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holding the totality of the circumstances indicated that, as a matter of law, the defendant did not voluntarily, knowingly and intentionally waive his right to testify
Summary of this case from Andersen v. LindenbaumOpinion
No. 91SC473
Decided October 26, 1992. Rehearing Denied November 16, 1992.
Certiorari to the Colorado Court of Appeals
Stuart A. Van Meveren, District Attorney, Eighth Judicial District, Loren B. Schall, Assistant District Attorney, Eighth Judicial District, for Petitioner.
David F. Vela, Colorado State Public Defender, Thomas R. Williamson, Deputy State Public Defender, for Respondent.
We granted the People's petition for certiorari to review the court of appeals' decision in People v. Naranjo, 821 P.2d 836 (Colo.App. 1991), in order to determine whether the defendant, Sammy Naranjo, was deprived of his constitutional right to testify at his 1977 trial due to the failure of his trial attorney to adequately inform him of that right and, if so, whether any such deprivation was subject to the harmless-error rule. In affirming the district court's order granting the defendant's Crim. P. 35(c) motion and awarding him a new trial, the court of appeals concluded that the record supported the district court's determination that the defendant was denied his constitutional right to testify on his own behalf and that such a constitutional deprivation was not subject to harmless-error analysis. Because the court of appeals resolved the defendant's constitutional claim under an incorrect standard, we reverse the judgment and remand the case for further proceedings.
I.
In October 1976 the defendant was charged in the district court of Larimer County with the crimes of first degree kidnapping and first degree sexual assault, both of which occurred on September 25, 1976. An attorney was appointed for the defendant, and the case was tried to a jury in April 1977. The defendant did not testify as a witness at his trial nor did he present any other evidence in his defense. The jury found the defendant guilty on both counts, and the district court sentenced him to concurrent terms of life imprisonment for first degree kidnapping and fifty years for first degree sexual assault. In People v. Naranjo, 200 Colo. 1, 612 P.2d 1099 (1980), we affirmed the defendant's conviction for first degree sexual assault, reversed his conviction for first degree kidnapping, and remanded the case to the district court with directions to enter a judgment and sentence for the lesser included offense of second degree kidnapping. In 1981 the district court resentenced the defendant to an indeterminate term not to exceed ten years for second degree kidnapping.
In February 1985 the defendant, acting pro se, filed a Crim. P. 35(c) motion for postconviction relief. The defendant claimed that, notwithstanding his desire to testify on his own behalf, the trial court failed to obtain a knowing and intelligent waiver of his right to testify and that he also was denied effective assistance of counsel. The district court summarily denied the defendant's motion without a hearing, but the court of appeals vacated the order and directed the district court to appoint counsel and to conduct such further proceedings as may be appropriate under the circumstances. People v. Naranjo, 738 P.2d 407 (Colo.App. 1987). In December 1988 the public defender's office, acting on behalf of the defendant, filed a Crim. P. 35(c) motion alleging several grounds for postconviction relief including, as pertinent here, the defendant's claim that his trial attorney did not adequately advise him of his right to testify and that as a result of ineffective assistance of counsel he did not understand and was deprived of his constitutional right to testify on his own behalf at his 1977 trial.
In his original Crim. P. 35(c) motion, the defendant also alleged that his conviction was predicated on the admission of an unconstitutionally obtained confession, that he was subjected to an unduly suggestive identification procedure, that hearsay statements were admitted during his trial in violation of his right to confrontation, that the jury was improperly instructed in violation of due process of law, that the sentences imposed violated equal protection of the laws, and that he was denied effective assistance of counsel on appeal. Several of these same claims were incorporated into a subsequent Crim. P. 35(c) motion filed by the public defender on behalf of the defendant. The only claim addressed by the trial court and the court of appeals, and the one claim we consider in this proceeding, is the defendant's allegation that he was denied his constitutional right to testify on his own behalf during the trial due to the actions of his court-appointed attorney.
At an evidentiary hearing on the Crim. P. 35(c) motion, the defendant testified that at his 1977 trial he did not know that the decision on whether to testify was his to make regardless of his attorney's advice, that he told his court-appointed attorney that he wanted to testify, and that his attorney told him that he should not take the stand. The defendant's court-appointed attorney testified that his usual practice in 1977 was to put the defendant on the stand if the defendant "could help himself" but that he discouraged defendants from testifying if their testimony "would not go to the merits of the case or any lesser included offense that might be possible." Defense counsel also stated that he could not recall specifically whether he advised the defendant that the decision to testify was the defendant's to make, but the attorney did recall that he strongly discouraged the defendant from testifying and could not remember whether the defendant concurred in that advice.
