People v. Curtis

• Citation: 681 P.2d 504
• Decision Date: 23 April 1984
• Docket Number: 83SC26,Nos. 82SC414,s. 82SC414
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Arthur CURTIS, Respondent. Dennis Ray JONES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

Page 504

681 P.2d 504

The PEOPLE of the State of Colorado, Petitioner v. Arthur CURTIS, Respondent.

Dennis Ray JONES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 82SC414, 83SC26.

Supreme Court of Colorado,

En Banc.

April 23, 1984.

Rehearing Denied May 7, 1984.

As Modified on Denial of Rehearing

May 21, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Laura E. Udis, Richard H. Forman, Maureen Phelan, Asst. Atty. Gen., Denver, for the People.

Allen, Foreman & Mueller, Norman R. Mueller, Susan L. Foreman, Denver, for Curtis and Jones.

Richard H. Forman, Maureen Phelan, Asst. Attys. Gen., Denver, Attorneys for respondent.

LOHR, Justice.

The Colorado Court of Appeals held in People v. Curtis, 657 P.2d 990 (Colo.App.1982), that when a defendant waives the right to testify on his own behalf, the trial court has a duty to ascertain on the record whether the defendant makes that waiver with a complete understanding of his rights, including the right to override the advice of his counsel not to testify. The issue of waiver of the right to testify also arose in People v. Jones, 665 P.2d 127 (Colo.App.1982). We granted certiorari in these cases, and now adopt the principle set forth by the court of appeals in Curtis. We hold that defendant Arthur Curtis did not voluntarily, knowingly and intentionally relinquish the right to testify. He is entitled to a new trial. We hold that defendant Dennis Ray Jones did waive his right to testify. His conviction is affirmed.

I.

The facts of each case concerning waiver of the right to testify are as follows:

A.

Arthur Curtis was brought to trial before a jury in 1981 and was found guilty of first-degree assault. ¹ He did not testify at trial. Curtis raised the issue of effective waiver of his right to testify in a motion for a new trial.

During the trial, both after the prosecution rested and after the defense rested, Curtis, his counsel and the prosecutor appeared before the judge out of the presence of the jury. During these times, Curtis did not speak to the judge about testifying or about anything else. Immediately before the lunch recess following the presentation of the defendant's case, Curtis' trial lawyer told the judge that Curtis would not testify, and the defense rested. When Curtis returned from the recess over two hours later, he was intoxicated. The case was then submitted to the jury, which found him guilty of first-degree assault. Curtis moved for a new trial, and an evidentiary hearing was held on that motion.

Curtis was represented by different lawyers before, during, and after trial. Each of the first two lawyers testified at the hearing on the new trial motion, as did the defendant. A summary of their relevant testimony follows.

Curtis' pretrial lawyer conferred with him at least twice. She stated at a hearing on the new trial motion that it was her practice at the beginning of a case to advise her client generally of his options. This included explaining that a client has the right to testify or not to testify, and that no one can take that decision away from the client. When a case was set for trial it was her practice to talk to her client again about testifying. She would tell her client that she would offer advice about whether to testify, but that "what I think doesn't matter" because an accused person has an absolute right to testify. She did not remember telling this "general story" to Curtis, but she said that she assumed she had done so because she talked to all her clients thoroughly. She remembered discussing Curtis' alibi defense with him, and was "sure" that she had told him that they would make the final decision about testifying after hearing the prosecution's case, although she acknowledged that she did not recall actually saying this to Curtis. Curtis stated under oath that she did not advise him of his right to testify.

Curtis' trial lawyer recalled that after hearing the prosecution's case he had decided that Curtis would not testify, and told him so. Curtis did not respond. The lawyer never advised Curtis that whether to testify was Curtis' decision.

Curtis gave evidence at the hearing that he understood in a general sense that he had a right to testify, but he did not realize that he could override his trial lawyer's decision. Curtis said that if he had known that the decision was his, he would have testified regarding his alibi.

