Harper v. People

Decision Date16 September 1991
Docket NumberNo. 90SC204,90SC204
Citation817 P.2d 77
PartiesDavid Joe HARPER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

In People v. Harper, 796 P.2d 4 (Colo.App.1989), the Colorado Court of Appeals affirmed the conviction of the defendant, David Joe Harper, for sexual assault on a child. The court of appeals held that the trial court did not abuse its discretion when it denied Harper's request to poll the jury after the mid-trial publication of a local newspaper article. We granted certiorari to decide whether the reasonable possibility of prejudice test announced in Wiser v. People, 732 P.2d 1139 (Colo.1987), required the trial court to poll the jury to determine whether any jurors had read the article. Although we conclude that the Wiser test is not the appropriate standard, we hold that the court abused its discretion in declining to poll the jury. We therefore reverse the judgment of the court of appeals.

I.

In February 1988, Harper was tried in the Mesa County District Court, in Grand Junction, on charges of sexual assault on a child, in violation of section 18-3-405, 8B C.R.S. (1983 Supp.). Harper had allegedly molested a neighbor's eight-year-old daughter during November 1983. Harper had previously been convicted, in May 1987, of sexual assault on a child by one in a position of trust, § 18-3-405(2)(b) (current version at § 18-3-405.3, 8B C.R.S. (1990 Supp.)), stemming from an unrelated incident involving a five-year-old boy. The defense moved to exclude introduction of evidence of the May 1987 conviction in the February 1988 trial; the prosecution confessed that motion. 1 After the jury had been empaneled and before presentation of opening statements, the court instructed the jurors not to engage in outside reading on the case. The court specifically admonished them, "[D]o not read about the case in the newspapers or listen to radio or television broadcasts about the trial. You must base your verdict solely on the evidence presented at the trial."

On the second day of trial, The Daily Sentinel, a Grand Junction newspaper, printed a short article about the case. That article, located on page 4B, was included in a column entitled "News Shorts," containing three brief articles under the subheading "Grand Junction." The article in question read:

Trial begins in sexual assault case

Opening statements were to be made today in the Mesa County District Court trial of David Joe Harper on sexual assault charges involving a young girl.

Jury selection began Tuesday in the trial before Judge Charles Buss.

Harper, a 31-year-old New Mexico man, is seeking a new trial on his May 1987 conviction on sexual assault charges involving a 4-year-old boy 2 between Oct. 1 and Nov. 30, 1983.

In this trial, Harper is accused of assaulting the young girl during the same period of time.

The two offenses are not related, except that they occurred within the same time period.

Harper was convicted to six years in prison by Judge Jose D.L. Marquez after his May conviction. He filed an appeal in October alleging that actions by the Mesa County District Attorney's Office had denied him a chance to defend himself against the charge.

According to Harper's appeal, he was denied an effective defense because of the length of time in which the offense allegedly occurred. He couldn't claim he wasn't present at the time the child said she was assaulted because of the time span involved.

No action has been taken on Harper's appeal of the conviction in the first case.

Daily Sentinel (Grand Junction), February 10, 1988, at 4B.

Harper's counsel brought the article to the court's attention the next morning outside the presence of the jury. After describing generally the contents of the article, Harper's attorney asked the court to question the jury to determine whether any juror had read articles or learned extraneous information about Harper. 3 The court received the article in evidence 4 but declined to question the jury because the defense had not established that any juror had read the article. The court explained,

[t]he issue is if anybody's read it, and the Defendant has to establish, I think, independent of asking the jurors if they've read it, whether or not they've read it. The jurors are not subject to willy-nilly being examined during the course of a trial, whether or not they are currently obeying the Court's instructions regarding their behavior .... [A]ll the defendant has presented at this point is an article in the newspaper, The Daily Sentinel, which is not sufficient to show the jurors have been either exposed to it or disobeyed the Court's order not to pay attention to these matters.

