May 2, 2011
People v. Juarez Non-Unanimous Verdict / Improperly Polling Jurors / Rule 606(b)
Facts: A jury convicted Mr. Juarez of vehicular homicide, DUI and careless driving. When the jurors first claimed to reach a verdict, the jury convicted Mr. Juarez of vehicular homicide, DUI, and DWAI. The trial court then polled the jury. After Juror 1 responded to the trial court’s first question about verdicts, the trial court told the juror that the jury reached inconsistent verdicts. Juror 1 offered to explain, and the trial court invited the explanation. Later juror 6 and juror 7 also offered up explanations based upon the trial court’s questioning of juror 1. Juror 6 also did not agree with the verdict forms as signed by the foreperson. The trial court sent the jurors back to deliberate with a new set of verdict forms. The jury then came back with verdicts of guilty on vehicular homicide, DUI, and careless driving.
Issue: Whether the trial court impermissibly inquired into the deliberations of the jury?
Reasoning: The CofA initially described why the secrecy of jury deliberations is so sacrosanct, “The secrecy of jury deliberations is fundamental to the American justice system… [Rule 606(b)] protects the integrity of the jury from coercion, potential harassment, or outside pressure, while the jury deliberates and during polling. As such, extensive or coercive questioning of the jurors regarding their deliberative process is improper even if the district court perceives jury confusion regarding the applicable law. Our supreme court has cited with approval cases from other jurisdictions that prohibit inquiry into whether the jury was confused, holding that the issue of whether jurors were confused about the law is an intrinsic part of the jury's deliberative process. If none of CRE 606(b)'s exceptions is met, the district court may not consider juror affidavits or testimony regarding a juror's alleged confusion, mistake, or misinterpretation of the law.” (citations omitted)
The CofA held that Rule 606(b) only allows questioning of jurors on an exceedingly limited basis. Rule 606(b) reads:
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
The CofA further describe the breadth of the rule, “[i]t would have been hard to paint with a broader brush, and in terms of subject, Rule 606(b)'s exclusionary principle reaches everything which relates to the jury's deliberations, unless one of the exceptions applies.”(citation omitted).
Thus, here the trial court erred in inviting juror 1 to offer an explanation of the inconsistent verdicts. The CofA further found that “the district court set the stage for Juror 6 and Juror 7 to explain their mental processes.” The CofA held through its questioning, the trial court impermissibly inquired into the deliberative process of the jury, and further, impermissibly allowed testimony about the deliberative process of the jury. The CofA found that the jury did not reach unanimous verdicts initially. Moreover, the CofA held that Mr. Juarez’s right to unanimous verdict was a substantial right (and thus could decided the issue for the first time on appeal). Finally, because the trial court impermissibly inquired into the deliberative processes of the jurors, the CofA held the second set of verdicts to be invalid. Thus, the CofA reversed Mr. Juarez’s conviction, and remanded for a new trial
People v. Duran Lesser Included v. Lesser Non-Included Offenses (Attempted Reckless Manslaughter and Attempted Extreme Indifference First-Degree Murder)
Facts: Two series of shots fired from Mr. Duran his his cohorts into a house killed a woman in a bedroom. The jury found Mr. Duran guilty only of reckless manslaughter and attempted extreme indifference first degree murder. The trial court instructed the jury on extreme indifference first degree murder, and allowed the jury to consider reckless manslaughter, attempted reckless manslaughter, and attempted extreme indifference first degree murder as a lesser nonincluded offenses. The CofA found insufficient evidence to support the reckless manslaughter charge, and vacated that conviction.
Issue: Whether the trial court erred instructing the jury attempted reckless manslaughter and attempted extreme indifference first degree murder as lesser nonincluded offenses when attempted reckless manslaughter is a lesser included offense?
Reasoning: The CofA held that because the only difference between attempted reckless manslaughter and attempted extreme indifference is the level of culpability. The trial court instructed the jury wrong. The trial court impermissibly allowed a possible verdict on the greater offense of attempted extreme indifference first-degree murder and attempted reckless manslaughter, and such an instruction might have affected the jury's finding. Thus, the CofA found this to be plain error uninvited by the defense. The CofA stated, "In situations involving a lesser nonincluded offense, a jury may properly convict a defendant of both the original charged offense and the lesser nonincluded offense. However, itis error to instruct the jury on an offense as a lesser nonincluded offense when the offense actually constitutes a lesser included offense." (citations ommitted). Thus, the CofA ordered a new trial.
People v. Durapau Not Guilty by Reason of Insanity / Sex Offender Registration
Facts: In a first-degree sexual assault case, the trial court found Mr. Durapau not guilty by reason of insanity. At the time of Mr. Durapau’s plea, the law did not mandate sex offender registration if found not guilty by reason of insanity. However, the law requiring sex offender registration changed and applied retroactively.
Issue: Whether someone who’s found NGRI on a sex offense prior to the statutory change must register?
Reasoning: The CofA held that the conditional release statute, C.R.S. §16–8–115(4)(a), mandates sex offender registration for anyone found NGRI. Thus, because of the word “shall” in the statute, courts do have discretion to rule otherwise.
People v. Boling Deferred Juvenile Adjudication and Definition of ‘Conviction’ Under The Sex Offender Statute
Facts: In 1989, as a juvenile, Mr. Boling pled to sexual assault on a child. The juvenile court deferred the adjudication, and Mr. Boling successfully completed the deferred sentence. Almost twenty years later in 2008, Mr. Boling picked up a number of cases, which resulted in a plea in two – one case he pled to an F4 theft and in another he pled to an F5 menacing. The trial court ordered a pre-sentence investigation report. The probation department claimed Mr. Boling had to submit to a sex offender evaluation and subsequent treatment. Mr. Boling objected to both and argued that because the juvenile court dismissed his case, that case could not be classified as a conviction.
