December 13, 2018

Colorado Court of Appeals: Anonymous Juror’s Response to Post-Verdict Attorney Evaluation Inadmissible Under CRE 606(b)

The Colorado Court of Appeals issued its opinion in People v. Burke on Thursday, November 15, 2018.

Post-Verdict Juror Attorney EvaluationMotion for New TrialCRE 606(b).

Burke was convicted of burglary. After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Responses are anonymous. On one of the responses directed to Burke’s counsel, an anonymous juror wrote, “Hard to believe a client when they choose to remain silient [sic].”  Burke moved for a new trial, arguing that at least one juror had disregarded the court’s instructions and based her decision on an impermissible basis. The trial court found the statement was evidence there had been jury misconduct and concluded that CRE 606(b) did not render the statement inadmissible. Without taking additional evidence, the trial court granted the motion for a new trial.

On appeal, the People argued that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant a new trial. The rule bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations, with three exceptions. The anonymous juror’s statement was inadmissible under CRE 606(b) and the exceptions were not applicable. The trial court erred in granting the motion for a new trial.

Burke argued that the trial court’s order should be affirmed because the juror intentionally concealed bias during voir dire. But because the statement was inadmissible, it cannot be used to impeach a verdict on any ground, including a claim that a juror concealed bias during voir dire.

Finally, Burke argued that the court of appeals should recognize a constitutional exception to CRE 606(b) where the juror’s statement reflects a bias against the defendant for the exercise of a fundamental constitutional right. The U.S. Supreme Court’s recent recognition of a limited constitutional exception to Rule 606(b) in a case of racial animus does not support an exception under the circumstances of this case.

The order for a new trial was reversed and the case was remanded for reinstatement of the jury’s verdict.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Abuse Discretion by Declining to Reveal Juror’s Contact Information Absent Evidence of Misconduct

The Colorado Court of Appeals issued its opinion in People v. Bohl on Thursday, November 1, 2018.

Criminal Procedure—Jury Contact Information—Jury Misconduct.

A jury convicted Bohl of one count of first degree murder for killing his girlfriend. After the verdict, a deputy district attorney who was not involved in prosecuting the case sent a text message to Mrs. Hillesheim, the wife of the jury foreman. Mrs. Hillesheim and the deputy district attorney knew each other, and the deputy district attorney asked her if Mr. Hillesheim would provide feedback on the trial and the prosecutors’ performance during the case. Mrs. Hillesheim informed the deputy district attorney that Mr. Hillesheim had researched various scientific items that were presented during the trial. Following this communication, the People filed a Notice of Juror Contact. In response, Bohl’s counsel filed a motion for a new trial, and alternatively, Bohl requested that the court hold a hearing on the incident and release the jurors’ contact information. Following a hearing at which the Hillesheims testified, the trial court determined that no jury misconduct had occurred and any extraneous information that Mr. Hillesheim obtained was not relevant to a key issue at trial. Based on the evidence presented, the trial court did not address Bohl’s request for juror information, but denied Bohl’s motion, and later sentenced him to life in prison without the possibility of parole.

On appeal, defendant argued that the trial court abused its discretion in denying his request for juror contact information because it deprived him of the opportunity to gather evidence to support his juror misconduct claim. Here, the trial court’s factual and credibility determinations were supported by the record, and given the speculative evidence of juror misconduct, the trial court did not abuse its discretion in denying Bohl access to juror contact information.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Allowing Alternate Juror to Deliberate Did Not Affect Parties’ Substantial Rights

The Colorado Supreme Court issued its opinion in Johnson v. Schonlaw on Monday, September 17, 2018.

Jury Deliberations—Conduct Affecting Jurors—Risk of Prejudice—Harmless Error.

Johnson sought review of the court of appeals’ judgment reversing jury verdicts in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the close of the case, the district court overruled the objections of Schonlaw and VCG to its announced decision to allow the alternate to deliberate to verdict with the other jurors. The court of appeals concluded that the trial court had erred in allowing an alternate juror to participate in jury deliberations over the objection of a party, and that the error gave rise to a presumption of prejudice, which remained unrebutted by Johnson, and therefore  required reversal.

The supreme court reversed, holding that because the error did not affect the substantial rights of any defendant, it should have been disregarded as harmless, as required by C.R.C.P. 61.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: DUI Defendant Not Entitled to Have Jury Decide Existence of Prior Convictions for Sentence Enhancement

The Colorado Court of Appeals issued its opinion in People v. Gwinn on Thursday, September 6, 2018.

