Opinion
No. 95SC134
Decided June 24, 1996 Petition for Rehearing DENIED August 19, 1996
Certiorari to the Colorado Court of Appeals
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul E. Koehler, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Petitioner.
David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.
We agreed to review People v. Gray, 899 P.2d 290 (Colo.App. 1994), in which the court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that respondent Marvin Gray (defendant) received an inadequate advisement under People v. Curtis, 681 P.2d 504 (Colo. 1984). The trial court informed the defendant that his prior felony convictions "would be admissible with respect to credibility." The court of appeals held the trial court failed to inform the defendant that his testimony during the substantive phase of the trial with respect to "prior felony convictions would be admissible only for purposes of impeachment" and that the People "would still have the burden of proving the prior felony convictions at the habitual offender phase of the trial." Gray, 899 P.2d at 291. We granted certiorari to decide:
I. Whether a trial court's failure to advise the defendant, pursuant to People v. Curtis, 681 P.2d 504 (Colo. 1984), of our holding in People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028 (1981), that any admissions of prior felony convictions by the defendant can only be considered by the jury in assessing credibility, not as substantive proof of the prior convictions, renders a criminal conviction invalid.
II. Whether Curtis advisements are required.
On the record before us, we see no basis for finding reversible error, and therefore, we reverse the judgment of the court of appeals and remand to that court with directions that it return the case to the trial court with instructions to reinstate the judgment of convictions.
I
Defendant was convicted of aggravated robbery and attempted aggravated robbery and sentenced as a habitual offender. At the close of the People's case and outside the presence of the jury, the trial court informed the defendant of his right to testify. We set forth a portion of that advisement:
§ 18-4-302(1)(b), 8B C.R.S. (1986).
§ 18-2-101, 8B C.R.S. (1986 1995 Supp.).
§ 16-13-101, 8B C.R.S. (1986).
THE COURT: The People have rested and we're now on the part of the case [where Mr. Gray] you, can put on some evidence if you want. Included among that evidence is you yourself of course have the right to testify as a witness in this case. Do you understand that?
THE DEFENDANT: Yes.
. . . .
THE COURT: All right. Now, no one can keep you from testifying and no one can make you testify, and the decision whether to testify is yours and yours alone. I'm sure you and Mr. Johnson have discussed at some length whether or not you want to testify, I'm sure he has given you advice on that point and good advice?
THE DEFENDANT: Yes.
THE COURT: Nonetheless the decision is yours. Now, if you do testify you should note that the District Attorney will be able to cross-examine you about the facts of this particular case, and if you've been previously convicted of a felony, the District Attorney will be entitled to ask you about your previous convictions.
I understand from my review of the file that there is some issue as to whether or not you have been convicted of six prior felonies, at least that's the allegation with respect to the other part of this case. As a result of that, I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies.
The six prior felonies would be admissible with respect to credibility. The District Attorney can in fact talk about them. Are you aware of all that?
The advisement continued briefly as follows:
THE COURT: Okay. Now, what I need to know is whether or not you and Mr. Johnson have indeed talked about this issue of whether or not to testify, and you can just simply say yes or no.
THE DEFENDANT: Yes, we have.
THE COURT: Okay. And whether you personally have made a decision whether to testify or not, and have you done that?
THE DEFENDANT: Yes.
THE COURT: And are you willing or are you going to testify in this case?
THE DEFENDANT: No, ma'am.
THE COURT: All right. Are you making that decision yourself?
THE DEFENDANT: Yes.
THE COURT: And no one is forcing you one way or the other, this is a voluntary decision?
THE DEFENDANT: Yes, it is.
THE COURT: Do you have any questions about this, have I explained this clearly enough to you?
THE DEFENDANT: Yes.
THE COURT: Is what I'm saying consistent with what Mr. Johnson has already told you?
THE DEFENDANT: Yes.