The jury found Harper guilty of the sexual assault charge. 5 On appeal, the court of appeals noted that the trial court had admonished the jury not to read about the case in the newspapers. Relying on People v. Holmes, 191 Colo. 477, 553 P.2d 786 (1976), the court held that absent a showing to the contrary, the trial court's admonition created a presumption that the jurors followed the court's instructions to ignore newspaper articles concerning the trial. The court of appeals held that in absence of a showing that any of the jurors read the newspaper article or that Harper was prejudiced by the article, the trial court did not abuse its discretion by denying Harper's request to poll the jury. The court therefore affirmed his conviction.

II.

Harper argues that the trial court abused its discretion by not polling the jury after Harper brought the newspaper article to the court's attention. In support of this argument, Harper asserts that the article was highly prejudicial as it contained information about the excluded conviction; counsel had brought the article to the court's attention promptly; and the ethical prohibition against counsel contacting jurors during trial, see DR 7-108, created a serious obstacle to obtaining additional evidence about the jurors' exposure to the article. Harper further asserts that polling would have indicated whether the jurors had been exposed to the article and if they had, the court then could have taken timely corrective measures to ensure him a fair trial.

Our earlier cases required that a defendant demonstrate that actual prejudice resulted from juror exposure to extraneous information or influences in order to be awarded a new trial. See, e.g., Niemand v. District Court, 684 P.2d 931, 934 (Colo.1984) (juror consulted Black's Law Dictionary for definitions of words used in court's instructions); People v. Hickman, 684 P.2d 228, 233 (Colo.1984) (reporter questioned jurors during noon recess); People v. Dunoyair, 660 P.2d 890, 895 (Colo.1983) (juror inadvertently failed to disclose acquaintance with prosecution witness); People v. Thatcher, 638 P.2d 760, 770 (Colo.1981) (jurors casually observed scene of the crime while returning home from court); People v. Mackey, 185 Colo. 24, 31, 521 P.2d 910, 914 (1974) (juror conversed with a police officer during sequestration concerning burglarizing of a room of one of jurors); Thistle v. People, 119 Colo. 1, 5, 199 P.2d 642, 643 (1948) (jurors read article including information that defendant was facing charges of absence without leave from army); McPhee v. People, 108 Colo. 530, 120 P.2d 814 (1941) (jurors read article referring to prior convictions case remanded for evidentiary hearing on actual prejudicial effect). 6 Particular factual circumstances, however, can create a rebuttable presumption of prejudice. People v. Boulies, 690 P.2d 1253, 1256 (Colo.1984) (presumption of prejudice arises if alternate juror was present during jury deliberations). Cf. Walker v. People, 169 Colo. 467, 471, 458 P.2d 238, 240 (1969) (pre-trial publicity so pervasive that actual prejudicial effect need not be shown). The principle to be derived from these cases is that an evidentiary hearing would generally be appropriate to determine the actual effect of the potentially prejudicial material on the jury's deliberations. See McPhee, 108 Colo. at 533, 120 P.2d at 815. But see Quintana v. People, 158 Colo. 189, 194, 405 P.2d 740, 743 (1965) (jurors' actual exposure to article describing defendant as ex-convict and describing sentence received by his co-defendant required reversal without the need for an evidentiary hearing on prejudicial effect); Perry v. People, 63 Colo. 60, 65-68, 163 P. 844, 846-47 (1917) (the possibility of jury prejudice resulting from false article about defendant's escape plans, including concealment of weapons in his cell, warranted new trial despite trial court finding of no prejudicial effect).

In Wiser v. People, 732 P.2d 1139 (Colo.1987), we re-examined the problem of the exposure of jurors to information not presented at trial. Wiser had been convicted of first degree burglary and felony menacing, following a jury trial. During Wiser's trial, one juror asked a legal secretary about the source of jury instructions and another juror consulted a dictionary for a definition of burglary, one of the crimes with which the defendant was charged. This information was presented to the trial court by affidavit in support of a motion for new trial and was based on information gleaned from the jurors at an informal meeting after return of the verdict. The trial court held that even if the information was true, the evidence was insufficient to establish that the jury was prejudiced by the misconduct. The trial court therefore denied the new trial motion. The court of appeals affirmed. It recognized that the consultation of outside sources was...

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