At the conclusion of the Crim. P. 35(c) hearing, the district court made the following pertinent findings:
"At the original trial, the Defendant was not advised of his right to testify and had no knowledge of it. He was not advised that he could override the advice of his attorney not to testify. Defendant wanted to testify. The denial of his right to testify has never been fully litigated and the proposition has not previously been presented by legal counsel.
"The Defendant has only a sixth-grade education and all of his employment has been physical labor. The people with whom he has always associated are Spanish speaking. He experiences difficulty in understanding the English language, especially where it becomes technical and he has no knowledge of legal or appellate principles. Any failure to previously raise the right to testify issue in this case is excusable.
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"The evidence establishes by a preponderance that there was no waiver of the right to testify."
On the basis of those findings, the district court concluded that the defendant was denied his fundamental constitutional right to testify on his own behalf during his 1977 trial and that the denial of the right could not be treated as harmless constitutional error.
The People appealed the district court's order to the court of appeals, which affirmed the order on the basis that there was competent evidence to support the district court's resolution of Naranjo's claim and that the denial of an accused's right to testify is not subject to harmless-error analysis. We thereafter granted the People's petition for certiorari.
II.
The gravamen of the defendant's postconviction claim in the district court was that he was denied his constitutional right to testify at his 1977 trial due to the failure of his trial counsel to adequately advise him of that right. In ordering a new trial, both the district court and the court of appeals emphasized that the defendant desired to testify but that his trial attorney's failure to adequately advise him of the right to testify deprived the defendant of the opportunity to make a voluntary, knowing, and intelligent waiver of the right to testify. In order to properly resolve the questions before us, it is necessary to determine the appropriate legal criteria for resolving the defendant's claim.
A.
In 1984 this court decided People v. Curtis, 681 P.2d 504 (Colo. 1984). We held in Curtis that an accused's right to testify is such a fundamental right that "the effectiveness of its waiver must be tested by the same constitutional standards applicable to waiver of the right to counsel." Id. at 512. Because of the fundamental character of the right, we outlined specific procedures which trial courts must follow to ensure that an accused has effectively waived the right to testify. These procedures require the trial court to advise the accused on the record and outside the presence of the jury as follows: that he has a right to testify; that if he wishes to testify, no one can prevent him from so doing; that if he testifies he will be subject to cross-examination during which prior felony convictions may be disclosed to the jury as they bear on his credibility; and that he has a right not to testify, and if he so elects the jury may be instructed about his decision to refrain from testifying. Id. at 514-15. We expressly declined in Curtis to apply these procedural requirements retroactively because, in our view, retroactive application "would be a significant burden on the administration of justice." Id. at 517. The defendant in the instant case, therefore, was not entitled to a Curtis advisement at his 1977 trial, nor was the trial court charged with the duty to determine on the record whether the defendant effectively waived his right to counsel.
In limiting the procedural protections to prospective application, Curtis emphasized that the prospectivity of the decision should not serve to discharge courts "from their duty to consider whether the waiver of the right to testify was in fact voluntary, knowing and intentional, whatever the state of the record made at trial and whenever the verdict was handed down." Id. Curtis, however, did not formulate the legal norm for resolving a pre- Curtis violation of the right to testify predicated on a deficient waiver. We accordingly must determine what that legal norm should be.
B.
In Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971), which involved an issue of ineffective assistance of counsel, we emphasized that there are three decisions which are ultimately to be made by the accused "after full and careful advice of his lawyer": whether to plead guilty; whether to waive a jury trial; and whether to testify at trial. 173 Colo. at 518, 480 P.2d at 844. We noted that while the right to effective assistance of counsel guarantees an accused the right to adequate advice of defense counsel on these decisions, the accused is not entitled to "an attorney with whose advice he can agree." 173 Colo. at 517, 480 P.2d at 844. We concluded in Martinez that nothing in the record established a violation of the right to effective assistance of counsel. Subsequently, in Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972), a case which also involved an ineffective-assistance-of-counsel claim, we cited with approval the former version of the American Bar Association Standards of Criminal Justice Relating to the Defense Function for the proposition that, while some strategic or tactical decisions are the exclusive province of defense counsel after consultation with the accused, the decision on whether to testify is one to be made ultimately by the accused after consultation with defense counsel. 179 Colo. at 34, 498 P.2d at 934.
