People v. Akers, 91CA1769

• Decision Date: 19 August 1993
• Docket Number: No. 91CA1769,91CA1769
• Citation: 870 P.2d 528
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terrance AKERS, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 528

870 P.2d 528

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Terrance AKERS, Defendant-Appellant.

No. 91CA1769.

Colorado Court of Appeals Div. I.

Aug. 19, 1993.

Rehearing Denied Sept. 23, 1993.

Certiorari Denied April 11, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Shawn D. Mitchell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge NEY.

Defendant, Terrance Akers, appeals the judgment of conviction entered on a jury verdict finding him guilty of assault on a guard, taking hostages, and escape, and adjudicating him an habitual offender. We reverse and remand for a new trial.

Defendant's sole contention on appeal is that because he was not advised of his right to testify and because his waiver of that right was not placed on the record, both of which are mandated by People v. Curtis, 681 P.2d 504 (Colo.1984), he is entitled to a new trial. We agree.

I.

The People concede that defendant was neither properly advised pursuant to Curtis nor was a waiver of his right to testify obtained on the record. Nevertheless, the People argue that because defendant had been properly advised in other proceedings, because he did not object when his counsel announced that the defense rested, and because he has not alleged that he wished to testify and that his desire was overborne by counsel, no new trial is warranted. We disagree.

Under the Curtis holding, the trial court must ensure that a defendant's waiver of the right to testify is voluntary, knowing, and intentional. For a defendant to make a voluntary, knowing, and intentional decision, he must be aware of the right to testify, the consequences of testifying, and his right to take the stand regardless of counsel's advice to the contrary. Tyler v. People, 847 P.2d 140 (Colo.1993).

To ensure that the right to testify is voluntarily, knowingly, and intentionally waived, the court must advise the defendant that he has a right to testify and cannot be prevented from doing so; that, if he testifies, the prosecution will be permitted to cross-examine him, particularly regarding any prior felony for which he has been convicted; and that if a felony conviction is disclosed to the jury, the jury will be instructed to consider it only as it bears on his credibility. Tyler v. People, supra.

The burden is on the prosecution to show an effective waiver of a fundamental right. Tyler v. People, supra. Here, there is nothing in the record to establish that defendant knowingly, voluntarily, and intentionally waived his right to testify. Nor is there anything in the record to support the People's assertion that defendant had been previously advised of his right to testify.

Citing Tyler and Roelker v. People, 804 P.2d 1336 (Colo.1991), the People argue that because defendant did not object when his counsel announced that the defense...