People v. Harding

104 P.3d 881, 2005 WL 38920

• Court: Supreme Court of Colorado
• Decided: January 10, 2005
• Docket: 03SC803
• Status: Published

Opinions

Justice BENDER

delivered the Opinion of the Court.

In this post-conviction appeal, we affirm the court of appeals' decision to grant Stanton P. Harding a new trial because of a defective Curtis Advisement where the People did not produce any evidence at the post-conviction proceedings to attempt to establish that Harding's waiver of the right to testify was knowing, voluntary and intelligent. People v. Harding, No. 02CA0350, slip op., 2008 WL 22211273 (Colo.App. Sept.25, 2008) (not selected for official publication pursuant to C.A.R. 85(f)) (Harding III ).

During Harding's trial for sexual assault, the trial court advised him that if he testified, the jury would be instructed to consider his felony conviction as it bears on his character. A felony conviction is not admissible to show character. Therefore, Harding was not properly advised of the impeachment consequences of testifying pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984). When a court's advisement is invalid, the prosecution may present evidence at a post-conviction hearing to establish the validity of the waiver irrespective of the defective advisement pursuant to People v. Blehm, 983 P.2d 779 (Colo.1999). In this case, the prosecution failed to present any evidence and instead relied upon the trial record of the invalid Curtis Advisement to establish waiver. Thus, the record of the post-conviction hearing is silent as to what the defendant understood about the potential consequences of testifying. Following the mandates of Blehm and Curtis we can not assume that the defendant understood the consequences of waiving this significant right from an invalid Curtis Advisement and therefore find that the prosecution failed, to meet its burden to establish the validity of Harding's waiver. Hence, we affirm the court of appeals and remand this case to that court with directions to return it to the trial court for a new trial.

Facts and Proceedings Below

The People charged Stanton P. Harding, defendant in the trial court and respondent before us, with sexually assaulting a female employee of a store in a shopping mall. A jury convicted him of third degree sexual assault by the use of force, third degree assault, and commission of a crime of violence in April 1996. Harding has a prior felony conviction for sexual assault and did not testify at his trial.

Relevant to this appeal, the trial judge advised Harding about his right to testify. The judge told Harding that he had a right to testify, that no one could prevent him from testifying, and that if he did testify the prosecution could cross-examine him and ask about his prior felony conviction. He then stated that the jury could consider his prior conviction as it bears "upon his character." After this advisement, Mr. Harding stated it was his intent not to testify.¹

Harding appealed and the court of appeals affirmed his conviction. People v. Harding, 983 P.2d 29 (Colo.App.1998) (Harding I). There, Harding argued that he was not adequately advised about his right to testify on his own behalf because the advisement did not conform to this court's holding in People v. Curtis. Harding I, 983 P.2d at 31. Curtis established what is now known as the "Curtis Advisement" and requires the trial court to advise the defendant of several things including that should he testify, the prosecution could ask the defendant about prior felony convictions and the jury could consider any such conviction as "it bears on his eredibility." 681 P.2d at 514. However, in Harding's case, the trial court stated that the jury could consider any prior conviction as it bears upon his "character." The court of appeals held that despite this discrepancy, the trial court's advisement "substantially complied with the requirements of Curtis" and was "adequate to assure that [Harding] knowingly, voluntarily, and intentionally waived his right to testify." Hoarding I, 983 P.2d at 32.

Harding then appealed to this court. In an order dated August 80, 1999, we granted his petition for certiorari and ordered that the judgment of the court of appeals be vacated and that the court of appeals reconsider Harding's appeal in light of our then recent decision of People v. Blehm. In Blehm, we affirmed our holding in People v. Curtis that a valid waiver of the right to testify must be knowing, voluntary, and intelligent and that the trial court must advise the defendant on the record of the right to testify and the consequences of testifying. 983 P.2d at 797. Particularly relevant to Harding's case, we held that when a defendant's Curtis Advisement is lacking in one of the five Curtis elements, the defendant's claim of an invalid waiver of his right to testify should be addressed in a post-conviction proceeding where the prosecution must prove that the waiver was still valid despite the trial court's defective advisement. Id. at 792, 797.

