People v. Garrison

• Decision Date: 27 September 2012
• Docket Number: No. 08CA2637.,08CA2637.
• Citation: 303 P.3d 117
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Thomas Anthony GARRISON, II, Defendant–Appellant.
• Court: Colorado Court of Appeals

303 P.3d 117

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

v.Thomas Anthony GARRISON, II, Defendant–Appellant.

No. 08CA2637.

Colorado Court of Appeals,

Div. VII.

Aug. 16, 2012.

As Modified Sept. 27, 2012.

John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge MILLER.

¶ 1 Defendant, Thomas Anthony Garrison, II, appeals the judgments of conviction entered against him after a jury found him guilty of first degree murder after deliberation, first degree felony murder, conspiracy to commit first degree murder with a crime of violence sentence enhancer, two counts of aggravated robbery, and conspiracy to commit aggravated robbery. Defendant contends that the trial court erred in (1) asking witnesses hundreds of questions submitted by jurors; (2) denying defendant's motion to strike a juror who submitted a substantial portion of those questions for failing to pay attention; (3) denying defendant's motion for a new trial after learning that during deliberations the jury accessed text messages on a cell phone admitted into evidence; and (4) denying a challenge for cause to a potential juror. We are not persuaded by defendant's arguments. We therefore affirm.

I. Background

¶ 2 Defendant and his uncle were both drug dealers and engaged in selling cocaine and marijuana. The victim supplied them with cocaine. Defendant's uncle owed the victim $10,000, and the victim was “pressing him” to be paid. The uncle planned to kill the victim and take his place in the cocaine-dealing hierarchy, making defendant his “right hand man.” He wanted defendant to come along to kill the victim in order to “get his feet wet, pop his cherry.”

¶ 3 The night before the victim was killed, defendant and another drug dealer, R.G., stole a car to use as a get-away. R.G. drove defendant and his uncle to the victim's apartment the next day. He waited in the car while defendant and his uncle entered the victim's apartment. Defendant's uncle shot the victim, and a bullet from the uncle's gun passed through the victim into defendant's leg. Defendant then emptied his gun into the victim.

¶ 4 Defendant fled the state with his uncle, R.G., and defendant's girlfriend. Defendant and his girlfriend were later found in Arizona.

¶ 5 Defendant's theory of defense was that his uncle killed the victim and that defendant did not know he was planning to do so. R.G. testified against him at trial, and defendant attacked his credibility.

II. Questions from the Jury

¶ 6 We reject defendant's argument that the trial court erred in allowing jurors to submit hundreds ¹ of questions for witnesses over the course of the two-week trial.

A. Standard of Review

¶ 7 We review the trial court's decision not to prohibit or limit the number of juror questions tendered for an abuse of discretion. SeeCrim. P. 24(g) (granting the trial court discretion to prohibit or limit juror questioning in particular cases based on several factors); see also Medina v. People, 114 P.3d 845, 847 (Colo.2005) (leaving the decision whether to ask a particular question tendered by a juror for a witness to the sound discretion of the trial court). We will conclude that the trial court abused its discretion only if the trial court's ruling was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993); People v. Clark, 214 P.3d 531, 539 (Colo.App.2009). Because defendant preserved the issue the in trial court, we review for harmless error. Medina, 114 P.3d at 858. An error is harmless if it did not substantially influence the verdict or impair the fairness of the trial. Id.

B. Analysis

¶ 8 Crim. P. 24(g) allows jurors to submit written questions to the court for the court to ask of witnesses, but gives trial court discretion to prohibit or limit questioning “for reasons related to the severity of the charges, the presence of significant suppressed evidence or for other good cause.” Crim. P. 24(g). In Medina, the supreme court held that questions from jurors do not constitute a per se violation of a criminal defendant's constitutional rights. 114 P.3d at 847. The court pointed out that juror questions had “ ‘deeply entrenched’ roots in the common law.” Id. (quoting United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995)). It noted that “[c]ommentators ... agree that juror questioning facilitates the search for truth and justice, clarifies the facts in complex cases, provides the jury with an essential tool to fulfill its role as the finder of fact, and increases juror attentiveness during trial and satisfaction with the judicial process.” Id.The court also concluded that the act of asking a question does not necessarily transform an otherwise passive juror into an advocate, or reduce the government's burden in a criminal case. Id. at 854, 856.

