People v. Flockhart
| Decision Date | 04 March 2010 |
| Docket Number | No. 07CA0312.,07CA0312. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Rhoderick T. FLOCKHART, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge ROMÁN.
Defendant, Rhoderick T. Flockhart, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of marijuana and distribution of marijuana. Because the trial court erred by permitting the jury to engage in predeliberation discussions about the case, and we cannot conclude the error was harmless beyond a reasonable doubt, we vacate the judgment of conviction and remand for further proceedings consistent with this opinion.
Defendant was charged with distribution of marijuana and possession of eight ounces or more of marijuana. According to the People's evidence, defendant sold marijuana to an informant acting under the direction of a county drug task force. Following this sale, task force officers arrested defendant and searched his residence pursuant to a warrant. Finding no marijuana in the residence, the officers obtained an amended warrant allowing them to search the back room of the building adjacent to defendant's backyard, which was partially enclosed by the fence surrounding defendant's residence. Police discovered over nine pounds of marijuana in the back room, which defendant unsuccessfully moved to suppress.
Before beginning jury selection, the trial court told the attorneys that “the court allows the jury to discuss the case prior to the conclusion of the case, but will instruct them not to draw any conclusions about what the evidence shows.” Defense counsel objected. Although the trial court did not rule on this objection, later the court advised the entire panel of prospective jurors of this policy and eventually instructed the impaneled jurors:
Now, as I said earlier, you will be able to discuss the case as you go along. However, even though you'll hear in opening statements what the evidence is expected to show, you'll not have heard all the evidence until the last witness is finished. So don't draw any firm conclusions about what you've heard. Keep an open mind all the way through the trial and draw your conclusions only at the conclusion of the case.
During the three-day trial, the court repeatedly told the jury it was permitted to discuss the case.
The jury convicted defendant on both counts. On appeal, he asserts six errors by the trial court. Although we vacate and remand on the jury instruction issue, we must also address the defective information argument because it could require dismissal of the possession count. Further, we address additional alleged errors because of the possibility that retrial will be necessary. 1
Defendant contends the trial court committed reversible error by requiring him to argue his challenges for cause in the presence of the prospective jurors. While we agree that the trial court erred, we do not find that this error warrants reversal.
The following exchange took place between the court and defense counsel:
Defense counsel proceeded to argue the challenges for cause in the presence of all the prospective jurors, but never requested that he be allowed to make or argue the challenges outside the presence of the challenged jurors. The court questioned the challenged jurors until it was satisfied they could be fair and impartial, and then denied the challenges.2
Here, because defendant did not object at trial or challenge the jurors on the basis of bias arising from the procedure utilized, we review for plain error. Plain error describes those errors that “so undermine[ ] the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo.2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)).
The propriety of hearing argument on challenges for cause in front of the prospective jurors is an issue of first impression in Colorado. There exists, however, a split of authority in other jurisdictions.
Several jurisdictions have determined that whether challenges for cause are made and argued in open court is a matter of discretion left to the trial court. See, e.g., Wagner v. State, 282 Ga. 149, 646 S.E.2d 676, 679 (2007); State v. Hardin, 498 N.W.2d 677, 681–82 (Iowa 1993); State v. Biegenwald, 106 N.J. 13, 524 A.2d 130, 136 (1987).
Conversely, the approach advocated by the American Bar Association requires the trial court to hear challenges for cause, and argument on those challenges, outside the presence of the prospective jurors. See American Bar Ass'n, Standards for Criminal Justice: Trial by Jury 15–2.7(a) (3d ed.1996).
The ABA commentary to Standard 15–2.7 explains that statements made by counsel in the course of a challenge may offend a challenged juror and might tend to bias that juror against the challenging counsel and his client.
Likewise, the Virginia Court of Appeals found that where the trial judge stated in a juror's presence that defense counsel was challenging him for cause and then heard the prosecution's response to the challenge in front of the juror, the procedure “created the possibility of bias in the mind of the juror against the defendant, where bias may not have previously existed.” Brooks v. Commonwealth, 24 Va.App. 523, 484 S.E.2d 127, 130 (1997).
We agree with the view espoused by the ABA and the Virginia Court of Appeals. Accordingly, we hold that it is improper for the trial court to require challenges for cause, and subsequent argument, in the presence of potential jurors.
However, we do not find that it constituted plain error in this case because, like the New Jersey Supreme Court,
[w]e are not persuaded that every juror unsuccessfully challenged for cause is inevitably biased against the party asserting the challenge. Nor are we convinced that the peremptory challenge subsequently expended against the challenged juror would not have been asserted had the challenge for cause been advanced at side bar rather than in open court.
Here, there is no evidence in the record supporting the assertion that the challenged jurors were biased by hearing the challenges for cause. Nor were the bases for the challenges so obviously inflammatory as to raise a presumption that bias resulted. Cf. Wagner, 646 S.E.2d at 679 ().
Accordingly, although the trial court erred by hearing challenges for cause and argument in front of the prospective jurors, this was not plain error requiring reversal of defendant's conviction.
Defendant contends his conviction must be reversed because the trial court permitted the jury to discuss the case during the trial. We agree that error occurred and that under these circumstances vacation of the conviction is warranted.
In Colorado, the trial court errs in instructing jurors in criminal cases that they can deliberate before all the evidence is received. See People v. Preciado–Flores, 66 P.3d 155, 165–66 (Colo.App.2002) (); People v. Baird, 66 P.3d 183, 190–91 (Colo.App.2002) (same).
The division in Preciado–Flores explained the reasons that predeliberation implicates a defendant's rights to due process and fair trial by an impartial jury:
(1) the jury system is meant to involve decisionmaking as a collective, deliberative process, and premature deliberations among individual jurors may thwart that goal; (2) a juror who expresses views in the presence of other jurors is likely to continue to adhere to that opinion and therefore to approach the case with less than a fully open mind; (3) premature deliberations may occur before a defendant has a chance to present all of his or her evidence and may, therefore, be unfavorable to [the] defendant in violation of the right to a fair and impartial trial; (4) premature conclusions about a case effectively shift the burden to the defendant to change the opinion thus formed; and (5) jurors who engage in predeliberation do so in a vacuum, without benefit of the court's instructions.
66 P.3d at 166 (citations omitted).
We review predeliberation instructions as trial error, rather than structural error.3
Because defendant preserved the issue below, we review the error for harmlessness. The People contend the predeliberation instruction was a nonconstitutional error, requiring a simple harmless error analysis. Defendant contends the more stringent constitutional analysis requiring harmlessness beyond a reasonable doubt applies. See People v. Allen, 199 P.3d 33, 37 (Colo.App.2007). An error is harmless beyond a reasonable doubt only if “the guilty verdict actually rendered in this trial was surely unattributable to the error.” People v. Bass, 155 P.3d 547, 551 (Colo.App.2006).
We conclude that instructing the jury that it may engage in predeliberation discussion of the case is constitutional error, requiring application of the harmless beyond a reasonable doubt standard.
The right to a fair trial by an impartial jury is one of the fundamental constitutional rights of a criminal defendant. People v. Burnette, 775 P.2d 583, 586 (Colo.1989)...
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