Upon remand from this court, the court of appeals reconsidered its judgment of Harding I in People v. Harding, 17 P.3d 183 (Colo.App.2000) (Harding II). The court determined that the use of the term "character" instead of "credibility" rendered Harding's advisement deficient and remanded the case to the trial court for an evidentiary hearing on the validity of his waiver pursuant to the required procedures identified in Blehm. Hoarding II, 17 P.3d at 186.

The post-conviction court held this hearing in December 2001. A new judge presided over the hearing because the original trial judge had retired. In addition, different counsel appeared on behalf of both the People and Harding. At this hearing, no evidence was introduced other than the trial record. No witnesses testified as to what Harding knew to be the consequences of testifying. The prosecutor argued that the trial court's use of the word "character" instead of "credibility" did not affect the trial judge's determination that the defendant made a valid waiver. In support of this position, the prosecutor argued at the post-conviction hearing that immediately before the trial court's Curtis Advisement, Harding heard argument that his prior bad act could be used to prove his identity but not his character and therefore understood the prejudicial effect that his prior conviction would have if he testified.

After reviewing the record, the post-conviction court concluded that Harding knowingly, intelligently, and voluntarily waived his right to testify. The court reasoned that Harding acknowledged speaking to his attorney about testifying and that a determination was made that he would not testify before receiving his Curtis Advisement. The court stated that the admission of Harding's prior bad act as similar transaction evidence was an event "wholly separate" from his prior conviction for sexual assault and that during his trial, no mention was made of his prior felony conviction for sexual assault. The court then determined that Harding understood the difference between the evidentiary concepts of "character" and "credibility" and concluded that "the defendant was fully aware of his rights and the use of prior felony convictions before he ever discussed the issue with the trial court." He ruled that Harding's waiver was valid and stated that the post-conviction court was in "no better position than [the trial judge] was when he conducted the trial and had the opportunity personally to observe both the defendant and the interaction of defendant with his counsel."

Harding appealed. A divided panel of the court of appeals held in an unpublished opinion that the prosecution had not met its burden of proof at the post-conviction eviden-tiary hearing. That court concluded there was insufficient proof that Harding had made a knowing, voluntary, and intelligent waiver of his right to testify and reversed the trial court and ordered a new trial. Harding III, slip op. at 8, 2003 WL 22211273. Judge Roth-enberg dissented, reasoning Harding understood the consequences of testifying, namely, that "the jury would learn he was a convicted sex offender." Hoarding III, slip op. at 11, 2003 WL 22211273 (Rothenberg, J. dissenting). She argued that to the extent there is a difference between "character" and "credibility," Harding was not misled by this substitution and that to conclude otherwise was contrary to our holding in Blehm where we stated that the Curtis Advisement need not conform to a prescribed litany. Thus, despite the failure of the People to produce any evidence at the post-conviction hearing, she claimed that the record supported this finding of waiver and would have affirmed the post-conviction court's finding that Harding made a "voluntary, knowing, and intelligent waiver" of his right to testify. Id. at 18-14, 2008 WL 22211278.

We granted the People's petition for cer-tiorari to review the court of appeals' decision in Harding III.²

Analysis

I. Defendant's Right to Testify

We begin our analysis with a summary of our cases that establish a defendant's right to testify and the requirements to determine whether a defendant made a valid waiver of his right to testify. Our cases of People v. Curtis and People v. Blehm guide our review.

In Curtis, we recognized that the due process clauses of Amendment XIV of the United States Constitution and Article II, section 25 of the Colorado Constitution grant a defendant the fundamental right to testify in his criminal trial. 681 P.2d at 509-11. To ensure that a waiver is voluntary, knowing, and intentional, the trial court must communicate five essential elements to the defendant when making the on-the-record advisement. The advisement must articulate 1) that he has a right to testify, 2) that no one can prevent him from doing so, 3) that if he does testify then the prosecution may cross-examine him and 4) ask about any prior felony convictions, and 5) if a felony conviection is disclosed to the jury then the jury will be instructed to consider the felony as it bears on the defendant's credibility.³ Id. at 514.