Criminal Law—Driving While under the Influence of Alcohol—Evidence—Impeachment—Direct Examination—Jury Instruction—Search Warrant—Prior DUI Convictions—Sentence Enhancer—Preponderance of the Evidence.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.

On appeal, Gwinn first contended that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE’s motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.

Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, “under the guise of impeachment” where no impeachment occurred. Because Officer Perez’s direct testimony that Gwinn’s speech “sounded normal” was contradicted by his previous statement in the sobriety examination report that Gwinn’s speech was “mumbled,” no error occurred when the trial court allowed impeachment with leading questions about a prior statement.

Gwinn next argued that the trial court erroneously admitted People’s Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn’s knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6).

Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer’s failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error.

Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution’s burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Courts Must Review Claims in Amended Complaint to Evaluate Eligibility for Jury Trial

The Colorado Supreme Court issued its opinion in Mason v. Farm Credit of Southern Colorado on Monday, June 4, 2018.

ACA—C.R.C.P. 38—Right to a Jury Trial—Legal or Equitable—Basic Thrust Test.

This case concerns the right to a jury trial in a civil case. The supreme court considered whether trial courts must review the claims in a plaintiff’s amended complaint, as opposed to those in its original complaint, to determine whether a party is entitled to a jury trial under C.R.C.P. 38. The court concluded that its prior cases and the Colorado Rules of Civil Procedure require it to answer that question affirmatively. Accordingly, the court held that when a plaintiff amends its complaint and a party properly demands a jury trial under C.R.C.P. 38, the trial court should determine whether the case may be tried to a jury based on the claims in the amended complaint. The court further held that C.R.C.P. 38 permits a case to be tried to a jury when the claims in the plaintiff’s amended complaint are primarily legal, as opposed to equitable. Finally, after examining respondents’ amended complaint, the court concluded that respondents’ claims against petitioner are primarily legal. Thus, petitioner was entitled to a jury trial under C.R.C.P. 38.

The court of appeals’ judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erroneously Denied Defendant’s Challenge for Cause

The Colorado Court of Appeals issued its opinion in People v. Abu-Nantambu-El on Thursday, December 14, 2017.

Juror—Challenge for Cause—Law Enforcement Agency—C.R.S. § 16-10-103—Disqualification—Res Gestae Evidence.

Defendant forced his way into an apartment and physically attacked the occupants, one of whom died from the result of stab wounds. A jury convicted defendant of multiple offenses against two victims, including first degree murder (felony murder); second degree murder; first degree burglary (assault/menace); and first degree burglary (armed with explosives/weapon).

On appeal, defendant argued that the trial court erred in denying his challenge to a juror who was a compensated employee of a law enforcement agency. The Attorney General conceded that the court should have excused the juror, but contended that reversal was not required because the juror did not indicate that she was actually biased. The juror was disqualified under C.R.S. § 16-10-103(1)(k), which sets out categories of jurors deemed to be impliedly biased. This statute does not require a showing of actual bias that would violate due process.

Defendant also argued that the trial court erred in admitting as res gestae evidence about defendant’s emotional state after a friend (one of the victims at issue in this case) left him at a 7-Eleven store three days before the charged offenses. This evidence provided context for the jury and a more complete understanding of events leading up to the charged offenses and was properly admitted.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Prospective Juror’s Silence Properly Construed as Rehabilitation

The Colorado Supreme Court issued its opinion in People v. Clemens on Monday, September 11, 2017.

Juror Rehabilitation—Voir Dire—Silence.

In this case, the Colorado Supreme Court considered whether a prospective juror’s silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court’s conclusion that the juror has been rehabilitated. The court concluded that it does when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. The court further concluded that, applying this test, the trial court did not abuse its discretion in denying defense counsel’s challenges for cause. Accordingly, the judgment of the court of appeals was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Refusing to Poll Jurors about Prejudicial News Report

The Colorado Supreme Court issued its opinion in People v. Jacobson on Monday, April 24, 2017.

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Colorado Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the supreme court reversed the court of appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Repeated Admonitions to Jury about News Reports Presumably Heeded

The Colorado Supreme Court issued its opinion in People v. Larsen on Monday, April 24, 2017.

Criminal Law—Jury Prejudice—Jury Polling—Prejudicial News Reports.

In this case, a companion to People v. Jacobson, 2017 CO 28, the Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a news report about the case that had been posted online and ran in a local newspaper. Here, the trial court gave repeated admonitions not to seek out news about the case, including just before the newspaper released the story. Thus, the trial court did not abuse its discretion by refusing to poll the jury. Therefore, the Supreme Court reversed the Court of Appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Erroneous Denial of Challenge for Cause Does Not Require Automatic Reversal

The Colorado Supreme Court issued its opinion in Newman, LLC v. Roberts on Monday, February 8, 2016.

