dissenting.
I respectfully dissent. People v. Curtis, 681 P.2d 504 (Colo.1984) requires a trial court to ensure, on the record, that a defendant’s waiver of his right to testify is knowledgeable. As the court there stated:
“[T]he trial court has a duty to question the defendant on the record to ascertain whether waiver of the right to testify is made with a complete understanding of his rights ....”„
I agree with the majority that the advisement of the defendant by the trial court of his rights as mandated by Curtis was deficient in that defendant was not advised that the decision whether or not to testify is ultimately his alone and not that of his attorney. Nothing in the record indicates that the defendant knew that the decision to testify was his alone to make. Therefore, it cannot be said that, as required by Curtis, the purported waiver of defendant’s right to testify was “an intentional relinquishment of a known right.”
I agree with the majority that Curtis does not require a particular litany; however, Curtis does require that the court assure itself that the defendant knows that the decision to testify or not to testify is his and not his attorney’s. I would conclude that a defendant’s response to the court’s question that his decision not to testify “was being made freely and voluntarily” is insufficient when he is unaware of all the elements of these rights.
I would therefore reverse the defendant’s judgment of conviction and remand the case for a new trial.