People v. Forgette

• Decision Date: 25 February 2021
• Docket Number: Court of Appeals No. 16CA0441
• Citation: 491 P.3d 457
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elliott J. FORGETTE, Defendant-Appellant.

491 P.3d 457

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Elliott J. FORGETTE, Defendant-Appellant.

Court of Appeals No. 16CA0441

Colorado Court of Appeals, Division VI.

Announced February 25, 2021

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶ 1 Defendant, Elliott J. Forgette, appeals a district court's judgment of conviction and sentence for burglary. This appeal presents an issue of juror inattentiveness — namely, whether a juror's inattentiveness during the presentation of evidence deprived Forgette of his statutory right to a jury of twelve. We consider this issue in light of the fact that defense counsel was aware of the juror's inattentiveness but didn't request any remedy. We conclude that, under these circumstances, Forgette waived his claim to challenge the juror's inattentiveness on appeal. Because we also reject his other contentions, we affirm Forgette's conviction and sentence.

I. Background

¶ 2 C.B. and N.R.J., along with a friend, returned to their home after dinner to discover a white sedan parked outside of their home and an unfamiliar man standing nearby. The three approached the man, asking if they could help him find something; he responded that he was looking for a nearby address. N.R.J. observed the man holding a package belonging to her neighbor and asked him if he took the package from her neighbor's porch. The man didn't answer and instead threw the package toward C.B. and N.R.J. The man then ran away and drove off in the white sedan. When C.B. entered his home, he discovered some of his electronics were missing, so he called the police.

¶ 3 Across town, Officer Brandon Zborowski, unaware of the events at C.B. and N.R.J.’s home, stopped Forgette for a traffic violation. Forgette was uncooperative during the traffic stop and was arrested on that basis. The police eventually connected Forgette to the burglary of C.B. and N.R.J.’s home, leading to the charges in this case.

¶ 4 A jury convicted Forgette of second degree burglary of a dwelling, and the trial court sentenced him to twelve years in the custody of the Department of Corrections.

II. Analysis

¶ 5 Forgette raises three issues on appeal. First, he contends that we must reverse his conviction because one of the jurors fell asleep during the presentation of evidence, depriving him of his statutory right to a twelve-person jury. Second, Forgette contends that the trial court committed two evidentiary errors when it admitted (1) photos of him taken while he was in custody and (2) testimony describing his unruly conduct during the traffic stop. Third, he contends that the trial court erred when it imposed a more severe sentence based on its finding that he was on felony probation at the time of the burglary.

¶ 6 We address, and reject, each contention in turn below.

A. Sleeping Juror

1. Additional Factual Background

¶ 7 On the first day of trial, the jury was selected and two witnesses testified; there were no reports of sleeping jurors that first day.¹

¶ 8 On the morning of the second day of trial, three witnesses testified. The second witness was C.B., who testified about his encounter with the man outside his home on the night in question. During cross-examination of C.B., the court asked counsel for both sides to approach the bench to discuss a scheduling matter. The following exchange occurred at the bench and outside of the hearing of the jury:

THE COURT: ... [H]ow long [do] you have to finish this witness[?]

[Defense Counsel K.]: I'm about five to ten minutes away from being done, probably closer to five.

THE COURT: Then we have redirect.

[Prosecutor G.]: [Juror Number Seven] is now asleep, Judge, and has been for about the last five minutes.

THE COURT: Let's take a break.

¶ 9 The court called a brief recess; there was no further discussion of the sleeping juror the remainder of the morning.

¶ 10 That afternoon, three more witnesses testified. N.R.J. was the second witness to testify in the afternoon. At the close of cross-examination of N.R.J., the court called counsel for both sides to the bench to discuss juror questions for the witness. During the bench conference, defense counsel indicated that the sleeping juror from before was, once again, asleep:

THE COURT: All right. Any juror questions for [the witness]? Please send those to my bailiff. If counsel will approach.

(The following proceedings were held at the bench out of the hearing of the jury:)

[Defense Counsel C.]: Juror Number Seven is asleep, or I think next to your front --

[Defense Counsel K.]: We've lost him again.

THE COURT: Yes. He does appear to be dozing off. I have been checking periodically, and he had been fine. I also would note that in [sic] the first time this was mentioned, he actually asked a question of that juror [sic] -- I noticed he passed one of the notes. So, I think he is with us sometimes. I've been trying to keep an eye on him, and I certainly have tapped the microphone, which usually works. I noticed as soon as we started to speak after that last break, he was attentive. He does seem to be eyes closed and being on sand at the moment.