In Blehm, this court re-examined and reaffirmed the central holding of Curtis. However, we recognized and held that a defendant's claim of an invalid waiver is "best addressed in post-convictions proceedings" rather than by direct appeal. Blehm, 983 P.2d at 792. A defendant is entitled to a post-conviction hearing when his advisement is defective because it lacks at least one of the five essential Curtis elements. Id. at 792. At this hearing, both parties may present relevant evidence not present in the trial record to establish the validity of the waiver. Id. Such a fact-finding hearing is necessary "where facts outside the record may be crucial to understanding whether the defendant knowingly and intelligently waived his right to testify." Id. at 791-92. The rationale behind the evidentiary hearing is to provide an opportunity for the prosecution to establish that although an advisement is defective, the defendant nevertheless did understand fully his right to testify and did make a valid waiver. We said that this hearing should determine "whether the defendant was aware that he had a right to testify, whether the defendant knew of the consequences of testifying, and whether the defendant understood that he could testify notwithstanding the contrary advice of counsel." Id. at 792.

Concerning what the defendant must establish at this hearing, we have "rejected the suggestion that a defendant must prove he was prejudiced by an inadequate advisement in order to prevail" at this post-conviction hearing. Blehm, 983 P.2d at 788; see also People v. Milton, 864 P.2d 1097, 1101 (Colo.1993); and People v. Chaves, 853 P.2d 1149, 1153 (Colo.1993). Thus, the prosecution has the burden of proving that the defendant was not prejudiced by the inadequate advisement, or in other words, the defendant's waiver was valid despite the defective advisement. If after hearing the evidence presented at the post-conviction hearing the court concludes that the defendant's waiver was not voluntary, knowing and intelligent, then the defendant is entitled to a new trial, Blehm, at 792.

II. Application

A. The Trial Court Advisement

With these principles in mind, we examine the advisement given to Harding at his trial. Our review is de novo because the validity of a defendant's waiver is a question of law. Blehm, 983 P.2d at 792 n. 9.

It is undisputed that the first four elements of Harding's advisement mirror the first four elements of the Curtis Advisement. Harding claims the trial court erred when it advised him about the fifth element. On this point, the court's advisement stated that the jury may consider his prior felony conviction as it bears upon his "character." The trial court did not advise Harding that the jury may only consider his felony conviction as it bears on his "credibility." See Curtis, 681 P.2d at 514.

The People argue that the trial court's advisement "substantially complied" with the requirements of Curtis and that the use of the term "character" in place of "credibility" should not impact the trial court's finding that Harding had voluntarily, knowingly and intelligently waived his right to testify.

This court has previously considered a defective Curtis Advisement where the fifth element, that a defendant's credibility could be impeached with a prior felony conviction, was omitted from the trial court's advisement. In both Chaves and Milton we reversed convictions because neither defendant had been properly advised.⁴ Chaves, 853 P.2d at 1152; Milton, 864 P.2d at 1101. Like Milton and Chaves, Harding was not advised that the prosecutor would be able to impeach his credibility with his prior conviction. However, Harding was told that his convietion could be considered by the jury as it bears on his "character." Thus, we consider whether the use of the word "character" instead of the term "credibility" distinguishes Harding's advisement from Chaves and Milton.

A person's character refers to the nature or "actual disposition" of an individual that may "be properly provable either as eviden-tiary fact or as an issue." 1A Wigmore on Evidence, § 52, at 1147 (Tillers rev.1988). Character concerns one's tendencies to perform in a certain way depending on the cireumstances of a given situation.⁵ The purpose of introducing evidence of prior bad acts is to prove that the witness acted in a certain way because of the nature of his character. This requires one to assume that since a person acted a certain way in the past, he is more likely to act in the same way again and in fact did so. Due to the potential prejudicial nature of evidence of prior bad acts, this evidence is usually not admissible to prove a defendant engaged in the wrongful conduct at issue.⁶