Issue: Whether a dismissed case as a result of a successful completion of a deferred adjudication qualifies as a conviction under the statute?
Reasoning: The CofA cited C.R.S. §16–11.7–102(2)(a)(II) which reads: “ ‘Sex offender mans any person who is: … (II) Convicted in the state of Colorado on or after January 1, 1994, of any criminal offense, if such person has previously been convicted of a sex offense as described in subsection (3) of this section in the state of Colorado, or if such person has previously been convicted in any other jurisdiction of any offense that would constitute a sex offense as defined in subsection (3) of this section, or if such person has a history of any sex offenses as defined in subsection (3) of this section; Thus, the CofA used this section to hold that Mr. Boling qualified as a sex offender because with his deferred he was a person with a ‘history’ of sexual offenses. Idiotic holding.
People v. Coughlin Juror Impairment / Prosecutor Vouching for Witness / Failure to Instruct on Prior Felony/ No Duty To Retreat Instruction
Facts: Tough guy bouncer from a bar picks a fight with Mr. Coughlin’s girlfriend apparently because he had to drive around her, another man, and her boyfriend - Mr. Coughlin - to get into the parking lot of the bar. According to CofA’s recitation of the facts, “the girlfriend ended up falling backwards onto the ground.” At this point, Mr. Coughlin grabbed a knife, and confronted the Bouncer who the CofA protected with initials. The CofA recites the facts where the Bouncer beat Mr. Coughlin in the face and Mr. Coughlin stabbed the bouncer. A jury convicted Mr. Coughlin of attempted second-degree murder and second-degree assault.
Issue: Whether the juror's physical limitations and confusion provided a sufficient basis to challenge the juror for cause?
Reasoning: During voir dire a juror told both the defense and prosecution that he got things easily confused and had some physical problems. Defense Counsel developed two separate bases to challenge the juror – mental incapacity and physical incapacity, and it is clear defense counsel meant to challenge the juror on both bases. However, defense counsel only stated the physical incapacity impairment – not mental. Despite a century of ridding courts of form over substance to gain an upper hand, the CofA found a) it could not rule on the mental challenge for cause because during trial, defense counsel did not raise that with the trial court, and b) the juror physical limitations did not provide a sufficient basis to sustain a challenge for cause.
Issue: Whether the prosecution improperly vouched for a witness?
Reasoning: During questioning of the witness, the prosecution went through the plea agreement, including the requirement to testify truthfully. Defense counsel objected. First the CofA found that although defense counsel stated ‘bolstering’ instead of ‘vouching’ in her objection, the CofA dismissed the prosecution’s whining that the defense did not preserve this issue for review.
Next the CofA found a split of authority in the federal courts. However, the CofA sided with the position that allows the prosecution to go through the plea agreement, including the condition of truthfulness, but with two caveats:
(1) the prosecutor may not express a personal opinion about the witness's credibility,
(2) the prosecutor may not appear to possess information unavailable to the jury.
Here the CofA found “If you were to lie about what happened, is that something you would expect us to figure out? Do you think we can tell? You think we would be able to tell if you're not truthful?” a ‘close call’, but did not find that the prosecution vouched for the witness.
Issue: Whether the trial court’s failure to instruct the jury on prior felony convictions constituted reversible error?
Reasoning: Because the trial court allowed both the defense and prosecution to argue the instruction in closing, the trial court did not err in failing to instruct on a witness's prior felony conviction.
Issue: Whether the trial court committed plain error in not sua sponte instructing the jury on the plea agreement reached by the witness against Mr. Coughlin?
Reasoning: The trial court did not commit plain error in failing to give, sua sponte, a limiting instruction on the permissible uses of the plea agreement the witneses reached with the prosecution.
Issue: Whether the trial court erred in failing to give a “no retreat” instruction?
Reasoning: Unduly restrictive view and overly legalistic. The CofA held because neither party discussed no-retreat in opening or closing, and because this could be viewed as a defense of others, the jury did not need to decide whether retreating was the better option. Unfortunately, jurors always chime in with an answer of using self-defense only as a ‘last resort’ when questioned about self-defense on voir dire. The CofA’s unrealistically narrow and utterly restrictive holding will inevitably deny a person his/her right to self-defense when the instruction is needed to dispel the juror myth that a person cannot act in self-defense unless retreat is not an option.
People v. Martinez Criminalist Lab Reports, C.R.S. §16-3-309 / Right to Confrontation
Facts: A jury convicted Mr. Martinez of vehicular homicide. At trial, the trial court admitted lab analysis reports of Mr. Martinez’s blood without the technician who conducted the test. Mr. Martinez objected.
Issue: Whether admitting lab reports from a private facility violated Mr. Martinez’s right to confrontation?
Reasoning: First the CofA agreed with the prosecution’s contention that §16-3-309(5) applies to both private and state run labs – in that the defense must give notice to the lab tech that he/she must testify in person. Further, because Mr. Martinez did not comply with the notice requirements of §16-3-309(5), the state had no obligation to present live testimony. Mr. Martinez argued that he did not knowingly or voluntarily waive his right to confrontation when his trial attorney did not comply with the lab notice requirement. The CofA reasoned, “’[W]hen an attorney fails to comply with the procedural rules set forth in section 16–3–309(5),’ he or she waives a ‘defendant's right of confrontation regardless of whether the attorney knew of or understood the statute or its requirements.’ “ quoting Cropper v. People, ––– P.3d ––––, –––– (Colo. No. 09SC828, Mar. 14, 2011)