People v. Grace, 00CA0114.

• Decision Date: 20 December 2001
• Docket Number: No. 00CA0114.,00CA0114.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen GRACE, Defendant-Appellant.
• Court: Colorado Court of Appeals

55 P.3d 165

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stephen GRACE, Defendant-Appellant.

No. 00CA0114.

Colorado Court of Appeals, Div. III.

December 20, 2001.

Rehearing Denied February 21, 2002.

Certiorari Denied October 15, 2002.¹

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant. Opinion by Judge ROTHENBERG.

Defendant, Stephen Grace, appeals the judgment of conviction entered on a jury verdict finding him guilty of distribution of a schedule II controlled substance and attempt to possess a schedule II controlled substance. We affirm.

In January 1999, while defendant was standing on a sidewalk, two undercover police officers made eye contact with him and asked him, using slang terminology, if anyone was selling drugs. Defendant entered the officers' unmarked car and directed them to an apartment where drugs could be bought. There, defendant encountered the woman who rented the apartment (the renter), who let him and the undercover officers inside. After their arrival, another man (the seller) entered the apartment. The undercover officers had $20 to buy the drugs, and defendant gave one of the officers $7 to purchase some. The officer used his $20 and defendant's $7 to buy crack cocaine from the seller.

After the purchase was made by the undercover officer, a signal was given to other police officers waiting outside and they arrested defendant, the renter, and the seller. No drugs were found on defendant at the time of his arrest.

The case proceeded to trial and during jury deliberations, the court received two written requests from the jury. Defendant was absent during this portion of the proceeding, but his counsel was present and did not object to the court's responses.

I. Defendant's Right To Be Present

Defendant contends he was denied his constitutional right to be present when the court responded to the requests from the jury during deliberations. We agree, but conclude the denial does not require reversal.

A. Constitutional Principles

An accused has a constitutional right to be present at trial, U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16, and this right applies at all critical stages of a criminal trial. Luu v. People, 841 P.2d 271 (Colo. 1992).

A communication between the court and the jury during deliberations constitutes a critical stage of a trial. Key v. People, 865 P.2d 822 (Colo.1994)(jury deliberations are a critical stage of trial for the purpose of analyzing a deprivation of the right to counsel).

Therefore, we conclude defendant had a constitutional right to be present while the trial court was communicating with the jury during deliberations, and that his constitutional right was denied.

B. Standard of Review

We next address the standard of review under which to analyze the deprivation. Defendant asserts that the appropriate standard of review is structural error, requiring automatic reversal under either the United States Constitution, amendments VI and XIV, or the Colorado Constitution article II, §§ 16 and 25. We disagree.

There are two types of constitutional errors: structural errors and trial errors. A structural error is a defect affecting the framework within which the trial proceeds and requires automatic reversal. Blecha v. People, 962 P.2d 931 (Colo.1998). Examples of structural errors include the total deprivation of the right to counsel and a biased trial judge. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Luu v. People, supra.

A trial error is an error in the trial process itself. It is an error that "occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Arizona v. Fulminante, supra, 499 U.S. at 307-08, 111 S.Ct. at 1264, 113 L.Ed.2d at 330; see also Blecha v. People, supra. Examples of trial error include the giving of jury instructions containing an erroneous conclusive presumption, and a statement made by the prosecutor improperly commenting on the defendant's silence at trial. See Arizona v. Fulminante, supra.

The Colorado Supreme Court has not addressed the appropriate standard to apply under the Colorado Constitution when the defendant is deprived of his or her right to be present at trial. However, under the United States Constitution, such deprivations are analyzed under the harmless error standard. Arizona v. Fulminante, supra (citing Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)); Luu v. People, supra.

Under this standard, reversal is not required if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Leonardo v. People, 728 P.2d 1252 (Colo.1986). A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict. Griego v. People, 19 P.3d 1 (Colo.2001).

If from a review of the entire record, there appears to be a reasonable probability the defendant could have been prejudiced, the error cannot be harmless. Key v. People, supra.

"[I]f the court has properly responded to a jury's inquiry [during deliberations], there is no prejudice and the communication is necessarily harmless beyond a reasonable doubt." People v. Romero, supra, 767 P.2d at 784.

We conclude the same standard should be applied under the state constitution. Accordingly, we follow the United States Supreme Court and apply the harmless beyond a reasonable doubt standard for analyzing alleged deprivations of the right to be present when the court responds to questions posed by the jury during deliberations. See People v. Romero, 767 P.2d 782 (Colo.App.1988)

(assuming there was constitutional error where trial court communicated with the jury without the defendant present; panel concluded error was harmless beyond a reasonable doubt because defense counsel was present, the court's response to the jury was correct, and counsel did not object to the response).

C. Trial Court's Responses to the Jury's Requests

Defendant maintains that reversal is required here because the trial court responded to two written requests from the jury during its deliberations without bringing him before the court. We conclude defendant's absence was harmless beyond a reasonable doubt.

1. First Request

The jury's first written request stated: "We would like the copy of [the transcript of the officer's] previous statement [made at the preliminary hearing]." The jurors did not ask to have any portion of the trial transcript read back to them.

The trial court responded: "I cannot give you the copy you requested. It was not admitted into evidence."

A jury should not be shown exhibits that have not been admitted into evidence. People v. Bowman, 738 P.2d 387 (Colo.App. 1987).

Because the jurors asked for a portion of the transcript from the preliminary hearing that had not been admitted into evidence, the trial court responded properly to the request. Defendant's presence would not have changed the court's response, and its response in his absence did not prejudice defendant. Thus, while defendant should have been present during the discussion of the jury's written request, we conclude his absence was harmless beyond a reasonable doubt. See People v. Romero, supra.

2. Second Request

The jury's second written request stated: "We're at a point where we are deadlocked on two issues. One person doesn't believe in the law and won't base a judgment on the law. What are our options?"

After conferring with counsel, the trial court sent the following response: "You should continue to deliberate to see if you can resolve the issues."

In responding to the jury regarding a possible deadlock, the trial court may not give an instruction that is potentially coercive. People v. Raglin, 21 P.3d 419 (Colo.App. 2000). However, the court may issue a modified-Allen instruction informing the jurors that: (1) they should attempt to reach a unanimous verdict; (2) each juror should decide the case for himself or herself after impartial consideration with the others; (3) they should not hesitate to re-examine their views and change their opinions if convinced they are incorrect; and (4) they should not surrender their honest convictions solely because of the opinions of other jurors or for the purpose of returning a verdict. Allen v. People, 660 P.2d 896 (Colo.1983); see also CJI-Crim. 38:14 (1983).

The trial court also must inform the jurors that they will be excused and a mistrial declared if they cannot reach a unanimous verdict. But, the exact wording of such instruction is within the discretion of the trial court. People v. Raglin, supra; see also People v. Lewis,

676 P.2d 682 (Colo.1984).

In Raglin, the jury submitted several notes to the trial court expressing concern about the possible bias of one juror and that juror's refusal to abide by the law in arriving at a decision. Over the defense's objection, the trial court submitted the following response:

I would ask you at this time to please go back to the jury room and resume your deliberations. If after you have tried that you believe that you're unable to reach a unanimous verdict, you can let us know when you have decided that, and we'll go from there.

People v. Raglin, supra, 21 P.3d at 423. A panel of this court concluded no error had occurred under those circumstances.

Here, when the jury inquired about its options regarding a deadlock, the trial court's response to the request was appropriate and not unduly coercive. Although defendant was absent, his counsel was present and did not object to the court's response. See People v. Vega, 870...