Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1058
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Carmen Moraleda, Assistant Attorney General Denver,
Colorado
Attorneys for Respondent: Law Office of Gregory Lansky, LLC
Gregory Lansky
OPINION
HOOD
JUSTICE
¶1
Erin Janis stabbed a man outside of a bar in Denver. As a
result, the People charged Janis with first degree assault.
She claimed self-defense, and the case went to trial.
Although in custody, Janis asked through trial counsel to
leave the courtroom during the victim's testimony,
ostensibly because she feared it might trigger her
post-traumatic stress disorder ("PTSD"). Without
first advising her of her right to remain or inquiring with
her directly about her desire to leave, the trial court
granted her request. The jury found Janis guilty, and the
trial court ultimately sentenced her to twelve years in
prison.
¶2
On appeal, Janis argued, in part, that she did not validly
waive her right to be present during the victim's
testimony. More specifically, she contended that the trial
court should have advised her of the right and then engaged
her in a colloquy about her decision to waive it. By failing
to do so, she asserted, the trial court failed to secure a
valid waiver and thus committed reversible error.
¶3
A division of the court of appeals agreed with her. The
division rejected the People's argument that Janis had
waived the issue or invited any error, concluding instead
that Janis's right to be present was "a personal
right" that couldn't be waived through counsel.
People v. Janis, 2016 COA 69, ¶ 11, __ P.3d __.
¶4
Having granted the People's petition for certiorari, we
hold that a formal advisement of the right to be present at
trial is not a prerequisite to a valid waiver of that right,
even when a defendant is in custody. Ultimately, the
touchstone is whether, under the totality of the
circumstances, the waiver was knowing, intelligent, and
voluntary. And here we conclude that the record supports the
People's contention that Janis's waiver was knowing,
intelligent, and voluntary.
¶5
Accordingly, we reverse the judgment of the court of appeals
and remand to address any previously unresolved issues.
I.
Facts and Procedural History
¶6
The defendant, Erin Janis, used a knife to stab a man outside
of a bar on Colfax Avenue in Denver. The People charged her
with first degree assault under section 18-3-202(1)(a),
C.R.S. (2018). At trial, Janis conceded that she stabbed the
victim, but she claimed she did so in self-defense. Janis
remained in custody throughout the trial.
¶7
Janis and her counsel repeatedly alerted the court to
concerns about Janis's mental health. During pretrial
proceedings, Janis submitted to two mental health
evaluations, one for competency and one to more broadly
examine her "mental condition." The evaluator and
the court found her competent to proceed. At trial, before
testifying in her own defense, Janis informed the court that
she was taking several prescribed medications but that they
were not interfering with her ability to think or understand
the trial proceedings. Janis did not argue that she was
legally insane at the time of the alleged offense.
¶8
On the first day of trial, defense counsel told the court
that Janis suffers from severe PTSD resulting from childhood
trauma. Defense counsel further explained that, according to
a forensic psychologist who had examined Janis, the evidence
at trial might trigger a need for Janis to excuse herself
from the courtroom. Without objection from the People (who
noted her right to be present), the court eventually adopted
defense counsel's suggestion for a protocol: If Janis
became uncomfortable, she would tell her lawyer, and he would
then approach the bench and tell the court. The court stated,
"if she chooses for her medical, emotional-for whatever
reason, not to be at certain parts, that's her
choice."
¶9
On the second day of trial, the People called the victim to
testify. As he took the stand, defense counsel explained to
the court, "My client is very uncomfortable. She would
like to leave the courtroom now." The prosecutor made a
record that Janis was leaving the courtroom voluntarily. The
record is unclear as to whether the defendant was within
earshot when this exchange occurred. What is clear, however,
is that the trial court neither provided Janis with an
advisement, nor conducted any colloquy with Janis to confirm
that she knowingly, intelligently, and voluntarily waived her
right to be present during the victim's testimony.
¶10
The prosecutor observed that the victim would need to
identify Janis as the person who stabbed the victim, meaning
that either defense counsel could "stipulate to that
identification, or [Janis] needs to be brought back out for
ID." Defense counsel said that he couldn't stipulate
without consulting his client. After conferring with Janis,
he informed the court, "Ms. Janis says, if her only
options are to be [dragged] back into the courtroom so [the
victim] can identify her, she will stipulate." At the
prosecutor's request, the court noted that Janis's
absence was "an active choice." The victim then
testified that Janis stabbed him during an argument.
¶11
Following the victim's testimony, Janis returned to the
courtroom. She later testified in her own defense, claiming
that ten minutes before the incident, the victim had hit her
in the stomach when she was seven months pregnant. She also
testified that just before she stabbed him, he said,
"I'm going to knock that baby out of you,
bitch." Finally, she testified that two months earlier,
she had been raped and that the victim had "helped"
the person who raped her.
¶12
On appeal, the division below reviewed the trial court's
decision for plain error, Janis, ¶¶ 10-12,
and noted that before Janis was removed, "the trial
court did not engage her in a colloquy to determine if she
knowingly, intelligently, and voluntarily waived her right to
be present," id., ¶ 23. The division
concluded that "[b]ecause Janis was available and under
the control of the authorities - but she was not advised of
her right to be present and she did not personally waive her
right on the record - the record does not establish a
knowing, voluntary, and intelligent waiver . . . ."
Id., ¶ 26. And the division held that the error
was plain because (1) it is well-settled that defendants are
constitutionally entitled "to be present at critical
stages of the trial," and (2) "Janis's absence
during [the victim's] testimony compromised her ability
to confront his allegations, communicate with her attorney,
and assist in cross-examination." Id.,
...