Leonardo v. People

• Decision Date: 02 December 1986
• Docket Number: No. 84SC216,84SC216
• Citation: 728 P.2d 1252
• Parties: Joseph Noel LEONARDO, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1252

728 P.2d 1252

Joseph Noel LEONARDO, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 84SC216.

Supreme Court of Colorado En Banc.

Dec. 2, 1986.

Rehearing Denied Dec. 22, 1986.

J. Gregory Walta, Colorado Springs, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

LOHR, Justice.

The defendant in this criminal case, Joseph Lee Leonardo, III (Leonardo), ¹ was charged with and convicted of theft by receiving in violation of section 18-4-410, 8B C.R.S. (1986), ² and conspiracy to commit theft by receiving in violation of section 18-2-201, 8B C.R.S. (1986). The defendant appealed, contending that the trial court had erred in two respects. First, the court had declined to elaborate on its instructions in response to a question submitted by the jury after commencing deliberations. Second, the court had failed to obtain the presence of the defendant and his counsel and to afford the defendant's counsel an opportunity to be heard before the court decided upon the appropriate reply to the jury's question. The Colorado Court of Appeals affirmed the convictions, holding that although the trial court had erred in not having the defendant and his counsel present and in not affording the defendant's counsel an opportunity to be heard, the error was harmless because the defendant was not prejudiced by the court's response to the jury. People v. Leonardo, 687 P.2d 511 (Colo.App.1984). We granted certiorari and now reverse the judgment of the court of appeals and direct that the defendant receive a new trial.

I.

Viewing the facts in the light most supportive of the jury's verdicts, the record discloses the following course of events. Early in June of 1982, Leonardo and a co-worker, his brother-in-law, Michael Robinson, were eating lunch at a fast food restaurant in Colorado Springs when they were approached by an unidentified man who offered to sell them some tools. Both Leonardo and Robinson were carpenters and had been working on a roofing project that day. Leonardo and Robinson decided to see what the man had for sale and accompanied him to his van where the tools were located. Leonardo testified that carpenters who are in need of money commonly sell their tools for less than true value in order to subsist. After inspecting the tools, Leonardo purchased several extension cords, levels and saws, for a total of between $75 and $100. Except for the extension cords, each of these tools had the initials "A.E.W." scratched on it. Al E. Walton, the rightful owner of the tools, had previously reported that his tools had been stolen out of his van sometime over the Memorial Day weekend when the van was parked on a construction site.

Shortly after purchasing the tools, Leonardo pawned them at three different pawn shops. Leonardo was out of work at this time and needed money to pay his bills. Michael Robinson also pawned some of the tools he had purchased. In the course of investigating the theft of these tools, Officer Cox of the City of Colorado Springs discovered some of the tools in various pawn shops. Officer Cox examined the pawn tickets and observed that one of Leonardo's pawn tickets listed an address identical to that shown on a pawn ticket signed by Robinson. The officer went to that address, the apartment in which Leonardo and Robinson lived, and found Robinson. After questioning him and noticing tools that matched the descriptions of some of the other tools stolen from Walton, the officer arrested Robinson. Later that day, Officer Cox secured a search warrant, returned to the apartment and encountered Leonardo. The officer questioned Leonardo and thereafter arrested him.

Both Leonardo and Robinson were charged in El Paso County District Court with theft by receiving and conspiracy to commit theft by receiving. Robinson entered into a plea agreement and pleaded guilty to a lesser charge. The case against Leonardo proceeded to trial.

At the conclusion of the evidence, the jury was instructed on the elements of theft by receiving. One of the elements listed in the instruction was that the defendant could be convicted only if he acted while "knowing or believing" that the thing of value in question had been stolen. The court also gave the jury a standard instruction on the term "knowingly" but did not define the term "believing" for the jury.

In the course of deliberations, the jury sent a note to the court which read:

Is Knowing or Believing in instruction Number 6 The Same as Having a Suspicion of ?

The court, without consulting counsel for either side or informing Leonardo, responded in writing as follows:

Ladies and Gentlemen:

You must reach your verdict applying the words as you find them in the instructions.

The jury made no further inquiries and returned their verdicts of guilty a short time later.

