People v. Blehm

• Citation: 983 P.2d 779
• Decision Date: 28 June 1999
• Docket Number: No. 97SC678,97SC678
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Larry E. BLEHM, Respondent. The People of the State of Colorado, Petitioner/Cross-Respondent, v. James E. Saint-Veltri, Respondent/Cross-Petitioner.
• Court: Supreme Court of Colorado

983 P.2d 779

The PEOPLE of the State of Colorado, Petitioner, v. Larry E. BLEHM, Respondent.

The People of the State of Colorado, Petitioner/Cross-Respondent, v. James E. Saint-Veltri, Respondent/Cross-Petitioner.

No. 97SC678

Supreme Court of Colorado, En Banc

June 28, 1999.

Rehearing Denied August 9, 1999.¹

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Criminal Enforcement Section Denver, Colorado, Attorneys for Petitioner.

Kirk Brush, Fort Collins, Colorado, Attorney for Respondent.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor Genera, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Roger G. Billotte, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.

David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender Denver, Colorado, Attorneys for Respondent/Cross-Petitioner. Justice MARTINEZ delivered the Opinion of the Court.

We granted certiorari in these cases to reexamine our holding in People v. Curtis, 681 P.2d 504 (Colo.1984), in which we directed trial courts to provide, on the record, particular advisements to defendants in order to ensure that a defendant's waiver of the fundamental right to testify is knowing, voluntary, and intelligent.² In the instant cases, the court of appeals found that the trial courts' advisements did not satisfy the requirements of Curtis, and therefore ordered new trials for the defendants. See People v. Blehm, No. 94CA1057 (Colo.App. June 26, 1997) (not selected for official publication) ("Blehm II"); People v. Saint-Veltri, 935 P.2d 34 (Colo.App.1996).

We now reaffirm Curtis' holding that a valid waiver of the right to testify must be knowing, voluntary and intelligent. We also reaffirm Curtis' holding that the trial court must advise the defendant of the right to testify, but we modify the procedures for review of a waiver of the right to testify. In order to best explain this modification in appellate review, we find it useful to discuss Blehm II and Saint-Veltri together. Therefore, we consolidate the cases at this time for the purpose of issuing one opinion.³

We apply the Curtis advisement requirement and the modified review procedure discussed herein to both cases before us. We hold that the defendant in Blehm II exercised a valid waiver of his right to testify. Accordingly, we reverse the judgment of the court of appeals in Blehm II. In Saint-Veltri, we reverse that part of the court of appeals' judgment which grants a new trial, and we remand the case for further proceedings to determine whether the defendant's waiver was effective.

The second issue on review in Saint-Veltri involves whether the district court properly denied the defendant's motion to suppress statements and evidence obtained as a result of his arrest pursuant to an invalid warrant. The court of appeals approved the district court's decision. We affirm the court of appeals' judgment as to this issue.

I.

A.

In 1986, defendant Larry E. Blehm was convicted of holding hostages during an attempt to escape from a county jail in violation of section 18-8-207, 6 C.R.S. (1998), and adjudicated a habitual criminal. He was sentenced to life in prison. His conviction and sentence were affirmed on appeal. See Blehm v. People, 817 P.2d 987 (Colo.1991)

; People v. Blehm, No. 86CA1351 (Colo.App. Jan. 11, 1990) (not selected for official publication).

In 1994, Blehm initiated a post-conviction proceeding, pursuant to Crim. P. 35(c), challenging his conviction. Among other contentions, he asserted that he was not properly advised of his right to testify according to Curtis, and therefore his waiver of the right to testify was ineffective. At his 1986 trial, Blehm received multiple advisements, the most extensive of which was as follows:

Let me advise the Defendant, first, of his right to testify in the case or not to testify, whichever he prefers.

