dissenting:
Because I believe that the advisement in this case satisfied the basic requirements of People v. Curtis, 681 P.2d 504 (Colo.1984), I respectfully dissent. In its current posture, this case presents the sole question of whether the trial judge's use of the word "character" in place of "credibility" in his advisement to the defendant concerning the right to testify entitles the defendant to a new trial. The majority reverses the defendant's third degree sexual assault conviction and third degree assault conviction and orders a new trial solely on the basis of that word substitution. Although I agree that Curtis established minimum standards for assuring a proper waiver of the defendant's right to testify, in my view, the majority opinion in this case overlooks the erucial point that Curtis and its progeny expressly avoided requiring a litany or formulaic advisement. Rather, those cases required only that the advisement serve basic core purposes. Here, the trial court's advisement honored Curtis 's basic protections.
I. BACKGROUND
The underlying case involved prosecution of Stephen P. Harding ("Harding") for third degree sexual assault by use of force, third degree assault, and commission of a crime of violence. The charges stemmed from allegations that on February 8, 1995; Harding entered a mall shoe store and sexually assaulted a female employee.
Following the People's case in chief, the trial court advised Harding of his right to testify ("Curtis Advisement"). In accordance with our precedent, the Curtis Advisement contained two 'erucial parts. The court first informed Harding of his right to testify, essentially inquiring whether he understood that the right was personal to him; to which, the defendant responded in the affirmative. Next, and relevant here, the court proceeded to inquire whether Harding understood the consequences of his decision to testify. The court asked whether Harding understood that should he opt to testify, the prosecution would be entitled to probe him concerning any felony conviction and that such evidence would be disclosed to the jury. In fact, Harding did have a prior conviction for sexual assault, which would 'have been made known to the jury should he have chosen to testify. Again, Harding answered "yes," that he understood that the conviction would be disclosed. When advising Harding about the purpose for which the jury would be permitted to consider his prior felony conviction, however, the court mistakenly asked Harding whether he understood that the jury would be instructed to consider the conviction "only as it bears on your character." Once again, Harding replied "yes." Harding elected not to testify. Following trial, the jury returned a judgment of conviction on all counts.
On direct appeal, a divided panel of the court of appeals rejected Harding's contention that the advisement was inadequate to assure that he voluntarily, knowingly, and intelligently waived his right to testify. People v. Harding, 983 P.2d 29 (Colo.App.1998) *890("Harding I"). Specifically, the panel noted that the advisement complied with the underlying policy of Curtis, by informing Harding that a consequence of testifying would be impeachment by the use of prior conviction. In his subsequent certiorari petition to this court, we remanded for further consideration because Harding I was decided before our decision in People v. Blehm, 983 P.2d 779 (Colo.1999). Ultimately, as directed by Biehm, the court of appeals remanded for the trial court to conduct an evidentiary hearing on the validity of Harding's waiver of his right to testify. People v. Harding, 17 P.3d 183, 185 (Colo.App.2000) ("Harding II ").
At the hearing (conducted by a judge other than the trial judge), the court heard argument from both parties based on the transcript of the trial advisement. Following that hearing, the trial court denied Harding's motion for post-conviction relief, finding that while the initial advisement's reference to "character" was erroneous, Harding's decision to withhold testimony was nonetheless "voluntarily, knowingly and intelligently" made. The court premised its decision on several factors, including: (1) that Harding discussed the issue of testifying with his attorney before the advisement; (2) that Harding had already made the decision not to testify based on defense counsel's discussion with the court about tendering a jury instruction to the effect that jurors could not draw a negative inference from Harding's failure to testify; and (8) that no evidence was introduced at trial regarding Harding's prior felony convictions and that Harding knew this was the legal result of his decision not to testify.
Harding again appealed to the court of appeals, which reversed in People v. Harding, No. 02CA0350, slip op., 2008 WL 22211273 (Colo.App. Sept.25, 2008) (not selected for official publication) ("Harding III"). In Harding III, a divided panel departed from the decision of the Harding I panel, finding that the advisement failed to "substantially comply" with Curtis and its progeny. Slip op. at 4, 2003 WL 22211273. The court found persuasive the legal distinction between the terms "credibility" and "character," opining that the trial court's misstatement affirmatively misled Harding. Slip op. at 4-5, 2008 WL 22211278.
II. DISCUSSION
In Curtis, a consolidation of two cases, we declared that the defendant's right to testify is fundamental, and therefore entitled to certain procedural safeguards, including a determination from the trial court on the record as to whether the defendant "voluntarily, knowingly and intentionally" waived that right. 681 P.2d at 515. The trial court's task, as we explained it, involves an assessment outside the presence of the jury of whether the defendant understands the nature of his right to testify: specifically, that it exists and ultimately rests with him; that "if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury;" and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. Id. at 514. Though we cautioned that the court must "indulge every reasonable presumption against waiver," id., we made clear that "where the trial court, applying the correct standards, makes the findings necessary to establish effective waiver, and there is evidence to support these findings, they will not be disturbed on review." Id. at 515.