[Defense Counsel C.]: I'm just concerned because I don't know if the Court observed how long he's been asleep.

THE COURT: Well, it's probably been 15 minutes since I looked over at him.

[Defense Counsel C.]: Okay.

THE COURT: My law clerk indicates he keeps perking up, but he saw him watching five minutes ago. So, that's as much as we can tell you. We are trying to keep an eye on him.

[Defense Counsel K.]: Can we try to rouse him now?

THE COURT: Well, we might as well do it when we're done with this discussion of jury questions.

[Defense Counsel C.]: Of course.

(The following proceedings were held in open court:)

THE COURT: I understand the jury would like to take a break, so why don't we do that now, and then we'll take up these questions. So, if you'll be back at 3:05, we will have a few more questions for you, possibly from the jury, ma'am, before we complete. And you can take a break as well. Please don't have any contact with the jurors. And so, as always, please continue to follow my rules. Have a good break. Ring in about 3:05. Thank you.

¶ 11 The court then released the jurors for a short break before posing the jury's questions.

¶ 12 There were no further reports or discussions of sleeping or inattentive jurors for the remainder of trial.

2. Analysis

a. Any Objection to the Sleeping Juror Isn't Preserved

¶ 13 As a threshold matter, Forgette contends that his objection to the sleeping juror was preserved because it was brought to the court's attention. While we agree that the issue of the sleeping juror was brought to the court's attention, defense counsel never requested a remedy and the trial court wasn't presented with any specific objection to rule on.

¶ 14 Forgette's counsel informed the trial court of the sleeping juror in a bench conference, but he never asked the court to do anything about it. A statement that a juror was asleep during proceedings, without a request for a remedy or a specific objection, doesn't present the court with anything to rule on and is, therefore, insufficient to preserve the issue. People v. Greer , 262 P.3d 920, 924 (Colo. App. 2011) ; cf. People v. Ujaama , 2012 COA 36, ¶ 37, 302 P.3d 296. Therefore, we conclude that the issue is unpreserved.

¶ 15 Having concluded that the issue wasn't preserved, we must determine whether the issue was waived, and thereby unreviewable, or merely forfeited and reviewable for plain error. But before we can resolve that issue, we must determine whether the defendant's personal participation in any waiver is necessary or whether counsel can effectuate a waiver. Because the answer to that question hinges on the nature of the right at stake, we turn there next.

b. Nature of the Right at Stake

¶ 16 In Colorado, a criminal defendant charged with a felony has a constitutional right to a twelve-person jury. See People v. Rodriguez , 112 P.3d 693, 699 (Colo. 2005) (interpreting Colo. Const. art. II, § 23 ). But a defendant's constitutional rights — even fundamental constitutional rights — may be waived. See, e.g. , Stackhouse v. People , 2015 CO 48, ¶ 8, 386 P.3d 440 ("[E]ven fundamental rights can be waived, regardless of whether the deprivation thereof would otherwise constitute structural error."); see also Richardson v. People , 2020 CO 46, ¶ 24, 481 P.3d 1 ("Constitutional and statutory rights can be waived or forfeited.").

¶ 17 "[I]ntensely personal and fundamental" rights, such as the right to counsel, the right to testify, and the right to a trial by jury, can only be waived through a knowing, voluntary, and intelligent waiver, executed personally by the defendant. Moore v. People , 2014 CO 8, ¶ 9, 318 P.3d 511 ; see also People v. Bergerud , 223 P.3d 686, 693-94 (Colo. 2010) ("Decisions such as whether to plead guilty, whether to testify, whether to waive a jury trial, or whether to take an appeal are so fundamental to a defense that they cannot be made by defense counsel, but rather must be made by the defendant himself." (citing Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) )). Among those personal rights is the right to trial by jury. Rice v. People , 193 Colo. 270, 271, 565 P.2d 940, 941 (1977).

¶ 18 Because the right to a jury trial is a personal right, inaction by counsel alone can't operate as a waiver of a defendant's right to a jury trial. See id. But the right implicated wasn't Forgette's right to a jury trial. Indeed, all of the facts necessary to determine Forgette's guilt were determined by the jury, not the court. And Forgette doesn't contend otherwise. Instead, he contends that because one member of the jury was asleep for some portion of the trial, he was deprived...