Opinion by
4 1 Defendant, Jeremy Wayne Martin, appeals the judgment of conviction entered on a
I. Background
2 According to testimony at the suppression hearing, at about 7:00 a.m., police received a call from a convenience store employee, stating that defendant had entered and remained in the store's restroom for approximately twenty minutes. The employees had knocked on the restroom door and had unsuccessfully requested defendant to come out.
3 When police arrived at the store, they spoke to two employees, who informed the officers that they wanted defendant removed from the premises. The officers knocked on the restroom door, announced that they were police officers, and requested defendant to exit the restroom. Defendant did not immediately respond, but eventually stated that he was using the bathroom and would be out shortly.
T4 After about two minutes, defendant exited the restroom. He appeared agitated and nervous, and was reluctant to do or say anything in response to the officers, telling the officers that he could do whatever he wanted because he was on private property. Almost immediately, the officers ordered defendant to face the wall and put his hands behind his back so that they could conduct a pat down search. During the pat down, defendant's actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued during which defendant and one of the officers were injured.
T5 The prosecution charged defendant with three counts of second degree assault on a peace officer, attempting to disarm a peace officer, resisting arrest, and third degree trespass. Before trial, defendant moved to suppress evidence, arguing that the officers had conducted an unconstitutional investigatory stop and subsequent pat down.
[6 During the hearing on the motion, the prosecution presented evidence from one of the officers who had conducted the stop and pat down. The officer testified regarding the information he had received from the store employees and his personal observations and actions at the store. The officer stated that he had conducted the pat down for officer safety reasons. The trial court denied the motion.
T7 Defendant proceeded to trial on the charges, asserting a general denial and self-defense, contending that the officers had used excessive force upon him. The prosecution dismissed the trespass charge mid-trial. After the prosecution had completed its casein-chief, the trial court gave defendant an advisement on his right to testify pursuant to People v. Curtis,
T8 The defense then presented two witnesses. After concluding the second witness' testimony, defendant and his counsel conferred and counsel stated that they had decided they would not call a third witness, whose testimony they had initially expected to present. Counsel then rested the defense case and the prosecution released its potential rebuttal witness.
T9 The parties and the court then engaged in a jury instruction conference and took a short recess. When they returned to court approximately two and a half hours after the defense had rested its case, defendant informed the court that he wanted to testify. Defendant's attorney stated that, "as far as defense counsel is concerned, I have rested," and that he did not think any additional witnesses would help the defense case. Counsel also stated that he was not seeking to call defendant, but acknowledged that the
{10 The court engaged in an extensive discussion with defendant, inquired why he had changed his mind and now wished to testify, and asked defendant to make a brief offer of proof on the substance of his proffered testimony.
T 11 Defendant stated that he had changed his mind because he and his counsel had decided not to call a third witness and that his testimony became important because of this change in the evidence. He stated that he wanted to testify about the actions he had taken during the encounter with the police and his state of mind at the time to support his claim that the police had used excessive force, causing him to fear for his life and act in self-defense. He also indicated he would testify about the police officers' prior aggressive behavior in making other arrests and concerning complaints about their excessive use of force.
12 The prosecution objected to reopening the evidence because defendant had already waived his right to testify and because it had released its rebuttal witness.
{13 The court focused on the proposed testimony involving the police officers, concluded it would likely be inadmissible coming from defendant, stated that enough testimony had already been presented to warrant giving a self-defense instruction to the jury, noted that defendant had agreed with his counsel that the third defense witness was not needed, and denied defendant's request.
1 14 This appeal followed.
II. Motion to Suppress
€ 15 Defendant asserts that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. We conclude that the investigatory stop comported with the Fourth Amendment. Concerning the pat down, we need not reach the issue of whether the officers violated defendant's Fourth Amendment rights because the evidence sought to be suppressed is admissible under People v. Doke, 171 P.8d 237, 239 (Colo.\2007). Hence, we affirm the trial court's determination on this issue, albeit on different grounds. See Moody v. People,
A. Investigatory Stop
1. Standard of Review
{[ 16 When we review a motion to suppress, we defer to a trial court's findings of fact so long as they are supported by the record, and we review de novo the trial court's conclusions of law. People v. Brunsting,
2. Law
The Fourth Amendment and Article 11, Section 7 of the Colorado Constitution protect citizens from unreasonable searches and seizures. Brunsting, 116. "The determination of whether a search or seizure is reasonable depends on the reason for and the extent of the intrusion." People v. Veren,
118 Interactions between police and citizens fall into three categories: consensual encounters, investigatory stops, and arrests. People v. Ealum,
119 "An investigatory stop is an encounter in which an officer briefly stops a suspicious person and makes reasonable inquiries to confirm or dispel these suspicions, such as determining an individual's identity or obtaining an explanation of a person's
120 Law enforcement officers do not need to have probable cause to arrest to conduct a constitutional investigatory stop. People v. Rushdoony,
121 "Reasonable suspicion exists when facts known to the officer, taken together with rational inferences from those facts, create a reasonable and articulable suspicion of criminal activity which justifies an intrusion into the defendant's personal privacy at the time of the stop." Id. at 19. "In analyzing whether the facts created a reasonable suspicion of criminal activity that would justify the intrusion, a court must look at the totality of the cireumstances known to the police officers at the time of the stop, along with any rational inferences from those circumstances." Ruskdoony, 97 P.Bd at 342. Although a defendant's actions after the stop was initiated cannot be used to justify the initial stop, "they may justify continuing the detention for further investigation." Id.
