People v. Ball, No. 87CA0640

Docket NºNo. 87CA0640
Citation813 P.2d 759
Case DateOctober 11, 1990
CourtCourt of Appeals of Colorado

Page 759

813 P.2d 759
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Richard BALL, Defendant-Appellant.
No. 87CA0640.
Colorado Court of Appeals,
Div. IV.
Oct. 11, 1990.
Rehearing Denied Dec. 6, 1990.
Certiorari Denied July 29, 1991.

Page 761

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Russel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Jaydee K. Bachman, Samuel Santistevan, Deputy State Public Defenders, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, Richard Ball, appeals from the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, first degree burglary, second degree burglary, theft, and three counts of habitual criminal. We affirm.

In the spring of 1985, the victim was at home when a man entered his condominium, forced him at gunpoint to lie down, and proceeded to tie his hands and feet and gag him. After securing the victim, the man proceeded to search the condominium. Eventually, the man left and the victim got free and called the police.

In the fall of 1985, defendant was arrested for the spring 1985 incident and charged with one count of aggravated robbery, one count of first degree burglary, one count of second degree burglary, one count of theft, and one count of crime of violence. Three counts of habitual criminal were added later.

The main focus and issue at the substantive portion of the trial was one of identification.

I.

Defendant first contends that he received ineffective assistance of counsel, in violation of his constitutional right to counsel, when the trial court forced an allegedly unprepared and inexperienced attorney to take his case to trial. We disagree.

The right to counsel guaranteed by the Sixth Amendment and Colo. Const. art. II, § 16, entitles the defendant in a criminal proceeding to the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. People v. Norman, 703 P.2d 1261 (Colo.1985); People v. Tackett, 742 P.2d 957 (Colo.App.1987).

Page 762

To demonstrate that counsel's assistance was so defective as to require reversal of a conviction, a defendant must show: (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Drake, 785 P.2d 1257 (Colo.1990). A court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct. Strickland v. Washington, supra.

In this case, on the Friday before trial, defendant requested a continuance so that the attorney who represented him during pre-trial motions could represent him during trial. The trial court denied defendant's motion because it would have been the fourth such continuance. The following Monday it became apparent that the senior attorney who had been appointed to replace defendant's original attorney would be unavailable for a few days. The court ruled that the junior attorney would have to take the case to trial, even though she objected and told the court that she was unprepared to handle a case of this seriousness.

The junior attorney informed the court that her role as second chair was only to conduct replacement voir dire, opening statement, and the cross-examination of one minor witness. The record reflects that she had been practicing law with the public defender's office for one year and four months and had tried four misdemeanors during that time. She had also gone to trial on two felonies, but these were not completed.

The trial court found that the junior attorney was "extremely competent" and that she had "done some marvelous things" in its courtroom. The junior attorney acknowledged herself that she was qualified to handle the trial on the substantive felony charges, but felt that she was unprepared, and that the habitual criminal phase of the trial was beyond her grasp.

The jury trial was held March 10 through March 17, 1987. On March 12, 1987, after only voir dire, opening statement, and part of the direct examination of the first witness had been completed, the senior attorney was able to appear on defendant's behalf and participate in the remainder of the trial. Since the habitual criminal phase of the trial was held on March 17, 1987, the senior attorney was available at that time.

Defendant argues that the circumstances were such that effective representation was impossible because a relatively inexperienced public defender could not take over the first-chair role in a serious case on short notice and still perform adequately. Defendant relies on pre-Strickland cases that state that effective assistance of counsel encompasses a guarantee that defense counsel shall have sufficient time to prepare adequately for trial. See People v. Meyers, 617 P.2d 808 (Colo.1980); People v. Moreland, 193 Colo. 237, 567 P.2d 355 (1977).

However, applying the first prong of the Strickland test, we conclude that defendant has not shown any particular acts or omissions of his counsel that fell outside the range of reasonably competent assistance demanded of attorneys practicing criminal law.

Furthermore, even if we assume that the assistance was ineffective, application of the second prong of the Strickland test reveals that defendant has not met his burden of showing that there is a reasonable probability that, but for trial counsel's performance, the result of the proceeding would have been different. Thus, we conclude that defendant was not deprived of his right to effective assistance of counsel.

II.

