People v. Flockhart, Supreme Court Case No. 10SC218

Docket NºSupreme Court Case No. 10SC218
Citation2013 CO 42
Case DateJuly 01, 2013
CourtSupreme Court of Colorado

2013 CO 42

Petitioner/Cross-Respondent: The People of the State of Colorado,
Respondent/Cross-Petitioner: Rhoderick Flockhart.

Supreme Court Case No. 10SC218

Colorado Supreme Court

July 1, 2013

Certiorari to the Court of Appeals
Court of Appeals Case No. 07CA312
Affirmed in Part and Reversed in Part
en banc

Attorneys for Petitioner/Cross-Respondent:
John W. Suthers, Attorney General
John T. Lee, Assistant Attorney General

Denver, Colorado

Attorneys for Respondent/Cross-Petitioner:
Douglas K. Wilson, Public Defender
Alan Kratz, Deputy Public Defender

Denver, Colorado

CHIEF JUSTICE BENDER delivered the Opinion of the Court.

JUSTICE EID concurs in part and concurs in the judgment in part, and JUSTICE COATS joins in the concurrence in part and the concurrence in the judgment in part.

¶1 Rhoderick Flockhart was convicted of distribution of marijuana and possession of eight ounces or more of marijuana. On appeal, the court of appeals ruled on three issues. First, a divided court of appeals reversed Flockhart'sconvictions because the trial court instructed the jury that it could discuss the case before deliberations in violation of his constitutional rights. See People v. Flockhart, No. 07CA312, slip op. at 9, 19 (Colo. App. Dec. 24, 2009) (selected for official publication). In dissent, Judge Bernard would affirm Flockhart's convictions, arguing that empirical research studying pre-deliberation discussions in civil cases weakened the majority's rationale for finding constitutional error. See id. at 46–47 (Bernard, J., dissenting). Next, the court of appeals held that the trial court erred by requiring Flockhart to raise and to argue his challenges for cause in the prospective jurors' presence, though it found no plain error requiring reversal. Finally, the court of appeals affirmed the trial court's orderdenying Flockhart's motion to disqualify the trial judge. We granted certiorari to review these rulings.1

¶2 We hold that the trial court erred by giving the pre-deliberation instruction because to do so was not authorized by rule or existing law. Cases from other jurisdictions have concluded that it is constitutional error to permit pre-deliberation discussions in criminal cases. These cases predate empirical research studying the impact of pre-deliberation discussions in civil cases—research that weakens their rationale. Lacking pertinent empirical research conducted in criminal trials and record evidence that pre-deliberation discussions occurred here, however, we are unable to conclude that the pre-deliberation instruction impinged upon Flockhart's constitutional rights and instead await the results of future empirical research on this issue. Hence, we hold that that the erroneous pre-deliberation instruction in this case constituted non-constitutional trial error to be reviewed under the harmless error standard. Applying that standard, we conclude that the error was harmless. We reverse the court of appeals and remand the case to that court with directions to return it to the trial court to reinstate Flockhart's convictions.

¶3 Next, although the better practice is that espoused by the American Bar Association, which recommends that challenges for cause be heard outside the prospective jurors' presence, we hold that a trial court retains discretion to conduct challenges for cause in open court. Finally, we hold that the trial court did not err by denying Flockhart's motion to disqualify the trial judge.

¶4 hese three issues concern discrete trial events involving unrelated pertinent facts. To analyze these issues, we provide the facts at the beginning of each analysis section.

I. Pre-deliberation Jury Instruction

¶5 We begin with the pre-deliberation jury instruction issue. We must decide whether the trial court erred by permitting pre-deliberation discussions during Flockhart's criminal trial. After recounting the facts necessary to understand this issue, we consider the propriety of permitting pre-deliberation discussions in criminal cases. Finding error, we address the appropriate standard of review and then apply that standard to this case.


¶6 Rhoderick Flockhart was charged with distribution of marijuana and possession of eight ounces or more of marijuana, stemming from allegations that he had sold marijuana to a police informant and kept over nine pounds of marijuana in a building near his home.

