Opinion
No. 25459
Decided July 9, 1973.
Defendant was convicted of breaking and entering without force with intent to commit the crime of theft and appealed.
Affirmed
1. WITNESSES — Criminal — Elect — Own Behalf — Credibility — Examined — Previous Convictions. A defendant who elects to be a witness in his own behalf in a criminal case subjects his credibility to question, like any other witness, and he may therefore be examined on the matter of previous felony convictions.
2. PROSECUTING ATTORNEYS — Questions — Prior Felonies — Asked in Good Faith. Questions put to defendant who has taken the stand in his own behalf concerning prior felonies must be asked by prosecuting attorney in good faith.
3. Good Faith — Questioning — Prior Felonies — Discretion — Judge. It is within the trial judge's discretion to determine whether prosecuting attorney's questioning defendant concerning prior felonies has been done in good faith.
4. JURY — Waiver — Defendant — Judge — Decides — Admissibility — Verdict — Complain — Prohibited. A defendant who voluntarily and with advice of counsel waives a jury cannot thereafter be heard to complain when he creates a situation which necessarily makes the trial judge both the one who decides the admissibility of evidence and the one who renders the verdict.
5. CRIMINAL LAW — Appeal — Trial Judge — Duty — Did Not Consider — Uncertified Prior Conviction. It would be assumed on appeal that trial judge, before whom defendant was tried without a jury, carried out his judicial duty and did not consider uncertified prior conviction of which he became aware after defendant testified that he had not previously been convicted of a felony.
Appeal from the District Court of El Paso County, Honorable George M. Gibson, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.
Defendant, Dennis D. Thompson, was convicted of breaking and entering without force an apartment in Colorado Springs, Colorado, with intent to commit the crime of theft, in violation of 1965 Perm. Supp., C.R.S. 1063, 40-3-5. Defendant having waived the jury, the trial was to the court. On direct examination, the defendant testified that he had never been convicted of a felony. The district attorney, on cross-examination, asked about a specific prior felony conviction, which the defendant denied. At this point the district attorney claimed surprise and made an offer of proof on an F.B.I. record sheet, requesting the court to grant a continuance in order to have the time to get official records regarding the prior offenses indicated on the F.B.I. sheet.
Defense counsel thereupon requested a mistrial on the grounds that inadmissible evidence of a prior conviction had been placed before the judge. The trial court denied the district attorney's request for a continuance, advised that it was striking all reference to the prior conviction in question and, thereupon, denied the defendant's motion for a mistrial.
Defendant now argues that the conviction must be reversed, contending that the trial court erred in refusing to grant the motion for a mistrial after it was aware of the uncertified prior conviction. We do not agree and we affirm the judgment of the trial court.
[1-3] A defendant who elects to be a witness in his own behalf in a criminal case subjects his credibility to question, like any other witness, and he may therefore be examined on the matter of previous felony convictions, C.R.S. 1963, 154-1-1; Bowland v. People, 136 Colo. 57, 314 P.2d 685. As we have pointed out, however, questions about prior felonies must be asked by the prosecuting attorney in good faith; and it is within the judge's discretion to determine whether good faith is present. People v. Lewis, 180 Colo. 423, 506 P.2d 125. The only way that counsel can establish good faith if the defendant denies prior felony convictions is to make an offer of proof to the court.
This is what the district attorney did here. He offered in good faith to obtain the certified copies of the conviction so as to make the matter admissible. However, the court denied that request and, as we have pointed out, elected rather to strike any references to the matter so far as it was concerned.
[4,5] The defendant voluntarily and with advice of counsel waived the jury. We have held that a defendant in such circumstances cannot be heard to complain when he creates a situation which necessarily makes the trial judge both the one who decides the admissibility of evidence and the one who renders the verdict. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303. We must assume that the trial court carried out his judicial duty and did not consider the complained of matter in arriving at this judgment. People v. Mascarenas, supra.
The judgment is affirmed.