People v. Fox

• Citation: 862 P.2d 1000
• Decision Date: 06 May 1993
• Docket Number: No. 91CA0388,91CA0388
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie FOX, Jr., Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1000

862 P.2d 1000

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie FOX, Jr., Defendant-Appellant.

No. 91CA0388.

Colorado Court of Appeals Div. IV.

May 6, 1993.

As Modified on Denial of Rehearing

June 10, 1993.

Certiorari Denied Dec. 6, 1993.

Cross-Petition forCertiorari Denied

(Fox) Dec. 6, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Patrick J. Mulligan, Deputy State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge JONES.

Defendant, Willie Fox, Jr., appeals the judgment entered upon a jury verdict finding him not guilty of first degree murder, not guilty of second degree murder, but guilty of reckless manslaughter in the shooting death of an acquaintance. We reverse and remand the cause for a new trial.

The record reflects conflicting testimony regarding the circumstances leading up to the shooting incident, although there is general agreement as to certain events.

At some point during December 17, 1988, the defendant was in his living room when the victim, a long-time acquaintance, joined him there and they argued over the victim's use of the defendant's automobile. Defendant testified that the argument escalated and that he and the victim wrestled around the living room before the defendant ran to the bedroom to get his pistol. He related that when he returned with the gun, he told the victim to leave his house numerous times, but that the victim refused to leave. When the victim started to move toward him after refusing to leave, he shot the victim with the handgun.

The victim, at six-feet one-inch tall and 250 pounds, was a large man in relation to defendant, and the record reflects that he had a history of, and reputation for, violence. Defendant testified that the circumstances and his knowledge of the victim's violent propensities prompted him to use the pistol to defend himself.

Defendant's brother and another of defendant's acquaintances were in the kitchen at the time the argument began, and they corroborated certain aspects and disputed other aspects of defendant's testimony. Neither of the two saw the actual shooting occur.

After defendant shot the victim, he walked out the back door of his home and told a maintenance worker to call the police because he had shot someone. The victim died from a gunshot wound to his head. This prosecution followed.

Following hearings on numerous motions, including motions to suppress evidence, the case proceeded to a jury trial, in which the jury returned the verdict at issue here.

I.

Defendant first contends that the trial court abused its discretion in denying his motion for mistrial and his motion for new trial based on juror misconduct. He maintains that there was a reasonable possibility that information independently obtained by the jury foreman affected the verdict and that the extraneous information was both prejudicial to him and violative of his right to a trial by a fair and impartial jury. We agree.

After closing arguments and about three hours of deliberation, the jurors recessed for the evening with the trial court's specific instruction not to discuss the case with anyone until court reconvened. The next morning defense counsel moved for a mistrial because an anonymous source had informed him that a juror fitting the description of the jury foreman had been in a bar the previous evening and had been asking numerous questions about the mechanics and abilities of a .25 caliber automatic pistol, which was the type of weapon used by defendant in the shooting. The trial court proceeded to conduct in camera individual voir dire with each of the jurors to determine the veracity of the allegation.

During that examination, the jury foreman admitted being in the bar on the previous evening, but he denied discussing the case with anyone else. All of the remaining jurors denied any extraneous discussions about the case. Pending any further revelations, the trial court then deferred ruling on defendant's motion for mistrial. Thereafter, the jury returned a guilty verdict of reckless manslaughter.

Prior to sentencing, pursuant to his motion for new trial, defense counsel requested a hearing based on further investigation of the juror misconduct. Two witnesses testified to having conversed with the jury foreman in the bar that he had admitted patronizing.

One of the witnesses, a gunsmith, testified that the jury foreman had identified himself as such and had asked about the range and shell ejection pattern of the type of pistol used in the shooting. The gunsmith explained to the foreman that the pistol would eject its shell upward and to the right upon firing. He also told the foreman that it was not an accurate gun, and that its accuracy depended on the distance from which it was fired. Specifically, he had informed him that, at the distance of 15 to 20 feet: "If you unload the whole clip you might hit somebody once with it." The conversation related by the gunsmith was corroborated by the second witness who was present at the bar with the foreman.

