People v. Evans, 83CA1211
| Decision Date | 18 July 1985 |
| Docket Number | No. 83CA1211,83CA1211 |
| Citation | 710 P.2d 1167 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert D. EVANS. . II |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia D. Jones, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Gerald E. Piper, Special Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Robert D. Evans, was convicted by a jury of conspiracy to distribute marijuana and possession of marijuana with intent to dispense. On appeal, he contends that he was deprived of his right to a fair jury trial because of juror misconduct, and that the trial court erred in excluding evidence that smoking marijuana was part of defendant's personal religious belief. Finding merit in defendant's first contention, we reverse.
The record shows that at defendant's trial one of the jurors was asleep during defense counsel's closing argument. The bailiff brought this to the trial court's attention, and the court instructed the bailiff to provide a glass of water for the juror. However, defense counsel was unaware of the situation until the trial court commenced contempt proceedings against the juror immediately after the jury returned its verdicts.
During the contempt proceedings, the trial court found as follows:
However, the trial court denied defendant's motion for judgment of acquittal, or alternatively for a new trial, based on the sleeping juror. At the hearing on defendant's motion, the court noted:
"While the court acknowledges that the defendant has a right to a trial before a complete jury, the court believes that the facts of this particular case do not require a new trial, and do not suggest that the defendant's rights were violated."
Defendant contends that this juror's misconduct denied him his constitutional right to a fair jury trial. We agree.
Jury misconduct which materially affects the substantial rights of a party preventing a fair and impartial trial may serve as grounds for a new trial. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961). However, the defendant must establish that he was prejudiced by the misconduct in order to overturn his conviction, and the prejudicial impact of the misconduct is a question of fact to be determined in light of all the circumstances of the trial. Alvarez v. People, 653 P.2d 1127 (Colo.1982). The determination whether prejudice has occurred is within the sound discretion of the trial court and only where that discretion has been abused will a new trial be ordered. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974).
We conclude that the juror's misconduct did prejudice defendant and that the trial court abused its discretion in refusing to grant a new trial. The trial court knew that the juror was sleeping during defense counsel's closing argument. Nevertheless, it chose not to replace the sleeping juror with the alternate juror, nor did it admonish the juror, or recess the trial. Instead, contempt proceedings were initiated only after the jury's verdicts had been received.
The purpose of closing argument is to "sharpen and clarify the issues for resolution by the trier of fact." T. Borillo, 6 Criminal Practice and Procedure § 897 (1977 Pocket Part). Therefore, it is imperative that the defendant enjoy the opportunity to marshall the evidence before submission of the case.
We agree with the trial court that closing argument is "one of the most consequential parts of the trial" and with its conclusion that the juror's inattention during that stage of the proceedings was not only "contemptuous of the court, but contemptuous of the rights of the defendant." Since the trial court obviously...
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Bell v. True
...testimony and court's charge and upon trial court's acknowledgment that juror had closed her eyes during charge); People v. Evans, 710 P.2d 1167, 1168 (Colo.Ct.App.1985) (ordering new trial where trial court knew that juror was sleeping during defense's closing Here the evidence is far less......
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...juror] ... [and] had sufficient information to support the dismissal and so did not have to voir dire her"); People v. Evans, 710 P.2d 1167, 1168 (Colo.Ct. App.1985); Samad v. United States, 812 A.2d 226, 230-231 (D.C.2002), cert. denied, 538 U.S. 934, 123 S.Ct. 1600, 155 L.Ed.2d 333 (2003)......
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...despite his protests. Standby counsel was absent during closing argument—a critical stage of the proceedings. See People v. Evans, 710 P.2d 1167, 1167-68 (Colo.Ct.App.1985) ("closing argument is `one of the most consequential parts of the trial'"); see also Fuhrman v. Fuhrman, 254 N.W.2d 97......
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People v. Mollaun
...Therefore, on this record, we are compelled to reverse the jury's verdict. Garcia, 997 P.2d at 6 (emphasis added). In People v. Evans, 710 P.2d 1167 (Colo. App.1985), a juror apparently slept during defense counsel's closing arguments. The trial court was so advised by the bailiff but made ......
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...is guilty,” defendant was entitled to a new trial).] §21:18 Criminal Defense Tools and Techniques 21-8 • Sleep. [ People v. Evans , 710 P.2d 1167 (Colo. App. 1985) (court should have granted new trial where juror slept through defense counsel’s closing argument).] • Lie during voir dire. [ ......