People v. Edwards

• Decision Date: 15 July 2004
• Docket Number: No. 02CA2487.,02CA2487.
• Citation: 101 P.3d 1118
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William EDWARDS, Defendant-Appellant.
• Court: Colorado Court of Appeals

101 P.3d 1118

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William EDWARDS, Defendant-Appellant.

No. 02CA2487.

Colorado Court of Appeals, Div. A.

July 15, 2004.

Certiorari Granted December 6, 2004.¹

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

William Edwards, Pro Se.

Opinion by Chief Judge DAVIDSON.

Defendant, William Edwards, appeals from the postconviction court order denying his Crim. P. 35 motion. We affirm.

In a previous opinion in this appeal, a division of this court remanded the case to the postconviction court for further proceedings regarding defendant's claims that he was deprived of his constitutional rights to self-representation and to confront adverse witnesses:

On remand the court should consider the merits of those claims, including any affirmative defenses that may be asserted by the prosecution, and, if necessary, hold an evidentiary hearing. If the court concludes that the claims can be resolved without a hearing, it should issue an order that details its findings of fact and conclusions of law.

People v. Edwards, 2002 WL 1764426 (Colo.App. No. 00CA2006, Jan. 17, 2002) (not published pursuant to C.A.R. 35(f)). On remand, the trial court rejected both claims based on the existing record.

I.

Defendant first contends that the trial court deprived him of his right to represent himself and that the postconviction court erred by denying his motion on that basis. We disagree.

As a corollary to the constitutional right to counsel, a criminal defendant has the alternative right to self-representation. Colo. Const. art. II, § 16; Downey v. People, 25 P.3d 1200 (Colo.2001); People v. Stanley, 56 P.3d 1241 (Colo.App.2002).

The right is personal to the defendant and may not be abridged by requiring a defendant to accept a lawyer when he or she wants to proceed pro se. People v. Romero, 694 P.2d 1256 (Colo.1985); People v. Vialpando, 954 P.2d 617 (Colo.App.1997).

However, the right to self-representation is not unqualified, and to assert that right, a defendant must make a timely and unequivocal request to waive counsel and proceed pro se. People v. Vialpando, supra; People v. Harris,

914 P.2d 434 (Colo.App.1995). If a defendant's request to proceed pro se is stated in uncertain terms or in an uncertain manner, it cannot be considered either a demand for self-representation or a waiver of the right to counsel. People v. Shepard, 989 P.2d 183 (Colo.App.1999); People v. Bolton, 859 P.2d 303 (Colo.App.1993).

Here, after the trial court granted defense counsel's motion to withdraw, defendant indicated that he was "prepared to go to trial today with or without an attorney." The court told defendant that his trial was not going to begin that day and asked whether he wanted the court to appoint an attorney who had previously represented him in other cases. Defendant indicated that he did not want to be represented by that or any other attorney and repeated that he was "prepared to go to trial and represent" himself.

The court then told defendant:

[W]hat I am going to do is reset your trial. I will appoint counsel to represent you. I will have that person come to the jail to talk with you. If you determine that you do not want representation that is an inquiry that [the judge who is going to preside at trial] can make of you.

Defendant thereafter appeared for trial with counsel and did not express dissatisfaction with his new attorney, seek to have counsel removed, or request that he be permitted to represent himself.

Based on this record, the postconviction court correctly concluded that defendant did not make an unequivocal request to proceed pro se and that he was thus not entitled to relief on the ground that the trial court deprived him of his right to self-representation. See People v. Shepard, supra; People v. Harris, supra.

II.

When police officers pulled over defendant's car for driving infractions, the victim, whose face had been badly beaten, got out of the car and ran toward them, yelling, "He beat me, he beat me." The victim was then transported to the hospital, where she told the doctor and nurse who treated her that she had been beaten and forced to smoke crack cocaine.

The victim did not testify at trial. However, the trial court admitted a police officer's testimony regarding her statements at the scene pursuant to CRE 803(2), the excited utterance exception to the hearsay rule, and admitted the nurse's testimony regarding the victim's statements at the hospital under CRE 803(4), the hearsay exception that governs statements made for the purpose of medical diagnosis or treatment, and CRE 803(6), the business records exception.