II A
In People v. Curtis, 681 P.2d 504, 512 (Colo. 1984), we held that a defendant's right to testify is a fundamental right that can only be surrendered by a waiver "tested by the same constitutional standards applicable to the waiver of the right to counsel." See also People v. Milton, 864 P.2d 1097, 1098-99 (Colo. 1993). Similarly, in Rock v. Arkansas, the United States Supreme Court held that "[t]he right to testify on one's own behalf at a criminal trial . . . is one of the rights that `are essential to due process of law in a fair adversary process.'" 483 U.S. 44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806, 819 n. 15 (1975)). The right to testify is bottomed on the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against self-incrimination. Id. at 49-53. The Court noted:
Logically included in the accused's right to call witnesses whose testimony is "material and favorable to his defense," United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself.
Id. at 52.
Under Curtis, 681 P.2d at 514, in order to determine whether a defendant's waiver of the constitutional right to testify is voluntary, knowing, and intelligent, a trial court should advise the defendant outside the presence of the jury
that he has the right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.
(Footnote omitted.) Curtis requires that a trial court ensure a defendant's waiver of his or her right to testify is intelligently and competently made. People v. Roelker, 804 P.2d 1336, 1338 (Colo. 1991).
In Curtis, we did "not address the situation present in that narrow class of cases where a prior felony conviction is an element of the crime charged." Curtis, 681 P.2d at 514 n. 12.
Generally, "courts indulge every reasonable presumption against waiver." Curtis, 681 P.2d at 515. However, if a trial court applies correct standards, makes necessary findings to establish a waiver, and evidence exists to support those findings, then the trial court's findings of waiver will not be disturbed on review. Id.; see also Roelker, 804 P.2d at 1339 ("A lower court's determination that a defendant effectively waived his right to testify will therefore be upheld if it is supported by competent evidence."). Despite these broad considerations, we have never precisely articulated the minimum requirements of an effective Curtis waiver. Milton, 864 P.2d at 1102 (Vollack, J., dissenting); see Tyler v. People, 847 P.2d 140, 143 (Colo. 1993); see also Roelker, 804 P.2d at 1339 ("Curtis did not decide what the minimum requirements are to establish a waiver of a defendant's right to testify in his own defense."). Rather, rejecting a reading of Curtis as creating a fixed advisement, we specifically stated "that there is no prescribed litany or formula which must be followed in advising the defendant of his right to testify." People v. Chavez, 853 P.2d 1149, 1152 (Colo. 1993) (Chavez II); see also Milton, 864 P.2d at 1099; Roelker, 804 P.2d at 1339 ("We reject Roelker's argument that the dictum of Curtis mandates a rigid requirement that the trial court question the defendant to determine whether his waiver is truly voluntary.").
Failure to give a proper Curtis advisement, however, constitutes reversible error. Milton, 864 P.2d at 1100; see also Curtis, 681 P.2d at 515 (allowing defendant Curtis a new trial). But see Tyler, 847 P.2d at 143 (noting that, although an effective waiver of the right to testify must be voluntary, knowing, and intentional, "it is not reversible error per se when the waiver does not appear on the record").
B
In Chavez II and Milton, the defendants were not informed that their prior felony convictions could be considered for the limited purpose of impeaching their credibility. Milton, 864 P.2d at 1100; Chavez II, 853 P.2d at 1152. In both cases, the defendants' convictions were reversed. In Chavez II, we stated:
By its silence, the trial court left the impression that the prior convictions could be used as substantive proof for the habitual criminal phase of the trial. Clearly the inference raised by the trial court's incomplete advisement is wrong. If Chavez chose to testify, he would be entitled to an instruction explaining to the jury that evidence of his prior felonies was admitted only for the limited purpose of impeaching his credibility . . . . Since the trial court gave the defendant no explanation of these important, but technical, legal concepts, Chavez reasonably could have inferred that the prosecution would be relieved of its burden to prove his prior felonies if he testified and were forced to acknowledge his prior felony convictions. The inadequate advisement denied Chavez of an opportunity to make a voluntary, knowing, and intelligent waiver of his right to testify.
Chavez II, 853 P.2d at 1152 (footnote and citation omitted).
In Milton, the advisement failed to adequately inform the defendant of "the salient consequences of testifying and to provide accurate information concerning those consequences." 864 P.2d at 1101. The advisement did not inform the defendant that the use of his testimony regarding prior convictions was limited to impeachment. See Milton, 864 P.2d at 1101; see also Chavez II, 853 P.2d at 1152. Likewise, the trial court failed to advise the defendant that, if he chose not to testify, the jury would be instructed regarding the right against self-incrimination. See Milton, 864 P.2d at 1100.