Credibility, on the other hand, refers to a "quality that makes something (as a witness or some evidence) worthy of belief." Blacks Law Dictionary 396 (8th ed.2004). Under our rules of evidence, character evidence of a witness may be offered to discredit the believability or eredibility of a witness's testimony. CRE 608(a). This exception to the general prohibition against the introduction of character evidence allows the impeachment of a witness's eredibility, or truth-telling capabilities, by evidence of his "character for truthfulness or untruthfuiness." Id. These rules allow the truthfulness of a defendant's testimony to be tested while barring the jury from engaging in the prohibited character inference that a witness acted in conformity with his bad character and therefore committed the underlying offense. Id.; People v. Quintana, 882 P.2d 1366, 1372 n. 10 (Colo.1994) (citing People v. Spoto, 795 P.2d at 1320-21).

The sole reason to limit the evidentia-ry use of a prior conviction to impeachment only is to prevent the jury from using this evidence to make prohibited character inferences. Without this distinction about the use of a prior conviction, the jury could infer the present guilt of a witness who is also the accused because he previously committed a bad act. In other words, "the jury might misuse the evidence and give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime charged, or even that he ought to be imprisoned without too much concern for present guilt or innocence." John Strong, McCormick on Evidence, § 42, at 168-69 (5th ed.1999). This is the situation presented by Harding.

The inherent prejudice of offering evidence of a prior conviction is recognized by the General Assembly in section 183-90-101, C.R.S. (2004), which states that evidence of a prior felony conviction may be offered for "affecting the credibility" of the witness. This statute exemplifies the distinction we recognize between the use of a prior conviction to show the defendant's propensity to act in a particular fashion and his ability to be truthful on the witness stand. People v. Chaves, 621 P.2d 1362, 1366 (Colo.1981). Despite the prejudicial nature that evidence of a prior felony conviction has on a witness's testimony, we permit it so the jury may use it for the limited purpose of making the inference that a witness who disobeyed a social norm in the past may be "violating another norm [by] lying now." Edward Im-winkelried, Evidentiary Foundations § 5.10[1] (5th ed.2002).

This distinction between character and credibility in the context of impeaching a defendant is borne out in our cases. For example, in People v. Tippett, 788 P.2d 1183, 1193 (Colo.1987), we held that a judge who presided over the defendant's divoree proceedings could testify to rebut the defendant's testimony at his criminal trial for the limited purpose of impeaching his credibility. In that case we recognized the difference between the permitted use of character evidence to discredit the truthfulness of a defendant and the prohibited use to prove the defendant committed the offense charged. We noted that an accused who testifies "does not thereby place his general character in issue, [but] does subject himself to an attack on his credibility" just like any other witness. Id. Likewise in People v. Couch, 179 Colo. 324, 329, 500 P.2d 967, 969 (1972), we identified a difference between the use of character evidence to prove the witness possessed a bad character and the use of it to test his credibility-that is, his "propensity to disregard the obligation of an oath." Id.

To summarize, a witness's credibility represents the believability or truthfulness of his testimony. His credibility may be impeached with evidence of his bad character which may impact whether the witness's testimony about a particular matter can be believed. Character, on the other hand, concerns the substantive proof that a witness will act in a particular way on a particular occasion. Without the proper limiting instruction, the introduction of evidence of a witness's prior bad acts permits the jury to make the inference that the person acted in a certain way according to that trait. Thus, the evidentia-ry concept of "character" and the trait of "credibility" are substantively different terms when used by the trial court to advise a defendant that a prior felony conviction could be used for the limited purpose of impeaching his prospective testimony pursuant to Curtis.

Hence, we hold that the trial court's advisement in this case was defective because it did not advise Harding that the jury could consider his prior felony conviction for the limited purpose of how it bears upon his ability to be truthful-that is, his "eredibility." Moreover, the trial court's advisement was not merely deficient, but it incorrectly advised Harding about the consequences of testifying at his trial-that the jury could have considered his prior felony as it related to his propensity to re-offend and to treat his prior conviction for sexual assault as proof that he committed the charged crimes, and not just for assessing the truthfulness of his testimony. See Blehm, 983 P.2d at 788 (stating, "where the trial court's on-the-record advisement has been deficient in some important way, we have necessarily concluded that the defendant's waiver was invalid").

