People v. Milton, 92SC593

• Decision Date: 06 December 1993
• Docket Number: No. 92SC593,92SC593
• Citation: 864 P.2d 1097
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Gail MILTON, Respondent.
• Court: Colorado Supreme Court

Page 1097

864 P.2d 1097

The PEOPLE of the State of Colorado, Petitioner, v. Gail MILTON, Respondent.

No. 92SC593.

Supreme Court of Colorado En Banc.

Dec. 6, 1993.

Rehearing Denied Jan. 10, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Mary E. Ricketson, Sp. Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, Samuel Santistevan, Deputy State Public Defender, Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to determine whether the Colorado Court of Appeals erred in reversing the judgment of conviction of the defendant, Gail Milton, based on the district court's incomplete advisement concerning the defendant's right to testify at trial. See People v. Milton, No. 90CA1474 (Colo.App. July 2, 1992). We affirm the judgment of the court of appeals.

I.

The defendant was charged in Denver District Court with crimes arising out of an altercation among the defendant and two other women. One of those women died, and the other was injured, as a result of gunshot wounds inflicted by the defendant. After a jury trial ended in a mistrial because of the inability of the jurors to reach unanimous verdicts, the defendant was retried to a second jury. The defendant did not testify, and the jury returned verdicts of guilty to the crimes of reckless manslaughter ¹ as to the first victim and second degree assault ² as to the other. The district court imposed sentences and entered a judgment of conviction.

On appeal, the defendant asserted several errors including the failure of the district court to advise her adequately of her right to testify and the failure to obtain a waiver of that right, contrary to the requirements of People v. Curtis, 681 P.2d 504 (Colo.1984). The court of appeals held that reversal was required because the advisement was incomplete and inadequate and that therefore it was unnecessary to address the issue of waiver. The court of appeals accordingly reversed the judgment and remanded the case for a new trial. We granted certiorari to review that decision.

II.

In People v. Curtis, we held that a defendant in a criminal case has a right to testify in his own defense and that the right has its source in the due process clauses of the United States and Colorado Constitutions. Id. at 509-10 (citing U.S. Const., amend. XIV; Colo. Const., art. II, § 25). We further recognized that a defendant's right to testify is so fundamental that it is "excluded from the group of constitutionally based rights that defense counsel can elect to exercise or waive on behalf of the accused." Id. at 512. Waiver of a fundamental right must be "voluntary, knowing and intentional," id. at 514, and courts "indulge every reasonable presumption against waiver," id. (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). In general, the burden is on the prosecution to show effective waiver of a fundamental right. Tyler v. People, 847 P.2d 140, 143 (Colo.1993); Curtis, 681 P.2d at 515 n. 16 (citing Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972)). ³

In order to effect a voluntary, knowing, and intentional waiver of the right to testify, an accused "must be aware that he has a right to testify, he must know of the consequences of testifying, and he must be cognizant that he may take the stand notwithstanding the contrary advice of counsel." Curtis, 681 P.2d at 514; accord Tyler, 847 P.2d at 142; Roelker v. People, 804 P.2d 1336, 1338 (Colo.1991). As in the case of waiver of the right to counsel, see Johnson v. Zerbst, 304 U.S. at 465, 58 S.Ct. at 1023, the trial court has the " 'serious and weighty responsibility' of ascertaining whether there is an intelligent and competent waiver of such a right by the accused." Curtis, 681 P.2d at 514 (quoting Johnson v. Zerbst, 304 U.S. at 465, 58 S.Ct. at 1023). We have consistently recognized that Curtis requires the trial court to ensure that the defendant's waiver of his right to testify is "intelligently and competently made." ⁴ People v. Chavez, 853 P.2d 1149, 1153 (Colo.1993); accord Tyler, 847 P.2d at 142, 143; Roelker, 804 P.2d at 1338.

