Peo v. Harvey

23CA0283 Peo v Harvey 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0283
Boulder County District Court No. 17CR1441
Honorable Nancy W. Salomone, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jay Harvey,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Joseph T. Goodner, Alternative Defense Counsel, Englewood, Colorado, for
Defendant-Appellant
¶1 Defendant, Jay Harvey, appeals the order denying his Crim. P.

35(c) motion for postconviction relief. We affirm.

I. Background

¶2 Harvey was charged with menacing and attempted second

degree assault after a physical altercation with his nephew.

¶3 The evidence at trial, consisting of three prosecution

witnesses, was presented in one afternoon. After the first witness

(the victim), the district court advised Harvey of his right to testify,

pursuant to People v. Curtis, 681 P.2d 504, 514 (Colo. 1984).

¶4 Consistent with Curtis, the district court advised Harvey that

(1) he had the right to testify; (2) no one could stop him from doing

so, “not even [his] attorneys”; (3) the prosecution could cross-

examine him if he testified; (4) the prosecution would be allowed to

ask about any prior felony conviction1; and (5) he had the right not

to testify, and if he chose to exercise that right, the jury could be

instructed that it may not hold his failure to testify against him. Id.

The court confirmed that Harvey understood each of these rights.

1 The prosecution confirmed that there was no evidence that Harvey

had a prior felony conviction.

1
¶5 Harvey then told the court that he “didn’t know that [he] had

to make that decision at this time whether [he] was going to testify

or not.” The court clarified that Harvey did not have to make his

final decision until after the prosecution rested its case, explaining:

The final time you’ll have to make [the decision
to testify] is after [the district attorney] finishes
her case . . . . After that, when I say, Defense
may call your first witness, absent anyone else
testifying, if they say we have no witnesses,
then you will have forever given up your right
to testify. Do you understand that?

Harvey said he understood. He also confirmed that no one was

“pressuring [him] into making a decision” and that it would be his

“own free and voluntary choice whether [to] testify or not.”

¶6 The court then asked Harvey if he had made his decision yet

as to whether he was going to testify. Harvey responded, “Well, it’s

my intention to want to. But, no, we haven’t made that decision.”

The court reiterated that if the defense did not call him as a witness

after the prosecution rested, he would be waiving his right to testify:

But you understand that once [the district
attorney] says, the Prosecution rests, and I
say, Defense call your first witness, unless
they call you as a witness, you are waiving
your right? Do you understand sir?

Harvey again confirmed he understood.

2
¶7 Based on this colloquy, the court found Harvey “freely,

voluntarily, knowingly understood his rights and [was] making a

free, voluntary choice as to whether to testify or not.” It then

explained again that Harvey could make his final decision later:

You’ll have some more brief opportunity to
discuss this with your attorneys after the
Prosecution finishes their case in chief, but
before you’re asked whether you want to testify
or not.

¶8 Later that afternoon, after calling two more witnesses, the

prosecution rested its case. The court then asked defense counsel

if the defense intended to call any witnesses. Defense counsel

requested “[o]ne long moment” to speak with Harvey. Although the

court offered to excuse the jury, counsel opted instead to speak

with Harvey in the courtroom while the jury was present. After that

consultation, defense counsel said the defense would rest.

¶9 The jury convicted Harvey of menacing but acquitted him of

attempted second degree assault. A division of this court affirmed

the judgment. See People v. Harvey, (Colo. App. No. 18CA1293,

Jan. 21, 2021) (not published pursuant to C.A.R. 35(e)).

¶ 10 Harvey filed a pro se Crim. P. 35(c) petition, asserting that his

attorneys refused to let him testify at trial despite his strenuous

3
requests to do so. The district court appointed counsel, who filed a

supplemental petition. The supplemental petition argued that

(1) Harvey did not validly waive his right to testify, and (2) defense

counsel was ineffective by overriding Harvey’s desire to testify.

