People v. Chavez, 89CA1390
| Decision Date | 19 December 1991 |
| Docket Number | No. 89CA1390,89CA1390 |
| Citation | 832 P.2d 1026 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John B. CHAVEZ, Defendant-Appellant. . IV |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Judy L. Lucero, Sp. Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge REED.
Defendant, John B. Chavez, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of attempted second degree burglary and four habitual criminal counts. We reverse and remand for a new trial.
Defendant contends that the advisement given by the trial court regarding his right to testify was inadequate. We agree.
The right to testify on one's own behalf is so tied to fundamental concepts of justice that procedural safeguards must be employed both to insure that defendant is adequately apprised of such right and that any waiver thereof is made voluntarily, knowingly, and intelligently. People v. Curtis, 681 P.2d 504 (Colo.1984); People v. Romero, 767 P.2d 782 (Colo.App.1988).
Accordingly, it is required practice that every defendant be advised on the record by the court and outside the presence of the jury that he has the right to testify or not, that the ultimate decision whether to testify must be made by him, that no one can prevent him from doing so, that should he choose to testify, the prosecution will be permitted to cross-examine him concerning prior felony convictions, and that if cross-examination discloses prior convictions, the jury can be instructed to consider them only as they bear upon defendant's credibility. People v. Curtis, supra.
Moreover, if defendant is facing habitual criminal counts, he is entitled to be advised that any admissions of prior felony convictions made by him during the substantive phase of the trial cannot be used by the prosecution to prove the habitual offender charges. People v. Tafoya, 654 P.2d 1342 (Colo.App.1982).
The foregoing sets forth the essential elements of advisement procedures to be undertaken in trials involving habitual criminality. It thus remains the trial court's duty in those proceedings properly to advise defendant in accordance with Curtis and to explain the effect of his testimony upon the habitual criminal charges, so that a reviewing court can ascertain whether defendant was adequately advised of his right to testify. See People v. Romero, supra. These procedures are critically important to obtain assurance that defendant understands the real consequences of deciding to testify.
We recognize that neither Curtis nor Tafoya purport to establish what are the minimum requirements necessary to a valid waiver of 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). The validity of waiver must be based on the totality of circumstances and mandates a degree of compliance that is substantial when tested against the above-mentioned requirements. Consequently, the trial court's determination that there has been a waiver of the right to testify will be upheld so long as the record reflects that defendant was adequately apprised of such right and contains competent evidence to support a finding that defendant would have understood the probable consequences of invoking it. Roelker v. People, supra.
Here, the totality of the advisement given by the court consisted of the following:
THE COURT: All right, we'll start over on the Curtis advisement, under the Constitution of the United States and the Constitution of Colorado, you have a right to testify if you want to. You also have a right not to testify. If you do testify, the district attorney will be allowed to cross-examine you and will be allowed to ask you about your four prior felony convictions we talked about yesterday.
Do you understand all that?
Thus, although the court did apprise defendant in accordance with the requirements of Curtis that he had the right to testify and that, if chose to do so, the prosecution could inquire about his prior felony convictions, it failed to inform him that it was his personal decision, regardless of counsel's advice. It further failed to advise him adequately as to the consequences of testifying.
Specifically, the trial court neglected to advise defendant in express terms that the jury, in connection with the substantive charge, would be instructed to consider prior felony convictions revealed during cross-examination only as they affected the credibility of his testimony. In addition, the trial court failed to advise defendant that any admission of prior convictions that he made during the trial of the substantive charge could not be used as evidence to prove the habitual criminal charges. As a result, relevant information which would have enabled defendant to make an informed and meaningful decision to testify, free of the impermissible burden recognized by our supreme court in People v. Chavez, 621 P.2d 1362 (Colo.1981), was not provided.
The People's reliance upon our decision in People v. Ball, supra, is misplaced. In Ball, defendant was instructed that the jury could consider his prior felony conviction "only as they bear upon his credibility as a witness and for no other reason." This was deemed adequate for eliciting a valid waiver. In the instant case, the trial court altogether omitted advisements regarding the evidentiary significance of defendant's prior convictions. Thus, Ball is distinguishable and would not be controlling here.
Here, the failure of the trial court to inform defendant that the decision to testify was personal to him and as to the limited evidentiary use of any admission by him, rendered the advisement inadequate. Thus, the advisement cannot provide a sufficient basis upon which to support an inference that defendant's relinquishment of his right to testify was by a valid waiver pursuant to Curtis. Cf. People v. Ball, supra. Accordingly, the defendant is entitled to a new trial.
Defendant maintains that three of the prior felony convictions forming the basis for the habitual criminal charges were constitutionally infirm. We disagree.
To establish the constitutional validity of a prior conviction resulting from a guilty plea, the record as a whole must affirmatively demonstrate that the defendant understood the constitutional rights he was waiving and the critical elements of the crime to which the plea was tendered. Lacy v. People, 775 P.2d 1 (Colo.1989), cert. denied sub nom. Colorado v. Lacy, 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 337 (1989).
A defendant attacking the constitutionality of a prior conviction in habitual criminal proceedings must make a prima facie showing that the guilty plea was unconstitutionally obtained, and having done so, the conviction is not admissible unless the prosecution establishes by a preponderance of the evidence that the conviction was obtained in accordance with the defendant's constitutional rights. Lacy v. People, supra.
Defendant argues that his 1978 Adams County conviction for first degree kidnapping is constitutionally infirm because the trial court there failed to explain the requisite culpable mental state of specific intent.
The record reveals that the charge of first degree kidnapping was read to the defendant by the trial court. Defendant executed a written plea agreement which also set forth the elements of the offense by stating, "I understand that by entering this plea I am admitting that on April 7, 1977 in ...
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