Opinion
No. 92SC150
Decided February 22, 1993. Rehearing Denied March 15, 1993.
Certiorari to the Colorado Court of Appeals
David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, for Petitioner.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul Koehler, Assistant Attorney General, for Respondent.
The court of appeals in People v. Tyler, No. 90CA0860 (Colo.App. Nov. 21, 1991), affirmed the judgment of conviction and the sentences imposed on Billy Ray Tyler for second-degree burglary and attempted second-degree murder. The court of appeals concluded that the trial judge's failure to determine on the record whether Tyler desired to relinquish or exercise his constitutional right to testify did not mandate reversal of his judgment of conviction. We granted certiorari and now affirm.
I
On October 3, 1989, Renee Benson heard a window break in her living room. Benson went into her living room, armed with a handgun, and encountered Tyler. After Benson fired two shots at Tyler, he attacked her and stabbed her four times with a knife. Tyler was arrested and charged with burglary, assault, attempted murder, and crime of violence.
Tyler and Benson previously lived with one another and had a child together. However, the couple had recently separated and their relationship had deteriorated. Twice before, Tyler had appeared at Benson's home demanding to see his daughter and had tried to kick down the door.
During the trial, after the prosecution rested, the trial judge asked defense counsel outside the presence of the jury if she was "going to have evidence." Defense counsel replied that she had to talk to Tyler and then made a verbal motion for acquittal. After the trial judge denied the motion, he advised Tyler outside the presence of the jury of his right to testify in his own defense in accordance with People v. Curtis, 681 P.2d 504 (Colo. 1984), and then asked Tyler if he understood the advisement. Tyler responded that he understood the advisement. The trial judge then asked Tyler if he had made a decision. Tyler answered that he had not and asked the trial judge if he could "have a brief time to think about it while [he used] the restroom." The trial judge informed Tyler that he could decide later whether to waive his right to testify.
Tyler does not contend that the advisement was inadequate.
Following a three-hour recess, the trial judge and counsel discussed proposed jury instructions in Tyler's presence for a half-hour. After a second recess, court was reconvened with Tyler present. The trial judge stated, "I guess we better have defense rest." Defense counsel rested and the trial judge proceeded to instruct the jury. The jury convicted Tyler of second-degree burglary, second-degree assault, attempted second-degree murder, and crime of violence.
§ 18-4-203, 8B C.R.S. (1986).
§ 18-3-203(1)(d), 8B C.R.S. (1986). Tyler had been charged with first-degree assault.
§ 18-2-101, 8B C.R.S. (1986 1992 Supp.). Tyler had been charged with attempted first-degree murder.
§ 16-11-309, 8A C.R.S. (1986 1992 Supp.).
A divided panel of the court of appeals initially reversed the judgment of conviction because the trial judge did not determine on the record whether Tyler desired to relinquish or exercise his right to testify. The court of appeals subsequently granted the prosecution's petition for rehearing and issued an opinion affirming the portion of the judgment as to second-degree burglary and attempted second-degree murder. The court of appeals vacated both the portion of the judgment regarding second-degree assault and the consecutive sentences Tyler received for the attempted murder and assault, and remanded with directions for resentencing.
We granted certiorari to decide whether a judgment of conviction must be automatically reversed because the record fails to state a defendant's waiver of the right to testify. We hold that a trial judge's failure to state on the record whether a defendant desires to relinquish or not to exercise his right to testify is not reversible error per se.
We do not address the decision of the court of appeals vacating the consecutive sentences because the same evidence supported both convictions or vacating Tyler's conviction for second-degree assault because the jury failed to complete the special verdict form.
II
Curtis, 681 P.2d 504, held that a trial judge must ensure that a defendant's waiver of the right to testify is voluntary, knowing, and intentional. Id. at 515. In order for a defendant to make a voluntary, knowing, and intentional decision, he must be aware of the right to testify, the consequences of testifying, and his right to take the stand regardless of counsel's advice to the contrary. Id. at 514.
In order to ensure that the right to testify is voluntarily, knowingly, and intentionally waived, Curtis requires that the trial judge give the defendant an "advisement" outside the presence of the jury:
"[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 had 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."
Id.
Roelker v. People, 804 P.2d 1336 (Colo. 1991), revisited the issue of the waiver of a defendant's right to testify. Roelker addressed the question of "whether Curtis requires the trial judge to ask the defendant personally, on the record, whether he wishes to waive his right, or whether it is sufficient for the trial judge to advise the defendant of his right to testify and of the possible consequences of doing so." Id. at 1338.
The facts of Roelker are very similar to those of the present case. In Roelker, the trial judge properly advised the defendant of his right to testify pursuant to Curtis. When asked if he understood his right to testify and the consequences of invoking that right, the defendant responded that he did. The trial judge subsequently stated, in the presence of the defendant, that the record should reflect that the defendant and his counsel had elected not to present any testimony. The record, however, did not contain an affirmative statement by the defendant stating that he wished to waive the right to testify. Moreover, when defense counsel later said that the defense was going to rest, the defendant did not make any objection. Roelker, 804 P.2d at 1339. The only factual difference between Roelker and the present case is the trial judge's statement in Roelker that "the record should reflect that Roelker and his counsel had elected not to present any testimony." Id.