In Curtis, we held that certain "procedural safeguards are necessary to ensure that the defendant understands the significance of waiver of [the right to testify]," 681 P.2d at 514, and stated:

A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that waiver is voluntary, knowing and intentional by advising 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. (footnote and citation omitted).

In later cases as well, we have stated that such an advisement is required. Chavez, 853 P.2d at 1151; Tyler, 847 P.2d at 142; Roelker, 804 P.2d at 1338. We have explicitly recognized, however, that Curtis does not prescribe a "litany or formula which must be followed in advising the defendant of his right to testify." Chavez, 853 P.2d at 1152. The advisement, nevertheless, must include the Curtis elements. Id.

In the present case, after the prosecution rested, the district court advised the defendant as follows and received the following response:

THE COURT: Okay, Miss Milton, I'm going to give you another Curtis advisement. As I told you in April, ⁵ under the Constitution of the United States and the Constitution of Colorado, you have the right to testify if you want to. You also have the right, under those Constitutions, not to testify. If you do testify, the district attorney will be allowed to cross-examine you. Further, you should understand that although you have consulted with your attorneys at the first trial and again and listened to their advice, whether or not you testify is entirely your decision and your decision alone.

Do you understand that again?

THE DEFENDANT: Yes.

THE COURT: All right.

The court made no mention of the consequences of testifying or not testifying as contemplated by Curtis. The defense then called two witnesses and rested its case. The prosecution presented no rebuttal case. At no time during the trial did the court inquire of the defendant whether she wished to take the stand, and she made no statement on the record at any time concerning whether she wanted to testify. The district court did not address the issue of the waiver of the defendant's right to testify.

On appeal, the defendant asserted reversible error based on the failure of the district court to give her a complete and adequate advisement concerning her right to testify, as mandated by Curtis. The court of appeals reviewed the advisement and agreed. It stated:

Here, the trial court did not provide defendant with sufficient information to understand the significance of the election to testify or not to testify because it failed to advise defendant that her prior convictions could be used by the prosecution to impeach her testimony. It further failed to state that if defendant did choose to testify, the jury would be instructed regarding the limited use of the impeachment evidence. Likewise, the trial court failed to inform defendant that if she chose not to testify, then the jury would be instructed concerning her right against self-incrimination.

. . . . .

In our view, greater particularity and substantiation was necessary in the advisement here to comply with Curtis and thus to provide assurance that defendant understood the constitutional right to testify and the consequences of testifying. Failure to observe such constitutional right is reversible error. People v. Chavez, [853 P.2d 1149 (Colo.1993) ].

Milton, No. 90CA1474, slip op. at 2-3.

We agree. Although Curtis prescribes no formula, it does specifically identify the elements of the requisite advisement. Chavez, 853 P.2d at 1152. And, as earlier noted, we have repeatedly stated that the advisement contemplated by Curtis is required. Chavez, 853 P.2d at 1151; ⁶ Tyler, 847 P.2d at 142; Roelker, 804 P.2d at 1338. Such an advisement is essential to discharge the serious and weighty responsibility of the trial court to assure that a defendant's decision to waive the fundamental right to testify is voluntary, knowing, and intelligent and is not prompted by mistaken impressions or ignorance. See Curtis, 681 P.2d at 514. Absent an adequate advisement, a defendant's waiver of the right to testify, though perhaps voluntary, cannot be knowing and intelligent. Chavez, 853 P.2d at 1153. Such an advisement also serves "to preclude postconviction disputes between defendant and counsel over the issue [of knowing and intelligent waiver], and to facilitate appellate review." Curtis, 681 P.2d at 515.

The prosecution argues, however, that the advisement substantially complied with Curtis and was adequate because the missing information would tend to discourage a defendant from testifying and here the defendant elected not to testify. ⁷ We disagree with this argument. One of the purposes of Curtis is to eliminate speculation as to what a particular defendant might believe to be the salient consequences of testifying and to provide accurate information concerning those consequences. Thus, a defendant is to be...