Roelker v. People

Justice LOHR

dissenting:

The majority holds that the record adequately establishes that the defendant, Darrell Roelker, waived his constitutional right to testify. I disagree and therefore respectfully dissent.

*1341 I.

“A defendant in a criminal case has the constitutional right to testify in his own defense under the due process clauses of the United States Constitution, amend. XIV, and the Colorado Constitution, Art. II, § 25.” People v. Curtis, 681 P.2d 504, 509-10 (Colo.1984); see also Brooks v. Tennessee, 406 U.S. 605, 612 , 92 S.Ct. 1891, 1895 , 32 L.Ed.2d 358 (1972). The right to testify is fundamental and of such compelling importance that defense counsel cannot waive the right on behalf of the accused. Curtis, 681 P.2d at 512 . A waiver is an intentional relinquishment of a known right. To be effective, a defendant’s waiver of the right to testify must be voluntary, knowing and intentional. Id. at 514 . “The courts do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver.” Id.

The accused’s “constitutional right to testify is so fundamental that procedural safeguards are necessary to ensure that the defendant understands the significance of waiver of this right.” Id. Cf. Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) (requiring procedural safeguards to assure effectiveness of waiver of right to counsel). The trial judge has the responsibility to determine on the record whether the accused has effectively waived the right to testify. Curtis, 681 P.2d at 515 ; see People v. Mozee, 723 P.2d 117, 122 (Colo.1986). In order to discharge that responsibility the judge must assure that the defendant is aware that he has the right to testify, knows the consequences of testifying, and knows that he may take the stand notwithstanding the contrary advice of his counsel. Curtis, 681 P.2d at 515 ; Palmer v. People, 680 P.2d 525, 527 (Colo.1984); see Mozee, 723 P.2d at 121-22 . 1

II.

The issue in the present case is not whether the defendant was adequately advised of his right to testify but whether he effectively waived that right. At the beginning of the second and final day of trial, the court advised the defendant, out of the presence of the jury, that he had the right to testify or not to do so and that he could elect to testify even if his attorney advised against it. The court also expanded on the consequences of testifying or electing not to take the stand. The defendant does not contend that the advisement was inadequate. Thereafter, the People presented four more witnesses and rested its case.

Counsel and the court then engaged in a bench conference that was not made part of the record. After the bench conference was concluded, the court inquired on the record whether the defendant would present any evidence. Defense counsel stated, “Judge, after examining the state of the evidence as presented by the prosecution, we are not going to present any evidence; and we will rest.” The jury left the courtroom and the court then stated, “All right, the record should reflect that [defense counsel] advised the Court at a bench conference after the People had rested that he and the Defendant elected not to present any testimony.” The defendant remained silent throughout these proceedings.

The trial court made no determination on the record, as required by Curtis , concerning whether the defendant waived his right to testify. The majority acknowledges, as it must, that “[ujnder Curtis , the trial judge has the responsibility to determine on the record whether the accused has effectively waived his right to testify.” Maj. op. at 1338. It concludes, however, that the trial court “[determined] that Roelker understood his right to testify and volun *1342 tarily waived that right,” id. at 1339, and “[determined] that Roelker effectively waived his right to testify,” id. at 1339. The only part of the record from which these “determinations” could possibly be inferred is the trial court’s statement, made some time after the Curtis advisement and without further inquiring of the defendant directly, that “the record should reflect that [defense counsel] advised the Court at a bench conference after the People had rested that he and the Defendant elected not to present any testimony.” I am unable to infer from this terse statement a “determination,” explicit or implicit, that the defendant voluntarily and understandingly waived his right to testify.

Even more important than failure to make a determination of waiver on the record, the record would not support a finding of waiver. The record shows only that the defendant was advised early in the day that he had the right to testify and that the ultimate decision whether to testify was his. See, e.g., People v. Romero, 767 P.2d 782, 785 (Colo.App.1988) (“[T]he court must first determine whether the defendant was adequately informed of his right to testify. Second, the court must determine whether the defendant knowingly, intelligently, and voluntarily waived the right.”). He was never given an opportunity after the prosecution rested its case on the record to exercise or waive that right. The majority constructs a waiver from the defendant’s silence in the face of the announcements by defense counsel and the court that no evidence would be presented on behalf of the defendant. This is inconsistent with the settled law that courts indulge every reasonable presumption against waiver of fundamental constitutional rights. See Johnson v. Zerbst, 304 U.S. at 464 , 58 S.Ct. at 1023 ; Curtis, 681 P.2d at 514 . Waiver of the fundamental right to testify, which is personal to the defendant, cannot be inferred from silence in the face of a declaration by defense counsel that the right has been waived. Compare Palmer, 680 P.2d at 527 (a record of silence by the defendant when defense counsel asserts that the defendant will not testify is insufficient to demonstrate waiver under Curtis) with People v. Fonda, 712 P.2d 1067, 1069 (Colo.App.1985) (trial court’s questioning of both defense counsel and the defendant, on the record, to determine if waiver of the right to testify is knowing, voluntary and intentional satisfies Curtis). This record contains no competent evidence to support a finding that the defendant voluntarily, knowingly and intentionally waived the fundamental constitutional right to testify on his own behalf.

The trial court did not discharge its responsibility to determine on the record whether the defendant effectively waived his right to testify. A finding of effective waiver could not be supported by the record. Accordingly, the judgment should be reversed and the case remanded for a new trial.

Justice QUINN joins in this dissent.

. In Jones v. People, a case consolidated with Curtis , we upheld a trial court's determination after a hearing on a motion for postconviction relief that the defendant had waived his right to testify. Curtis, 681 P.2d at 516-17 . Although at trial the court had not advised the defendant of tas right to testify or determined the validity of the defendant’s waiver of the right, as required by Curtis , we declined to apply retroactively the "rule that voluntariness of the waiver must be determined on the record.” Curtis, 681 P.2d at 516-17 .