A "defendant's statement that he did not want to testify is evidence of a voluntary waiver . . . ." Chavez II, 853 P.2d at 1153. However, "[a]bsent an adequate advisement, a defendant's waiver of the right to testify, though perhaps voluntary, cannot be knowing and intelligent." Milton, 864 P.2d at 1100 (citing Chavez II, 853 P.2d at 1153). Thus, to be effective, a waiver of the right to testify must "`provide assurance that defendant understood the constitutional right to testify and the consequences of testifying.'" Milton, 864 P.2d at 1100 (quoting People v. Milton, No. 90CA1474, slip op. at 2-3 (Colo.App. July 2, 1992)). A satisfactory Curtis advisement should inform the defendant that the defendant has the right to testify or not to testify; the decision to testify is personal; the prosecution would be able to cross-examine the defendant and thus prior felony convictions could be disclosed to the jury; the limited purpose for which such prior felony convictions would be admitted; and, the consequences of testifying. See Chavez II, 853 P.2d at 1152.
Here, the trial judge advised the defendant that his testimony regarding prior felony convictions "would be admissible with respect to credibility." The defendant argues, and the court of appeals properly noted, a better advisement would have stated his "prior felony convictions would be admissible only for purposes of impeachment . . . ." Gray, 899 P.2d at 291. While we agree that a more clear and full advisement could have easily been given, we do not accept defendant's conclusion that the advisement given constitutes reversible error. Prior to the trial court's advisement, the defendant's attorney informed the trial court that he had already counseled his client concerning his right to testify. Defendant acknowledged being so informed and advised by his attorney.
Thus, unlike Milton, this is not a case in which the defendant remained silent in the face of defense counsel's declaration that defendant would not testify. Nor is this case identical to Chavez II where "[n]o explanation was given . . . [the defendant] of the limited purpose for which such felonies could be admitted." Chavez II, 853 P.2d at 1152. To the contrary, defendant was given the opportunity, on the record, to exercise or waive his right to testify and, after consultation with his attorney, he affirmatively waived his right. The trial court did not mislead defendant; it actively engaged defendant in a colloquy regarding his rights, and as a consequence, there is sufficient evidence to support the trial court's determination that defendant's waiver was effective. Because competent evidence supports its determination that defendant effectively waived his right to testify, we will not disturb the trial court's findings on review. See Roelker, 804 P.2d at 1339. On this record, we hold that defendant's waiver was, in fact, knowingly and intelligently made. Thus, we conclude the judgment of the court of appeals should be reversed.
III
The court of appeals also concluded that the defendant must be informed "that the prosecution has a continuing obligation to prove the prior felony convictions by separate independent evidence with respect to the habitual criminal counts." Gray, 899 P.2d at 293. We disagree.
In People v. Chavez, 621 P.2d 1362, 1367 (Colo.), cert. denied, 451 U.S. 1028 (1981) (Chavez I), we concluded that the prosecution is required to prove a defendant's prior convictions beyond a reasonable doubt with evidence independent of the defendant's testimony. We also emphasized that a trial court should instruct "the jury to consider any admissions of prior convictions elicited from the defendant in connection with his testimony on the substantive offense only as they affect his credibility . . . ." Id.
Based on Chavez I, Curtis, and Chavez II, the court of appeals improperly concluded that, in those cases where habitual criminal charges are pending,
the record [must] affirmatively show that the defendant was advised and understood (1) the limitation on the use of the prior felony convictions to the issue of defendant's credibility with respect to the substantive charges; and (2) that the prosecution has a continuing obligation to prove the prior felony convictions by separate independent evidence with respect to the habitual criminal counts. The latter requirement was not contained in Curtis as that case had no habitual criminal counts but, in our view, has been imposed by both Chavez I and Chavez II.
Gray, 899 P.2d at 293. By including the latter requirement, the court of appeals improperly engrafted an additional element to the existing Curtis advisements.