Testimony at the hearing was also elicited from a district attorney's investigator who had interviewed all of the jurors regarding their knowledge of the extraneous information obtained by the jury foreman. The investigator stated that six or seven of the jurors were aware of at least some of the information that the foreman had garnered at the bar and that they had discussed the gun's shell ejection pattern in their deliberations.

Defense counsel argued that evidence relating to the gun's shell ejection pattern and accuracy was not admitted at trial and that this externally received information was impermissibly prejudicial under the standard set forth in Wiser v. People, 732 P.2d 1139 (Colo.1987). The trial court disagreed and denied the motion for new trial.

In Wiser, our Supreme Court held that, following exposure of jurors to extra-record sources of information about a case, the need for a new trial should be determined by evaluating the nature and circumstances of the improper contact and employing an objective test of whether there is a reasonable possibility that the extraneous information or influence affected the verdict and thereby prejudiced the defendant. See CRE 606(b). The determination of whether such prejudice has occurred is within the discretion of the trial court. People v. Garcia, 752 P.2d 570 (Colo.1988).

Circumstances comparable to the case at hand were examined in People v. Staggs, 740 P.2d 21 (Colo.App.1987), wherein a juror conducted an independent investigation as to the feasibility of the accused being both at the crime scene and at a location specified by his alibi defense within a certain time period. Contrary to defense witnesses, the juror determined that he could have been at both places, and she informed the other jurors of her investigation and conclusions. A division of this court determined that the information obtained by the juror pertained to the key issue of the credibility of the accused versus the victim and, accordingly, concluded that the juror's conduct required reversal. See also Ravin v. Gambrell, 788 P.2d 817 (Colo.1990) (bailiff's improper comments influenced the jury's ultimate verdict and required reversal).

Here, a key issue was defendant's asserted self-defense, and the extraneous information obtained by the jury foreman could have been used to impeach the credibility of the defendant's and witnesses' statements relating to that asserted self-defense. Specifically, the record reflects that the ejection of the shell casing in a certain direction conflicted with testimony regarding where defendant was standing when the pistol was fired. In addition, the jurors could have concluded that, because of the gunsmith's revelations regarding the pistol's inaccuracy, careful aim would have been necessary for defendant to have hit the victim.

Neither of the parties was able to cross-examine the jury foreman or otherwise rebut the validity of his extraneous information. See Destination Travel, Inc. v. McElhanon, 799 P.2d 454 (Colo.App.1990). Hence, as in People v. Staggs, supra, the implications that the jurors could have adduced from the extraneous information could have affected their verdict, thereby prejudicing the defendant.

Moreover, the jury foreman did not innocently come by the information, but also possibly perjured himself in response to questioning from the court regarding the matter. Cf. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo.App.1992) (information came innocently into juror's possession).

Additionally, it was the jury foreman, whom the other jurors had elected as their spokesperson, who obtained and disseminated the information, thereby increasing the likelihood that the information could have affected the verdict. Under these circumstances, we conclude that the defendant was deprived of his right to a trial by a fair and impartial jury.

Accordingly, although the trial court properly conducted an examination of the individual jurors to determine whether the information had a prejudicial effect, see Harper v. People, 817 P.2d 77 (Colo.1991), we conclude that the trial court abused its discretion in denying defendant's motion for mistrial and his motion for new trial based on the prejudicial nature of the extraneous information.

We decline to consider defendant's contention regarding the presence of alternate jurors during deliberations because it is unlikely that, upon retrial, an alternate juror will be placed in a position so as to give the appearance that he or she participated in deliberations. We likewise deem it unnecessary to consider the trial court's response to a jury inquiry.

II.

Among issues which may arise on retrial is defendant's contention...