Civil Law—Jury—Overruling Challenges to Jurors—Harmless Error— CRCP 61—Stare Decisis.

The Supreme Court held that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with C.R.C.P. 61. This conclusion follows from People v. Novotny, 2014 CO 18, in which the Court determined that the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a “substantial right” and thus warranted automatic reversal. This same assumption undergirds the Court’s parallel rule in the civil context, but, as it held in Novotny, subsequent developments in the law concerning harmless error analysis and the significance of the right to shape the jury have invalidated that assumption. As such, the Court rejected the automatic reversal rule in the civil context and overruled prior decisions to the contrary. See Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Safeway Stores, Inc. v. Langdon, 532 P.2d 337 (Colo. 1975); and Denver City Tramway Co. v. Kennedy, 117 P. 167 (Colo. 1911).

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Should Have Been Polled to Assess Impact of Prejudicial News Article

The Colorado Court of Appeals issued its opinion in People v. Larsen on Thursday, November 5, 2015.

Juvenile—Sexual Assault—Jury—Poll—Prejudicial—News Article—Cross-Examination.

Victims A.H. and K.H. moved to Colorado with their mother S.L. to live with S.L.’s father, defendant. After learning that K.H. was sexually abused previously, defendant put K.H. in therapy. A.H. and K.H. thereafter accused defendant of touching them inappropriately. The jury convicted defendant of both charges involving the sexual assault of A.H., and he was sentenced to eight years to life in prison.

On appeal, defendant asserted that the court erred by declining to poll the jurors to ask whether they were exposed to an allegedly prejudicial news article released midtrial. The prejudicial information contained in the news article was not part of the evidence at trial, and there was a reasonable probability that the jury was exposed to the article. Accordingly, the trial court abused its discretion by not polling the jury and such error was not harmless beyond a reasonable doubt. The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant also argued that the trial court denied his right to confront multiple witnesses by excluding evidence of the Department of Human Services’ attempt to remove the victims from S.L.’s custody. However, because there was record evidence that the Department sought to take custody of S.L.’s children, the court did not abuse its discretion when it limited the cross-examination of witnesses by barring questions about the Department’s attempt to remove the victims from S.L.’s custody.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Denying Requested Jury Trial

The Colorado Court of Appeals issued its opinion in Roalstad v. City of Lafayette on Thursday, October 8, 2015.

Right to a Jury Trial in Municipal Court—CRS § 16-10-109.

Roalstad was charged with violating Lafayette Municipal Ordinance 25-85, “Vicious animals prohibited,” when her dog allegedly bit the wife of the city’s manager of finance. She entered a not guilty plea and requested a jury trial pursuant to CRS § 16-10-109. The municipal court denied her request and her subsequent request for reconsideration.

Roalstad then filed a complaint in district court for declaratory and injunctive relieve pursuant to CRCP 106(a)(4) and 65, asserting that the municipal court erred as a matter of law in denying her a jury trial request. The city moved to dismiss under CRCP 12(b)(5), arguing that the offense is not a petty offense under CRS § 16-10-109 and that she has no Sixth Amendment right to a jury trial. The district court granted the motion to dismiss, and Roalstad appealed.

CRS § 16-10-109 expressly pertains to jury trials for petty offenses. The issue before the Court of Appeals was whether the ordinance at issue was a petty offense. The vicious animal ordinance carries a possible fine of either at least $250 or at least $500, both of which fall under the definition of petty offense in CRS § 16-10-109(1). The Court of Appeals noted that the alleged offense was not a crime at common law, which are excluded from the petty offense definition.

The Court then analyzed whether the alleged offense fell under the exception for a “municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment under any counterpart state statute.” Roalstad argued and the Court agreed that CRS § 18-9-204.5, “unlawful ownership of a dangerous dog,” is a state statutory counterpart of Lafayette Rev. Mun. Code §§ 25-85 and 25-89. The Court also found that § 25-85 and its sentencing provision were criminal in nature. It therefore explicitly rejected the city’s argument that its Code had “decriminalized” the vicious animal ordinance. Accordingly, the district court’s order granting the city’s motion to dismiss was reversed and the case was remanded with directions to enter judgment for Roalstad on her claim for declaratory relief.

Summary and full case available here, courtesy of The Colorado Lawyer.