People v. Harding, 03SC803.

• Decision Date: 10 January 2005
• Docket Number: No. 03SC803.,03SC803.
• Citation: 104 P.3d 881
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Stanton P. HARDING, Respondent.
• Court: Colorado Supreme Court

104 P.3d 881

The PEOPLE of the State of Colorado, Petitioner, v. Stanton P. HARDING, Respondent.

No. 03SC803.

Supreme Court of Colorado, En Banc.

January 10, 2005.

Rehearing Denied January 31, 2005.¹

John W. Suthers, Acting Attorney General, Roger G. Billotte, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, for Respondent.

Justice BENDER delivered the Opinion of the Court.

In this post-conviction appeal, we affirm the court of appeals' decision to grant Stanton P. Harding a new trial because of a defective Curtis Advisement where the People did not produce any evidence at the post-conviction proceedings to attempt to establish that Harding's waiver of the right to testify was knowing, voluntary and intelligent. People v. Harding, No. 02CA0350, slip op., 2003 WL 22211273 (Colo.App. Sept.25, 2003) (not selected for official publication pursuant to C.A.R. 35(f)) (Harding III).

During Harding's trial for sexual assault, the trial court advised him that if he testified, the jury would be instructed to consider his felony conviction as it bears on his character. A felony conviction is not admissible to show character. Therefore, Harding was not properly advised of the impeachment consequences of testifying pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984). When a court's advisement is invalid, the prosecution may present evidence at a post-conviction hearing to establish the validity of the waiver irrespective of the defective advisement pursuant to People v. Blehm, 983 P.2d 779 (Colo.1999). In this case, the prosecution failed to present any evidence and instead relied upon the trial record of the invalid Curtis Advisement to establish waiver. Thus, the record of the post-conviction hearing is silent as to what the defendant understood about the potential consequences of testifying. Following the mandates of Blehm and Curtis, we can not assume that the defendant understood the consequences of waiving this significant right from an invalid Curtis Advisement and therefore find that the prosecution failed to meet its burden to establish the validity of Harding's waiver. Hence, we affirm the court of appeals and remand this case to that court with directions to return it to the trial court for a new trial.

Facts and Proceedings Below

The People charged Stanton P. Harding, defendant in the trial court and respondent before us, with sexually assaulting a female employee of a store in a shopping mall. A jury convicted him of third degree sexual assault by the use of force, third degree assault, and commission of a crime of violence in April 1996. Harding has a prior felony conviction for sexual assault and did not testify at his trial.

Relevant to this appeal, the trial judge advised Harding about his right to testify. The judge told Harding that he had a right to testify, that no one could prevent him from testifying, and that if he did testify the prosecution could cross-examine him and ask about his prior felony conviction. He then stated that the jury could consider his prior conviction as it bears "upon his character." After this advisement, Mr. Harding stated it was his intent not to testify.²

Harding appealed and the court of appeals affirmed his conviction. People v. Harding, 983 P.2d 29 (Colo.App.1998) (Harding I). There, Harding argued that he was not adequately advised about his right to testify on his own behalf because the advisement did not conform to this court's holding in People v. Curtis. Harding I, 983 P.2d at 31. Curtis established what is now known as the "Curtis Advisement" and requires the trial court to advise the defendant of several things including that should he testify, the prosecution could ask the defendant about prior felony convictions and the jury could consider any such conviction as "it bears on his credibility." 681 P.2d at 514. However, in Harding's case, the trial court stated that the jury could consider any prior conviction as it bears upon his "character." The court of appeals held that despite this discrepancy, the trial court's advisement "substantially complied with the requirements of Curtis" and was "adequate to assure that [Harding] knowingly, voluntarily, and intentionally waived his right to testify." Harding I, 983 P.2d at 32.

