People v. Ziglar, No. 01SC193.

• Decision Date: 25 March 2002
• Docket Number: No. 01SC193.
• Parties: The PEOPLE of the State of Colorado, Petitioner. v. Daryl C. ZIGLAR, Respondent.
• Court: Colorado Supreme Court

45 P.3d 1266

The PEOPLE of the State of Colorado, Petitioner. v. Daryl C. ZIGLAR, Respondent.

No. 01SC193.

Supreme Court of Colorado, En Banc.

March 25, 2002.

Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, CO, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, CO, Attorneys for Respondent.

JUDGMENT REVERSED.

Justice KOURLIS delivered the Opinion of the Court.

We granted certiorari to determine whether the court of appeals erred in remanding Daryl Ziglar's conviction as a habitual criminal on the grounds that the trial court gave an incorrect Curtis advisement during the sentencing hearing. People v. Ziglar, No. 98CA2214, slip op. at 13 (Colo.App. Dec. 14, 2000) (not selected for official publication). We now conclude that the trial court's advisement, although unnecessary, was not in error because a defendant's admissions during the sentencing phase may serve as substantive evidence of the existence of prior felonies. We therefore reverse the judgment of the court of appeals and remand this case for reinstatement of Ziglar's habitual criminal status.

I.

Daryl Ziglar went to trial on charges of having stabbed his wife. After the prosecution finished its case, the judge gave Ziglar a proper advisement pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984) (Curtis advisement), concerning his right to testify. Ziglar chose not to testify. The jury ultimately convicted him of second degree assault¹ and one count of crime of violence.² Because the prosecution also charged Ziglar with habitual criminality,³ the judge discharged the jury and then tried Ziglar on that issue.

During the habitual criminal proceedings, the prosecution presented its evidence of prior convictions. With defense approval, the prosecution requested the judge to give Ziglar a second Curtis advisement. The judge agreed and then told Ziglar:

If you testify, of course, the prosecution can cross-examine you about the issue of there being prior convictions. He can confront you with those prior convictions in this case. The big difference from the other one in the prior case in front of the jury, the jury could only consider those prior convictions as relating to your credibility. In this case, they are being submitted not only to establish whether there is a credible [sic] issue if you testify and substantively by me as evidence of your being a habitual offender. That is the difference in the advisement that I'll give you. I'll go through those in greater detail once you have consulted with [counsel]. That is essentially your right. Do you have any questions about those rights before I take a recess for a moment?

Ziglar answered the question negatively. When back from recess, the judge again asked Ziglar whether he understood the rights as related by the court, to which Ziglar answered, "Yes, Sir." The judge then covered each of the Curtis advisement's five parts one by one, receiving affirmation after each that Ziglar understood. The judge finished by stating:

And you further understand that the felony convictions, of course, that is what we are discussing today, and I would consider [them] both for the issue of credibility as well as for the issue of whether or not you are a habitual offender?

Ziglar again indicated his understanding, and told the judge that he had decided not to testify during the sentencing phase. The judge ultimately found beyond a reasonable doubt that Ziglar had been convicted of sufficient prior felonies to qualify as a habitual offender. Ziglar received the mandatory thirty-two year sentence and appealed on numerous bases.

While rejecting the bulk of Ziglar's contentions, the court of appeals ruled that during the sentencing hearing, the trial court had "twice incorrectly informed [Ziglar] that should he testify, evidence of his prior felony convictions could be used against him both substantively and for credibility purposes." People v. Ziglar, No. 98CA2214, slip op. at 13 (Colo.App. Dec. 14, 2000). The court relied on People v. Lefebre, 981 P.2d 650 (Colo.App. 1998), in holding that the prosecution must prove the habitual criminal charges without the aid of Ziglar's testimony during the sentencing phase except to the extent that the defendant's testimony might reflect upon his credibility. The court then remanded pursuant to People v. Blehm, 983 P.2d 779, 792 (Colo.1999) (holding proper procedure is remand to determine whether waiver was nonetheless knowing, voluntary, and intelligent after trial court's advisement fails Curtis).⁴ This appeal followed.

II.

