People v. Gomez
| Decision Date | 04 September 2008 |
| Docket Number | No. 06CA1205.,06CA1205. |
| Citation | 211 P.3d 53 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua Anthony GOMEZ, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
v.
Joshua Anthony GOMEZ, Defendant-Appellant.
[211 P.3d 54]
John W. Suthers, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
[211 P.3d 55]
Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge WEBB.
We conditionally affirm the judgment of conviction entered against defendant, Joshua Gomez, on a jury verdict finding him guilty of distribution of a Schedule II controlled substance in violation of section 18-18-405(1), (2)(a)(I)(A), C.R.S.2007. We remand for the trial court to conduct an evidentiary hearing on the validity of Gomez's waiver of his right to testify because we conclude that the court's advisement on this right was defective.
Gomez first contends the trial court's advisement on his right to testify under People v. Curtis, 681 P.2d 504 (Colo.1984), was defective. We agree.
To ensure that a defendant's waiver of the right to testify is voluntary, knowing, and intentional, Curtis requires the trial court to advise the defendant on five factors: (1) that he has a right to testify, (2) that no one can prevent him from doing so, (3) that if he does testify then the prosecution may cross-examine him, (4) including questions about prior felony convictions, and (5) if such a conviction is disclosed to the jury then the jury will be instructed to consider it as bearing only on the defendant's credibility. People v. Harding, 104 P.3d 881, 885 (Colo.2005).
A trial court advisement need not conform to any prescribed litany or formula, but "the advisement given must include the Curtis elements and avoid misleading a defendant about the consequences of a decision not to testify." People v. Chavez, 853 P.2d 1149, 1152 (Colo.1993)(emphasis added).
"Except for informing a defendant concerning the prosecution's use of prior felony convictions, a trial court providing a Curtis advisement is not required to advise a defendant regarding all possible areas of cross-examination." People v. Coit, 961 P.2d 524, 529-30 (Colo.App.1997). If a court's advisement goes beyond the Curtis elements, however, it must "correctly state[ ] the law." People v. Raehal, 971 P.2d 256, 260 (Colo.App.1998)(Curtis advisement correctly stated limitations on admissibility of defendant's misdemeanor convictions).
Here, Gomez concedes that the trial court correctly advised him on the five Curtis elements. But the court went beyond Curtis and asked, "Do you further understand that the prosecutor may ask you whether the conviction was by guilty plea or whether you were found guilty at trial?" Gomez argues that this statement invalidated his waiver of his right to testify because it was legally incorrect. We agree the statement was incorrect, but conclude that further proceedings are required to determine validity of the waiver.
We first consider the Attorney General's argument that we should not address Curtis because "defendants need not and should not raise allegations of an invalid waiver on direct appeal of a conviction. Instead, such claims may be raised only in a post-conviction motion." People v. Blehm, 983 P.2d 779, 792 (Colo.1999). We reject this argument based on judicial economy. See People v. Newton, 966 P.2d 563, 570 fn. 8 (Colo.1998) (appellate court can apply legal test to uncontroverted evidence rather than remanding).
In Harding, 104 P.3d at 885, the supreme court explained:
[A] defendant's claim of an invalid waiver is best addressed in post-convictions proceedings rather than by direct appeal. . . . At this hearing, both parties may present relevant evidence not present in the trial record to establish the validity of the waiver.
. . .
Concerning what the defendant must establish at this hearing, we have rejected the suggestion that a defendant must prove he was prejudiced by an inadequate advisement in order to prevail . . . the prosecution has the burden of proving that . . . the defendant's waiver was valid despite the defective advisement.
(Internal citations and quotation marks omitted).
Here, in resolving a postconviction Curtis motion, the trial court would first determine from the record whether its advisement was defective because it told Gomez that the prosecutor could cross-examine on whether his prior felony conviction was the result of a trial or a plea. See Blehm, 983 P.2d at 792. We would review that determination as a question of law. Id. Because it is a matter of first impression in Colorado, rather than remanding this issue we address it now. Id. (where a defendant "has raised a claim of invalid waiver in his direct appeal, the appellate court should determine the sufficiency of the trial court advisement. If the appellate court concludes that the advisement is deficient, the appellate court should remand the case for an evidentiary hearing.").
"When a defendant testifies, the trial court may not foreclose the use of the name, nature, and date of his prior felony convictions for impeachment purposes. Further examination into the details of prior convictions is within the trial court's discretion, provided that such details are relevant pursuant to CRE 401." People v. Hardy, 677 P.2d 429, 431 (Colo.App.1983) (citations omitted).
However, "it is immaterial whether guilt is established by a verdict of guilty, supported by a denial of a motion for new trial, or by a plea of guilty." People v. Baca, 44 Colo.App. 167, 170, 610 P.2d 1083, 1086 (1980); see also People v. Vollentine, 643 P.2d 800, 802 (Colo. App.1982) ("[W]e see no reason to distinguish, for impeachment purposes, between a guilty plea where sentence has not yet been imposed, and a guilty plea where sentence has not been imposed under a deferred sentencing stipulation.").
The parties cite no published Colorado case and we have found none directly resolving whether in impeaching a defendant the prosecutor could ask if the defendant's prior felony conviction resulted from a plea or a trial. The division's statement in Vollentine, 643 P.2d at 802, that "[e]vidence of a prior guilty plea, as evidence of a prior conviction, is admissible for impeachment purposes, regardless of whether a sentence has been imposed," concerned only the timing question of whether the conviction could be used to impeach before sentencing.
The Attorney General's reliance on People v. Bueno, 183 Colo. 304, 307, 516 P.2d 434, 435 (1973), is misplaced. In Bueno, the court said, "the record discloses no detailed cross-questioning concerning the facts involved in appellant's prior conviction . . . The district attorney asked only if appellant had pled guilty to the charge." But the opinion does not indicate that the defendant challenged this aspect of the cross-examination, and it has never been cited to support such an inquiry.
The majority of jurisdictions to address this question have concluded that whether the felony conviction arose from a plea or a trial is not relevant to its impeachment value. See United States v. Harris, 738 F.2d 1068, 1073 (9th Cir.1984) (that conviction rested on a guilty plea rather than verdict not relevant on issue of defendant's credibility); United States v. Bray, 445 F.2d 178, 181 (5th Cir. 1971)("The probative fact is not whether he denied or admitted committing the offense for which he was convicted, but whether he committed the offense at all. . . ."); Turner v. State, 301 Md. 180, 482 A.2d 869, 871 (1984)("It is the conviction which is relevant to the jury's determination of credibility, not the manner in which that conviction was reached."); Commonwealth...
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