Germany v. People, C-1736

• Decision Date: 10 September 1979
• Docket Number: No. C-1736,C-1736
• Parties: James C. GERMANY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 904

599 P.2d 904

198 Colo. 337

James C. GERMANY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. C-1736.

Supreme Court of Colorado, En Banc.

Sept. 10, 1979.

Stanley H. Marks, Jonathan L. Olom, Denver, for petitioner.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Sharon S. Metcalf, Asst. Atty. Gen., Denver, for respondent.

GROVES, Justice.

We granted certiorari to the court of appeals to review its opinion affirming the defendant's conviction of second degree burglary under section 18-4-203, C.R.S.1973 (now 1978 Repl. Vol. 8), 41 Colo.App. 304, 586 P.2d 1006 (1978). The petition for certiorari asked us to review only the question of whether the district court erred in giving the jury the modified Allen charge (Colo.J.I.Crim. 36:14) without affording the defendant or his counsel an opportunity to be present at and prior to the time of giving the instruction for the purpose of objecting thereto. We confine ourselves to this issue, and reverse.

The case was submitted to the jury in late afternoon and it commenced its deliberations after dinner. It resumed the next morning and shortly after 1:00 p. m. advised the court that it appeared to be deadlocked. Without permitting objection by or presence of defendant or his attorney, the court sent the instruction to the jury in writing. Later the jury reached and returned its verdict.

The modified Allen charge submitted to the jury read as follows:

"It appearing to the Court at this time that your deliberations have been somewhat delayed without an agreement being reached, the Court wishes to suggest a few thoughts which you should consider in your deliberations, along with the evidence in the case, and all of the instructions previously given.

"It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

"You are not partisans. You are judges judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case."

After the jury had returned its verdict and been excused, the trial judge made a statement in the record to the following effect: When the jury reported shortly after 1:00 p. m., the court determined that it should give the modified Allen charge. At the direction of the judge, the bailiff called the prosecutor and defendant's attorney and told them that the additional instruction was going to be sent to the jury room. The defendant's counsel stated to the bailiff that he objected and wanted the record to note his objection. The court regarded the charge as an approved one and it could conceive of nothing counsel might say to change the court's determination.

The court then gave the defendant's attorney the opportunity to place his objection into the record. The attorney stated that "the record now reflects my stated objection."

No further objection was made as to the giving of the instruction. There is nothing in the record mentioning or indicating prejudice against the defendant by reason of the instruction. No mention of the issue was made in the motion for new trial.

The court of appeals recognized that the trial court committed constitutional error. Citing People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973) and Wiseman v. People, 179 Colo. 101, 498 P.2d 930 (1972), it ruled that prejudice was not to be presumed from the giving of the instruction and, the record disclosing no prejudice, it affirmed.

The defendant has the right under the Sixth Amendment to be present at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Obviously, constitutional error was committed here.

There is authority that constitutional error which violates this right creates a rebuttable presumption of prejudice. Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977); United States v. Treatman, 524 F.2d 320 (8th Cir. 1975); Akins v. Cardwell, 500 F.2d 47 (9th Cir. 1974); Rice v. United States, 356 F.2d 709 (9th Cir. 1966).

In each of the two cases cited by the court of appeals (People v. Lovato, supra, and Wiseman v. People, supra ) we ruled that prejudice was not to be presumed from the particular communications which there took place between the judge and jury out of the presence of the defendant and defendant's counsel. We there held that, since the record...