People v. Gray

Decision Date24 June 1996
Docket NumberNo. 95SC134,95SC134
Citation920 P.2d 787
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Marvin GRAY, Respondent.
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 Mark Russel, First Assistant Attorney General, Paul E. Koehler, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for Respondent.

Justice SCOTT delivered the Opinion of the Court.

We agreed to review People v. Gray, 899 P.2d 290 (Colo.App.1994), in which the court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that respondent Marvin Gray (defendant) received an inadequate advisement under People v. Curtis, 681 P.2d 504 (Colo.1984). The trial court informed the defendant that his prior felony convictions "would be admissible with respect to credibility." The court of appeals held the trial court failed to inform the defendant that his testimony during the substantive phase of the trial with respect to "prior felony convictions would be admissible only for purposes of impeachment" and that the People "would still have the burden of proving the prior felony convictions at the habitual offender phase of the trial." Gray, 899 P.2d at 291. We granted certiorari to decide:

I. Whether a trial court's failure to advise the defendant, pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984), of our holding in People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981), that any admissions of prior felony convictions by the defendant can only be considered by the jury in assessing credibility, not as substantive proof of the prior convictions, renders a criminal conviction invalid.

II. Whether Curtis advisements are required.

On the record before us, we see no basis for finding reversible error, and therefore, we reverse the judgment of the court of appeals and remand to that court with directions that it return the case to the trial court with instructions to reinstate the judgment of convictions.


Defendant was convicted of aggravated robbery 1 and attempted aggravated robbery 2 and sentenced as a habitual offender. 3 At the close of the People's case and outside the presence of the jury, the trial court informed the defendant of his right to testify. We set forth a portion of that advisement:

THE COURT: The People have rested and we're now on the part of the case [where Mr. Gray] you, can put on some evidence if you want. Included among that evidence is you yourself of course have the right to testify as a witness in this case. Do you understand that?



THE COURT: All right. Now, no one can keep you from testifying and no one can make you testify, and the decision whether to testify is yours and yours alone. I'm sure you and Mr. Johnson have discussed at some length whether or not you want to testify, I'm sure he has given you advice on that point and good advice?


THE COURT: Nonetheless the decision is yours. Now, 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, and if you've been previously convicted of a felony, the District Attorney will be entitled to ask you about your previous convictions.

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. Are you aware of all that?

(Emphasis added.) 4


In People v. Curtis, 681 P.2d 504, 512 (Colo.1984), we held that a defendant's right to testify is a fundamental right that can only be surrendered by a waiver "tested by the same constitutional standards applicable to the waiver of the right to counsel." See also People v. Milton, 864 P.2d 1097, 1098-99 (Colo.1993). Similarly, in Rock v. Arkansas, the United States Supreme Court held that "[t]he right to testify on one's own behalf at a criminal trial ... is one of the rights that 'are essential to due process of law in a fair adversary process.' " 483 U.S. 44, 51, 107 S.Ct. 2704, 2708-09, 97 L.Ed.2d 37 (1987) (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)). The right to testify is bottomed on the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against self-incrimination. Id. at 49-53, 107 S.Ct. at 2707-10. The Court noted:

Logically included in the accused's right to call witnesses whose testimony is "material and favorable to his defense," United States v. Valenzuela-Bernal, 458 U.S. 858, 867 [102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193] (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself.

Id. at 52, 107 S.Ct. at 2709.

Under Curtis, 681 P.2d at 514, in order to determine whether a defendant's waiver of the constitutional right to testify is voluntary, knowing, and intelligent, a trial court should advise the defendant outside the presence of the jury

that he has the 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.

(Footnote omitted.) 5 Curtis requires that a trial court ensure a defendant's waiver of his or her right to testify is intelligently and competently made. Roelker v. People, 804 P.2d 1336, 1338 (Colo.1991).

Generally, "courts indulge every reasonable presumption against waiver." Curtis, 681 P.2d at 515. However, if a trial court applies correct standards, makes necessary findings to establish a waiver, and evidence exists to support those findings, then the trial court's findings of waiver will not be disturbed on review. Id.; see also Roelker, 804 P.2d at 1339 ("A lower court's determination that a defendant effectively waived his right to testify will therefore be upheld if it is supported by competent evidence."). Despite these broad considerations, we have never precisely articulated the minimum requirements of an effective Curtis waiver. Milton, 864 P.2d at 1102 (Vollack, J., dissenting); see Tyler v. People, 847 P.2d 140, 143 (Colo.1993); see also Roelker, 804 P.2d at 1339 ("Curtis did not decide what the minimum requirements are to establish a waiver of a defendant's right to testify in his own defense."). Rather, rejecting a reading of Curtis as creating a fixed advisement, we specifically stated "that there is no prescribed litany or formula which must be followed in advising the defendant of his right to testify." People v. Chavez, 853 P.2d 1149, 1152 (Colo.1993) (Chavez II); see also Milton, 864 P.2d at 1099; Roelker, 804 P.2d at 1339 ("We reject Roelker's argument that the dictum of Curtis mandates a rigid requirement that the trial court question the defendant to determine whether his waiver is truly voluntary.").

Failure to give a proper Curtis advisement, however, constitutes reversible error. Milton, 864 P.2d at 1100; see also Curtis, 681 P.2d at 515 (allowing defendant Curtis a new trial). But see Tyler, 847 P.2d at 143 (noting that, although an effective waiver of the right to testify must be voluntary, knowing, and intentional, "it is not reversible error per se when the waiver does not appear on the record").


In Chavez II and Milton, the defendants were not informed that their prior felony convictions could be considered for the limited purpose of impeaching their credibility. Milton, 864 P.2d at 1100; Chavez II, 853 P.2d at 1152. In both cases, the defendants' convictions were reversed. In Chavez II, we stated:

By its silence, the trial court left the impression that the prior convictions could be used as substantive proof for the habitual criminal phase of the trial. Clearly the inference raised by the trial court's incomplete advisement is wrong. If Chavez chose to testify, he would be entitled to an instruction explaining to the jury that evidence of his prior felonies was admitted only for the limited purpose of impeaching his credibility.... Since the trial court gave the defendant no explanation of these important, but technical, legal concepts, Chavez reasonably could have inferred that the prosecution would be relieved of its burden to prove his prior felonies if he testified and were forced to acknowledge his prior felony convictions. The inadequate advisement denied Chavez of an opportunity to make a voluntary, knowing, and intelligent waiver of his right to testify.

Chavez II, 853 P.2d at 1152 (footnote and citation omitted).

In Milton, the advisement failed to adequately inform the defendant of "the salient consequences of testifying and to provide accurate information concerning those consequences." 864 P.2d at 1101. The...

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