People v. Montoya

• Decision Date: 10 June 2010
• Docket Number: No. 08CA1322.,08CA1322.
• Citation: 251 P.3d 35
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Troy MONTOYA, Defendant–Appellant.
• Court: Colorado Court of Appeals

251 P.3d 35

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Troy MONTOYA, Defendant–Appellant.

No. 08CA1322.

Colorado Court of Appeals, Div. I.

March 4, 2010.As Modified on Denial of Rehearing June 10, 2010.

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Thomas K. Carberry, Denver, Colorado, for Defendant–Appellant.Opinion by Judge ROTHENBERG.^*

Defendant, Troy Montoya, appeals his conviction, following a bench trial, of sexual assault on a child. The sole issue in this direct appeal is the proper construction of amended Crim. P. 23(a)(5)(II), which requires the trial court to advise the defendant of certain rights before accepting a waiver of a jury trial. Defendant contends that the trial court's advisement in this case did not comply with the amended rule, because the trial court did not conduct an on-the-record colloquy to determine whether his waiver was made knowingly, voluntarily, and intelligently, and therefore, that his jury trial waiver was invalid. He seeks a new trial before a jury.

We agree the advisement was deficient under the rule, but we conclude the appropriate remedy is to remand the case to the trial court, pursuant to People v. Blehm, 983 P.2d 779, 792 (Colo.1999), for an evidentiary hearing to resolve defendant's challenge to the validity of the waiver of jury trial.

I. Background

The charge arose from one incident that occurred in early 2004, when the victim was ten years old and was living with her mother and defendant, who was her mother's boyfriend.

According to the undisputed evidence, defendant had suffered epileptic seizures for years, and during March 2004, the victim saw him having an episode in the front yard when she returned from school. She testified that she helped him inside the house, watched him until he could walk on his own, and then went into her room to watch a movie.

According to the victim, while she was lying on the bed with her clothes on, but under the covers, defendant asked if he could watch the movie with her. He then lay down next to her on the bed, eventually got under the covers with her, and touched her on her buttocks, breasts, and vagina over her clothes. She testified that he did not say anything but “just looked at” her and “grumbled.” She reported that she got out of bed and went upstairs, and that he did not follow her. She telephoned her older sister, told her what had happened, and waited in the kitchen until her sister came home. She asked her sister to keep it a secret.

Approximately two years later, the victim sent a text message to a friend stating that defendant had molested her. The friend's mother informed a school counselor, who called the police, and in May 2006, defendant was arrested and charged with one count of sexual assault on a child. He denied that he knowingly molested the victim and maintained that any touching that occurred was due to involuntary movements during or immediately following his epileptic seizure.

At the bench trial, he presented an expert in the area of epileptic seizures who testified that (1) defendant suffered from two kinds of seizures of the temporal lobe; (2) some of the seizures were “grand mal” seizures, and some were smaller ones that built up slowly and imperceptibly; (3) during these seizures, defendant would grab other people but would not be aware of the touching; (4) one symptom of such seizures is a type of amnesia about what occurs during the seizures; and (5) if defendant had touched the victim during a seizure, he would not have been aware of the touching. Defendant also presented an exhibit, admitted by stipulation, of a sex offense evaluation which stated that “[defendant] did not present with any sexual self-regulation deficits,” that he had no history of “paraphilic behavior in general and any sexual contact with children specifically,” and that no “grooming behaviors” were present. The trial court found defendant guilty and entered judgment accordingly.

II. Standard of Review

The Colorado Rules of Criminal Procedure “are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” Crim. P. 2.

We use principles of statutory construction when interpreting rules of procedure. People v. Stanley, 169 P.3d 258, 260 (Colo.App.2007). We first give the words of the rules their plain meanings, and if the language is “clear and unambiguous, we need not look further to determine their meaning.” Anheuser Busch, Inc. v. Indus. Claim Appeals Office, 28 P.3d 969, 970 (Colo.App.2001). “However, if the language of a rule is susceptible of different meanings, a court must attempt to ascertain the supreme court's intention in promulgating the rule so as to carry out its intended purpose.” Crawford v. Melby, 89 P.3d 451, 453 (Colo.App.2003).

