Key v. People

Citation865 P.2d 822
Decision Date10 January 1994
Docket NumberNo. 92SC802,92SC802
PartiesRyan C. KEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

David F. Vela, State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Katherine M. Clark, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to decide whether the court of appeals properly concluded in People v. Key, 851 P.2d 228 (Colo.App.1992) (Key I ), that the defendant was deprived of his constitutional right to counsel when the trial judge held an ex parte scheduling conference with the jury during its deliberations. We also granted certiorari to determine whether the court of appeals correctly analyzed such a violation under the harmless error standard. For the reasons stated below, we affirm in part and reverse in part and return the case to the court of appeals with directions to remand to the trial court for a new trial.

I

On July 4, 1990, Vincent Garcia (Garcia) and his family were having an outdoor barbecue dinner at their home. At approximately 6:00 p.m., two cars with several young male occupants drove slowly past Garcia's home, flashing "gang signs" with their hands out of the car windows. Approximately twenty minutes later, the occupants of the cars reappeared and entered Garcia's front yard. After challenging Garcia to a fist-fight, Alex Cowans (Cowans), one of the vehicle occupants and a defendant in the instant action, threw a punch at Garcia. A fight then erupted between the group of young men and Garcia's family. Garcia's father, uncle, brother-in-law, sister and neighbors were all involved in the melee.

At some point during the skirmish, one of the other vehicle occupants appeared with a gun and began brandishing it in the air. Cowans evidently took possession of the gun and pointed it at various people, asking them if they wanted to die. According to the testimony of five eyewitnesses at a pre-trial motions hearing, Cowans stood three feet away from Garcia and pointed the gun directly at Garcia's head. According to the same testimony, Cowans eventually pulled the trigger, but the gun failed to discharge. Garcia's father then wrestled Cowans to the ground, removing the gun from his hand.

The police arrived shortly thereafter and arrested several of the young men involved in the fight, including Cowans and the defendant, Ryan Key (Key). Several members of the Garcia family identified Cowans to the police out of a group of arrestees as the individual who had pointed the gun at Garcia and pulled the trigger. The prosecution subsequently charged both Cowans and Key with attempted first degree murder, menacing and conspiracy to commit first degree murder.

At a pre-trial motions hearing in September 1990, the state presented five eyewitnesses, including Garcia, who testified under oath that it was Cowans who pointed the gun at Garcia's head. Officer Brian Fowle of the Denver Police Department specifically testified that on the day of the incident, a crowd of between fifteen and twenty people identified Cowans as the one who had the gun.

A jury trial in which both Cowans and Key were tried together commenced on December 17, 1990. At the trial, Garcia, his mother, father, sister and a close friend all testified that Key, and not Cowans, had in fact been the one who pointed the gun at Garcia. Defense counsel attempted to impeach these witnesses with their testimony from the pre-trial hearing as well as from police reports in which they had previously identified Cowans as the individual who pointed the gun at Garcia and pulled the trigger. The only explanations offered by these witnesses for their inconsistent statements as to the identification of the perpetrator were that the witnesses either "forgot" within twenty minutes of the brawl which defendant had pulled the trigger or that they were "mistaken" on both the day of the incident and at the pre-trial hearing ten weeks later. 1

The jury began its deliberations early on Friday afternoon, December 21, 1990. After the jury had been deliberating for approximately three hours, the trial judge sua sponte reconvened the jury in the courtroom, without first notifying the defendants, their counsel or the prosecution. The judge proceeded to discuss scheduling matters with the jurors outside of the presence of all counsel and the defendants. 2 He prefaced the conference with the following remarks:

You haven't had a whole lot of time to deliberate, about three hours or so, which is not a whole lot of time. We may need to talk about when we can reschedule your reconvening as a jury. We've got the holidays coming up, and I'm not sure if everyone's available to come back Monday morning or not, so I thought we better take a poll and chat about when we can reappear.