We also reject defendant's argument that the trial court deprived him of his constitutional right to testify on his own behalf because it failed to advise him that, if he testified during the substantive phase of the trial, his testimony could not be used to prove the habitual criminal counts against him.

Page 763

The right to testify is so fundamental that only the defendant may waive it, and his waiver must be voluntary, knowing, and intentional. People v. Curtis, 681 P.2d 504 (Colo.1984).

In order to insure that a defendant makes a constitutionally valid waiver of his right to testify, a trial court should advise the defendant, outside of the presence of the jury, that:

"he has a 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."

People v. Curtis, supra.

If a defendant testifies, and the defendant is also facing habitual criminal charges, the trial court should instruct the jury to consider any admissions of prior convictions elicited from the defendant in connection with the testimony on the substantive offense only as they affect his credibility. The prosecution must still meet its burden of proving beyond a reasonable doubt the defendant's prior convictions by evidence independent of the defendant's...

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8 practice notes
  • Armintrout v. People, No. 92SC697
    • United States
    • Colorado Supreme Court of Colorado
    • December 13, 1993
    ...convictions, the sentences to be served concurrently. 5 The court of appeals affirmed Armintrout's convictions. Relying on People v. Ball, 813 P.2d 759 (Colo.App.1990), cert. denied (July 29, 1991), the court of appeals held that the trial court did not err in entering convictions for both ......
  • People v. Clouse, No. 91CA0563
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 1992
    ...necessary to effect a valid waiver of a defendant's right to testify. See Roelker v. People, 804 P.2d 1336 (Colo.1991); People v. Ball, 813 P.2d 759 (Colo.App.1990). Rather, in determining whether a defendant has made a valid waiver of that right, the totality of the circumstances must be c......
  • Froid v. Zacheis, Court of Appeals No. 20CA0021
    • United States
    • Colorado Court of Appeals of Colorado
    • May 27, 2021
    ...that any attorney fees incurred by Ms. McGee in the preparation for final orders would not have had to have been incurred in any event." 813 P.2d at 759. It is true that, irrespective of whether there was any malpractice during the early stages of the case, 494 P.3d 682 McGee needed represe......
  • People v. Turley, No. 90CA1513
    • United States
    • Colorado Court of Appeals of Colorado
    • May 20, 1993
    ...may be considered on the issue of credibility and for no other reason. People v. Clouse, 859 P.2d 228 (Colo.App.1992); People v. Ball, 813 P.2d 759 Here, the defendant was advised that if he testified and prior felony convictions were brought out on cross-examination, the jurors would be in......
  • Request a trial to view additional results
8 cases
  • Armintrout v. People, No. 92SC697
    • United States
    • Colorado Supreme Court of Colorado
    • December 13, 1993
    ...convictions, the sentences to be served concurrently. 5 The court of appeals affirmed Armintrout's convictions. Relying on People v. Ball, 813 P.2d 759 (Colo.App.1990), cert. denied (July 29, 1991), the court of appeals held that the trial court did not err in entering convictions for both ......
  • People v. Clouse, No. 91CA0563
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 1992
    ...necessary to effect a valid waiver of a defendant's right to testify. See Roelker v. People, 804 P.2d 1336 (Colo.1991); People v. Ball, 813 P.2d 759 (Colo.App.1990). Rather, in determining whether a defendant has made a valid waiver of that right, the totality of the circumstances must be c......
  • Froid v. Zacheis, Court of Appeals No. 20CA0021
    • United States
    • Colorado Court of Appeals of Colorado
    • May 27, 2021
    ...that any attorney fees incurred by Ms. McGee in the preparation for final orders would not have had to have been incurred in any event." 813 P.2d at 759. It is true that, irrespective of whether there was any malpractice during the early stages of the case, 494 P.3d 682 McGee needed represe......
  • People v. Turley, No. 90CA1513
    • United States
    • Colorado Court of Appeals of Colorado
    • May 20, 1993
    ...may be considered on the issue of credibility and for no other reason. People v. Clouse, 859 P.2d 228 (Colo.App.1992); People v. Ball, 813 P.2d 759 Here, the defendant was advised that if he testified and prior felony convictions were brought out on cross-examination, the jurors would be in......
  • Request a trial to view additional results

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