On appeal, defendant contends that, because the victim did not testify at trial, the trial court's admission of her statements violated his right to confront his accuser and that the postconviction court erred by denying his motion on that basis. We disagree.

A.

While this appeal was pending, the United States Supreme Court announced Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which abrogated the well-established two-prong test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for determining whether the admission of hearsay testimony violates a defendant's constitutional right of confrontation. See People v. Fry, 92 P.3d 970 (Colo.2004)

.

Under Roberts, out-of-court statements made by a nontestifying witness are constitutionally admissible against an accused at trial only if the prosecution demonstrates that the declarant is unavailable and establishes that the statements either fall within a firmly rooted hearsay exception or possess "particularized guarantees of trustworthiness." Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539; see also Stevens v. People, 29 P.3d 305 (Colo.2001),

overruled in part by People v. Fry, supra; People v. Dement, 661 P.2d 675 (Colo.1983),

overruled in part by People v. Fry, supra; People v. Stephenson, 56 P.3d 1112 (Colo.App.2001).

Crawford established a new test, which requires a threshold determination whether the challenged statements are testimonial in nature, and held that "testimonial" statements by a witness not present at trial may only be admitted if the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the declarant. The Crawford Court thus held that cross-examination is the "constitutionally prescribed method for assessing the reliability" of testimonial statements in criminal trials. Crawford v. Washington, supra, 541 U.S. at ___, 124 S.Ct. at 1370; see also People v. Fry, supra.

A division of this court has recognized that Crawford applies retroactively to cases pending on direct appeal at the time it was announced. People v. Compan, 100 P.3d 533, 2004 WL 1123526 (Colo.App. No. 02CA1469, May 20, 2004). However, the question whether Crawford applies retroactively in postconviction proceedings involving convictions that became final before it was announced is an issue of first impression in Colorado. We conclude that Crawford is not applicable here.

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that a new constitutional rule of criminal procedure generally will not apply retroactively in cases on collateral review. A new rule is one that either "breaks new ground or imposes a new obligation on the States or Federal Government" or requires a result "not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349; see People v. Bradbury, 68 P.3d 494, 497 (Colo.App.2002)

.

A rule is substantive "if it alters the range of conduct or the class of persons that the law punishes," while a procedural rule "regulate[s] only the manner of determining the defendant's culpability." Schriro v. Summerlin, ___ U.S. ___, ___, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004)(emphasis in original).

As the Court in Crawford noted, the Confrontation Clause "is a procedural rather than a substantive guarantee," and, with respect to testimonial statements, cross-examination is the constitutionally required procedure for effectuating that guarantee. Crawford v. Washington, supra, 541 U.S. at ___, 124 S.Ct. at 1370, 1373; see also People v. Fry, supra.

Because the manner in which a procedural guarantee is implemented is itself procedural, Crawford announced a procedural, not a substantive rule. And because Crawford essentially overruled Roberts, at least as it applies to testimonial statements, its holding must be considered a new rule of criminal procedure. See Murillo v. Frank, 316 F.Supp.2d 744 (E.D.Wis.2004)

(under the Antiterrorism and Effective Death Penalty Act of 1996, Supreme Court cases that apply an "old rule" within the meaning of Teague constitute "clearly established federal law as determined by the Supreme Court" and therefore apply retroactively in habeas proceedings; because Crawford established a "new rule" within the meaning of Teague, it did not apply retroactively in a habeas proceeding in which the petitioner challenged the state court's prior adjudication of his Confrontation Clause claim); see also Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993)(a decision announces a new rule if it expressly overrules a prior decision); Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 113 (Colo.1992)(to "establish a new rule of law, a judicial decision must either overrule clear past precedent on which the litigants may have relied or must resolve an issue of first impression not clearly foreshadowed by prior precedent").

There are two exceptions to the general rule that new rules of criminal procedure do not apply retroactively to cases under collateral review. The first exception, which allows...