People v. Deskins

Decision Date15 October 1996
Docket NumberNo. 95SC360,95SC360
Citation927 P.2d 368
PartiesThe PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Gerald DESKINS, Respondent/Cross-Petitioner.
CourtColorado Supreme Court

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert M. Russel, First Assistant Attorney General, Wendy J. Ritz and Paul E. Koehler, Assistant Attorneys General, Criminal Enforcement Section, Denver, for Petitioner/Cross-Respondent.

David F. Vela, Colorado State Public Defender, and C. Keith Pope, Deputy State Public Defender, Denver, for Respondent/Cross-Petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review certain questions regarding the court of appeals' decision reversing the convictions of Gerald Deskins (Deskins) for three counts of vehicular homicide, 1 three counts of child abuse resulting in death, 2 two counts of vehicular assault, 3 one count 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 life imprisonment and one year in the county jail. The latter sentences were to be served concurrently with the other sentences. The issues before us are:

1. Whether the defendant, who faced both substantive charges and habitual criminal charges, was adequately advised of his right to testify.

2. Whether the court of appeals erred in holding that reckless child abuse does not require an awareness by the accused that his conduct could result in injury to a child rather than an adult.

Because we find dispositive our recent decision in People v. Gray, 920 P.2d 787 (Colo.1996), we reverse the court of appeals' holding on the first issue that the Curtis advisement given in this case constituted reversible error. See People v. Curtis, 681 P.2d 504 (Colo.1984).

On the second issue, we agree with the court of appeals that the defendant was properly convicted of the child abuse charges. Thus, we affirm in part and reverse in part.

I

In August, 1992, Deskins, while driving under the influence of alcohol, collided with another car occupied by a woman and four children. As a result of the collision, three of the children were killed and the woman and one child sustained serious injuries.

At trial, out of the presence of the jury, the trial court gave Deskins the following advisement with respect to his right to testify:

Sir, you are advised that you have both the right to remain silent and the right to testify. 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 you do say to the jury can be used 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.

In its opinion, the court of appeals noted that the trial court did not specifically advise Deskins that his prior felony convictions were admissible only for the limited purpose of credibility. Deskins, 904 P.2d at 1360. The court of appeals concluded that the advisement was therefore inadequate. Id.

In its ruling, the court of appeals relied on its earlier decision in People v. Gray, 899 P.2d 290 (Colo.App.1994). Deskins, 904 P.2d at 1360. We reversed Gray and rejected its analysis of the Curtis advisement issue in People v. Gray, 920 P.2d 787 (Colo.1996). Our Gray decision held that the advisement given in that case was sufficient to establish that the defendant's waiver of his right to testify was voluntary, knowing, and intelligent. Gray, 920 P.2d at 790.

The trial court's duty to make an on-the-record advisement of the defendant's right to testify was established in People v. Curtis, 681 P.2d 504 (Colo.1984). We held that in order to ensure that a waiver was given voluntarily, knowingly, and intentionally, the trial court should advise the defendant outside the presence of the jury

that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, 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 can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.

Id. at 514 (emphasis added). The critical part of the Curtis advisement for both Gray and the case now before us is the underscored language above. In Gray, we were divided on the question of whether an advisement must inform the defendant that prior felony convictions could be used only for the purpose of impeaching the defendant's credibility or words to that effect. See Gray, 920 P.2d at 795-97 (Lohr, J., concurring and dissenting). The majority, while acknowledging that it would be better practice to use such qualifying language in the advisement, held that the advisement given was adequate because it informed the defendant that his prior felonies could be raised by the prosecution to impeach his credibility. Gray, 920 P.2d at 791.

The advisement given in the present case cannot be distinguished from the advisement given in Gray. Both advisements informed the defendant that prior felony convictions could be used by the prosecution to impeach him on cross-examination. In Gray, the trial court advised, " 'If you do testify you should note that the District Attorney will be able to cross-examine you about the facts of this particular case.' " Gray, 920 P.2d at 789. Similarly, in this case, Deskins was advised, "If you decide to testify anything you do say to the jury can be used for you and against you, and you would be subject to cross-examination and impeachment." Both advisements also informed the defendant of the use of those felony convictions for credibility purposes. In Gray, the trial court advised,

I understand from my review of the file that there is some issue as to whether or not you have been convicted of six prior felonies, at least that's the allegation with respect to the other part of this case. As a result of that, I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies. The six prior felonies would be admissible with respect to credibility. The District Attorney can in fact talk about them.

Gray, 920 P.2d at 789 (emphasis in original). Similarly, in this case, Deskins was advised as follows:

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. 7

(emphasis added). Therefore, in light of our decision in Gray, we hold that the advisement given in this case with respect to prior felonies was adequate to assure that Deskins knowingly, voluntarily, and intentionally waived his right to testify.

II

The second issue on which we granted certiorari concerns whether the defendant can be convicted of reckless child abuse when there was no evidence that he knew that his conduct could result in injury to a child rather than to an adult. The defendant contends that at the time of the accident he was not aware that there were children in the car that his vehicle struck. He argues that without such an awareness, he should not be held liable for child abuse.

The specific statute in question states that a person is guilty of child abuse if he or she "causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation which poses a threat of injury to the child's life or health...." § 18-6-401(1), 8B C.R.S. (1996 Supp.). A child is defined as a person under sixteen years of age. § 18-6-401(2), 8B C.R.S. (1986). The statute also states that where death or serious bodily injury results, the following shall apply:

(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony.

....

(III) When a person acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony. 8

§§ 18-6-401(7)(a)(I) and (III), 8B C.R.S. (1986).

The culpable mental states applicable to a crime of child abuse relate not to a particular result, but rather to the nature of the offender's conduct in relation to the child or to the circumstances under which the act or omission occurred. Lybarger v. People, 807 P.2d 570, 575 (Colo.1991). A person acts "recklessly" when he or she consciously disregards a substantial and unjustifiable risk that, in light of the child's circumstances, a particular act or omission will place a child in...

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