People v. Saint-Veltri

Decision Date27 June 1996
Docket NumberNo. 94CA0872,SAINT-VELTR,D,94CA0872
Citation935 P.2d 34
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James E.efendant-Appellant. . I
CourtColorado Court of Appeals

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge CRISWELL.

Defendant, James E. Saint-Veltri, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of possession of a controlled substance (cocaine). We reverse and remand for a new trial.


Defendant first contends that the trial court failed to advise him adequately concerning his decision whether to testify at trial. We agree.

A trial court must seek to assure that a defendant's waiver of the right to testify is voluntary, knowing, and intentional. People v. Curtis, 681 P.2d 504 (Colo.1984).

Further, in order to meet constitutional standards with respect to a defendant's decision concerning whether to testify, the court must advise the defendant, on the record:

[t]hat 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.... [T]he 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.

People v. Curtis, supra, 681 P.2d at 514.

No precise litany must be followed in advising a defendant of his right to testify. However, the advisement must include all of the elements set out in Curtis. People v. Milton, 864 P.2d 1097 (Colo. 1993).

Because the prosecution bears the burden of establishing that a defendant's waiver of the fundamental right to testify was voluntary, knowing, and intentional, in reviewing the record, we must " 'indulge every reasonable presumption against waiver.' " People v. Milton, supra, 864 P.2d at 1099. If the record discloses an inadequate Curtis advisement, defendant is not required to prove prejudice, and reversal is generally mandatory. People v. Milton, supra.

Further, unlike the defendant in People v. Montoya, 928 P.2d 781 (Colo.App.1996) , defendant here had sustained two previous felony convictions, so that the lack of adequate advice upon the subject must be presumed to have been prejudicial.

Here, while defendant was advised upon most of the Curtis elements, he was not advised that, should he testify, the jury would be allowed to consider evidence of any prior convictions only for impeachment of his credibility. Such omission was reversible error. People v. Milton, supra.


Because the trial court's suppression ruling will control the admissibility of evidence upon retrial, we also address defendant's argument that the trial court erred by denying his motion to suppress statements and evidence obtained as the result of an allegedly unlawful arrest. We perceive no error.

On July 27, 1993, defendant failed to appear for a preliminary hearing in another felony case. The county court bound the case over to the district court and issued a bench warrant for defendant's arrest.

On July 30, 1993, defendant appeared in the county court with his attorney. Because defendant's case had been bound over to the district court, the court file had been transferred to the district court clerk's office. Defendant and his attorney retrieved the court file from the district court clerk's office and took the file before a county court judge. That judge entered an order directing that the warrant be vacated. Defendant's attorney then returned the file to the district court clerk's office and informed an employee of the district court clerk's office of the county court's actions.

On August 2, 1993, a police detective who had been present for the July 27, 1993, preliminary hearing appeared at the district court clerk's office to obtain a copy of the warrant for defendant's arrest. The detective was unaware of defendant's July 30, 1993, appearance before the county court. The clerk's office employee who assisted the detective overlooked the July 30, 1993, minute order of the county court judge because it was written in hand on the back of the record of proceedings. The clerk's office employee prepared a certified warrant for defendant's arrest and provided it to the detective.

Based on the July 30, 1993, minute order of the county court on August 3, 1993, the district court entered an order vacating the warrant. Later that same day, the detective arrested defendant based on the warrant for his arrest that had been obtained the previous day. There is no evidence in the record indicating that the district court's order vacating the arrest warrant had been transmitted to the police department so that it would have been accessible to the detective by computer.

In the course of arresting defendant, the detective discovered the cocaine forming the basis for the charges in this case. Defendant moved to suppress this evidence, as well as certain incriminating statements he had made during the course of the arrest. The district court denied defendant's motion, concluding that the officer's actions were within the statutory good-faith exception to the exclusionary rule.

