In re People v. Harlan, Case No. 03SA173 (CO 4/18/2005)

• Decision Date: 18 April 2005
• Docket Number: Case No. 03SA173.
• Parties: In Re: THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellant v. ROBERT ELIOT HARLAN, Defendant-Appellee.
• Court: Supreme Court of Colorado

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In Re: THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellant
v.
ROBERT ELIOT HARLAN, Defendant-Appellee. Case No. 03SA173. Supreme Court of Colorado. En Banc. March 28, 2005. April 18, 2005.

Original Proceeding Pursuant to C.A.R. 21, Adams County District Court, Case No. 94CR187, Honorable John J. Vigil, Judge.

RULE DISCHARGED.

Opinion modified, and as modified, Petition for Rehearing DENIED. EN BANC.

No. 03SA173, People v. Harlan — C.A.R. 21 — Death Penalty — First Degree Murder — Extraneous Information Improperly Before Jury — Unauthorized Introduction of Bible and Biblical Death Penalty Passage into Jury Room — CRE 606(b) — Four-Step Process for Death Sentence Jury Deliberations — Objective Typical Juror Test for Ascertaining Prejudice to Defendant — Factors for Ascertaining Prejudice to Defendant — Supreme Court's Independent Review of Death Penalty, § 16-11-103(6)(b), 8A C.R.S. (Cum. Supp. 1994) — Influence of Passion, Prejudice, or Other Arbitrary Factor — Life Imprisonment Without the Possibility of Parole

In 1995, a jury convicted Robert Harlan of first degree murder, attempted murder, kidnapping, and assault for the kidnapping, rape, and murder of Rhonda Maloney and the shooting of her would-be rescuer, Jaquie Creazzo. The jury rendered a unanimous death penalty decision.

Harlan appealed. On initial review, the Colorado Supreme Court upheld the death penalty. In that appeal, the Supreme Court did not have before it evidentiary findings subsequently made by the trial court. On remand of the case following the direct appeal, the trial court found that at least one juror,

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without authorization by the court, brought a Bible into the jury room and, before the death penalty verdict was reached, shared with another juror a biblical passage commanding the death penalty as the required punishment for murder. The trial court found that unauthorized introduction and use of this written text in the jury room violated applicable Colorado laws.

On review, the Supreme Court applies Colorado Rule of Evidence 606(b) and applicable statutory and case law. In cases of improper jury consideration of extraneous prejudicial materials, the test developed in previous decisions is an objective test looking at the reasonable possibility of influence on a typical juror. A conviction or sentence must be reversed if such misconduct creates a reasonable possibility that the verdict was influenced to the detriment of the defendant.

The Supreme Court concludes that unauthorized introduction into the jury room of the Bible and its text commanding the death sentence for murder would influence a typical juror to vote for death instead of life imprisonment. Under Colorado law, the death penalty is not required for first degree murder, and it takes the vote of only one juror to refuse the death sentence when the state is seeking the defendant's execution.

Applying the objective test for ascertaining prejudice to a defendant from juror use of improper, extraneous, prejudicial

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materials, the Supreme Court upholds the trial court's order vacating Harlan's death sentence and imposing a sentence to life imprisonment without the possibility of parole.

In a community where "Holy Scripture" has factual and legal import for many citizens and the actual text introduced into the deliberations without authorization by the trial court plainly instructs mandatory imposition of the death penalty, contrary to state law, its use in the jury room prior to the penalty phase verdict was prejudicial to Harlan. The Court's analysis of the factors for prejudice, in the context of a death penalty verdict, leads to the conclusion that there is a reasonable possibility that the extraneous biblical texts influenced the verdict to Harlan's detriment.

Also, in light of the trial court's evidentiary findings and exercising its duty to independently review the death penalty, the Supreme Court finds that it can no longer say that the death penalty verdict was not influenced by passion, prejudice, or any other arbitrary factor.

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Don Quick, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Bradley V. Varmo, Deputy District Attorney, Brighton, Colorado, Steven L. Bernard, Chief Deputy District Attorney, Nineteenth Judicial District, Acting as Special Deputy District Attorney, for the Seventeenth Judicial District, Greeley, Colorado, Attorneys for Plaintiff-Appellant.

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy Public Defender, Denver, Colorado, Attorneys for Defendant-Appellee.

Burns, Figa & Will, P.C., Michael J. Norton, Englewood, Colorado, Attorneys for Amicus Curiae in Support of Plaintiff-Appellant.