The court of appeals noted that, in Chavez II, we also granted certiorari to determine whether the pre-Curtis Chavez I decision imposed an additional advisement requirement for cases involving habitual criminal charges. Chavez II, 853 P.2d at 1152 n. 6; see also Gray, 899 P.2d at 293. However, certiorari was dismissed because both parties conceded that, under the facts of that case, Chavez I required no additional advisement. Chavez II, 853 P.2d at 1152 n. 6. The court of appeals concluded that the dismissal did not detract "from the otherwise clearly enunciated requirements set forth in Chavez I and Chavez II." Gray, 899 P.2d at 293. Since the Chavez I decision, however, other panels of the court of appeals have concluded, either explicitly or implicitly, that the defendant need not be informed of the prosecution's continuing burden of proof in the habitual criminal phase. See, e.g., People v. Windsor, 876 P.2d 55, 56-57 (Colo.App. 1993); People v. Boehmer, 872 P.2d 1320, 1322-23 (Colo.App. 1993); People v. Turley, 870 P.2d 498, 503 (Colo.App. 1993); People v. Clouse, 859 P.2d 228, 231-32 (Colo.App. 1992); People v. Allaire, 843 P.2d 38, 41 (Colo.App. 1992). But see People v. Tafoya, 654 P.2d 1342, 1343 (Colo.App. 1982).
In Chavez I, we disapproved of a trial court's ruling that "impeachment evidence of the defendant's prior convictions elicited or offered by the prosecution during the trial of the substantive offense could be used for substantive purposes in the habitual criminal trial." Chavez I, 621 P.2d at 1364 (emphasis added). Chavez I focused on the appropriate use of prior convictions evidence during the habitual criminal phase. The court sought to cure the "intolerable tension" created by the habitual criminal statute. See id. at 1366-67. We resolved the dilemma by concluding that a defendant's admissions of prior convictions could be used to impeach credibility, but not as substantive evidence to prove the elements of habitual criminal status. See id.
Under Curtis, a defendant must be informed that his or her prior convictions may be considered only to impeach his or her credibility. Chavez II, 853 P.2d at 1152; Curtis, 681 P.2d at 515. This advisement adequately informs the defendant about the permissible use of prior convictions in connection with his or her constitutional right to testify. An advisement regarding the prosecution's continuing duty to prove a defendant's prior convictions merely repeats, in a slightly different form, the instruction concerning the permissible use of prior convictions. Requiring an extra advisement increases the chances of trial court error without any additional benefit to the defendant. In our view, an extra advisement unnecessarily burdens a trial court without further informing the defendant.
IV
Implicit in our analysis is an affirmation of the continuing viability of Curtis advisements. We now make clear the ardor by which we follow our precedent first announced in Curtis. Ensuring a voluntary, knowing, and intelligent waiver of the fundamental right to testify requires the continuing participation of the trial court. In our view, the benefit derived is sufficient to support the continued validity of Curtis, without placing an overwhelming burden on our trial judges.
We believe it is fitting to require trial courts to determine whether a defendant's waiver of such a fundamental right is effective. Certainly, so long as police officers risk life and limb during the apprehension of suspects to provide Miranda warnings, it is not onerous for trial judges to provide defendants with the requisite Curtis advisement from the relative comfort of a courtroom. It is inconceivable that we would require more from our law enforcement authorities than judicial officers.
Moreover, although the validity of Curtis advisements may seem heavily litigated, creating a record of such a waiver facilitates appellate review. Without a Curtis requirement, waiver issues would merge into ineffective assistance of counsel claims. Post conviction proceedings would still abound, but no record would exist to corroborate a defendant's allegations. In light of the fundamental nature of the right to testify, we favor review of a waiver of the right to testify with a record, not without a record. Considering the foregoing, we decline the prosecution's invitation to overrule Curtis and its progeny.
The record does not contain evidence concerning the number of nonappealed, adequate trial court Curtis advisements.
V
Accordingly, we reverse the judgment of the court of appeals and remand this case to that court with directions that it return the case to the trial court for reinstatement of the judgment of convictions against defendant.
JUSTICE LOHR concurs in part and dissents in part, and JUSTICE KIRSHBAUM and JUSTICE MULLARKEY join in the concurrence and dissent.