Opinion
No. 79CA0161
Decided March 26, 1981. Rehearing denied April 16, 1981. Certiorari granted July 20, 1981.
Appeal from the District Court of the City and County of Denver, Honorable Luis D. Rovira, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Assistant Attorney General, Maureen Phelan, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Terri L. Brake, Deputy State Public Defender, for defendant-appellant.
Division I.
The defendant, Ralph E. Palmer, appeals his convictions of second degree burglary and first degree sexual assault. His sole contention of error is that he was denied his constitutional right to testify on his own behalf. We find this contention to be without factual support in the record and therefore affirm the conviction.
During the trial, after all evidence had been received, a conference was held in chambers concerning Palmer's dissatisfaction with his attorney. Palmer had certain general complaints about the manner in which the trial was proceeding, but, when pressed by the court, he was unable to be specific on the causes for his dissatisfaction, except that he wanted to testify and his attorney was advising him not to do so. The trial court announced a two-hour noon recess to allow defendant and counsel to discuss the matter.
After that recess, defense counsel made the following statement in chambers:
"Your Honor, I discussed the matter with my client after leaving chambers and upon returning from lunch, and I will certainly let him be heard if he cares to be heard, but I know the decision is to go ahead.
I think Mr. Palmer has indicated to me that he wishes to testify. I advised him not to, and we're prepared in the face of that to go ahead and to rest on the evidence presented . . . ." (emphasis added)
The district attorney then indicated that if defendant wanted to testify he would not object to the case being reopened. Defense counsel responded:
"Your Honor, I am asserting as Mr. Palmer's counsel we're prepared to rest on the evidence we now have . . . ." (emphasis added)
Later, the district attorney stated that he wanted to:
"[A]void getting into any attorney-client privilege, but it is my understanding now after discussions between Mr. Holm and his client that it is the decision he is not going to testify or is he going to testify?"
Defense counsel responded: "He is not going to testify. We're not moving to reopen the case."
It is axiomatic that an accused in a criminal trial has the right to testify in his own behalf even in the face of contrary advice from his attorney. See. e.g., People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978). It is equally true that defense counsel must be governed by and abide by the wishes of his client. McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971). As with other constitutional rights, however, the right to testify may be waived, and the attendant circumstances must be considered to determine if there was a waiver. Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970). The issue is whether the record clearly and convincingly demonstrates that the defendant knowingly, intelligently, and voluntarily relinquished a known constitutional right. Reed v. People, supra. Applying these standards, we conclude that Palmer did waive his right to testify and his attorney voiced that waiver to the court.
The record indicates that prior to the noon recess Palmer had been quite vocal in expressing his displeasures about the manner in which the trial had proceeded and in affirmatively indicating his desire to testify. Immediately after the noon recess the attorney told the court, as quoted above, that he had discussed the matter with Palmer, that he would "certainly let him be heard," but that "I know the decision is to go ahead." Thereafter the attorney said "we're prepared . . . to go ahead . . . ." and "I am asserting as Mr. Palmer's counsel we're ready to rest on the evidence we now have . . . ." Palmer said nothing to indicate that the case was not to proceed without his testimony.
In light of the entire record of the discussion of Palmer's right to testify, we view these statements of counsel to be an announcement to the court that Palmer was waiving his right to testify. By these words counsel told the court what he and his client had agreed to as the product of their discussions during the noon recess. Such a statement of defense counsel may be relied upon by the court, especially when the client is present and says nothing. See People v. Mosqueda, 5 Cal.App.3d 540, 85 Cal. Reptr. 346 (1970).
While it would have been preferable for the court to have required Palmer personally to state that he understood he had the right to testify in spite of his counsel's advice not to, and that he was waiving the right, nevertheless, under the circumstances of this case, we conclude there was a knowing waiver of these rights.
The judgment is affirmed.
JUDGE COYTE concurs.
JUDGE KIRSHBAUM dissents.