Niemand v. District Court In and For Jefferson County, First Judicial Dist.

• Decision Date: 16 July 1984
• Docket Number: No. 83SA455,83SA455
• Citation: 684 P.2d 931
• Parties: Joachim Friedrich NIEMAND, Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF JEFFERSON, FIRST JUDICIAL DISTRICT, and the Honorable Winston Wolvington, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 931

684 P.2d 931

Joachim Friedrich NIEMAND, Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF JEFFERSON, FIRST JUDICIAL DISTRICT, and the Honorable Winston Wolvington, one of the Judges thereof Respondents.

No. 83SA455.

Supreme Court of Colorado En Banc.

July 16, 1984.

David F. Vela, Colorado State Public Defender, Jane A. Harden, Deputy State Public Defender, Golden, for petitioner.

Nolan L. Brown, Dist. Atty., John E. Byron, Sr. Deputy Dist. Atty., Charles B. McCrory, Jr., Deputy Dist. Atty., Golden, for respondents.

ROVIRA, Justice.

Joachim F. Niemand, petitioner, brought this original proceeding for relief in the nature of prohibition pursuant to C.A.R. 21, claiming that his constitutional right not to be placed twice in jeopardy for the crime of first-degree murder had been denied. We issued a rule to show cause and now make the rule absolute.

I.

Niemand was charged with and tried on two counts of first-degree murder and two counts of violent crime arising from the shooting deaths of Sandra Niemand and Desiderio Cox. The jury was instructed on the offenses of first-degree murder and violent crime, as well as the lesser-included offenses of second-degree murder and manslaughter. The jury deliberated more than two days before finding Niemand guilty on two counts of second-degree murder and two counts of violent crime. The basis for this original proceeding is the claim, first raised in Niemand's motion for new trial, that

"one of the jurors was aided in her decision to convict the Defendant of two counts of Second Degree Murder and Violent Crime by the unauthorized use of Black's Law Dictionary.... In studying such law dictionary for up to four hours, the juror based her decision on definitions not provided in the Court's instructions and not reflective of the law in the state of Colorado."

At a hearing on the motion for new trial, Niemand introduced an affidavit of one of the jurors, Carolyn Clark. Her affidavit disclosed that the jury received the case on Friday, August 26, 1983, at approximately 3:00 p.m. The jurors deliberated until 5:00 p.m., went home for the weekend, and then resumed their deliberations on Monday. By the end of the day on Monday, Clark "felt a little stronger towards second-degree murder, but was still not sure." She stated in her affidavit, however, that by this time the jury had eliminated first-degree murder from its consideration.

Upon returning home Monday evening, Clark, who was still uncertain as to what her vote should be, looked up certain words in her son's copy of Black's Law Dictionary. The words and phrases she looked up included "malice," "passion," "premeditation," "intent," "depravity of heart," "violence," "deliberation," "deliberate," "first degree murder," "second degree murder," and "manslaughter." ¹ Clark then stated that she related the words and phrases she looked up to the evidence that was presented in court and became "totally convinced" that she would vote for second-degree murder.

After writing down the definitions to the words and phrases she looked up, Clark took her notes to the jury room on Tuesday. She told the other jurors what she had done and offered to share the information. Some of the jurors reacted very negatively while others spoke out in her defense. She then put her notes away, and the deliberations continued. On Tuesday afternoon, the jury agreed to a verdict of second-degree murder. Attached to Clark's affidavit were her handwritten notes which set out the definitions she obtained from Black's Law Dictionary.

Relying on Alvarez v. People, 653 P.2d 1127 (Colo.1982), Niemand argued that Clark's affidavit amply demonstrated prejudice because it reflected that, while she was undecided prior to reading the definitions as to whether she would vote for second-degree murder or manslaughter, she became convinced after reading the definitions that she would vote for second-degree murder.

The People, based on their reading of Alvarez, confessed the motion for new trial. They then proceeded to raise the question of what charges Niemand would be tried on in the new trial. They urged the court to adopt the position that, since the need for a new trial arose because of juror misconduct, the verdict and the fact-finding process that led to it were impermissibly tainted, and Niemand should be retried on the first-degree murder charges.

The respondent trial court made extensive findings of fact based on Clark's affidavit and her handwritten notes. It examined each word or phrase that Clark had looked up and then made a finding as to whether Niemand had been prejudiced by the juror's conduct. For example, as to the word "malice," it found that there was no prejudice to the defendant "because there was no requirement [in this case] that he be found to have been guilty of malice." As to the phrase "second degree murder," the court found that "[i]f there was any prejudice in the definition in Black's Law Dictionary ..., it was prejudice to the People because ... Black's definition ... requires malice." As to the phrase "sudden heat of passion," the court found that "[t]he definition that she copied from Black's Law Dictionary does not vary from the Court's instruction number 16.... The two are completely consistent, and the Court finds that the defendant was not prejudiced by the definition of sudden heat of passion."

The court considered each of the other words or phrases for which Clark had obtained a definition and found that the definitions either favored Niemand, were consistent with the instructions given by the court, or were prejudicial to the People. The court concluded its analysis by finding that there was no prejudice to Niemand as a result of the juror's conduct and that "the mere use of a dictionary is not grounds for saying that the verdict must be set aside." However, under the circumstances, the court felt "bound by the Alvarez decision which holds directly in point that if a juror uses a dictionary and says that use affected her, then that verdict cannot stand."

After granting the motion for new trial, the trial court considered what charges Niemand should face in the new trial. It analyzed the language of article II, section 18, of the Colorado Constitution, which states:

"No person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error of law, the accused shall not be deemed to have been in jeopardy."

Based on this provision, the court concluded that Niemand had not been placed in jeopardy because the jury's misconduct had tainted the entire fact-finding process at trial:

"The Constitution of the state of Colorado gives to this Court the power to--it says, 'If the judgment be arrested....' The Court has not entered judgment. The Court received the verdict of the jury and ordered that a presentence report be prepared, but the Court did not in this case and does not in any case involve a jury trial enter judgment and make the finding that the defendant is guilty based upon the jury's verdict until post-trial motions have been determined and the sentencing takes place, so what the Court is going to do in this case is order that the judgment be arrested [under article II, section 18], and the Court is going to order that there be a new trial on murder in the first degree, two counts, and two counts of violent crime ....

....

... What I am trying to do is say the Court is not going to enter judgment on this verdict, and the Court is ordering a new trial, and if the effect of that is that the Court has declared a mistrial, then I declare a mistrial."

At a later hearing, the trial court made additional findings. It decided that, because of Alvarez, there was a "manifest necessity for a new trial in this case." However, it pointed out that the reason for the new trial was a form of juror misconduct "over which the Court, the prosecution and the defendant had no control." The result was a tainted verdict, "and the verdict was tainted on first degree murder exactly as much as it was tainted on second degree murder. The situation [here]," the court concluded, "is no different than if the jury had not been able to agree at all because their verdict is a nullity because of this misconduct by one of the jurors."

The trial court also ruled that, since Niemand was to be retried on first-degree murder charges, and since the evidence presented at the first trial was sufficient to establish that "the proof is evident and the presumption great," Niemand would be held without bond pending the retrial of his case.

II.

In Alvarez, we held that the use of a dictionary to assist in understanding legal terminology is improper. Jurors are required to follow only the law as it is given in the court's instructions; they are bound, therefore, to accept the court's definitions of legal concepts and to obtain clarifications of any ambiguities in terminology from the trial judge, not from extraneous sources. 653 P.2d at...