B. The Post—Conviction Proceeding

Having determined that Harding's Curtis Advisement was deficient, we address the People's contention that without any evidence at the post-conviction hearing, the trial record and specifically the record of the advisement was sufficient to prove that Harding's waiver was voluntary, knowing and intelligent irrespective of the defective advisement.

The People assert that the trial record indicates that Harding spoke with his attorney about testifying and that the trial judge and Harding discussed his rights. In addition, they argue that an earlier argument and ruling by the trial court concerning whether a prior bad act allegedly committed by Harding was admissible to prove his identity support the post-conviction court's finding of waiver.

At the post-conviction hearing, the proge-cution relied upon the record of the trial court's presumptively defective Curtis Advisement to argue that Harding validly waived his right to testify. As support for waiver, the prosecution also referred to portions of the trial record to prove Harding knew the consequences of testifying but introduced no evidence that Harding did in fact understand his right to testify when he waived this right. The trial record indicates that Harding did talk to his attorney about whether to testify, but it is silent concerning what was said.⁷ The trial record is also silent as to whether Harding understood the consequences of testifying after the court ruled that evidence of prior acts would be admissible to prove identity and not Harding's "bad character." The similar transaction ruling under CRE 404(b) by the trial court had nothing to do with Harding's personal decision of whether to testify after receiving his Curtis Advisement. Without more information concerning Harding's decision not to testify other than what the trial record reveals, we are unable to conclude that Harding knew and understood the evi-dentiary concept that his prior conviction for sexual assault could only be used to impeach his credibility if he testified.

Because the advisement misstated the fifth Curtis element, the post-conviction court must review the trial record and weigh any other evidence presented to determine whether a defendant, such as Harding, was made fully aware of the impeachment consequences of testifying. 'After reviewing the record of this case, we are unable to conclude that Harding knew these consequences, and knowing them, waived his right to testify. A contrary conclusion would require us to disregard the Curtis mandate which requires that Harding's advisement be treated as defective, as well as the Blehm mandate which requires the prosecution prove at a post-conviction hearing the validity of the defendant's waiver notwithstanding the invalid advisement. If we were to sanction the post-conviction finding of waiver here, we would be assuming that the defendant understood the impeachment consequences of testifying. This assumption constitutes speculation about what Harding actually knew when he waived his right to testify rather than what the record reveals. See Blehm, 983 P.2d at 787 (stating that the purpose of placing the waiver on the record is to "eliminate speculation"). Such an assumption appears reasonable in a case like this because ordinarily a defendant with a prior conviction for sexual assault would choose not to testify precisely because the jury would find out that he was a sex offender and be severely biased against him. However, the central purpose of the Curtis Advisement is for the trial court to ensure that this particular defendant, not someone similarly situated, in fact understands the choice he is facing and understands that the decision of whether to testify is his and his alone to make.

Conclusion

For the reasons stated above, we affirm the court of appeals and remand this case to the court of appeals with directions to return it to the trial court for a new trial.

Justice KOURLIS dissents, and Justice RICE and Justice COATS join in the dissent.

1 . The advisement appears as follows in the trial record:

THE COURT: Mr. Harding, I need to advise you of certain rights that you have with respect to testifying in this case. In this proceeding, you understand that you have a right to testify?

THE DEFENDANT: Yes, I do.

THE COURT: All right. And if you want to testify, no one can prevent you from doing so. Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: You understand thal you may take the witness stand and testify even if it's contrary to the advice of [your attorney]?

THE DEFENDANT: Yes, I do.

THE COURT: And do you understand that if you do testify, the prosecution will be allowed to cross-examine you?

THE DEFENDANT: Yes.

THE COURT: And if you have been convicted of a felony, the prosecutor would be entitled to ask you about that conviction and, therefore, disclose the conviction to the jury. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you understand that they can only ask you about convictions and only convictions with felonies, they can't ask you about misdemeanors or other incidents but it has to be confined to felony convictions as far as the previous record is concerned. Do you understand thai?