¶ 9 Defendant presents three arguments in support of his claim that the trial court exceeded what the supreme court authorized in Medina by allowing the jurors to ask hundreds of questions: (1) the trial court wasted a great deal of time in reviewing the questions, (2) the jurors became investigators and advocates over the course of the trial due to the volume of questions asked, and (3) the burden of proof improperly shifted from the prosecution to him.

¶ 10 After reviewing the record, we conclude that the number of questions at issue here did not violate defendant's constitutional rights. Aside from his argument that the trial court wasted time considering the questions, defendant raises arguments that the supreme court already addressed in Medina.

1. Judicial Economy

¶ 11 Defendant argues that the trial court's failure to prohibit or limit questions resulted in the court spending an inordinate amount of time conducting hearings regarding whether or not to ask the questions of the witnesses. He points out as examples that the hearings on questions submitted span approximately thirty pages of the record for the prosecution's key witness, fifteen pages each for defendant's brother and a detective, and approximately sixty pages for defendant's testimony.

¶ 12 In holding that juror questions are not per se unconstitutional, the supreme court in Medina reasoned in part that a defendant's constitutional rights are protected when jury questions are scrutinized under “adequate safeguards,” which include the trial judge screening the juror questions with counsel before submitting them to a witness. Id. at 847, 857. Here, the trial court gave careful consideration to each submitted juror question before asking it of a witness, sustained objections to a substantial portion of them, modified some questions to comply with the rules of evidence, and generally exercised caution in securing defendant's constitutional safeguards anticipated by Medina. Defendant did not object to many of the questions on grounds other than his general objections to juror questioning.

¶ 13 We conclude that the trial court did not abuse its discretion by declining to prohibit or limit the number of juror questions. Crim. P. 24(g) provides that jurors “shall” be allowed to ask questions. The word “shall” indicates an obligation, and thus the rule strongly favors allowing juror questions. See Kidder v. Chaffee County Bd. of Equalization, –––P.3d ––––, ––––, 2011 WL 5437499, *2 (Colo.App. Nov.10, 2011) (the word “shall” connotes a mandatory obligation when construing a statute); see also People v. Fuqua, 764 P.2d 56, 58–59 (Colo.1988) (the rules of statutory construction apply to interpreting the rules of criminal procedure). While the trial court has discretion to prohibit or limit juror questions based on “the severity of the charges, the presence of significant suppressed evidence or for other good cause,” it was not manifestly arbitrary, unreasonable, or unfair for the trial court to decline to prohibit or limit the submission of juror questions in the pursuit of judicial economy here. SeeCrim. P. 24(g).

¶ 14 The unusual number of questions submitted must be viewed in the context of a ten-day murder trial involving six separate charges and more than thirty witnesses and 170 exhibits. The length and complexity of the trial were factors that the trial court properly could have considered in deciding whether to prohibit or limit jury questions. See Medina, 114 P.3d at 852 (noting that commentators agree that juror questions clarify the facts for the jury in complex cases); see also United States v. Collins, 226 F.3d 457, 463 (6th Cir.2000) (“Even cases that could not be described as complex may occasionally warrant questions by jurors, although we think that the balance of risks to benefits is more likely to weigh in favor of juror questions in complex cases.”). Based on these circumstances, we conclude that the trial court did not abuse its discretion in declining to prohibit or limit the number of juror questions.

¶ 15 In any event, defendant does not assert any specific prejudice resulting from the additional time required for reviewing the questions. See DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir.1985) (rejecting the appellant's claim that the sheer volume of the ninety-five questions from the jurors demonstrated “a loss of control by the court, thereby prejudicing the appellant's rights,” in part because the appellate court could not discern prejudice to any party).

¶ 16 Defendant also cites CRE 403, which allows courts to exclude relevant evidence to avoid “undue delay, waste of time, or needless presentation of cumulative evidence.” Courts are given broad discretion in performing the CRE 403 balancing test, and a trial court's balancing decision will not be disturbed absent an abuse of discretion. People v. Gibbens, 905 P.2d 604, 607 (Colo.1995). Here, however, defendant does not argue that ...