant suffer “manifest prejudice” from the prosecutor’s reference to both prongs of the definition in closing argument. Defense counsel emphasized in her closing argument that even if the first definition was not satisfied, the jury could still find that defendant had a mental defect that prevented him from forming a culpable mental state that was an essential element of the offenses charged; and the prosecutor concluded his rebuttal argument with a statement that the issue for the jury was whether defendant was able to form such culpable mental state.Suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of the crime charged.
VI. Jury Instruction: Affirmative Defense
[54] Defendant next contends the trial court erred by failing to give the jury an instruction based on COLJI-Crim. No. 7:01 (1983) or a similar instruction explaining affirmative defenses. We do not agree.
(Colo. 1997). [56] The trial court has discretion to determine the form of jury instructions, provided that the jury is adequately instructed on the law. Burgess v. Mid-Century Insurance Co., 841 P.2d 325
(Colo.App. 1992). [57] COLJI-Crim. No. 7:01 states that the prosecution must prove the defendant’s guilt beyond a reasonable doubt as to the affirmative defense as well as to all the elements of the crime charged, and that if the jury is not convinced beyond a reasonable doubt of defendant’s guilt after considering the evidence of the affirmative defense and all other evidence, it must return a not guilty verdict. [58] Here, the jury was instructed that insanity is an affirmative defense, that the prosecution had the burden of proof as to all elements of each crime, including the burden of proving beyond a reasonable doubt that the
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defendant was sane, and that it had to be convinced beyond a reasonable doubt of defendant’s guilt before returning a verdict of guilty on any count. Additionally, each elemental instruction directed the jury that it could make a finding of guilt only in the absence of the affirmative defense of insanity.
[59] The instructions given by the court contained the same information as the pattern jury instruction. When viewed as a whole, they adequately informed the jury that the prosecution had to disprove the affirmative defense of insanity beyond a reasonable doubt. See People v. Fincham, 799 P.2d 419 (Colo.App. 1990). Accordingly, it was not error, let alone plain error, to fail to give COLJI-Crim. No. 7:01 or a similar instruction on affirmative defenses.VII. Response to Jury Question
[60] Defendant claims that the trial court gave an inadequate response to the jury’s request, during deliberations, for “definitions or clarification of reckless and bodily injury,” and for information regarding second degree assault. Again, we do not agree.
VIII. Lesser Included Offenses — Merger
[63] Defendant also argues that second degree burglary and third degree assault are lesser included offenses of first degree burglary, and that his convictions on these counts must thus be vacated because they merge into his conviction for first degree burglary. The People concede this argument, and we agree.
IX. Habitual Criminal Proceedings: Admission of Evidence
[65] Defendant asserts that the trial court erred in admitting certain evidence in support of his adjudication and sentence as a habitual criminal. Again, we are not persuaded.
(Colo.App. 1984). [68] Additionally, documents which are admissible under certain rules of evidence may also be used to support a habitual criminal conviction. Documents admitted pursuant to CRE 901(b)(7), which governs public records, and CRE 902(1) and (4), which covers self-authenticating documents, can support a conviction under 16-13-102. See
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People v. Deskins, 904 P.2d 1358 (Colo.App. 1995), aff’d in part, rev’d in part on other grounds, 927 P.2d 368 (Colo. 1996).
[69] Our review of the record indicates that each of the documents submitted to support defendant’s conviction as a habitual criminal was duly authenticated as required by 16-13-102. Each conviction was certified as true and correct by the custodian of records and was accompanied by a seal. [70] Accordingly, we conclude that the trial court properly admitted the evidence of defendant’s prior convictions.X. Habitual Criminal Conviction: Sufficiency of Evidence
[71] Finally, we reject defendant’s contention that there was insufficient evidence to support his conviction as a habitual criminal. In support of this contention, he again asserts that the trial court admitted unauthenticated, improperly authenticated, or conflicting mittimuses and other documents, and that it considered irrelevant transcripts. However, there is nothing in the record to indicate that the trial court based its habitual criminal determination on anything other than evidence which, as we have concluded above, was properly admitted. That evidence, along with the evidence identifying defendant, was sufficient to support the habitual criminal conviction. See 16-13-103, C.R.S. 1997.