People v. Dahl

• Decision Date: 22 February 2007
• Docket Number: No. 04CA1206.,04CA1206.
• Citation: 160 P.3d 301
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth A. DAHL, Defendant-Appellant.
• Court: Colorado Court of Appeals

160 P.3d 301

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth A. DAHL, Defendant-Appellant.

No. 04CA1206.

Colorado Court of Appeals, Div. VI.

February 22, 2007.

Rehearing Denied April 5, 2007.^*

John W. Suthers, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Kenneth A. Dahl, appeals the judgments of conviction entered upon jury verdicts finding him guilty of second degree burglary, first degree criminal trespass, and theft under $100. We reverse and remand for a new trial.

Defendant and another man were stopped in a similar make and model of car as that used a few minutes earlier in a nearby burglary. Inside the vehicle, police found a CD case and some CDs that had been taken from the backseat of the victim's car.

At trial, the other man denied that he and defendant had gone to the victim's house. He also denied knowing how the victim's CD case came to be in the car.

I.

Because the trial was expected to last only a few days, the trial court, even knowing that defendant would not waive his right to a jury of twelve persons, decided not to seat an alternate juror. Following closing arguments at the end of the second day of trial, the jury was ordered to return the following morning to begin deliberations.

The following morning, all but one of the jurors returned to the courthouse. Although the trial court sent sheriff's officers to the juror's home, the juror could not be located. Defendant subsequently moved for a mistrial based on the juror's apparent unwillingness to participate further in the case. The trial court denied the motion, noting that there was always the possibility that the juror had a legitimate reason for his absence. The trial court then issued a warrant for the juror's arrest and released the other jurors until the following morning.

Later that same day, the missing juror was arrested and brought before the court. The court addressed the missing juror, as follows, out of the presence of the other jurors:

[THE COURT]: You've inconvenienced a lot of people. You've caused 11 other people to miss a day's wages. You've inconvenienced two busy lawyers. You've inconvenienced the Court. And I'm assuming, although you can tell me otherwise if you believe you want to, that you heard me when I said everybody was supposed to be back here at 8:00 this morning.

[JUROR]: I did.

[THE COURT]: Well, let me just tell you for starters, that in 36 years as a lawyer and 8 years as a judge, I've never seen anything like that, and I'm citing you for contempt of this Court. I'm not yet finding you in contempt, because that's going to have to be done by another judge, and you'll have the right to have a lawyer represent you.

There are a number of sanctions that the Court can impose, including sentencing you up to 180 days' jail, which, at the moment, strikes me as a very attractive option.

At that point, the court inquired what, if anything, the juror had to say for himself, to which the juror responded, "A friend of mine killed himself yesterday. I'm not doing very well." According to the juror, he coped with the news of his friend's death by turning "to a bottle." He apologized for "dealing with [his] problems the way that [he] did and for not showing up," and said, "It wasn't right."

The trial court then stated:

[THE COURT]: Well, there are a number of things the Court can do to sanction you. As I say, up to and including 180 days' jail time. But right now, what the Court is most concerned about is trying to get this jury to deliberate on this case.

. . . .

And would you be able to deliberate fairly in this case; which is, following the instructions of law that the Court gave to the jury and considering the evidence that has been presented in the case?

[JUROR]: Yes. I believe so. Since I've heard the whole trial, I think I can do that.

The juror noted that he reacted as he did to the news of his friend's death because "the last time I saw him, he told me he was going to kill himself, and I didn't take it seriously."

The court thanked the juror, and noted that, after the case was over it would address the appropriate penalty for the juror. The court added that it was interested in "trying this case to conclusion." It then ordered the juror to return the next morning to begin deliberations and not to discuss what had happened with any of the other jurors.

The dialogue between the court and the juror continued, however. Once more, the court returned to the subject of the juror's absence from trial and the consequences of his actions:

[THE COURT]: [A]t some later time, we will address the question of appropriate penalties for you.

