People v. Gray

920 P.2d 787, 20 Brief Times Rptr. 990, 1996 Colo. LEXIS 213, 1996 WL 342291
CourtSupreme Court of Colorado
DecidedJune 24, 1996
Docket95SC134
StatusPublished
Cited by27 cases

This text of 920 P.2d 787 (People v. Gray) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gray, 920 P.2d 787, 20 Brief Times Rptr. 990, 1996 Colo. LEXIS 213, 1996 WL 342291 (Colo. 1996).

Opinions

Justice SCOTT

delivered the Opinion of the Court.

We agreed to review People v. Gray, 899 P.2d 290 (Colo.App.1994), in which the court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that respondent Marvin Gray (defendant) received an inadequate advisement under People v. Curtis, 681 P.2d 504 (Colo.1984). The trial court informed the defendant that his prior felony convictions “would be admissible with respect to credibility.” The court of appeals held the trial court faded to inform the defendant that his testimony during the substantive phase of the trial with respect to “prior felony convictions would be admissible only for purposes of impeachment” and that the People “would still have the burden of proving the prior felony convictions at the habitual offender phase of the trial.” Gray, 899 P.2d at 291. We granted certiorari to decide:

I. Whether a trial court’s failure to advise the defendant, pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984), of our [789]*789holding in People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981), that any admissions of prior felony convictions by the defendant can only be considered by the jury in assessing credibility, not as substantive proof of the prior convictions, renders a criminal conviction invalid.

II. Whether Curtis advisements are required.

On the record before us, we see no basis for finding reversible error, and therefore, we reverse the judgment of the court of appeals and remand to that court with directions that it return the case to the trial court with instructions to reinstate the judgment of convictions.

I

Defendant was convicted of aggravated robbery1 and attempted aggravated robbery 2 and sentenced as a habitual offender.3 At the close of the People’s ease and outside the presence of the jury, the trial court informed the defendant of his right to testify. We set forth a portion of that advisement:

THE COURT: The People have rested and we’re now on the part of the case [where Mr. Gray] you, can put on some evidence if you want. Included among that evidence is you yourself of course have the right to testify as a witness in this case. Do you understand that?
THE DEFENDANT: Yes.
[[Image here]]
THE COURT: All right. Now, no one can keep you from testifying and no one can make you testify, and the decision whether to testify is yours and yours alone. I’m sure you and Mr. Johnson have discussed at some length whether or not you want to testify, I’m sure he has given you advice on that point and good advice?
THE DEFENDANT: Yes.
THE COURT: Nonetheless the decision is yours. Now, if you do testify you should note that the District Attorney will be able to cross-examine you about the facts of this particular ease, and if you’ve been previously convicted of a felony, the District Attorney will be entitled to ask you about your previous convictions.
I understand from my review of the file that there is some issue as to whether or not you have been convicted of six prior felonies, at least that’s the allegation with respect to the other part of this case. As a result of that, I anticipate that if you testify the District Attorney will inquire of you as you are testifying about the existence of these six prior felonies.
The six prior felonies would be admissible with respect to credibility. The District Attorney can in fact talk about them. Are you aware of all that?

(Emphasis added.)4

II

A

In People v. Curtis, 681 P.2d 504, 512 (Colo.1984), we held that a defendant’s right to testify is a fundamental right that can only be surrendered by a waiver “tested [790]*790by the same constitutional standards applicable to the waiver of the right to counsel.” See also People v. Milton, 864 P.2d 1097, 1098-99 (Colo.1993). Similarly, in Rock v. Arkansas, the United States Supreme Court held that “[t]he right to testify on one’s own behalf at a criminal trial ... is one of the rights that ‘are essential to due process of law in a fair adversary process.’ ” 483 U.S. 44, 51, 107 S.Ct. 2704, 2708-09, 97 L.Ed.2d 37 (1987) (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)). The right to testify is bottomed on the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment’s privilege against self-incrimination. Id. at 49-53, 107 S.Ct. at 2707-10. The Court noted:

Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 [102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193] (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself.

Id. at 52,107 S.Ct. at 2709.

Under Curtis, 681 P.2d at 514, in order to determine whether a defendant’s waiver of the constitutional right to testify is voluntary, knowing, and intelligent, a trial court should advise the defendant outside the presence of the jury

that he has the 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.

(Footnote omitted.)5 Curtis requires that a trial court ensure a defendant’s waiver of his or her right to testify is intelligently and competently made. Roelker v. People, 804 P.2d 1336, 1338 (Colo.1991).

Generally, “courts indulge every reasonable presumption against waiver.” Curtis, 681 P.2d at 515.

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Bluebook (online)
920 P.2d 787, 20 Brief Times Rptr. 990, 1996 Colo. LEXIS 213, 1996 WL 342291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gray-colo-1996.