People v. Mozee, 84SA411

• Decision Date: 23 June 1986
• Docket Number: No. 84SA411,84SA411
• Citation: 723 P.2d 117
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elmer E. MOZEE, Jr., Defendant-Appellant.
• Court: Colorado Supreme Court

Page 117

723 P.2d 117

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elmer E. MOZEE, Jr., Defendant-Appellant.

No. 84SA411.

Supreme Court of Colorado,

En Banc.

June 23, 1986.

Rehearing Denied July 14 and Aug. 25, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

The defendant, Elmer E. Mozee, Jr., appeals from his judgment of conviction for first degree assault, ¹ which was determined to be a crime of violence. ² Mozee asserts that the trial court erred by failing to advise him before he took the stand during his jury trial that he had the right not to testify. Mozee also argues that the statutes under which he was sentenced violate his constitutional rights to equal protection of the laws. Finally, Mozee contends that the trial court's instruction to the jury on crime of violence was fatally flawed. We find no merit in the first two assignments of error. We agree that the instruction on crime of violence was erroneous, but conclude that the error was harmless. Therefore, we affirm the judgment.

I.

The defendant's conviction for first degree assault stems from a shooting incident that occurred in Denver on September 3, 1982. In October of 1982, Mozee was charged by information in Denver District Court with attempted first degree murder, first degree assault and the commission of a crime of violence. The victim and other witnesses testified that Mozee and the victim lived in different apartments in an apartment house and that an altercation between the two men occurred in the early evening on September 3 while the victim was sitting on the front porch of the apartment house. These witnesses further testified that Mozee left the scene while the victim and others remained on the porch and that Mozee returned to the porch at approximately 10:00 p.m. and shot the victim twice with a handgun. Mozee testified in his own behalf. He confirmed that he and the victim had exchanged words during the early part of that evening and that he had fired the shots that struck the victim. Mozee's defense was that the handgun had discharged accidentally.

The jury was instructed on the crimes of attempted first degree murder, attempted second degree murder, first degree assault and second degree assault. The jury returned a verdict of guilty of first degree assault, but was unable to reach a unanimous verdict as to the attempted murder charge. The trial court then dismissed the attempted murder count on the motion of the prosecution. The court next instructed the jury as to the crime of violence charge. Specifically, the jury was asked to determine whether in the course of commission of the offense of first degree assault, Mozee "used or possessed or threatened the use of a deadly weapon." The jury found that he did. Pursuant to the mandatory sentencing requirements of the crime of violence statutes, see §§ 16-11-309 and 18-1-105(9)(a)(I), 8 C.R.S. (1985 Supp.), the district court sentenced Mozee to nine years imprisonment plus one year of parole.

Mozee appealed. ³ He contends that the trial court committed reversible error by failing to advise him before he took the stand that he had a constitutional right not to testify. Mozee further contends that the crime of violence statute as applied to increase a sentence for first degree assault violates the constitutional requirement of equal protection of the laws because its application obliterates any meaningful distinction between first degree assault and second degree assault, while mandating disparate punishments. Finally, Mozee argues that the trial court erred in its instruction to the jury concerning the crime of violence charge.

We conclude that the district court did not err in omitting to advise Mozee on the record that he need not testify. We also conclude that the crime of violence statute as applied to increase a sentence for first degree assault does not violate constitutional guarantees of equal protection of the laws. Finally, we agree with Mozee that the crime of violence instruction given by the district court was erroneous, but we hold that the error was harmless.

II.

After the prosecution presented its case, Mozee took the witness stand and testified in his own behalf. Prior to his testimony, the trial court did not advise the defendant that he had the right to remain silent or of the consequences of waiving that right, and the court made no effort at that time to determine whether Mozee was voluntarily, knowingly and intelligently waiving his right to remain silent. After his convictions, Mozee filed a motion for a judgment of acquittal or in the alternative for a new trial. Relying on the Colorado Court of Appeals' decision in People v. Curtis, 657 P.2d 990 (Colo.App.1982), aff'd, 681 P.2d 504 (Colo.1984), he asserted for the first time that "[t]he Court erred in failing to advise the defendant that he had a right not to testify." The district court denied the motion, and Mozee raises the same argument on appeal.

In Curtis, we held that when a defendant elects not to testify, a trial court must determine, after an advisement on the record, that the defendant is aware of his right to testify and of the consequences of testifying and that the defendant has voluntarily, knowingly and intelligently ⁴ chosen to waive that right. In reaching that conclusion, we held that a defendant in a criminal case has a constitutional right to testify in his own defense under the due process clauses of the fourteenth amendment to the United States Constitution and article II, section 25, of the Colorado Constitution. 681 P.2d at 509-11. We further held that this constitutional right is sufficiently fundamental and personal that it can be waived only by the defendant and not by his attorney and that certain procedural safeguards are required to ensure that any waiver of the right to testify is made voluntarily, knowingly and intelligently. Id. at 511-14. In order for a defendant to make such a decision in a voluntary, knowing and intelligent manner, we held that the defendant "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." Id. at 514. We also held that the responsibility of ascertaining whether there has been a valid waiver is imposed upon the trial judge and that this determination should appear upon the record. Id. We concluded by describing the procedure to be followed by a trial court in these instances:

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).

The case now before us presents the opposite side of the coin from Curtis. Mozee claims that a trial judge has an obligation to advise a defendant on the record that the defendant has a right not to testify when the defendant indicates that he intends to take the stand and testify in his own behalf. Additionally, Mozee asserts that the trial judge must determine on the record at that time whether the defendant voluntarily, knowingly and intelligently waives the right not to testify. Mozee contends that the absence here of such an advisement and determination constitutes reversible error. We disagree.

Section 18 of article II of the Colorado Constitution protects every person from being "compelled to testify against himself in a criminal case." Such protection is also provided by the fifth amendment to the United States Constitution, made applicable to the states by the fourteenth amendment, see Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The privilege against self-incrimination embodied in these constitutional provisions protects an individual from being involuntarily called as a witness against himself in his own criminal prosecution and also allows any witness to refuse to answer questions in any proceeding, civil or criminal, formal or informal, when the answers might incriminate that witness. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973); see 3 W. LaFave & J. Israel, Criminal Procedure, § 23.4(a) at 26-27 (1984) (and cases and texts cited therein).

These principles reflect the well-recognized fact "that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay." Malloy v. Hogan, 378 U.S. at 7, 84 S.Ct. at 1493. See also Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 739-740, 5 L.Ed.2d 760 (1961). The privilege of a defendant to remain silent "unless he chooses to speak in the unfettered exercise of his own will" is sufficiently important that the constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege at trial. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981) (quoting Malloy v. Hogan, 378...