In the Curtis cases, the two trial judges had not advised the defendants of the right to testify. Id. at 508-09. In those cases, we reviewed other evidence to determine whether the defendant had been properly apprised of the right to testify. In the Jones case, we considered evidence that the defendant had been advised by trial counsel of the "advantages and disadvantages" of testifying sufficient to apprise the defendant of the consequences of his decision to testify.1 Id. at 516.
Even though we have held that the advisement contemplated by Curtis is required, see *891People v. Milton, 864 P.2d 1097, 1100 (Colo.1994), our cases since Curtis have refrained from a rigid demand that trial courts engage in a litany advisement. We have repeatedly emphasized that Curtis did not prescribe a "litany or formula which must be followed in advising the defendant of his right to testify." See id.; see also Blehm, 983 P.2d at 793 (emphasizing that "we have not required the trial court to invoke the precise language used in Curtis or its progeny to describe each element"); People v. Chaves, 853 P.2d 1149, 1151 (Colo.1993) (same). To that end, we have rejected challenges to advisements in which the trial court stated that the jury would be instructed "with respect to credibility" or "with regard to credibility." See People v. Gray, 920 P.2d 787, 789 (Colo.1996), and People v. Deskins, 927 P.2d 368, 371 (Colo.1996). In fact, in Gray, we adopted that view despite complaints by the dissent that "an essential element of the advisement outlined in Curtis had been [exeluded]" by its failure to state "that the defendant's testimony concerning prior felony convictions could be considered by the jury only with regard to credibility." 920 P.2d at 794 (Lohr, Kirsh-baum and Mullarkey, JJ., dissenting) (emphasis in original).
Likewise, in Roelker v. People, 804 P.2d 1336, 1339 n. 4 (Colo.1991), although the trial court did not inform the defendant that his felony record could be considered for the limited purpose of impeaching his credibility, we viewed as effective a statement by the trial judge that should the defendant elect not to testify, "I will advise the jury that they cannot use your failure to testify as any evidence of guilt, and they should not consider it in any respect." Later, we determined that such evidence establishes the prosecution's prima facie case; consequently, the burden shifted to the defendant to demonstrate that "the trial judge, defense counsel, or anyone prevented him from testifying," or that "his desire to testify was thwarted." See Tyler v. People, 847 P.2d 140, 143 (Colo.1993). In Chaves, we held the trial court's statement to the defendant that "If you do testify, the district attorney will be allowed to cross-examine you and will be able to ask you about your four prior felony convictions" inadequate. 853 P.2d at 1151. We noted that the court had neglected to warn the defendant of the limited purposes for which his conviction would be admitted. Id. at 1152. We found the advisement "both deficient under Curtis and misleading in its content," primarily because the defendant had been charged both substantively for the charged crime and as a habitual criminal. Id. We found the advisement particularly egregious because the court's failure to advise the defendant of the limited purpose for which his conviction would be admitted "left the impression that the prior convictions could be used as substantive proof of the habitual criminal phase of the trial." Id. Such a result relieves the prosecution of the burden of proving the prior felonies at the habitual phase. Id. Thus, the crux of the issue is whether the trial court adequately informed the defendant that his conviction could not be used for purposes other than impeachment.
In fact, we have previously only reversed convictions based upon a truly deficient advisement that failed to advise the defendant of the consequences of his decision to testify. See Blehm, 983 P.2d at 786 (trial court informed defendant that prosecutor could inquire into his felony conviction but neglected to advise him of the limited purposes for which such evidence may be considered by the jury); Milton, 864 P.2d at 1100 (noting failure of the trial court to "mention the failure of testifying or not testifying as contemplated by Curtis"); Chavez, 853 P.2d at 1151 (noting that the trial court did not advise the defendant of the limited purpose for which his conviction would be considered); Curtis, 681 P.2d at 508-09 (noting that trial court did not advise the defendant at all and there was not evidence that trial counsel had in fact advised the defendant). In sum, we have not considered deviations from the language of the Curtis Advisement a sufficient basis to overturn an otherwise valid convietion.
Most significantly, the salient underpinning of Roelker and Chavez is that the "credibility" element of the Curtis Advisement is intended to prevent the jury from considering evidence of the defendant's prior conviction as substantive evidence of his guilt-that *892the evidence must be considered solely for impeachment purposes. Thus, as long as the principle we sought to promote within that element of the advisement is met, the Curtis Advisement need not specifically refer to the word "credibility."
Hence, having decided that the Curtis Advisement need not be a litany, that deviations in words are acceptable, and that the advisement must only suffice to address the five major elements, we arrive at today's case. The majority concludes that the substitution of "character" for "credibility" so severely undermines the advisement as to negate one of the five elements. In support of that conclusion the majority looks to our rules of evidence and cases for the proposition that the terms "character" and "credibility" are so distinct as to render the two mutually exclusive. I respectfully disagree. In fact, CRE 608 suggests an interrelationship between "credibility" and "character" rather than an impervious wall. The rule states that one means of attacking the defendant's credibility is through evidence of his "character for truthfuiness." CRE 608(a).