During the discussion, Juror Nichting stated that he would be leaving town the following morning on vacation and would not return until December 31. Juror Hurst then informed the judge that she was getting married on January 1, 1991, after which she would be departing for a two-week honeymoon. The judge then suggested that the jury reconvene on December 31, to which Juror Nichting responded that although he did not know what time he would arrive from Illinois by car that day, he could make it back in time to reconvene. The following dialogue then ensued:

JUROR BROWN: Your Honor, would it be possible for us to continue? I feel we're fairly close. 3

THE COURT: We can go for a little while, but not too much longer, because they start locking this building up and we kind of lose access to it. But you certainly may deliberate further.

JUROR BROWN: Could we stay till 5:30?

THE COURT: Yes, that's probably about the fail-safe time, and then we'll reschedule. All right. We've got the 31st available. You don't want to do this the day before you get married, anyway, do you?

JUROR HURST: I hope not.

The meeting was then adjourned. The trial court did not inform either defense counsel or the prosecution of these ex parte communications.

Before the end of the day, the jury returned to the courtroom to deliver its verdicts. 4 The jury found Key guilty of criminal attempt to commit murder in the first degree 5 and menacing. 6 The jury acquitted Cowans of all charges.

Key appealed his convictions to the court of appeals, arguing that the actions of the trial court in holding an ex parte conference with the jury denied him his constitutional right to counsel at a critical stage of the proceedings. He further argued that the conference coerced the jury into reaching a verdict in violation of his constitutional right to a fair trial. He contended that these alleged errors mandated automatic reversal of his convictions. 7

The court of appeals affirmed the judgment of conviction, holding that although Key was denied his constitutional right to counsel at a critical stage of the trial, harmless error analysis should be applied to ex parte communications between the trial judge and jurors. Citing the fact that the judge and jurors discussed only administrative matters and not the substantive law and that there was no evidence that the jury was deadlocked, the court of appeals concluded that the absence of counsel at the "scheduling conference" in this case was harmless beyond a reasonable doubt. Key I, 851 P.2d at 230.

II

The right to counsel exists at every critical stage of a criminal proceeding. U.S. Const. amend. VI; Colo. Const. art. II, § 16; United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984); People v. Roybal, 618 P.2d 1121, 1126 (Colo.1980); People v. Johnson, 802 P.2d 1105, 1107 (Colo.App.1990), rev'd on other grounds, 815 P.2d 427 (Colo.1991). Stages of criminal proceedings have been held to be "critical" where there exists more than a "minimal risk" that the absence of the defendant's counsel might impair the defendant's right to a fair trial. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967); Sandoval v. People, 172 Colo. 383, 389, 473 P.2d 722, 725 (1970). The defendant argues that the ex parte scheduling conference with the jurors during their deliberations occurred at a critical stage of the proceedings. We agree.

We have held that the defendant in a criminal case has a fundamental right under the Colorado Constitution to have counsel present "when the judge gives instructions to the jury or responds to questions from the jury." Leonardo v. People, 728 P.2d 1252, 1257 (Colo.1986); see also Nieto v. People, 160 Colo. 179, 183, 415 P.2d 531, 533 (1966). "It is therefore constitutional error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant's counsel." Leonardo, 728 P.2d at 1257; Nieto, 160 Colo. at 183, 415 P.2d at 533 (stating that had the trial court waited until counsel could be present, it was doubtful any reversible error would have transpired over counsel's objection).

The People argue that Leonardo and Nieto are limited to circumstances where the trial judge gives instructions or responds to questions from jurors on the legal issues or facts of the case. While we agree that during jury deliberations a colloquy between the judge and jurors on legal or factual issues in the case constitutes a critical stage of the trial, we do not believe that a defendant's right to counsel during jury deliberations is so limited.

Not every communication between the judge and jury constitutes a critical stage of the trial. However, an impromptu conference with the jury during its deliberations may constitute a critical stage of the proceedings even where the discussions are purportedly confined to "s...

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