The present version of the ABA Standards for Criminal Justice Relating to the Defense Function, approved by the ABA House of Delegates in 1979, also adopts the view that an accused's decision to testify or not to testify during the trial is in the ultimate control of the accused. ABA Standards for Criminal Justice, The Defense Function, Standard 4-5.2 (2d ed. 1986). The commentary to Standard 4-5.2 points out that defense counsel should give the accused the benefit of advice and experience and should engage in fair persuasion in urging he accused to follow the proper professional advice. However, because of the fundamental nature of the decision, "so crucial to the accused's fate," the ultimate decision is for the accused to make and not for defense counsel.
Although Martinez and Steward did not expressly hold that the accused's right to effective assistance of counsel was the controlling constitutional norm for resolving an alleged denial of an accused's right to testify, both decisions viewed the accused's entitlement to adequate advice on the right to testify as an essential component of defense counsel's duty to provide effective assistance to the accused. In that respect, our discussion of the accused's access to advice on testifying in Martinez and Steward parallelled several pre-1977 federal decisions. In Brooks v. Tennessee, 406 U.S. 605 (1972), for example, the United States Supreme Court characterized the accused's election to testify as "an important tactical decision as well as a matter of constitutional right" involving defense counsel's professional judgment concerning not only the exercise of the right but also its timing. Id. at 612-13. Other pre-1977 cases also viewed the right to testify as a matter of trial strategy, with the result that an alleged deprivation of the right was analyzed as a claim for redress based on ineffective assistance of counsel. See Hayes v. Russell, 405 F.2d 859, 860 (6th Cir. 1969); Hudgins v. United States, 340 F.2d 391, 396 (3d Cir. 1965); United States v. Garguilo, 324 F.2d 795, 797-98 (2d Cir. 1963). In light of the defendant's postconviction claim that he was not adequately advised by defense counsel of his right to testify, we are satisfied that the right to effective assistance of counsel provides the appropriate legal norm for resolving the defendant's claim.
The authoritative standard for evaluating an ineffective-assistance claim was formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard consists of two components: first, whether defense counsel's performance was constitutionally deficient — that is, whether it was below an objective standard of reasonableness demanded of attorneys in criminal cases; and second, whether the deficient performance prejudiced the defense — that is, whether defense counsel's errors deprived the defendant of a fair trial. Id. at 687-88.
It has been held that the first component of the Strickland test requires a showing that the action or inaction of defense counsel deprived the defendant of his ability to make an informed decision on whether or not to testify on his own behalf:
"For example, if defense counsel refused to accept the defendant's decision to testify and would not call him to the stand, counsel would have acted unethically to prevent the defendant from exercising his fundamental constitutional right to testify. Alternatively, if defense counsel never informed the defendant of the right to testify, and that the ultimate decision belongs to the defendant, counsel would have neglected the vital professional responsibility of ensuring that the defendant's right to testify is protected and that any waiver is knowing and voluntary. Under such circumstances, defense counsel has not acted `within the range of competence demanded of attorneys in criminal cases,' and the defendant clearly has not received reasonably effective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970))."
United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992).
The second or prejudice component of Strickland requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors," the result of the trial would have been different. 466 U.S. at 694. A reasonable probability is a "probability sufficient to undermine the confidence in the outcome" of the trial. Id. In resolving an ineffective-assistance claim, a court is not required to first determine whether counsel's performance was constitutionally deficient; if there is no demonstration of prejudice, the court may resolve the ineffective-assistance claim on that basis alone. Id. at 697.
The Strickland standard for an ineffective-assistance claim has been applied retroactively. For example, in Hill v. Lockhart, 474 U.S. 52, 57-60 (1985), the Supreme Court applied Strickland in evaluating an ineffective-assistance claim arising from a guilty plea entered several years prior to the Strickland decision. Similarly, in Murray v. Carrier, 477 U.S. 478, 488 (1986), the Court relied upon Strickland in holding that so long as the defendant was represented by counsel at his 1977 trial and counsel's performance was not constitutionally ineffective under the Strickland standard, there is no inequity in requiring the defendant to bear the risk of attorney error that results in a procedural default for purposes of habeas corpus relief. Several federal courts of appeal have also applied Strickland retroactively in evaluating the constitutional validity of pre- Strickland convictions. See, e.g., Smith v. Black, 904 F.2d 950, 974-75 (5th Cir. 1990) ( Strickland applied to determine whether defendant, during 1981 trial, was denied effective assistance of counsel); U.S. ex rel. Weismiller v. Lange, 815 F.2d 1106, 1109 (7th Cir. 1987) ( Strickland applied retroactively to determine whether counsel's performance was so deficient that it violated Sixth Amendment); Adams v. Wainwright, 804 F.2d 1526, 1534-35 (11th Cir. 1986) ( Strickland applied to determine whether defense counsel's performance at 1978 trial was constitutionally deficient). We also have applied the Strickland standard in resolving ineffective-assistance claims arising out of criminal proceedings predating the Strickland decision. See, e.g., People v. Drake, 785 P.2d 1257, 1272-73 (Colo. 1990) ( Strickland applied in determining constitutional validity of defendant's 1978 felony conviction); People v. Pozo, 746 P.2d 523, 526-30 (Colo. 1987) (case returned to trial court with directions to apply Strickland in determining constitutional validity of defendant's 1982 guilty plea). We accordingly hold that, consistent with the aforementioned precedent, the Strickland standard should be applied in resolving the defendant's post-conviction challenge to his 1977 conviction.