Indeed, our rule 608 is similar to the Federal Rule of Evidence 608, which indicates that "credibility" and "character for truthfulness" are interchangeable. As a matter of fact, for purposes of consistency, the federal rule has been amended to replace the term "credibility" with "character for truthfulness." See Fed.R.Evid. 608 (Advisory Committee Notes). When the issue involves impeaching the defendant's credibility, as the majority acknowledges, the rule only frowns on evidence of the person's character or trait introduced to prove he acted in conformity therewith. See CRE 404(a). Our cases follow the same logic in rejecting evidence that refers primarily to the defendant's "moral character." See, e.g., People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972) (stating that impeachment should be directed at the defendant's credibility not his "moral character"); McCune v. People, 179 Colo. 262, 499 P.2d 1184 (Colo.1972) (rejecting impeachment amounting to "character assassination"). For purposes of this case, most importantly, while the rule rejects references to the defendant's general character as probative of his tendency to act in a certain way, it most certainly permits evidence of the witness's "character" under section 13-90-101, C.R.S. (2004), that is, his felony conviction offered for impeachment purposes. See CRE 4048). Overall, the rule does not create such a clear demarcation between "character" and "eredi-bility," but rather treats "character" as a broader concept encompassing evidence of the defendant's "general character" and evidence of the defendant's "character for truthfulness," CRE 404, the latter of which being interchangeable with "credibility." Hence, character for truthfulness is a subset of character.
The record in this case does not suggest otherwise. The meaning of the advisement was that the jury would be instructed to regard the defendant's felony conviction solely for impeachment purposes. The advisement demonstrates that the reference to "character" was preceded by the trial court's statement that the prosecution could inquire into the defendant's felony conviction. Thus, the inference from the advisement is that the jury would be instructed to consider the defendant's felony conviction as it related to his character for truthfulness-not as some other evidence of his bad character.
Furthermore, we never intended that the Curtis test be viewed in a vacuum and one obvious fact leaps out of this record. First, the defendant had a prior sexual assault conviction, and was on trial for sexual assault. Rarely, if ever, would a defendant choose to testify under those cireumstances. We engage in something of a legal fiction to surmise otherwise. Considering all the circumstances of this case, the trial court's advisement was sufficient.
The majority in fact agrees that under our cases, the shortfall by the trial court does not automatically render the advisement defective; they conclude, nevertheless, that the prosecution was required to, but failed to provide a basis independent of the trial record to establish waiver, as required by our decision in People v. Blehm. Maj. op. at 889-890.
To be sure, in Blehm, we did reinforce the Curtis Advisement, separating it into five distinct elements, including the fifth relating *893to the limited purposes for which the defendant's conviction may be considered. 983 P.2d at 798. In Blehm, we modified the Curtis procedures in a number of ways. First, we required that the defendant's challenges be raised in a post-conviction proceeding, and second, we held that "off-the-record" evidence could be considered in determining the validity of the defendant's waiver. Id. at 791. We did not establish any specific list of factors to be considered by the post-convietion court, other than the Curtis Advisement elements themselves; and, as noted above, we made clear that despite our decision to reinforce those elements, we "have not required the trial court to invoke the precise language used in Curtis." Id. at 793 (noting that as to the fifth element we only require that the advisement maintain the "concept that the conviction may be used to impeach his credibility") (emphasis added).
Here, the post-conviction court reviewed the record itself, which as I have suggested, was sufficient to uphold the advisement. The People were not required to present additional evidence if the record was adequate. This is not a case in which the trial court neglected to advise the defendant or omitted one or more elements of the Curtis Advisement, in which case inquiry would have to proceed outside the bounds of the record of the original case. Here, the record as a whole indicates that the discrepancy relating to the fifth element did not thwart the purpose underlying Curtis. Because of the interplay between "character" and "credibility" for impeachment purposes, the advisement addressed the "concept" that the jury would be instructed not to consider the evidence of the defendant's conviction as substantive evidence of his guilt.
The post-conviction court, moreover, complied with Blekm by holding a hearing in which it considered off-the-record evidence that the defendant had been advised by trial counsel, and even if the exact litany given the defendant was not known to the post-conviction court, there was clear evidence that the defendant had been present during the jury instruction conference in which the limiting instruction to be given the jury had been discussed. Accordingly, the record and evidence indicate that the trial court's use of incorrect syntax did not fundamentally undermine the protections we sought to enforce in Curtis.
III. CONCLUSION
The Curtis Advisement is not an incantation; it is an inquiry and exchange. It is not pro forma; it serves the purpose of assuring that the defendant knows he may testify if he chooses, and what the consequences of exercising that choice will be. Today, in my view, the majority elevates form over substance by reversing a conviction based upon substitution of one word in an advisement which clearly did advise this defendant of his choice. Because our cases do not require this result, I respectfully dissent. I would therefore affirm the defendant's conviction and sentence.
I am authorized to state that JUSTICE RICE and JUSTICE COATS join in this dissent.. Specifically, the evidence concerning the consequences of the defendant's decision not to testify consisted of a statement by counsel that he had advised the defendant not to testify because "if he took the stand his criminal record could be revealed to the jury, his alibi testimony would be uncorroborated, and he might lose his self-control while testifying." Id. at 509.