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Arapahoe County District Court No. 09CR31. Honorable Michael Spear, Judge.
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Brian S. Emeson, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE CASEBOLT. Dailey and Berger, JJ., concur.
[¶1] Defendant, Jeremy Wayne Martin, appeals the judgment of conviction entered on a
jury verdict finding him guilty of attempting to disarm a peace officer and resisting arrest. He asserts that the trial court erroneously denied his motion to suppress when it ruled that an investigatory stop and subsequent pat down were constitutional. We reject that contention. He additionally contends that the court erred in denying his request to testify, made after he had waived the right to do so and defense counsel had rested the case. We conclude that a remand is necessary concerning this contention. In doing so, we address an issue of first impression in this state and establish factors for trial courts to consider in determining whether to allow a defendant to testify after he has waived that right and after the defense has concluded its presentation of evidence.
[¶2] According to testimony at the suppression hearing, at about 7:00 a.m., police received a call from a convenience store employee, stating that defendant had entered and remained in the store's restroom for approximately twenty minutes. The employees had knocked on the restroom door and had unsuccessfully requested defendant to come out.
[¶3] When police arrived at the store, they spoke to two employees, who informed the officers that they wanted defendant removed from the premises. The officers knocked on the restroom door, announced that they were police officers, and requested defendant to exit the restroom. Defendant did not immediately respond, but eventually stated that he was using the bathroom and would be out shortly.
[¶4] After about two minutes, defendant exited the restroom. He appeared agitated and nervous, and was reluctant to do or say anything in response to the officers, telling the officers that he could do whatever he wanted because he was on private property. Almost immediately, the officers ordered defendant to face the wall and put his hands behind his back so that they could conduct a pat down search. During the pat down, defendant's actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued during which defendant and one of the officers were injured.
[¶5] The prosecution charged defendant with three counts of second degree assault on a peace officer, attempting to disarm a peace officer, resisting arrest, and third degree trespass. Before trial, defendant moved to suppress evidence, arguing that the officers had conducted an unconstitutional investigatory stop and subsequent pat down.
[¶6] During the hearing on the motion, the prosecution presented evidence from one of the officers who had conducted the stop and pat down. The officer testified regarding the information he had received from the store employees and his personal observations and actions at the store. The officer stated that he had conducted the pat down for officer safety reasons. The trial court denied the motion.
[¶7] Defendant proceeded to trial on the charges, asserting a general denial and self-defense, contending that the officers had used excessive force upon him. The prosecution dismissed the trespass charge mid-trial. After the prosecution had completed its case-in-chief, the trial court gave defendant an advisement on his right to testify pursuant to People v. Curtis, 681 P.2d 504 (Colo. 1984). Defendant waived his right to testify.
[¶8] The defense then presented two witnesses. After concluding the second witness' testimony, defendant and his counsel conferred and counsel stated that they had decided they would not call a third witness, whose testimony they had initially expected to present. Counsel then rested the defense case and the prosecution released its potential rebuttal witness.
[¶9] The parties and the court then engaged in a jury instruction conference and took a short recess. When they returned to court approximately two and a half hours after the defense had rested its case, defendant informed the court that he wanted to testify. Defendant's attorney stated that, " as far as defense counsel is concerned, I have rested," and that he did not think any additional witnesses would help the defense case. Counsel also stated that he was not seeking to call defendant, but acknowledged that the
decision to testify belonged to defendant, and that he should be allowed to make a further record about his desire to testify. Counsel also informed the court that defendant might be confused about his potential impeachment with two prior felony convictions.
[¶10] The court engaged in an extensive discussion with defendant, inquired why he had changed his mind and now wished to testify, and asked defendant to make a brief offer of proof on the substance of his proffered testimony.
[¶11] Defendant stated that he had changed his mind because he and his counsel had decided not to call a third witness and that his testimony became important because of this change in the evidence. He stated that he wanted to testify about the actions he had taken during the encounter with the police and his state of mind at the time to support his claim that the police had used excessive force, causing him to fear for his life and act in self-defense. He also indicated he would testify about the police officers' prior aggressive behavior in making other arrests and concerning complaints about their excessive use of force.
[¶12] The prosecution objected to reopening the evidence because defendant had already waived his right to testify and because it had released its rebuttal witness.
[¶13] The court focused on the proposed testimony involving the police officers, concluded it would likely be inadmissible coming from defendant, stated that enough testimony had already been presented to warrant giving a self-defense instruction to the jury, noted that defendant had agreed with his counsel that the third defense witness was not needed, and denied defendant's request.
[¶14] This appeal followed.