At the conclusion of the hearing, the trial court denied the new trial motion, finding that Curtis' conduct in returning to the courtroom intoxicated after the noon recess demonstrated an intention not to testify. The court of appeals ordered a new trial, holding that when there is ostensibly a waiver of this fundamental right [to testify] by a defendant, the trial court has a duty and obligation to question the defendant to ascertain whether that waiver was made by the defendant with a complete understanding of his rights, including the right to override the contrary advice of his counsel.

People v. Curtis, 657 P.2d at 991-92.

B.

Dennis Ray Jones was convicted of first-degree murder ² after a jury trial in 1974. He did not testify at trial. He raised the issue of uninformed waiver of his right to testify in a 1980 pro se motion for postconviction relief. ³

Jones was represented by two lawyers throughout the trial. His lead counsel stated under oath at the hearing on the 1980 motion that he had told Jones that he had a right to take the stand, and that only Jones could decide whether to exercise that right. He had advised Jones not to testify because if he took the stand his criminal record could be revealed to the jury, his alibi testimony would be uncorroborated, and he might lose his self-control while testifying. Lead counsel recalled that Jones had said he would follow counsel's recommendation and not testify.

Co-counsel also gave evidence at the motion hearing and stated that he believed that defendants should take the stand when at all possible, and that he knew that the defendant has the right to make that decision. He recalled presenting to Jones the advantages and disadvantages of testifying, and recommending along with lead counsel that Jones not take the stand. Co-counsel did not remember whether he had told Jones that the decision whether to testify rested with Jones, but he did remember that he had not told Jones that he could not testify.

Jones attested at the 1980 postconviction hearing that he had wanted to testify at his trial. However, he had found counsel's review of the disadvantages of testifying "somehow threatening." It was Jones' impression that lead counsel was ordering him not to testify and demanding that he not testify. He said that lead counsel had told him that if he took the witness stand he would be convicted, and counsel would "want nothing to do with the case."

Jones also avowed that he had brought this dispute to the attention of the trial judge, and the judge had told him, "Your lawyer advised against it. I suggest you don't take the stand, ... just go along with your attorney, what your attorney say[s]." Jones admitted that no such statement appears in the record, and the trial judge stated under oath at the hearing that he never proceeded in a criminal case without a court reporter present. Jones, appearing pro se at the hearing, did not question the judge on this subject. Jones acknowledged that in earlier cases in which he was the defendant he had been informed by the court that he had a constitutional right to testify.

At the end of the hearing on postconviction relief, the district court told Jones, "I find that [your lawyers] informed you that you did have the right to take the stand and that you made a decision jointly or on your own behalf not to do that." The motion was denied. The court of appeals affirmed without discussing whether Jones' right to testify had been effectively waived. People v. Jones, 665 P.2d at 131.

II.

The common issue in these cases is waiver of the right to testify. The standards for waiver are determined by the nature of the right to testify itself.

A.

A defendant in a criminal case has the constitutional right to testify in his own defense under the due process clauses of the United States Constitution, amend. XIV, and the Colorado Constitution, Art. II § 25. Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972); People v. Myrick, 638 P.2d 34, 38 (Colo.1981). While the United States Supreme Court has never had occasion to enunciate explicitly and unequivocally that there is a due process right to testify, the cumulative effect of its pronouncements on the subject leaves no doubt that such a right exists. Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975); Brooks v. Tennessee, 406 U.S. at 612, 92 S.Ct. at 1895; Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 647, 28 L.Ed.2d 1 (1971); In re Oliver, 333 U.S. 257, 273, 275, 68 S.Ct. 499, 507, 508, 92 L.Ed. 682 (1948); see also United States v. Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978); accord People v. Chavez, 621 P.2d 1362, 1368 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (Quinn, J., concurring). This court has stated on several occasions that the right to testify is constitutional. People v. Walker, 666 P.2d 113 (Colo.1983); People v. Myrick, 638 P.2d at 38; People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419 (1978). Our recognition of the constitutional right to testify is in accordance with the large majority of authority in both state ⁴ and federal ⁵ courts. Colorado courts have held that the federal due process right to testify may...