Harding then appealed to this court. In an order dated August 30, 1999, we granted his petition for certiorari and ordered that the judgment of the court of appeals be vacated and that the court of appeals reconsider Harding's appeal in light of our then recent decision of People v. Blehm. In Blehm, we affirmed our holding in People v. Curtis that a valid waiver of the right to testify must be knowing, voluntary, and intelligent and that the trial court must advise the defendant on the record of the right to testify and the consequences of testifying. 983 P.2d at 797. Particularly relevant to Harding's case, we held that when a defendant's Curtis Advisement is lacking in one of the five Curtis elements, the defendant's claim of an invalid waiver of his right to testify should be addressed in a post-conviction proceeding where the prosecution must prove that the waiver was still valid despite the trial court's defective advisement. Id. at 792, 797.

Upon remand from this court, the court of appeals reconsidered its judgment of Harding I in People v. Harding, 17 P.3d 183 (Colo.App.2000) (Harding II). The court determined that the use of the term "character" instead of "credibility" rendered Harding's advisement deficient and remanded the case to the trial court for an evidentiary hearing on the validity of his waiver pursuant to the required procedures identified in Blehm. Harding II, 17 P.3d at 186. The post-conviction court held this hearing in December 2001. A new judge presided over the hearing because the original trial judge had retired. In addition, different counsel appeared on behalf of both the People and Harding. At this hearing, no evidence was introduced other than the trial record. No witnesses testified as to what Harding knew to be the consequences of testifying. The prosecutor argued that the trial court's use of the word "character" instead of "credibility" did not affect the trial judge's determination that the defendant made a valid waiver. In support of this position, the prosecutor argued at the post-conviction hearing that immediately before the trial court's Curtis Advisement, Harding heard argument that his prior bad act could be used to prove his identity but not his character and therefore understood the prejudicial effect that his prior conviction would have if he testified.

After reviewing the record, the post-conviction court concluded that Harding knowingly, intelligently, and voluntarily waived his right to testify. The court reasoned that Harding acknowledged speaking to his attorney about testifying and that a determination was made that he would not testify before receiving his Curtis Advisement. The court stated that the admission of Harding's prior bad act as similar transaction evidence was an event "wholly separate" from his prior conviction for sexual assault and that during his trial, no mention was made of his prior felony conviction for sexual assault. The court then determined that Harding understood the difference between the evidentiary concepts of "character" and "credibility" and concluded that "the defendant was fully aware of his rights and the use of prior felony convictions before he ever discussed the issue with the trial court." He ruled that Harding's waiver was valid and stated that the post-conviction court was in "no better position than [the trial judge] was when he conducted the trial and had the opportunity personally to observe both the defendant and the interaction of defendant with his counsel."

Harding appealed. A divided panel of the court of appeals held in an unpublished opinion that the prosecution had not met its burden of proof at the post-conviction evidentiary hearing. That court concluded there was insufficient proof that Harding had made a knowing, voluntary, and intelligent waiver of his right to testify and reversed the trial court and ordered a new trial. Harding III, slip op. at 8, 2003 WL 22211273. Judge Rothenberg dissented, reasoning Harding understood the consequences of testifying, namely, that "the jury would learn he was a convicted sex offender." Harding III, slip op. at 11, 2003 WL 22211273 (Rothenberg, J. dissenting). She argued that to the extent there is a difference between "character" and "credibility," Harding was not misled by this substitution and that to conclude otherwise was contrary to our holding in Blehm where we stated that the Curtis Advisement need not conform to a prescribed litany. Thus, despite the failure of the People to produce any evidence at the post-conviction hearing, she claimed that the record supported this finding of waiver and would have affirmed the post-conviction court's finding that Harding made a "voluntary, knowing, and intelligent waiver" of his right to testify. Id. at 13-14, 2003 WL 22211273.

We granted the People's petition for certiorari to review the court of appeals' decision in Harding III.³

Analysis

I. Defendant's Right to Testify

We begin our analysis with a summary of our cases that establish a defendant's right to testify and the requirements to determine whether a defendant made a valid waiver of his right to testify. Our cases of People v. Curtis and People v. Blehm guide our review.

In Curtis, we recognized that the due process clauses of Amendment XIV of the United States Constitution and Article II, section 25 of the Colorado Constitution grant a defendant the fundamental right to testify in his criminal trial. 681 P.2d at 509-11. To ensure that a waiver is voluntary, knowing, and intentional, the trial court must communicate five...