¶ 11 The district court held an evidentiary hearing. Harvey testified

at the hearing that he had repeatedly told his attorneys it was his

“fervent desire” to testify at trial, but his attorneys did not think it

was in his best interest. He explained that, after the district court’s

advisement, he again told his attorneys he wanted to testify, but

eventually, he “reluctantly . . . caved” into his attorneys’

recommendation not to testify “after talking about it so much.”

¶ 12 Harvey’s trial counsel testified that, before trial, Harvey was

“pretty adamant” that he wanted to testify. But after the district

court’s Curtis advisement, they met with Harvey again about that

decision and “felt like [they] walked away from that meeting on the

same page that [he] was not going to testify.” Trial counsel also

testified that, if Harvey had maintained his position in that meeting

that he wanted to testify, they would not have rested their case.

¶ 13 The district court denied the motion, finding trial counsel’s

testimony credible. The court found that (1) Harvey failed to show

4
his waiver was not voluntary, knowing, and intentional; and (2) his

counsel was not ineffective for failing to request an additional Curtis

advisement because the initial advisement was sufficient.

II. Waiver of Right to Testify

¶ 14 Harvey contends that the district court erred by finding he

knowingly, voluntarily, and intelligently waived his right to testify

because (1) he had previously expressed an intent to testify, and

(2) the court did not personally ask him whether he was waiving his

right to testify before the defense rested. We disagree.

A. Applicable Law and Standard of Review

¶ 15 A criminal defendant has the constitutional right to testify.

U.S. Const. amend. XIV; Colo. Const. art. II, § 25; see also Curtis,

681 P.2d at 509-10. This right is “so inherently personal and basic

that it can only be surrendered by the accused’s knowing,

voluntary, and intelligent waiver.” Moore v. People, 2014 CO 8, ¶ 9.

¶ 16 To ensure that a waiver is knowing, voluntary, and intelligent,

the district court must advise the defendant on the record of the

nature of the right to testify. Id. at ¶ 11. While that advisement

need not “conform to any prescribed litany or formulistic recitation,”

it should include five elements: (1) the defendant has a right to

5
testify; (2) if the defendant wants to testify, no one can prevent it;

(3) if the defendant testifies, the prosecution may cross-examine the

defendant; (4) if the defendant has been convicted of a felony, the

prosecutor may ask about it and disclose it to the jury, and the jury

can be instructed to consider it only as it bears upon credibility;

and (5) the defendant has a right not to testify and the jury can be

so instructed. Id. at ¶¶ 10-11; see also Curtis, 681 P.2d at 514.

¶ 17 But the district court need not go beyond the advisement and

ask the defendant personally, on the record, if they waive the right

to testify. People v. Davis, 2018 COA 113, ¶ 43; see also Roelker v.

People, 804 P.2d 1336, 1338 (Colo. 1991). Instead, “the advisement

itself functions as the on-the-record waiver.” Davis, ¶ 43.

¶ 18 The content of the advisement does not conclusively establish

whether or not the defendant’s waiver was knowing, voluntary and

intelligent. Moore, ¶ 24. But when the advisement includes the five

required Curtis elements, it is evidence that, “if not contested by

evidence showing otherwise, stands in support of the validity of the

waiver.” Id. at ¶ 26. To overcome a proper advisement, the

defendant must present evidence demonstrating that the waiver

was not knowing, voluntary, and intelligent. Id. at ¶ 27.

6
¶ 19 The essential task for a court on postconviction review,

however, is not simply to assess the adequacy of the advisement

but to determine “whether the defendant’s waiver of the

fundamental constitutional right to testify was knowing, voluntary,

and intelligent.” Id. at ¶ 22. This inquiry turns on “whether the

defendant was aware that he had a right to testify, whether the

defendant knew of the consequences of testifying, and whether the

defendant understood that he could testify notwithstanding the

contrary advice of counsel.” Id. at ¶ 14 (citation omitted).