But I don't know. I would say if we were just talking money . . . figuring that we've got two busy attorneys here and all the sheriff's deputies we've had out looking for you this morning, including entering your house, by the way, at my order, we're talking many, many thousands of dollars. And that's the money alone.

In the meantime, the defendant's wondering what's going to happen in this case. And the People are wondering what's going to happen in this case, and it's all because you chose to inflict your personal problems on this process, and that's just not acceptable.

Do you understand what the Court is saying?

[THE JUROR]: I do.

After the juror left, defendant renewed his motion for mistrial arguing, inter alia, that (1) the juror would be too distracted by his friend's suicide to be effective and (2) the juror was "in a situation that . . . no juror really should be in, in which the judge that is sitting on the trial basically . . . holds . . . serious sanctions in his hands."

The trial court ruled that it would inquire the next day whether all twelve jurors could deliberate fairly in the case and that if it received twelve affirmative responses (which it did) the jurors would retire to begin deliberations (which they did).

Within three hours of commencing deliberations, the jury returned verdicts convicting defendant on all charges.

II.

Defendant contends that the trial court erred in denying his motion for a mistrial. Under the circumstances, we agree.

Because a mistrial is a drastic remedy for trial error, it is to be granted only when the prejudice incurred is too substantial to be remedied by other means. People v. Pagan, ___ P.3d ___, ___, 2006 WL 2691709 (Colo.App. No. 04CA0527, Sept. 21, 2006). A trial court's decision to grant or deny a motion for a mistrial will not be disturbed absent an abuse of discretion. People v. Perea, 126 P.3d 241, 246 (Colo.App. 2005).

"The due process clauses of the United States and Colorado Constitutions guarantee every criminal defendant the right to a trial by an impartial jury." People ex rel. Faulk v. Dist. Court, 673 P.2d 998, 1000 (Colo.1983).

Due process is satisfied by "a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

Here, we seriously question whether defendant was provided with twelve jurors who were capable and willing to decide the case solely on the evidence before them.

In assessing the issue, we initially reject defendant's assertion that the circumstances created an impermissible risk that the juror would be biased in favor of the prosecution. In Brooks v. Dretke, 418 F.3d 430 (5th Cir.2005), the case upon which defendant relies, a juror was arrested during the sentencing phase of a capital case. The district attorney's office that was prosecuting the death penalty case was also in charge of prosecuting the case against the juror. Because the district attorney's office held the juror's future in its hands, there was, despite the juror's assurances to the contrary, an intolerable risk that the juror might try, through his vote, to curry favor with the prosecution. See also Thompson v. State, 300 So.2d 301, 303 (Fla.Dist.Ct.App. 1974)("[T]he purpose of disqualifying a person who has a pending prosecution is to avoid the possibility that that person might vote to convict in the hope of getting more favorable treatment from the prosecution in his own case.").

Here, in contrast to Brooks, nothing the court said or did intimated in any way that the juror's future rested in the hands of the prosecution. While citing the juror for contempt, the court never indicated that the juror would be "prosecuted," much less by the same prosecuting attorney's office. The court spoke in terms of "sanctions," "penalties," or "a number of things the Court [could] do" to him (emphasis added).

Indeed, in the trial court, defendant recognized that the circumstances did not create a risk of bias in favor of the prosecution when he stated, "We don't know where the cards will fall," that is, whether the juror would vote to convict or to acquit "because of what has happened to him."

Our rejection of a claimed prosecutorial bias does not, however, end the inquiry. Defendant also argues that the trial court's actions detrimentally affected the juror's ability or inclination to participate fully in the deliberations. We agree with this argument.

A court has inherent authority to use all powers reasonably required to protect its ability to function efficiently and to administer justice. People v. Aleem, 149 P.3d 765, 774 (Colo.2007). However, "[i]n Colorado, a verdict in a criminal trial must be unanimous," and "[u]nanimity requires a free and untrammeled deliberative process that expresses the conscientious conviction of each individual juror." People v. Lewis, 676 P.2d 682, 686 (Colo.1984). A court may not act in a manner...