As explained in Curtis and its progeny, the right of a defendant to testify in his or her own defense is rooted in both the United States and the Colorado Constitutions. Curtis, 681 P.2d at 509-10. It follows that, when a defendant chooses not to testify, he or she is waiving a constitutional right, Rock v. Arkansas, 483 U.S. 44, 50-51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); such waiver is valid only when made knowingly, intelligently, and voluntarily. See Curtis, 681 P.2d at 512; People v. Deskins, 927 P.2d 368, 370 (Colo.1996).

The Curtis advisement ensures that those facing prosecution understand not only their right to take the stand, but also the consequences thereof, and that they may testify notwithstanding contrary advice from counsel. Curtis, 681 P.2d at 514. We have previously held that the Curtis advisement is not a precise litany, but must address the following five elements:

1) The right to testify exists;

2) The right is personal, and no one can prevent the defendant from testifying;

3) The defendant will be subject to cross-examination;

4) The cross-examination may reveal to the jury defendant's felony convictions, if any; and

5) Any convictions so revealed may be used to impeach the defendant's credibility.

Blehm, 983 P.2d at 793 (discussing Curtis, 681 P.2d at 514). In Blehm, we referred to elements three through five as the "consequences of testifying," necessary in the advisement to ensure the waiver is undertaken knowingly and intelligently. Id.

The final three elements of the Curtis advisement derive from section 13-90-101, 5 C.R.S. (2001) (hereinafter "witness statute"). The witness statute mandates that "all persons" may be witnesses, including those with criminal convictions. Id. It further permits the credibility of every witness to be "drawn in question," and states specifically that prior felony convictions may be used for that purpose. Id. ("[T]he conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness."). The 1883 statute repealed a statutory prohibition on convicts taking the witness stand. See Trackman v. People, 22 Colo. 83, 84, 43 P. 662, 663 (1896). When it decided to allow those convicted to testify, the general assembly, in essence, directed that prior convictions are per se relevant to the issue of credibility. Defendants taking the stand are subject to the same credibility challenges as any other witness. People v. Neal, 181 Colo. 341, 343, 509 P.2d 598, 599 (1973). In short, the witness statute permits the admissibility of prior criminal convictions for impeachment purposes.

The Habitual Criminal Statute, sections 16-13-101 to 103, 6 C.R.S. (2001), also bears on the questions presented here. In adopting the statute, the general assembly imposed more rigid sentencing provisions for defendants who have been convicted of felonies on at least two previous occasions, i.e., "habitual criminals." Id. The statute includes not only sentencing guidelines, but also procedures that guide trial courts in the habitual offender phase of the proceedings. Id. We summarize those procedures relevant here.

First, at arraignment, the defendant must admit or deny the previous convictions alleged by the prosecution. § 16-13-103(3). If the defendant admits the convictions, then "no proof of such previous conviction is required"; the statute considers such an admission as conclusive proof of the felony conviction for purposes of the habitual criminal adjudication. Id. A denial (or refusal to answer) at arraignment triggers a bifurcated proceeding, the first phase being the trial on the substantive offense (hereinafter "trial phase"), the second being the habitual criminal determination (hereinafter "sentencing phase"). In the trial phase, the prosecution must prove the underlying offense beyond a reasonable doubt; in the sentencing phase, the prosecution must prove the existence of prior felonies beyond a reasonable doubt. See § 16-13-103(4)(b).

Pertinent here, the statute next addresses the defendant's testimony at the trial phase and the permissible use thereof. Should the defendant choose to testify during trial, the statute acknowledges that prosecutors may confront him or her with prior felony convictions presumably in accord with the witness statute. Unlike the witness statute, however, the habitual criminal statute substantially restricts the use of a defendant's trial phase admissions. Because the prosecution must later prove the prior felonies at the sentencing phase, the statute directs that prior felony evidence elicited during trial is for "the sole purpose of impeachment of the defendant's credibility." § 16-13-103(5)(a). The statute makes clear that a defendant's admissions during the trial phase are not "conclusive proof" of the existence of the prior convictions, as they would be had those same admissions emerged at arraignment. See § 16-13-103(3). To remove any doubt, the statute adds:

If, upon the trial of the issues upon the substantive offense charged [i.e., the trial phase], the defendant testifies in his or her own defense and, after having denied the previous conviction [at arraignment], admits that he or she has been previously convicted as alleged, the trial judge ... shall, in any sentencing hearing, consider any

...