People v. Deskins, No. 93CA0750

Docket NºNo. 93CA0750
Citation904 P.2d 1358
Case DateMarch 23, 1995
CourtCourt of Appeals of Colorado

Page 1358

904 P.2d 1358
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Gerald DESKINS, Defendant-Appellant.
No. 93CA0750.
Colorado Court of Appeals,
Div. IV.
March 23, 1995.
Rehearing Denied May 4, 1995.
Certiorari Denied Oct. 30, 1995.

Page 1359

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge NEY.

Defendant, Gerald Edward Deskins, appeals the judgment entered on jury verdicts convicting him of three counts of child abuse resulting in death, three counts of vehicular homicide, two counts of vehicular assault, one count of driving under the influence, and one count of child abuse resulting in serious bodily harm. Premised on six prior felony convictions, defendant was also adjudicated to be an habitual criminal. We reverse the judgments based on the failure of the trial court properly to advise defendant of his right to testify and remand for a new trial with directions to dismiss habitual counts thirteen and fourteen and to review defendant's collateral attack on the validity of his allegedly unconstitutional prior convictions in light of People v. Wiedemer, 852 P.2d 424 (Colo.1993).

In August 1992, a car driven and occupied only by defendant, who was under the influence of alcohol, collided with another car occupied by a woman, her three children, and a neighbor's child. As a result of the collision, three of the children were fatally injured and the woman and one child sustained serious injuries.

I

Defendant contends that the trial court did not adequately advise him of his right to testify and, therefore, that his waiver of this right was invalid. We agree.

Criminal defendants have a Fourteenth Amendment due process right to testify on their own behalf. A defendant may waive that right, but to assure that such a waiver is voluntary, knowing, and intentional, the trial court must advise the defendant

Page 1360

outside the presence of the jury that he has a right to testify, that if he wants to testify that he cannot be prevented from doing so, and that if he testifies, the prosecution will be allowed to cross-examine him. People v. Curtis, 681 P.2d 504 (Colo.1984).

The trial court must also inform the defendant 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 will be instructed to consider it only as it bears upon defendant's credibility. People v. Curtis, supra. See also People v. Chavez, 853 P.2d 1149 (Colo.1993) (Chavez II ) (if defendant testifies, he is entitled to an instruction informing the jury that evidence of prior felonies is admitted only for limited purpose of impeaching credibility).

Evidence of a defendant's prior felony convictions elicited during trial on substantive charges is not admissible for substantive purposes in a pending habitual criminal proceeding. And, the prosecution must prove beyond a reasonable doubt the defendant's prior convictions by duly authenticated records of those convictions or other evidence independent of defendant's testimony. People v. Chavez, 621 P.2d 1362 (Colo.1981), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981) (Chavez I ).

Although we recognize that there is no prescribed litany or formula which must be followed in advising a defendant of his or her right to testify, Chavez II, supra, we conclude that the trial court's advisement here did not adequately inform defendant of the limited impeachment purpose for which his testimony relating to prior convictions would be admissible.

Here, the trial court advised the defendant as follows:

Sir, you are advised that you have both the right to remain silent and the right to testify. That that decision is your decision certainly to be made with the advice and assistance of your attorney and whoever else you may have conferred with, but the decision is yours. If you decide not to testify before the jury and exercise your right to remain silent, you are entitled to an instruction to the jury that they are to draw no inference of guilt from the fact that you did not testify. If you decide to testify anything that you do say to the jury can be used both for you and against you, and you would be subject to cross-examination and impeachment. And in this case we are aware that there are prior felony convictions upon which you may be impeached, and the jury would have the opportunity to know and hear of the fact that you have prior felony convictions. And would be entitled to an instruction or the People would be entitled to an instruction on credibility with regard to prior criminal convictions.

Thus, the court did not advise defendant that his prior convictions were admissible only for the limited purpose of credibility.

Based on the advisement given, defendant could reasonably have inferred that the prosecution would be relieved of its burden to prove his...

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6 practice notes
  • People v. Deskins, No. 95SC360
    • United States
    • Colorado Supreme Court of Colorado
    • October 15, 1996
    ...of driving under the influence, 4 one count of child abuse resulting in injury, 5 and six habitual offender counts. 6 People v. Deskins, 904 P.2d 1358 (Colo.App.1995). Deskins was sentenced to five consecutive terms of life imprisonment. He also was sentenced to four additional terms of lif......
  • People v. Bielecki, No. 97CA0400
    • United States
    • Colorado Court of Appeals of Colorado
    • August 6, 1998
    ...902(1) and (4), which covers self-authenticating documents, can support a conviction under § 16-13-102. See Page 609 People v. Deskins, 904 P.2d 1358 (Colo.App.1995), aff'd in part, rev'd in part on other grounds, 927 P.2d 368 Our review of the record indicates that each of the documents su......
  • People v. Gregg, No. 07CA2511.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 8, 2011
    ...data compilation, in any form, is from the public office where items of this nature are kept.” CRE 901(b)(7); see also People v. Deskins, 904 P.2d 1358, 1362 (Colo.App.1995) (holding that Kansas Bureau of Investigation record of the defendant's conviction was admissible as a public record u......
  • People v. Warrick, No. 09CA2783.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 27, 2011
    ...Therefore, the booking reports were sufficiently authenticated as public records under CRE 901(b)(7). See People v. Deskins, 904 P.2d 1358, 1362 (Colo.App.1995) (record of defendant's conviction in Kansas was sufficiently authenticated as a public record because it contained his name and id......
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6 cases
  • People v. Deskins, No. 95SC360
    • United States
    • Colorado Supreme Court of Colorado
    • October 15, 1996
    ...of driving under the influence, 4 one count of child abuse resulting in injury, 5 and six habitual offender counts. 6 People v. Deskins, 904 P.2d 1358 (Colo.App.1995). Deskins was sentenced to five consecutive terms of life imprisonment. He also was sentenced to four additional terms of lif......
  • People v. Bielecki, No. 97CA0400
    • United States
    • Colorado Court of Appeals of Colorado
    • August 6, 1998
    ...902(1) and (4), which covers self-authenticating documents, can support a conviction under § 16-13-102. See Page 609 People v. Deskins, 904 P.2d 1358 (Colo.App.1995), aff'd in part, rev'd in part on other grounds, 927 P.2d 368 Our review of the record indicates that each of the documents su......
  • People v. Gregg, No. 07CA2511.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 8, 2011
    ...data compilation, in any form, is from the public office where items of this nature are kept.” CRE 901(b)(7); see also People v. Deskins, 904 P.2d 1358, 1362 (Colo.App.1995) (holding that Kansas Bureau of Investigation record of the defendant's conviction was admissible as a public record u......
  • People v. Warrick, No. 09CA2783.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 27, 2011
    ...Therefore, the booking reports were sufficiently authenticated as public records under CRE 901(b)(7). See People v. Deskins, 904 P.2d 1358, 1362 (Colo.App.1995) (record of defendant's conviction in Kansas was sufficiently authenticated as a public record because it contained his name and id......
  • Request a trial to view additional results

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