JUSTICE HOBBS delivered the Opinion of the Court.

JUSTICE RICE dissents and JUSTICE KOURLIS joins in the dissent.

JUSTICE COATS and JUSTICE BENDER do not participate.

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Pursuant to C.A.R. 21, we review the prosecution's challenge to the trial court's judgment vacating a jury verdict imposing the death penalty on Robert Eliot Harlan and imposing a sentence of life imprisonment without the possibility of parole. We uphold the trial court's order and judgment, and discharge the rule.

Previously, we affirmed Harlan's death sentence. People v. Harlan, 8 P.3d 448 (Colo. 2000). In 1995, a jury found Harlan guilty of raping and murdering Rhonda Maloney and shooting Jaquie Creazzo, who tried to rescue Maloney when she escaped from Harlan's car. In pursuit, Harlan shot Creazzo and left her paralyzed for life. He then seized Maloney from Creazzo's car, drove away with her, and proceeded to savagely beat and ultimately kill her. We upheld Harlan's conviction and death sentence on appeal. Id. at 501.

In that opinion, we expressed particular concern about the voir dire that resulted in the jury's selection. Several of the jurors who were seated had expressed views favoring the death penalty for all persons convicted of first degree murder. However, they all answered in response to follow-up questions that they would listen to the evidence, follow the court's legal instructions in the guilt and penalty phases of the trial, apply the four-step process for the penalty phase as the trial court

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would instruct, and not automatically vote for the death penalty. While we were "deeply troubled by the number of times the trial court failed to resolve contradictory or equivocal statements by jurors," id. at 465, and characterized the voir dire as "inherently problematic," id. at 468, we concluded that the trial court's voir dire rulings were supported by the evidence and were constitutionally sufficient. Id.

After considering Harlan's numerous legal contentions, accepting some but rejecting most, we found no legal basis on which to set aside the jury's death penalty verdict. We then proceeded with our duty to independently review the verdict under former section 16-11-103(6)(a) and (b), 8A C.R.S. (Cum. Supp. 1994).¹ Id. at 498-501. This two-part inquiry requires us

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to find that the death penalty is appropriate under the circumstances of the case and that the jury did not impose it under the influence of passion, prejudice, or any other arbitrary factor.

As to this first inquiry, we upheld the propriety of the death sentence based upon the evidence of Harlan's heinous acts:

In light of the duration during which the defendant terrorized his victim and her would-be rescuer; the degree of violence he inflicted on Maloney before her death; and the extent to which she suffered, we conclude that the nature of the defendant's offense is comparable to cases in which we have upheld the propriety of the death sentence.

Id. at 498 (internal citations omitted).

As to the second inquiry, whether passion, prejudice, or some other arbitrary factor influenced the death penalty verdict, we examined Harlan's contention that racial bias may have been a factor in the imposition of the death sentence. We determined that the record as a whole supported the finding that "racial prejudice did not undermine the fundamental fairness of the defendant's trial." Id. at 499.

Accordingly, we upheld the jury's death penalty verdict and remanded the case to the trial court for further proceedings. Id. at 501. Subsequently, the trial court took up Harlan's motion to vacate his death sentence due to jury misconduct. Harlan alleged that the jury introduced one or more Bibles into

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the jury room during deliberations and used the texts to demonstrate an authoritative passage commanding imposition of the death penalty for the crime of murder, all without authorization by the trial court. The evidence adduced at the trial court's hearing shows that: (1) one or more jurors brought a Bible, a Bible index, and hand-written notes containing the location of biblical passages into the jury room to share with another juror during deliberations in the penalty phase of defendant's trial; (2) these extraneous materials contained a passage commanding the death penalty for murderers and another instructing obedience to civil authorities; and (3) these passages were pointed out by at least one juror to another juror before the jury reached its unanimous verdict imposing the death sentence. The trial court concluded that there was a reasonable possibility that use of the Bible in the jury room to demonstrate a requirement of the death penalty for the crime of murder would have influenced a typical juror to reject a life sentence for Harlan. Therefore, the trial court found that Colorado's legal standards require reversal of the jury's death sentence verdict in this case.²

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Because competent evidence in the record supports the trial court's findings of fact and the court's legal conclusions are correct, under CRE 606(b) and applicable case law, we uphold the trial court's order vacating Harlan's death sentence and imposing a sentence of life...