dissenting:
People v. Curtis, 681 P.2d 504 (Colo. 1984) and Jones v. People, 681 P.2d 504 (Colo.1984), were consolidated and involve the same legal issues, but different factual predicates. I specially concurred and objected to the legal analysis and the requirements imposed upon a trial judge in the opinion.
The record in this case does not affirmatively establish a waiver by the defendant of his right to testify. In my view, a *528further hearing is required to determine whether the defendant waived his right to testify, or whether defense counsel made the decision for the defendant, and thereby denied the defendant his right to testify. The record reflects that the defendant was advised by his counsel that he should not testify and complained to the judge in chambers about defense counsel and his advice. Nothing in the record reflects a denial of the right to testify or a direct request by the defendant to testify prior to the filing of a pro se motion for a new trial. All of the circumstances surrounding defense counsel’s statements to the court suggest that the defendant participated in and approved the decision of defense counsel to submit the case to the jury without testimony from the defendant. In my view, a hearing is required to resolve the issue even though the record strongly implies that the defendant waived his right to testify.
The evidence of guilt in this case is overwhelming. The evidence included recordings which contained admissions of guilt and tied the defendant to the crimes charged. The prosecution’s evidence undoubtedly caused defense counsel to advise the defendant not to testify. The right to testify was made known to the defendant, and was discussed by the defendant, with competent defense counsel, before the defense rested. My reading of the record suggests that the assertion of the right by the defendant in his motion for a new trial was a direct result of the defendant’s conviction and a hindsight claim that defense counsel employed the wrong trial strategy.
Admittedly, a fundamental right cannot be waived without evidence to support the standards required by the majority. The trial judge made it clear that the defendant had a right to testify. The district attorney consented to a reopening of the defense case to permit the defendant to testify and all of the circumstances reflect a waiver of the right to testify by the defendant.
Accordingly, I would order a further hearing to determine whether the defendant was denied the right to testify.