On the basis of the court's handling of the jury's question, Leonardo moved for a new trial. His motion was denied and he was sentenced to four years probation. He subsequently appealed his convictions to the court of appeals, again based upon the trial court's handling of the jury's question. A divided panel of the court of appeals upheld Leonardo's convictions, People v. Leonardo, 687 P.2d 511 (Colo.App.1984), and he petitioned this court for a writ of certiorari. We granted Leonardo's petition and we now reverse the judgment of the court of appeals.

II.

In order to convict a defendant of theft by receiving, the jury must find that he "receive[d], retain[ed], loan[ed] money by pawn or pledge on, or dispose[d] of anything of value of another, knowing or believing that said thing of value [had] been stolen...." § 18-4-410, 8B C.R.S. (1986) (emphasis added); see also People v. Griffie, 44 Colo.App. 46, 610 P.2d 1079 (1980). The instructions given to the jury included this "knowing or believing" requirement as one of the elements of theft by receiving, using the same words as the statute. Also, the term "knowingly" was defined further for the jury by use of a standard instruction. ³ The term "believing" was not defined further for the jury.

We have held that an instruction employing the language of the statute is sufficient if the language is clear. E.g., People v. Freeman, 668 P.2d 1371, 1383-84 (Colo.1983) (robbery instruction); People v. Dago, 179 Colo. 1, 4, 497 P.2d 1261, 1262 (1972) (same). The definition of "knowingly" that the trial court included in its instructions to the jury is substantially the same as the definition set forth in section 18-1-501(6), 8B C.R.S. (1986), and has frequently been cited with approval for use in jury instructions. See, e.g., City of Englewood v. Hammes, 671 P.2d 947, 952-53 (Colo.1983). Also, in a case addressing a challenge to the theft by receiving statute on the basis that "believing" is unconstitutionally vague, we held that the term is "understandable by persons of common intelligence." People v. Holloway, 193 Colo. 450, 452-53, 568 P.2d 29, 31 (1977). The majority of the court of appeals therefore determined that the instructions given were adequate and contained no indication "that 'suspicion' would suffice as an element" of theft by receiving. People v. Leonardo, 687 P.2d at 512-13. Because the original instructions were adequate, the majority of the court of appeals held that the trial judge had responded properly to the jury's inquiry. In so holding, the court of appeals erred.

The issue in this case is not the adequacy of the original instructions given, but rather the jury's demonstrated misunderstanding of those instructions. "Absent a contrary showing, it is presumed that the jury understood and heeded the trial court's instructions." People v. Moody, 676 P.2d 691, 697 (Colo.1984) (emphasis added); accord People v. Gutierrez, 622 P.2d 547, 554 (Colo.1981); People v. Jacobs, 179 Colo. 182, 187, 499 P.2d 615, 618 (1972). This presumption, however, is rebuttable. Where, as here, a jury affirmatively indicates that it has a fundamental misunderstanding of an instruction it has been given, the basis for a presumption that the jury understands the instruction disappears.

Both parties in this case urge that ABA Standards for Criminal Justice, Standard 15-4.3(a) (2d ed. 1980), should serve as a guide for determining when the trial judge should give additional instructions in response to an inquiry from the jury. We agree. Standard 15-4.3(a) provides:

If the jury, after retiring for deliberation, desires to be informed on any point of law, they shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury's request unless:

(i) the jury may be adequately informed by directing their attention to some portion of the original instructions;

(ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or

(iii) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

The People argue, and the majority in the court of appeals apparently agreed, that the trial judge's failure to answer the jury's question was appropriate since the jury could "be adequately informed by directing their attention to ... the original instructions." See ABA Standards for Criminal Justice, Standard 15-4.3(a)(i) (2d ed. 1980). However, this was obviously not the case. The question asked by the jury, "[i]s Knowing or Believing in instruction Number 6 The Same as Having a Suspicion of ?," demonstrates that the jury had considered the relevant instruction on mental state but did not know if suspicion was encompassed within the culpable mental state described in that instruction. Referring the jury back to the same instruction that created the doubt in their minds could serve no useful purpose. A jury should be referred back to instructions only when it is apparent that the jury...