122 "Relevant cireumstances that may be considered in assessing whether the' police had an articulable and specific basis in fact for suspecting eriminal activity include 'the lateness of the hour, the character of the area, the reaction to the presence of police, and whether a companion is being arrested.'" Id. at 342 (quoting People #. Smith, 13 P.8d 300, 806 (Colo. 2000)). "Objective observations of a person's 'nervous or unduly cautious behavior' may be considered as part of the totality of the cireumstances." People v. Pigford, 17 P.Bd 172, 176 (Colo. App. 2000) (quoting People v. Ramires,
123 "Law enforcement officers may justifiably contact an unsuspicious person when other legitimate official reasons exist," such as rendering aid or conducting a welfare check. People v. Berdahl,
8. Application
124 At the suppression hearing, the officer testified that he contacted defendant because of a call from the store's employees stating that defendant had remained in the store's restroom for over twenty minutes and the employees wanted him removed from the premises. The employees told the police that they had knocked on the door and tried to make defendant come out but he would not. Thus, the officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant's welfare and on reasonable suspicion that he was unlawfully trespassing on the property. Funezs-Paiagua, ¶8, Berdahl, 119; Davis,
125 We therefore conclude that the stop complied with constitutional requirements and defendant's actions and statements connected therewith were not subject to suppression. Hence, the trial court did not err in denying the motion to suppress evidence derived from the stop.
B. Pat Down
1126 We need not decide whether the police violated defendant's Fourth Amendment rights in conducting the pat down because defendant committed a new, subsequent crime, and therefore the evidence is admissible under Doke,
27 In Doke, the supreme court held that in cases in which a defendant responds to an alleged Fourth Amendment violation with a
{ 28 Here, even if the pat down was unlawful (a resolution we do not reach), defendant's conduct of pulling away from the officers, attacking them, and resisting arrest, constituted new offenses. Thus, defendant may not rely on the exclusionary rule to suppress evidence of his words or actions. People v. Barrus,
1 29 Accordingly, the trial court did not err in denying defendant's motion to suppress evidence derived from the pat down.
III. Request to Testify
130 Defendant contends that the trial court erred by denying his request to testify. We conclude that a remand is necessary for further proceedings.
A. Standard of Review
131 "It is within the discretion of the trial court to permit either party to introduce evidence after closing his case." People v. Waters,
B. Law
132 Criminal defendants have a constitutional right to testify under the due process clauses of the United States and Colorado Constitutions. U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25; Moore v. People,
133 A trial court must ensure that a defendant makes a voluntary, knowing, and intelligent waiver of that right, should the defendant choose not to testify. Curtis,
134 Rather, defendant's contention requires us to determine the factors a trial court should consider when deciding whether to reopen the evidence in a criminal case that involves a defendant's request to testify after he has waived the right to do so and the defense case has been completed. We therefore first recognize that a court has discretion to allow withdrawal of a waiver, and a defendant has no unconditional right to revoke it:
[Elven waivers of fundamental trial rights are typically not subject to revocation as a matter of right.... If for no other reasons than scheduling and orderly administration of the proceedings, onee a right has been effectively waived, that waiver can be revoked and the waived right reclaimed only in the discretion of the court.
Reyes v. People,
35 The parties do not cite, and we are not aware of, any Colorado cases dealing specifically with a criminal defendant who attempts to assert a right to testify after he has waived that right and has closed the evidence in his case. Thus, we look to cases outside Colorado for guidance on this issue. See People in Interest of T.B., 12 P.8d 1221, 1223 (Colo. App. 2000).
136 Several federal circuit courts have addressed this precise issue. Seq, eg., Walker, T2 F.2d at 1177 (citing United States v. Thetford,
The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not 'imbue the evidence with distorted importance, prejudice the opposing party's case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered!
Walker, T72 F.2d at 1177 (quoting Thetford,
137 We are persuaded that these factors articulate part of an appropriate test for Colorado trial courts to employ when exercising their discretion to determine whether to allow revocation of the waiver and reopening of the evidence for a defendant to testify.