¶7 Before jury selection began, the trial court told prospective jurors that, if selected, they would be permitted to discuss the case before deliberations:

Now you will be able to discuss the case amongst yourselves, those of you that are chosen as jurors, and you may do so strictly when everyone on the jury is present. However, you are directed not to form any firm conclusions, because obviously until the case is closed, you will not have heard all the evidence.

Once selected, the trial court again instructed the jury that it could discuss the case as it progressed, but it cautioned the jurors to "[k]eep an open mind all the way through the trial and draw your conclusions only at the conclusion of the case." As part of its preliminary instructions, the trial court also instructed the jury on the burden of proof and the presumption of innocence. During the second day of trial, the trial court again admonished the jury to follow its previous instructions to "keep an open mind" until the conclusion of the case. Despite these instructions, there is no evidence in the record showing that any pre-deliberation discussions did in fact occur.

¶8 The prosecution relied heavily on the police informant's testimony. The informant testified that he bought an ounce of marijuana, which Flockhart weighed on a kitchen scale, with catalogued bills given to him by police. The police found the kitchen scale and the catalogued bills in Flockhart's possession, and those items were admitted into evidence. Testimony at trial established that that type of kitchen scale was "commonly used for weighing drugs." The police also found nine pounds of marijuana in a building next to Flockhart's home, to which he had unfettered access from his backyard. Flockhart's theory of defense was that the informant had set him up to curry favor with the district attorney's office, and defense counsel attempted to attack the informant's credibilityconsistent with this theory. The jury apparently resolved these credibility issues in the prosecution's favorand convicted Flockhart of both charges.

¶9 A divided court of appeals reversed Flockhart's convictions. Relying on authority from other jurisdictions, the majority held that the pre-deliberation instruction was constitutional error subject to review under the harmless beyond a reasonable doubt standard. It then remanded the case to provide the prosecution an opportunity to make a record on that issue.

¶10 In dissent, Judge Bernard argued that the majority's holding was based on unfounded assumptions about human behavior that have since been rebutted by empirical studies. In light of these studies, as well as jury reforms permitting pre-deliberation discussions in civil cases, Judge Bernard argued that pre-deliberation instructions are not error, let alone constitutional error.


¶11 The People adopt Judge Bernard's arguments, contending that the court of appeals erred by relying on assumptions about juror behavior that have been rebutted by empirical research. Flockhart's argument mirrors the majority's reasoning. He contends that the pre-deliberation instruction was erroneous because it was not authorized by rule and was contrary to existing law.

¶12 No provision in the Colorado Rules of Criminal Procedure authorizes a trial court to issue a pre-deliberation instruction. SeeCrim. P. 24; People v. Preciado-Flores, 66 P.3d 155, 166 (Colo. App. 2002). Colorado's pattern criminal jury instructions state that an admonition prohibiting pre-deliberation discussion of a criminal case "should always be given" to the jury: "[D]o not discuss the case either among yourselves or with anyone else during the course of the trial." CJI-Crim. 1:04 (1983). The pattern instructions are not law, not authoritative, and not binding on this court, but they are grounded in our longstanding practice and are regularly consulted to determine whether jury instructions are erroneous.2

¶13 Despite this lack of authority, the People argue that we should approve pre?deliberation jury discussions given our progressive stance toward jury reform, relying on Medina v. People, 114 P.3d 845 (Colo. 2005). That case concerned whether juror questioning violates a defendant's right to a fair trial. 847. To address this issue, we analyzed the history of juror questioning, the reasons typically advanced to prohibit it, and empirical studies tending to rebut those reasons. Id. at 850–55. We held that juror questioning of witnesses does not, in and of itself and under a trial court's careful supervision, violate a defendant's right to a fair trial. 847, 857.

¶14 Our decision in Medina was based, in part, on extensive empirical research studying the effects of juror questioning, which was authorized by the Colorado Jury Reform Pilot Project and later by Crim. P. 24(g).3 See 847 n.1. Unlike juror questioning, pre-deliberation discussions in criminal cases have never been authorized by this...

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