¶ 20 We review de novo whether a waiver was knowing, voluntary,

and intelligent. Davis, ¶ 35. But we defer to the district court’s

findings of fact. Id. A district court’s determination that a

defendant effectively waived the right to testify will therefore be

upheld if it has record support. See Roelker, 804 P.2d at 1339.

B. Analysis

¶ 21 As Harvey acknowledges, the district court gave him a proper

Curtis advisement. That advisement included the five necessary

components. See Moore, ¶ 11; Curtis, 681 P.2d at 514. The district

court confirmed that Harvey understood each of these rights,

including that “if [defense counsel] say [they] have no witnesses,

7
then you will have forever given up your right to testify.” Harvey

also confirmed that no one was pressuring him and that his

decision whether to testify would be his “own free and voluntary

choice.” This advisement is evidence that, standing alone, indicates

that Harvey’s waiver — which took effect when the defense said it

rested — was knowing, voluntary, and intelligent. Moore, ¶ 26; see

also Tyler v. People, 847 P.2d 140, 143 (Colo. 1993) (holding that

prosecution established a prima facie waiver where defendant “was

advised of his right to testify, chose to remain silent when his

defense counsel rested, and never expressed a desire to testify”).

¶ 22 To rebut that evidence, Harvey had to present evidence

demonstrating that the waiver was not knowing, voluntary, and

intelligent. See Moore, ¶ 27. He contends that he did so by telling

the district court at the time of the advisement that it was his

“intention to want to” testify and then explaining at the Rule 35(c)

hearing that he had consistently expressed a desire to testify. But

Harvey’s statement to the district court at the time of the

advisement was expressly tentative, couched with “we haven’t made

that decision.” And even at the Rule 35(c) hearing, Harvey

acknowledged that, although he wanted to testify, he ultimately

8
relented and agreed not to after discussing the issue extensively

with his attorneys. Nothing in the record indicates that, by the time

that final decision was made, it was anything other than Harvey’s

“own free and voluntary choice,” as he told the court it would be.

¶ 23 Nor do trial counsel’s efforts to persuade Harvey not to testify

undermine this conclusion. The district court found counsel’s

testimony regarding these discussions credible. That testimony

established that (1) Harvey told counsel before trial that he wanted

to testify; (2) counsel consistently recommended otherwise; (3) by

the time the prosecution closed its case, counsel believed Harvey

was “on the same page” about not testifying; and (4) they would not

have rested their case if Harvey had told them he wanted to testify.

¶ 24 Harvey’s decision not to testify is not involuntary simply

because it was brought about by counsel’s strong advice. See

Davis, ¶ 44 (concluding that waiver was valid where trial counsel

testified that “he would do his ‘very best’ to dissuade clients from

testifying if he did not think it was in their best interests” but that

“he would not prevent clients from taking the stand if they chose to

do so”); People v. Hardin, 2016 COA 175, ¶ 43 (concluding that

waiver was valid where trial counsel “strongly advised [the

9
defendant] against testifying” but “did not ‘intimidate’ [him] or

otherwise improperly interfere with his ability to choose whether to

testify”); People v. Starkweather, 159 P.3d 665, 668 (Colo. App.

2006) (“Standing alone, competent advice by counsel, albeit stated

in strong language, does not constitute coercion.”).

¶ 25 We also reject Harvey’s contention that the district court’s

failure to ask Harvey himself — instead of his counsel — whether

he wished to testify made his waiver invalid. Although Harvey

acknowledges that an express waiver is generally not required, see

Tyler, 847 P.2d at 143; Roelker, 804 P.2d at 1339, he maintains

that the district court told him it would ask him again whether he

wanted to testify and was required to adhere to that procedure. He

asserts that the court violated this procedure by not giving him the

opportunity it said he would have to make a final decision.