Roelker stated that "[t]he actual holding of Curtis limits the trial judge's responsibility to advising the defendant of his right to testify and the consequences of doing so. Curtis contains dictum supporting an argument that either defense counsel or the trial judge should question the defendant on the record in order to `determine the defendant's wishes.'" Id. Roelker, however, "reject[ed the] argument that the dictum of Curtis mandates a rigid requirement that the trial court question the defendant to determine whether his waiver is truly voluntary." Id. at 1339.
Instead, Roelker stated that " Curtis did not decide what the minimum requirements are to establish a waiver of a defendant's right to testify in his own defense." Id. Despite the failure of the trial judge to ask the defendant personally, on the record, whether he wished to waive the right to testify, Roelker affirmed the trial judge's determination that the defendant effectively waived his right to testify. Id.
III
In this case, we address the waiver of a defendant's right to testify in a situation where the record contains no explicit reference that the defendant waived his right to testify. While we reaffirm the principle that a waiver of the right to testify must be voluntary, knowing, and intentional to be effective, we hold that it is not reversible error per se when the waiver does not appear on the record.
In general, the burden is on the prosecution to show an effective waiver of a fundamental constitutional right. Curtis, 681 P.2d at 504 n. 16 (citing Barker v. Wingo, 407 U.S. 514, 529 (1972)). If the initial burden is met by the prosecution through the establishment of a prima facie case of waiver, then in order to permit the court to find the waiver ineffective, the defendant must present evidence from which the court could reasonably infer that waiver was not voluntary, knowing, and intentional. Curtis, 681 P.2d at 504 n. 16; see also People v. Lindsey, 805 P.2d 1134, 1139 (Colo.App. 1990) (noting that burden is initially on the prosecution to prove a prima facie case of effective waiver, thereafter, burden shifts to the defendant to present evidence). In our view, in this case, the prosecution established a prima facie case of waiver of the right to testify that Tyler has not rebutted.
As in Roelker, Tyler was advised of his right to testify, chose to remain silent when his defense counsel rested, and never expressed a desire to testify. This evidence satisfies the prosecution's burden of establishing a prima facie waiver. See Lindsey, 805 P.2d at 1139 (holding that prima facie case was satisfied by defendant's affirmative response to trial judge's questions as to whether he understood Curtis advisement); see also People v. Norman, 703 P.2d 1261, 1271 (Colo. 1985) (holding that defendant's execution of written document containing information regarding the right to jury trial and subsequent acknowledgement that he had signed the document satisfied prosecution's burden of establishing prima facie waiver of right to jury trial).
Once the prosecution satisfied the prima facie case, the burden was on Tyler to present evidence from which it could be reasonably inferred that the waiver was not voluntary, knowing, and intentional. In this case, Tyler has not alleged that the trial judge, his defense counsel, or anyone else prevented him from testifying, nor did Tyler file a post-trial motion asserting that his desire to testify was thwarted. See, e.g., Curtis, 681 P.2d at 508; Palmer v. People, 680 P.2d 525, 526 (Colo. 1984). Moreover, Tyler has not presented sufficient evidence from which it could be reasonably inferred that the waiver of his right to testify was not voluntary, knowing, and intentional. See, e.g., Curtis, 681 P.2d at 515 (finding no waiver where Curtis' desire to testify at trial had been thwarted by defense counsel); Palmer, 680 P.2d at 527 (finding that silence did not demonstrate effective waiver where record showed that defendant wanted to testify and disagreed with defense counsel, and that defense counsel had exercised his own judgment).
Instead, Tyler claims that his conviction must automatically be reversed because the record does not show that he personally waived his right to testify. We disagree. Tyler has failed to even allege that his waiver was not voluntary, knowing, and intentional, let alone present evidence from which it could be reasonably inferred that the waiver of his right to testify was not voluntary, knowing, and intentional. See, e.g., Lindsey, 805 P.2d at 1139 (holding that defendant failed to rebut prima facie case of waiver even though trial judge did not explicitly ask defendant on the record if he was personally, voluntarily, intelligently, and knowingly waiving his right to testify); cf. People v. Mitchell, 829 P.2d 409, 412-13 (Colo.App. 1991) (rejecting defendant's argument that reversal was required because record failed to contain express waiver of right to testify).
Absent an allegation that the defendant wished to testify, it is difficult to see how a court could ever reasonably infer that the waiver of his right to testify was not voluntary, knowing, and intentional or conclude that the error was reversible.
IV
Accordingly, we affirm the decision of the court of appeals affirming the judgment of conviction in part, vacating in part, and remanding for resentencing.
JUSTICE LOHR dissents and JUSTICE KIRSHBAUM joins parts I and III of the dissent.