Whether the waiver of a constitutional right is knowing, voluntary, and intelligent presents a mixed question of law and fact. See Blehm, 983 P.2d at 792 n. 9 (“Like all questions of fact, the trial court's factual findings underlying its determination of the validity of the waiver would be reviewable for clear error. The trial court's ultimate conclusion as to the validity of the waiver would be a question of law, and thus would be reviewable de novo.” (citation omitted)) (addressing waiver of the defendant's right to testify at trial). The words “intelligently” and “intentionally” are sometimes used interchangeably. Id. at 786 n. 4.

On appeal, the reviewing court must look at the advisement, and also weigh the totality of the circumstances in ascertaining the validity of the waiver. See People v. Arguello, 772 P.2d 87, 96 (Colo.1989) (addressing waiver of right to counsel); Gore, 955 A.2d at 6–7 (“Our task ... is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused.” (internal citation and quotation marks omitted)).

When, as here, a party has failed to object and preserve the issue in the trial court, we review for plain error. Herr v. People, 198 P.3d 108, 111 (Colo.2008); People v. Miller, 113 P.3d 743, 749–50 (Colo.2005). Plain error is error that is so clear-cut and obvious that a competent district court judge should be able to avoid it without the benefit of objection. People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005); cf. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (concluding that unobjected-to error in trial court's guilty plea colloquy was reversible only upon a showing of plain error that affected the defendant's substantial rights, and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights); see Mosly, 672 N.W.2d at 901 (reversal is “not warranted on the basis of an unpreserved constitutional error unless the error was plain on the record and affected the defendant's substantial rights, that is, the error was prejudicial” (citing People v. Carines, 460 Mich. 750, 597 N.W.2d 130, 137 (1999))); State v. Britt, 286 S.W.3d 859, 864 (Mo.Ct.App.2009) (concluding there was no plain error where the defendant simply stated he “wanted a jury trial and [his defense counsel] talked [him] into just having [the court] take care of it”; defendant did not claim there was a failure to advise him of his right to a jury trial or of the effects of waiving that right).

III. Waiver of Constitutional Right to Jury Trial

The right to a jury is fundamental, see Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and is “a right considered one of the most important in our democracy.” Rice v. People, 193 Colo. 270, 271, 565 P.2d 940, 941 (1977). The Sixth Amendment's guarantee of the right to trial by jury is applicable to the states under the Fourteenth Amendment. Duncan, 391 U.S. at 149, 88 S.Ct. 1444; see Moreland v. Bradshaw, 635 F.Supp.2d 680, 700 (S.D.Ohio 2009) ( certificate of appealability granted Jan. 6, 2010). The right to a jury trial in a criminal case is personal and can only be waived by the defendant. People v. Laeke, ––– P.3d ––––, ––––, 2009 WL 4069898 (Colo.App.2009) (citing People v. Curtis, 681 P.2d 504, 511 (Colo.1984)). Thus, a statement by defense counsel does not operate as a waiver. Id. at ––––; see Moore v. People, 707 P.2d 990, 994–95 (Colo.1985).

Nevertheless, a criminal defendant has no constitutional right to waive the right to a trial by jury and have the case tried to the court. People v. District Court, 953 P.2d 184, 188 (Colo.1998); People v. District Court, 843 P.2d 6, 8 (Colo.1992) (Colorado Constitution does not give criminal defendants a constitutional right to waive jury trial); see § 16–10–101, C.R.S.2009 (the People have the right to refuse consent to defendant's waiver of the right to a trial by jury); see also Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (there is no unconditional federal constitutional right to trial by court; denying a defendant an absolute right to waive a jury merely results in the defendant receiving the constitutionally guaranteed jury trial).

The only constitutional requirement is that the jury trial waiver be made voluntarily, knowingly, and intelligently. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); see People v. Norman, 703 P.2d 1261, 1271 (Colo.1985) (“Any such waiver is effective only if it is made understandingly, voluntarily and deliberately, and any conclusion that a valid waiver was made must be a matter of certainty.” (citations omitted)); People v. Porterfield, 772 P.2d 638, 639 (Colo.App.1988) (concluding the...