¶ 26 But the district court never said it would ask Harvey

personally whether he wanted to testify; it said only that Harvey

would be asked. And he was. When the prosecution rested, the

court asked Harvey’s counsel whether they wished to call any

witnesses, and it allowed them time to speak with Harvey before

answering. Harvey thus had the chance to make a final decision,

10
just as the court said he would. And as Harvey acknowledged at

the Rule 35(c) hearing, he chose not to testify. This record supports

the district court’s finding that the ultimate decision was Harvey’s

alone, even if that decision was communicated by counsel.

¶ 27 Moreover, the district court unequivocally explained to Harvey

at the time of the advisement how the waiver would operate: (1) the

prosecution would rest; (2) the court would ask the defense if it

wanted to call any witnesses; and (3) if the defense said no, Harvey

was waiving his right to testify. Harvey twice confirmed that he

understood. The record therefore supports the district court’s

finding that Harvey knew he was waiving his right to testify when

he allowed his attorneys to tell the court the defense rested.

¶ 28 We acknowledge that although the advisement occurred

outside the presence of the jury, the ultimate decision to waive the

right to testify was made while the jury was present. Cf. People v.

Drake, 748 P.2d 1237, 1250 (Colo. 1988) (“strongly caution[ing] that

[a Curtis] advisement should be conducted outside the presence of

the jury”). And Harvey testified at the Crim. P. 35(c) hearing that he

went along with the decision not to testify in part because he was

“worried about making a scene in front of the jury.” But the jury

11
was dismissed immediately after the defense rested, and Harvey did

not at that point give any indication that he was not on board with

the decision. While it is true that the waiver had by then already

occurred, Harvey’s subsequent silence on the matter after the jury

was dismissed further supports the district court’s finding that he

had agreed with that decision and understood its consequences.

¶ 29 Harvey contends that People v. Janis, 2018 CO 89, supports

his argument by contrast. In Janis, the supreme court concluded

that the defendant knowingly, intelligently, and voluntarily waived

her right to be present when she “asked through trial counsel to

leave the courtroom during the victim’s testimony.” Janis, ¶¶ 1, 4.

Harvey argues that the waiver in this case falls short of the one in

Janis for several reasons. But nothing in Janis — which addressed

a different constitutional right — suggests, contrary to Tyler,

Roelker, and Davis, that an express on-the-record waiver is

required. Indeed, to the extent Janis offers any guidance in this

case at all, it confirms that a valid waiver may be shown “through

the statements of counsel and circumstantial evidence,” so long as

the waiver is knowing, voluntary, and intelligent. Id. at ¶ 26.

12
¶ 30 The district court did not err by finding that Harvey’s waiver of

the right to testify was knowing, voluntary, and intelligent.

III. Ineffective Assistance of Counsel

¶ 31 Harvey also contends that his counsel was ineffective for

failing to request an express waiver of Harvey’s right to testify. We

agree with the district court that this claim fails for similar reasons.

¶ 32 To prevail on a claim of ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced the defense. Dunlap v.

People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). Under the first prong, the

defendant must show that counsel’s representation “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688.

Under the second prong, the defendant must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694.

¶ 33 Harvey’s counsel’s failure to request an express waiver was not

deficient performance for two reasons. First, as noted above, an

express waiver is not required. See Tyler, 847 P.2d at 143; Roelker,

804 P.2d at 1339; Davis, ¶ 44. So it is not inherently unreasonable

13
for counsel not to request one. Second, the district court found

that, based on their discussion with Harvey after the prosecution

rested, Harvey’s counsel understood that Harvey was “on the same

page” with them about not testifying. Having just confirmed with

Harvey that he agreed not to testify, it was not objectively

unreasonable for counsel not to ask the district court to ask Harvey

the same thing. While doing so might have created a better record

and obviated the need for this Rule 35(c) proceeding, the record

gives no reason to conclude that such a procedure was necessary to

ensure that Harvey’s decision — which had already been expressed

privately to counsel — was knowing, voluntary, and intelligent.

IV. Disposition

¶ 34 The order is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

14