38 A survey of the federal cases provides additional guidance on what trial courts should consider.
1. Timeliness of the Motion
1 39 In Walker,
{40 At least three other courts analyzing this issue have cautioned that, generally, a criminal defendant should exercise his right to testify before evidence in the case has closed. Byrd, 403 F.8d at 1282 (noting that, although a criminal defendant has a constitutional right to testify, the right is not without limitation and sometimes must "bow to accommodate other legitimate interests in the criminal trial process" (internal quotations
$41 But when considering the Wailker factors, these courts still appear to agree that a slight delay weighs in favor of granting the motion. Id. at 1287 (a defendant's motion to reopen the evidence that is made the day after the evidence has closed and before closing arguments and jury instructions favors granting the motion); Peterson,
142 Thus, when analyzing the timeliness factor, courts should consider whether a jury instruction conference has taken place and whether the defendant was present for any such conference. A defendant's awareness of the instructions to be given to the jury, or the evidence necessary to obtain a particular instruction, may affect whether the defendant should be allowed to testify after hearing the colloquy between counsel and the trial court.
2. Character of the Testimony
43 The additional testimony that the defendant wishes to introduce upon reopening the evidence "'should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused'" Walker,
144 Obtaining a defendant's testimony in a criminal trial will generally weigh heavily in favor of granting a defendant's motion to reopen the evidence to testify. See, e.g., People v. Mozee,
145 Even so, a defendant should be called upon to make a formal and timely proffer of the content of the proposed testimony, and a failure to do so should weigh against granting the motion to reopen, except under cireumstances where the content of the testimony is obvious. Id. Even a criminal defendant's own testimony may be "of little value" where the defendant gives hardly any indication of what he wishes to testify about. Peterson,
3. Effect of Granting the Motion to Reopen the Evidence
' 46 " 'The belated receipt of such testimony should not "imbue the evidence with distorted importance, prejudice the opposing party's case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered."'" Id. at 1177 (quoting Thetford,
147 Whether the prosecution has released any potential rebuttal witnesses, or whether any such witnesses have become unavailable since the defense rested its case, are factors to consider when assessing any potential prejudice to the prosecution. Byrd,
148 In addition, whether the prose-ecution has already presented rebuttal witnesses following the close of the defendant's evidence may be important in the analysis of prejudice to the prosecution. Byrd,
49 Trial courts should also consider whether granting the motion would cause any scheduling conflicts for the court's own docket that may have arisen from the court's reliance on the defendant's previous decision to rest his case. Walker, T72 F.2d at 1182.
50 Additionally, the court may consider any potential prejudice to the defendant in denying the motion, including any additional emphasis that the denial might place on the jury's impression of the defendant's failure to testify. Id. at 1183 (noting additional prejudice to defendant in denying his untimely request to testify when defense counsel had stated in opening statement that defendant would take the stand and rebut the prosecution's assertions against him).
4. Reasonableness of the Moving Party's Explanation
151 If a defendant appears to have moved to reopen the evidence solely for the purposes of delaying the proceedings, gaining a strategic advantage over the prosecution, or having the last word on surrebut-'tal, this factor weighs against granting the defendant's motion. Id. at 1184. Also, a defendant who offers no explanation but seems to have merely "changed his mind" weighs heavily against granting the motion. Byrd,
'5. Cireumstances of the Curtis Advisement and Initial Waiver
T58 In addition to the four articulated factors, courts should also consider any additional relevant cireumstances, which could include the timing of the Curtis advisement and the defendant's initial waiver. See Byrd,
154 The court should consider whether the advisement and waiver occurred at the beginning of the defense case, sometime during the presentation of defense evidence, or after all other defense witnesses have testified. An advisement and waiver that occur earlier in the defense case could weigh in favor of granting a defendant's motion to reopen the evidence because the defendant made his decision whether to testify before having the opportunity to fully evaluate the strengths and weaknesses of the defense case. See Brooks v. Tennessee,
155 Courts may also consider the details of the defendant's initial waiver of the right to testify. Primarily, the court should consider whether the defendant's initial waiver was unequivocal, or if he or she expressed any hesitation, concern, confusion, or other difficulty in making the decision to waive the right to testify.
156 Courts may also consider, as the Walker court appeared to do, whether the defendant has testified at all during the trial. See Walker, T72 F.2d at 1185. While it is obviously important for a criminal defendant to be given a fair opportunity to testify at trial, fairness in the proceedings does not require affording the defendant repeated and endless opportunities to take the stand. See id.
6. Attorney's Position
157 Finally, defense counsel's position regarding the defendant's request to reopen the evidence to testify should be considered. The court may note defense counsel's advocacy, or lack thereof, and may consider whether and at what point defense counsel has a duty to effectively advocate the defendant's position even if it is contrary to counsel's viewpoint.
C. Application
158 Here, the court considered some, but not all, of the factors we have identified, not having the benefit of our present decision. In light of our specific adoption of these standards, we conclude that we should remand the case for the trial court to reconsider the issue. See People v. Wiedemer,
4 59 The court should then rule anew, making specific findings under the factors set
IV. Conclusion
T 60 The order denying defendant's motion to suppress is affirmed. The case is remanded with directions to hold a hearing on defendant's motion to reopen the evidence to make additional findings and conclusions consistent with the standards set forth in this opinion.