People v. Curtis, No. 81CA0563

Docket NºNo. 81CA0563
Citation657 P.2d 990
Case DateOctober 14, 1982
CourtCourt of Appeals of Colorado

Page 990

657 P.2d 990
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Arthur CURTIS, Defendant-Appellant.
No. 81CA0563.
Colorado Court of Appeals, Div. II.
Oct. 14, 1982.
Rehearing Denied Nov. 4, 1982.
Certiorari Granted Jan. 24, 1983.

Page 991

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sp. Asst. Atty. Gen., Laura E. Udis, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Allen, Foreman & Mueller, Norman R. Mueller, Susan L. Foreman, Denver, for defendant-appellant.

BERMAN, Judge.

Defendant appeals his conviction of assault in the first degree and the use of a deadly weapon. We reverse and remand for a new trial.

The victim was shot as he entered his home one afternoon. The identity of the assailant was at issue at trial with defendant presenting the defense of alibi.

The defendant did not testify on his own behalf at trial. However, at a hearing on an amended motion for a new trial, he testified that the decision that he not testify at trial had been that of his counsel and he did not realize that he could overrule his lawyer's decision.

I.

The defendant has a constitutionally protected right to testify on his own behalf. People v. Chavez, 621 P.2d 1362 (Colo.1981) (Quinn, J., specially concurring). In deciding as to a waiver of this right, the defense counsel must be governed by the will of the defendant. McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971). See also Winters v. Cook, 489 F.2d 174 (5th Cir.1973).

A waiver is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). And, relative to the right here at issue: "Strong and unmistakable circumstances may upon occasion establish an effective equivalent to an express waiver. To constitute such a waiver, the attendant facts must show clearly and convincingly that the accused did relinquish his constitutional rights knowingly, intelligently and voluntarily." Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970). Also, whether a proper waiver exists is to be determined by the trial court, and the basis of that determination should appear on the record. Johnson v. Zerbst, supra.

In light of these considerations, we hold that when there is ostensibly a waiver of this fundamental right by a defendant,

Page 992

the trial court has a duty and obligation to question the defendant to ascertain whether that waiver was made by the defendant...

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7 practice notes
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...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 Page 5......
  • People v. Mozee, No. 84SA411
    • United States
    • Colorado Supreme Court of Colorado
    • June 23, 1986
    ...for a judgment of acquittal or in the alternative for a new trial. Relying on the Colorado Court of Appeals' decision in People v. Curtis, 657 P.2d 990 (Colo.App.1982), aff'd, 681 P.2d 504 (Colo.1984), he asserted for the first time that "[t]he Court erred in failing to advise the defendant......
  • State v. Lewis, No. 22901.
    • United States
    • Court of Appeals of Hawai'i
    • September 25, 2000
    ...Several considerations influence our decision to reach a conclusion that contrasts with the requirement imposed in [People v. ]Curtis[, 657 P.2d 990 (Colo.App.1982), aff'd, 681 P.2d 504 (Colo.1984), ]of a mandatory advisement of the right to testify whenever a defendant chooses to remain si......
  • People v. Binkley, No. 82CA0931
    • United States
    • Colorado Court of Appeals of Colorado
    • March 1, 1984
    ...its wholesale price. We affirm. I. Asserting plain error, the defendant contends that this court established a rule in People v. Curtis, 657 P.2d 990 (Colo.App.1982) (cert. granted January 24, 1983) requiring a trial court to advise a defendant of the constitutional right to testify and to ......
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7 cases
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...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 Page 5......
  • People v. Mozee, No. 84SA411
    • United States
    • Colorado Supreme Court of Colorado
    • June 23, 1986
    ...for a judgment of acquittal or in the alternative for a new trial. Relying on the Colorado Court of Appeals' decision in People v. Curtis, 657 P.2d 990 (Colo.App.1982), aff'd, 681 P.2d 504 (Colo.1984), he asserted for the first time that "[t]he Court erred in failing to advise the defendant......
  • State v. Lewis, No. 22901.
    • United States
    • Court of Appeals of Hawai'i
    • September 25, 2000
    ...Several considerations influence our decision to reach a conclusion that contrasts with the requirement imposed in [People v. ]Curtis[, 657 P.2d 990 (Colo.App.1982), aff'd, 681 P.2d 504 (Colo.1984), ]of a mandatory advisement of the right to testify whenever a defendant chooses to remain si......
  • People v. Binkley, No. 82CA0931
    • United States
    • Colorado Court of Appeals of Colorado
    • March 1, 1984
    ...its wholesale price. We affirm. I. Asserting plain error, the defendant contends that this court established a rule in People v. Curtis, 657 P.2d 990 (Colo.App.1982) (cert. granted January 24, 1983) requiring a trial court to advise a defendant of the constitutional right to testify and to ......
  • Request a trial to view additional results

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