Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 08CA1805.
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Attorney for Petitioner: Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado.
Attorneys for Respondent: John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado.
¶ 1 In People v. Moore, No. 08CA1805, 2010 WL 5013681 (Colo.App. Dec. 9, 2010), we granted certiorari to determine whether the court of appeals erred in reviewing defendant's claim that his waiver of the right to testify was not knowing, voluntary, and intelligent, and whether contemporaneous objection in the trial court is required to preserve this issue. See People v. Curtis, 681 P.2d 504 (Colo.1984), as modified by People v. Blehm, 983 P.2d 779 (Colo.1999); see also People v. Harding, 104 P.3d 881 (Colo.2005). Moore challenged his conviction on direct appeal before the court of appeals on multiple grounds, including that the trial court gave him a defective Curtis advisement and thus his waiver of the right to testify was not knowing and voluntary.
¶ 2 The court of appeals rejected Moore's challenge to the validity of his waiver of the right to testify and upheld his conviction, but ordered the trial court to vacate his first degree burglary assault/menacing conviction. In reviewing Moore's appeal, the court of appeals applied a plain error standard because Moore had not made a contemporaneous objection to the sufficiency of his Curtis advisement in the trial court. The court of appeals held that the trial court's advisement did not constitute plain error.
¶ 3 We hold that the court of appeals erred in considering Moore's challenge, on direct appeal, of his waiver of the right to testify. In reaching this holding, we modify our decisions in Blehm and Harding. We reaffirm that a defendant's challenge to his or her waiver of the right to testify is not subject to review on direct appeal, but only in a post-conviction proceeding. The defendant need not make a contemporaneous objection to the trial court's advisement. Moore may raise the issue of the validity of his waiver of the right to testify in a post-conviction proceeding, as we discuss in this opinion. Accordingly, we disapprove of and vacate the court of appeals' discussion and holding regarding the issue of the validity of Moore's waiver of the right to testify; otherwise, we uphold its judgment of conviction in this case.
¶ 4 In October 2007, defendant Lessell Moore went to trial on a variety of charges stemming from an illegal entry into the residence of a woman who had a restraining order against him. Finding a different woman inside the residence, Moore ordered the woman into a back room and violently assaulted her. A jury convicted Moore of attempted first degree murder, two counts of first degree burglary, first degree assault, attempted sexual assault, menacing, and violation of a protection order. Moore had four prior felony convictions on his record, all the result of guilty pleas. As a habitual offender, he was sentenced to 224 years.
¶ 5 During the trial, the trial court administered a Curtis advisement apprising Moore of his right to testify. The court first explained that Moore had a right not to testify and, if he chose not to testify, the court would instruct the jury about this right. The court then advised Moore 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 regarding any relevant issues, as well as his prior felony convictions. It explained that, if the prosecution disclosed Moore's convictions to the jury, the court would instruct the jurors
to consider them only as they bore upon his credibility. The court additionally stated that the prosecution " may ask [Moore] whether the convictions were by a guilty plea, or whether [he] actually went to trial, and [he was] found guilty by trial." At the conclusion of the colloquy, Moore said that he would follow his attorneys' advice and would not take the stand. The court found that Moore was alert and responsive, understood the advisement, and made a knowing and intelligent choice not to testify.
¶ 6 Moore appealed his conviction on several grounds, including that his conviction should be reversed based on an allegedly inadequate Curtis advisement that rendered his waiver of the right to testify not knowing and voluntary. Moore argued to the court of appeals that his waiver of the right to testify was not knowing or intelligent because the trial court misstated the law when it advised him that the prosecution could ask whether his prior felony convictions resulted from trials or pleas. Moore based this argument on the 2008 Colorado Court of Appeals decision in People v. Gomez, 211 P.3d 53, 57 (Colo.App.2008)— decided after his own trial-which held a similar advisement to be incorrect as a matter of law. Moore argued that his waiver could not have been knowing or voluntary in the face of this defective advisement and that therefore his waiver was invalid.
¶ 7 The court of appeals acknowledged a split among divisions on limiting review of the validity of defendant's waiver to a post-conviction proceeding, as opposed to on direct appeal. The court of appeals then chose to address Moore's claim, observing that: (1) the prosecution had not challenged Moore's raising of the claim on direct appeal, instead arguing that " a remand is unnecessary because this Court can conclude from the existing record that the trial court's advisement ... did not affect the defendant's decision to waive his right to testify" ; (2) our decision in Blehm, which required such a claim to be raised via post-conviction motion, did not " cast the procedural issue as jurisdictional" ; and (3) the court could resolve the issue without a fact-intensive inquiry. It proceeded to apply a plain error standard of review and concluded that " even if the advisement was defective, the error was not plain." Moore, 2010 WL 5013681, at *1. The court of appeals reasoned that the law regarding this alleged error was unsettled at the time of trial, and " [w]hen the state of the law is unclear[,] ... and only becomes clear as a result of later authority, the district court's error is perforce not plain." Id. at *3 (quoting United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997)).
¶ 8 We hold that the court of appeals erred in considering Moore's challenge, on direct appeal, of his waiver of the right to testify. In reaching this holding, we modify our decisions in Blehm and Harding. We reaffirm that a defendant's challenge to his or her waiver of the right to testify is not subject to review on direct appeal, but only in a post-conviction proceeding. The defendant need not make a contemporaneous objection to the trial court's advisement. Moore may raise the issue of the validity of his waiver in a post-conviction proceeding, as we discuss in this opinion. Accordingly, we disapprove of and vacate the court of appeals' discussion and holding regarding the issue of the validity of Moore's waiver of the right to testify; otherwise, we uphold its judgment of conviction in this case.
A. Waiver of Right to Testify
¶ 9 Our case law establishes that the intensely personal and fundamental nature of a defendant's right to testify imposes upon trial courts the " serious and weighty responsibility" of ascertaining whether the accused has intelligently and competently waived this right. Curtis, 681 P.2d at 514 (quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). As we noted in Curtis, " [a] waiver is an intentional relinquishment of a known right or privilege. The courts do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver." Id. (emphasis in original).
¶ 10 In Curtis, we recognized that the due process clauses of the United States and Colorado Constitutions afford criminal defendants the right to testify in their own defense. Id. ; see also U.S. Const., amend. XIV, § 1; Colo. Const., art. II, § 25. We concluded that the right to testify is one so inherently personal and basic that it can only be surrendered by the accused's knowing, voluntary, and intelligent  waiver. Curtis, 681 P.2d at 511. Several considerations underlie the fundamental nature of this right, including the powerful evidentiary impact of a defendant's firsthand account of events, the importance of granting defendants a forum to " have their say" in court— notwithstanding any contrary advice from counsel— and the concomitant sense of legitimacy conferred on trial proceedings when defendants have the option to exercise this right. See id. at 513-14; People v. Thomas, 867 P.2d 880, 887 (Colo.1994). To this end, we identified five elements for a trial court advisement:
[A] trial court exercising appropriate judicial concern for the constitutional right to testify 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 ...