THE DEFENDANT: Yes, I do.

THE COURT: All right. If a--if you were to testify and the prosecution were to bring out a felony conviction on your part, the jury would be instructed to consider the felony conviction only as it bears on your character, you understand that?

THE DEFENDANT: Yes.

2 . We granted certiorari on the following issue submitted by the people:

Whether the prosecution established that the defendant understood the consequences of the right to testify, and therefore, made a valid waiver of that right, notwithstanding the trial court's incorrect advisement regarding the consequences of testifying.

3 . In Curtis we said:

A trial court ... 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.

Curtis, 681 P.2d at 514 (footnote omitted).

4 . John Chavez had a prior felony conviction and did not testify at his trial for burglary. Chavez, 853 P.2d at 1151. The trial court informed him of his right to testify or not to testify and that should he testify his four prior felony convictions could be disclosed to the jury by the prosecution. The advisement, however, did not explain the limited purpose for which such felonies could be admitted. Thus, we held that the advisement was defective and misleading and denied Chavez of an opportunity to make a voluntary, knowing and intelligent waiver of his right to testify. Id. at 1152. It is arguable that Chavez is distinguishable from this case because he was charged as an habitual criminal and therefore could have thought that the admission of a prior felony would be used in the habitual criminal phase of his trial. However, this was not the case in Milton where the defendant was not charged as an habitual criminal and we reached the same result. There, Gail Milton did not testify in her trial for reckless manslaughter and second-degree assault. 864 P.2d at 1098. In advising Milton, the trial court did not mention the consequences of testifying, specifically, that the prosecution could impeach the credibility of her testimony with her prior convictions. Id. at 1100. Although Milton did not testify, we held that it was the fact that she was not advised about the impact of testifying that established a violation of the waiver requirement identified in Curtis. Milton, 864 P.2d at 1100. See also People v. Deskins, 927 P.2d 368, 370-71 (Colo.1996) (stating that a confusing Curtis Advisement may still be valid where it contains the five essential elements and informs the defendant that a felony conviction could be used for "credibility purposes").

5 . For example, character evidence has been used to show one's tendencies toward: violence, Lombardi v. Graham, 794 P.2d 610, 612 (Colo.1990); peacefulness, People v. Garcia, 964 P.2d 619, 627 (Colo.App.1998); being a cautious driver, People v. T.R., 860 P.2d 559, 562 (Colo.App.1993); being an "excellent worker," People v. Jones, 743 P.2d 44, 46 (Colo.App.1987); immorality, Wilkinson v. People, 86 Colo. 406, 412, 282 P. 257, 259 (1929); good moral behavior, People v. Strean, 74 P.3d 387, 392 (Colo.App.2002); dishonesty, Davis v. People, 871 P.2d 769, 773 (Colo.1994); or truthfulness, People v. Miller, 890 P.2d 84, 91 (Colo.1995).

6 . CRE 404(b) (stating in part: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith"); see also Douglas v. People, 969 P.2d 1201, 1204 (Colo.1998); People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990); Martin v. People, 738 P.2d 789, 794 (Colo.1987); Serratore v. People, 178 Colo. 341, 344, 497 P.2d 1018, 1020 (1972) (stating as a general rule a defendant's criminal record is inadmissible); Kostal v. People, 144 Colo. 505, 512, 357 P.2d 70, 73 (1960). As an exception to this general prohibition, CRE 404(b) allows evidence of other crimes or bad acts for the purpose of proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

7 . The defendant in People v. Gray, 920 P.2d 787, 791 (Colo.1996), had been advised by his attorney about testifying at trial and had acknowledged this to the court. Contrary to the People's position here, we do not read Gray to mean that Harding's advisement by his attorney provided sufficient evidence to establish a valid waiver. We were not required to determine the effect of this consultation with Gray's attorney because we concluded that "[the trial court did not mislead [the] defendant." Id. at 792. In fact, the trial court's advisement included the essential Curtis elements and stated that the defendant's "prior felonies would be admissible with respect to credibility." Id. at 789 (emphasis in original).