Mr. Blehm, I have previously advised you that you have the right to testify as well as the right not to testify or to remain silent. And that's your right. You may discuss this matter and should discuss this matter with your attorney and you may follow his advice. You should certainly carefully consider his advice as to whether you should or should not testify in this case. If you decide not to testify, upon your request, the Court will instruct the jury that no adverse inference is to be drawn from the fact that you did not testify in the case. I will not advise them of that unless you request me to advise them. If you decide to testify, you'll be subject to cross-examination by the District Attorney. The District Attorney may try to impeach your credibility by asking you about any prior felony convictions you may have in this or any other state, therefore you should consider this in conjunction with whether you decide to testify or not testify. In addition, I should advise you while they may cross-examine you with respect to any prior felony conviction, if any of those are also part of the charges of habitual criminal charges that are against you, that will not be substantive evidence as to the particular time that you did or did not commit those crimes, even if you must discuss them openly. In other words, the matter will be submitted to the jury, if it is appropriate on the habitual criminal charges and the prosecution still has to prove those beyond a reasonable doubt as well. Your testimony will not be used against you for that purpose.

The trial court concluded that these advisements satisfied Curtis, and denied Blehm's Crim P. 35(c) motion to set aside his conviction. The court of appeals found that these advisements were inadequate under Curtis because the defendant was not informed that (1) his prior convictions could be used only for impeachment purposes and (2) the jury could be instructed about this limited use of the convictions. Thus, the court of appeals reversed and ordered a new trial. See People v. Blehm, No. 94CA1057, slip op. at 5-6 (Colo.App. May 16, 1996) (not selected for official publication). We granted certiorari, vacated that judgment, and remanded the case to the court of appeals for reconsideration in light of People v. Gray, 920 P.2d 787 (Colo.1996) and People v. Deskins, 927 P.2d 368 (Colo.1996). See People v. Blehm, No. 96SC524 (Colo. Jan. 27, 1997). In Gray and Deskins, we rejected the defendant's argument that his advisement was inadequate under Curtis because he was not informed that a prior conviction could be used only for impeachment; instead, we found it sufficient to advise the defendant that a prior conviction could be used to impeach his credibility. See Deskins, 927 P.2d at 370-71

; Gray, 920 P.2d at 791.

Upon reconsideration, the court of appeals again reversed and remanded for a new trial. See Blehm II, No. 94CA1057, slip op. at 1. The court of appeals found the trial court's advisements deficient under Curtis, even in light of Gray and Deskins, because the defendant was not informed that, if he chose to testify, the jury would be instructed that his previous convictions could be considered only for impeachment purposes. See id. at 5-6. We granted certiorari to consider whether the Curtis advisement requirement should be retained and, if so, whether the advisements given Blehm complied with Curtis.

B.

On April 30, 1993, defendant James E. Saint-Veltri was arrested for possession of cocaine. A preliminary hearing was scheduled for July 27, 1993, in Denver County Court. Saint-Veltri failed to appear at the hearing, prompting the county court to issue a warrant for his arrest. Detective Steven Barnhill, who was to appear at the hearing pursuant to a subpoena, was advised by the deputy district attorney that the arrest warrant had been issued. On July 28, 1993, Saint-Veltri's attorney, James Covino, contacted Saint-Veltri and arranged a meeting at the county court for the following day. On July 29, 1993, Covino met with Saint-Veltri and requested the county court to produce Saint-Veltri's file for the purpose of having the county court call up the matter. The county court could not locate the file, however, and arranged to have the matter set for the following day. Covino subsequently located the file in the Denver District Court on July 30, 1993. Covino promptly took the file to the county court, where the warrant was vacated. A county court clerk made a notation on the back of the file indicating that the warrant had been vacated. Covino then returned the file to the district court, where the warrant was destroyed.

On August 2, 1993, Detective Barnhill and Detective Patrick Fitzgibbons went to the district court to obtain a copy of the warrant. Neither detective was aware that the warrant had been vacated by the county court. A district court clerk, who was out of the office on the day the warrant was vacated, could not locate the warrant in Saint-Veltri's file and did not see the notation on the back of the file. After checking the computer files and minute orders, both of which indicated that a warrant should have been issued for Saint-Veltri's arrest, the clerk issued a new arrest warrant.

On August 3, 1993, the district court entered an order vacating the warrant. Unaware of this fact and acting pursuant to the warrant, Detective Barnhill and several officers arrested Saint-Veltri later that same day. As the police approached, Saint-Veltri ran and was seen tossing a small packet that was later retrieved and determined to hold cocaine. After he was arrested, Saint-Veltri admitted to possessing cocaine, and consented to a search of his vehicle where more cocaine was found. Saint-Veltri was charged with possession...