C.
We turn now to the procedural and evidentiary criteria for resolving the defendant's post-conviction claim. In a Crim. P. 35(c) proceeding, there is a presumption of validity attaching to a judgment of conviction and the burden is upon the defendant, as the moving party, to establish his claim by a preponderance of the evidence. E.g., People v. McClellan, 183 Colo. 176, 178, 515 P.2d 1127, 1128 (1973); Lamb v. People, 174 Colo. 441, 446, 484 P.2d 798, 800 (1971). Under the Strickland standard, a defendant will establish a violation of his right to testify when he proves, by a preponderance of the evidence, the following elements: that defense counsel's action or inaction in counseling the defendant on his right to testify fell below the professional level of competence demanded of attorneys practicing in criminal law at the time of the defendant's trial and thereby deprived the defendant of his ability to make an informed and voluntary decision on whether to exercise his right to testify; and that there is a reasonable probability that, but for defense counsel's deficient performance, the result of the trial would have been different.
The Strickland standard requires the Crim. P. 35(c) court to evaluate the evidence from the perspective of defense counsel as of the time of the representation in question and to indulge a strong presumption that defense counsel's efforts constituted effective assistance. The Supreme Court made this point quite clearly when it stated in Strickland:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' See Michel v. Louisiana, [ 350 U.S. 91, 101 (1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 343 (1983).
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"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 689-90.
Application of the Strickland two-part test in resolving an ineffective-assistance claim obviates any need to engage in harmless-error analysis. Under the harmless-error rule, a violation of a constitutional right will generally not be deemed harmless unless the prosecution, as the beneficiary of the violation, can establish beyond a reasonable doubt that the deprivation of the constitutional right did not contribute to the judgment of conviction. Chapman v. California, 386 U.S. 18, 22 (1967); People v. Mack, 638 P.2d 257, 267 (Colo. 1981). Pursuant to Strickland, once a defendant establishes to a reasonable probability that, but for defense counsel's deficient performance, the result of the trial would have been different, there is no conceivable way in which the prosecution could then establish that the deprivation arising out of the defendant's right to testify did not contribute to the judgment of conviction. The harmless-error rule, therefore, has no role to play in the resolution of the defendant's claim in the instant case.
III.
The record before us clearly shows that the district court did not resolve the defendant's postconviction claim — namely, that he was denied his constitutional right to testify due to the failure of defense counsel to adequately advise him of that right — consistent with the principles of law previously discussed. The district court's grant of postconviction relief was based on its factual finding that the defendant wanted to testify but was not advised of his right to do so, and thus was unaware that he had the right to make the ultimate decision on whether to testify. The district court, however, never considered or resolved whether defense counsel's advice or lack of advice to the defendant concerning the right to testify fell below an objective standard of reasonableness required of an attorney practicing criminal law in 1977 and, if so, whether, but for defense counsel's deficient performance, a reasonable probability exists that the result of the defendant's 1977 trial would have been different. The court of appeals likewise erred in upholding the district court's ruling on the basis that "there is adequate evidence to support the district court's ruling on the defendant's request for postconviction relief." Naranjo, 821 P.2d at 837.
Because both the district court and the court of appeals applied an incorrect legal standard in resolving the defendant's Crim. P. 35(c) claim, it is necessary to remand this case for further proceedings. If the district court is convinced by a preponderance of the evidence that defense counsel's performance was constitutionally deficient and deprived the defendant of his right to testify and that, but for defense counsel's deficient performance, a reasonable probability exists that the outcome of the 1977 trial would have been different, the district court should vacate the judgment of conviction and order a new trial. If, however, the district court is not so convinced by a preponderance of the evidence, then it should deny the defendant's Crim. P. 35(c) motion.
We accordingly reverse the judgment of the court of appeals and remand the case to that court with directions to return the case to the district court for further proceedings consistent with the views herein expressed.
JUSTICE MULLARKEY does not participate.
JUSTICE KIRSHBAUM specially concurs.
JUSTICE LOHR dissents.