Neither party has raised the issue whether the county court retained jurisdiction to enter an order vacating the warrant for defendant's arrest after its entry of an order binding the case over to the district court. See § 16-5-301, C.R.S. (1995 Cum. Supp.); Crim. P. 5(a)(4)(III). See also Hylton v. Colorado Springs, 32 Colo.App. 9, 505 P.2d 26 (1973) (normally, trial court loses jurisdiction over cause once appeal is perfected). However, that question is irrelevant here, because the district court entered its order vacating the warrant before defendant was arrested.

After the district court's ruling, the United States Supreme Court, relying on its previous opinion in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (establishing good faith exception to exclusionary rule when search is conducted pursuant to reasonable reliance upon court-issued search warrant), ruled on this precise issue in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). In Evans, the Supreme Court held that the exclusionary rule does not require the suppression of evidence obtained in connection with an arrest in which the arresting officer has relied on erroneous arrest warrant information caused by the clerical error of a court employee.

In its opinion in Evans, the Supreme Court re-emphasized that the exclusionary rule is not required by the Fourth Amendment itself, but is a court-adopted rule designed to achieve the purposes of that amendment by deterring improper police action. Hence, not every violation of the Fourth Amendment will justify suppressing the evidence seized. If the exclusionary rule's purpose of deterring improper action will not be served, there is no reason to apply that rule. See United States v. Leon, supra.


First, defendant relies on the dissenting Justices' opinions in Evans and suggests that we adopt their reasoning by interpreting the protections of Colo. Const., Art. II, § 7 more broadly than the United States Supreme Court has interpreted the corollary provisions of the Fourth Amendment. In particular, defendant urges us to accept Justice Stevens' view that the exclusionary rule applies to illegal arrests caused by the actions of any governmental employee, not only those attributable to the actions of police officers. See Arizona v. Evans, supra (Stevens, J., dissenting).

However, the principle that any unlawful arrest caused by a mistake by a governmental employee justifies the exclusion of the evidence seized during that arrest has been rejected both by the United States Supreme Court, Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) (search conducted pursuant to arrest of person as a result of good faith mistake in identity of person arrested), and by a division of this court, People v. Lewis, 813 P.2d 813, 815 (Colo.App.1991) ("[W]e conclude that the fact that the police arrest an individual other than the person identified on the warrant, in and of itself, does not preclude the application of the concept of 'good faith mistake.' ").

Further, and quite aside from this former precedent, we find the reasoning of the Evans' majority to be more persuasive than that of the dissent, and therefore, we decline to interpret the Colorado Constitution differently.


Next, defendant argues that, notwithstanding Evans, the evidence is inadmissible under Colorado's statutory good-faith exception to the exclusionary rule, § 16-3-308, C.R.S. (1986 Repl. Vol. 8A). In support of his argument, defendant contends that decisions interpreting this section demonstrate that it restricts the good-faith exception to a narrower application than exists under Evans. We disagree.

The statutory good-faith exception to the exclusionary rule provides that evidence should not be suppressed in a criminal proceeding if it was obtained because of a peace officer's "good faith mistake,"...

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3 cases
  • People v. Blehm
    • United States
    • Colorado Supreme Court
    • June 28, 1999
    ...See People v. Blehm, No. 94CA1057 (Colo.App. June 26, 1997) (not selected for official publication) ("Blehm II"); People v. Saint-Veltri, 935 P.2d 34 (Colo.App.1996). We now reaffirm Curtis' holding that a valid waiver of the right to testify must be knowing, voluntary and intelligent. We a......
  • People v. Shreck
    • United States
    • Colorado Court of Appeals
    • September 23, 2004
    ...violated. See § 16-3-308, C.R.S.2003 (codifying good faith, reasonable belief exception to the exclusionary rule); People v. Saint-Veltri, 935 P.2d 34, 37-38 (Colo.App.1996)(same), rev'd on other grounds sub nom. People v. Blehm, 983 P.2d 779, 794 (Colo.1999). A different standard applies w......
  • Cappelli v. Demlow
    • United States
    • Colorado Court of Appeals
    • June 27, 1996
    ...107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). See also Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); People v. Saint-Veltri, 935 P.2d 34 (Colo.App.1996) (suppression of statements made by accused after arrest under vacated arrest warrant not required; deterrent purpose of ex......

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