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People v. Janis

Supreme Court of Colorado, En Banc

November 13, 2018

The People of the State of Colorado, Petitioner
v.
Erin D. Janis, Respondent

          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., ...


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