June 25, 2019

Colorado Court of Appeals: People v. Emert

on June 10, 2010.

Possession of a Weapon by a Previous Offender—People v. Curtis Advisement.

The prosecution charged defendant with: (1) possession of more than one gram of a schedule II controlled substance under CRS § 18-18-405(1) and (2)(a)(I)(A); (2) special offender-deadly weapon under CRS § 18-18-407(1)(f); (3) menacing with a deadly weapon under CRS § 18-3-206(1)(a) and (b); (4) second-degree aggravated motor vehicle theft under CRS § 18-4-409(4)(b); (5) possession of a weapon by a previous offender (POWPO) under CRS § 18-12-108(1); (6) violation of bail bond conditions under CRS § 18-8-212(1); and (7) five counts of being a habitual criminal under CRS § 18-1.3-801. Count four was dismissed at a preliminary hearing and counts five and six were severed. Defendant was granted a new trial on his POWPO conviction and an incorrect advisement under People v. Curtis, 681 P.2d 504 (Colo. 1984). The People appealed. The Court of Appeals remanded for further proceedings.

During the trial on the first three counts, the trial court gave defendant a standard Curtis advisement. Defendant initially decided not to testify. During defendant’s case-in-chief, his wife testified. The next day, the prosecution sought to introduce rebuttal evidence that defendant had communicated with his wife from jail by telephone during trial and that they had discussed her expected testimony, contrary to the court’s sequestration order. When the trial court determined it would allow the evidence, defendant decided to testify. The court repeated the Curtis advisement. During his testimony, defendant admitted he was the owner of the vehicle in which the weapon was found and that he had been convicted of the felony named in the POWPO charge.

The jury found defendant not guilty of menacing, but was unable to reach a verdict on counts one and two. The court declared a mistrial on those counts and scheduled a retrial.

Several weeks later, the trial began on the severed POWPO charge. Over defendant’s objection, the prosecution presented his testimony from the first trial. Defendant chose not to testify and the jury returned a guilty verdict on the POWPO charge. Defendant moved for a new trial, asserting that he had received an improper Curtis advisement in the first trial. The trial court found the advisement was defective and therefore defendant’s previous testimony was involuntary and inadmissible in future proceedings. The prosecution appealed.

On appeal, the People argued that the Curtis advisement was proper and there is no requirement for a trial court to advise a defendant about all collateral consequences of a decision to testify, including those that may arise in subsequent trials on separate counts. The Court agreed that the trial court’s advisement was correct insofar as the first trial was concerned, but where a severed POWPO charge is pending and untried, a trial court’s advisement that a prior felony can be used only for impeachment is misleading, because a prior felony is a vital component of the prosecution’s POWPO case. Thus, the Court held that when a severed POWPO charge is pending, a trial court misleads a defendant when it gives that part of a Curtis advisement dealing with a testifying defendant’s prior felony convictions, unless it also provides a further explanation about the use of the felony in the pending POWPO trial.

The Court remanded for defendant to demonstrate that he reasonably and detrimentally relied on the trial court’s misleading advisement in deciding to testify. If he so demonstrates, a new trial should be held on the POWPO charge; if not, his conviction should be reinstated.

In contrast, the Court concluded that defendant’s admission that he owned the vehicle in which the weapon was found is admissible in future proceedings. The misleading Curtis advisement concerning the use of a prior felony conviction could not have induced any detrimental reliance concerning this admission.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

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