People v. Guzman-Rincon

• Decision Date: 19 November 2015
• Docket Number: Court of Appeals No. 12CA2538
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Luis Enrique GUZMAN–RINCON, Defendant–Appellant.
• Court: Colorado Court of Appeals

369 P.3d 752

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

v.Luis Enrique GUZMAN–RINCON, Defendant–Appellant.

Court of Appeals No. 12CA2538

Colorado Court of Appeals, Div. IV.

Announced November 19, 2015

Rehearing Denied January 14, 2016

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE GRAHAM

¶ 1 Defendant, Luis Enrique Guzman–Rincon, appeals the jury verdicts finding him guilty of six counts of attempted extreme indifference murder (crime of violence). Under the circumstances presented in this case, we conclude that defendant's Sixth Amendment right to counsel and his Fourteenth Amendment right to be present at critical stages of the proceedings were violated. Accordingly, we reverse defendant's conviction, vacate his sentence, and remand for a new trial.

I. Background

¶ 2 On December 6, 2010, the victim and her friends were standing across the street from Aurora Central High School. The victim saw a black sedan "race" down the street, make a u-turn, and drive back towards the group. As the victim jumped out of the way of the sedan, the vehicle's left rear passenger fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her.

¶ 3 Defendant was tried on six counts of attempted extreme indifference murder (crime of violence)¹ after he was identified by one of the witnesses as the shooter. The prosecution alleged at trial that defendant was a gang member and was targeting members of a rival gang at the time of the shooting.

A. Decision to Sequester the Jury

¶ 4 On the fifth day of trial, the prosecutors requested an ex parte audience with the court. In chambers, and outside the presence of defendant and defense counsel, the prosecutors disclosed that the investigating officer had received information from a confidential informant (CI) that defense counsel had given defendant's family access to recorded witness interviews.² According to the prosecutors, the CI had reported that gang members had watched those interviews and created a "hit list" including the witnesses, investigating officer, and prosecutors. The prosecutors also said that the CI had warned the officer to be on the lookout for a suspicious vehicle in the courthouse parking lot and not to allow the jurors to be followed on the way home.

¶ 5 The prosecutors alleged defense counsel acted unethically in providing defendant's family with the interviews and that he should not be told "about this information" to protect the identity of the CI. The prosecutors then suggested that the court sequester the jurors for their protection and tell the jurors that sequestration was necessary "because of the publicity on the case, or because we're worried there's going to be some sort of outside tampering."

¶ 6 The trial court agreed that sequestration was necessary to protect the jurors. The court determined it would be improper to suggest to the jurors they were in danger, and agreed to tell the jurors they were being sequestered based on publicity and the temptation to do outside investigation.

¶ 7 After the defense presented its final witness for the afternoon, the court informed defendant and defense counsel of the sequestration. The court did not tell defendant or counsel that there was a credible threat, but rather focused on the publicity the case had received. Defense counsel requested that the court "inform [him] as to the factual basis regarding" the sequestration "so [he is] not left in the dark." The court said "[w]e can have that discussion after" it informed the jury, but no such discussion is in the record.

B. Decision to Inform the Jury of the Threat

¶ 8 The next day, the jury began deliberations. At the end of the day, the jury had not reached a verdict. Therefore, a second night of sequestration was necessary. Before leaving for the night, the jury submitted the following question to the court:

There is a concern among the jury that if there is a threat to us and our family that leaving our cars in the parking lot overnight for two nights could be a concern. Can we be identified because of our cars in the lot, same spot, 2 nights in a row?

¶ 9 Because it was early evening and the jury had been deliberating for several hours, the prosecutors, defense counsel, and defendant were no longer in the courthouse. The court telephoned all counsel to discuss the question and, over defense counsel's objection, decided to inform the jury of the threat.³

¶ 10 After the telephone conversation, without the attorneys or defendant present, the court told the jurors:

Based on your last question, I want to tell you why we've taken these extraordinary procedures.

Everything that I told you is absolutely true about the fact that there had been inquiries concerning publicity in this matter, and about the issue involving the temptation you might have concerning the Internet. Those things are true. But those exist in many cases.

Based on what you indicated in your question, we have taken these extraordinary precautions because there was an unidentified, fairly undifferentiated threat that was reported about this case. I will tell you that there was no identification of any juror, nothing specific to any juror. The only concern that we had about jurors was about you leaving here, and possibly being identified as you left—people who might be in here recognized you as you left.

...

So we are going as far as we possibly can in an abundance of caution despite the ... I call it "an undifferentiated threat," because it had nothing to do with any of you personally at all. It merely was a threat to the case.

...

So I can't tell you that there was not a concern. What I can tell you is whether the concern, on a scale of 1 to 100 was a 1 or 99. I can tell you, regardless of where it was, exactly the same things would have been done that we're doing. And, like I said, I consider this lower on the scale because, as far as the jury is concerned, it is totally undifferentiated; had nothing to do with anyone in particular. And as far as I'm aware, other than the family members who have been here, there has been no one else in this courtroom. Now, as of yesterday, we assured no one else was in this courtroom. So that's what we have.

¶ 11 The court also informed the alternate jurors of the threat and dismissed the jury for the evening.

¶ 12 The next morning the jury informed the court that it was unable to reach a unanimous decision. The court then gave the jurors a modified Allen

instruction⁴ and sent them back for further deliberations. Later that day, the jury convicted defendant of all charges.

¶ 13 Defendant was sentenced to thirty-five years in the custody of the Department of Corrections (DOC) for the attempted extreme indifference murder count relating to the paralyzed victim, and concurrent terms of sixteen years in the custody of the DOC for the remaining counts.

II. Right to Counsel

¶ 14 Defendant contends the court's ex parte communications with the prosecutors and the jurors violated his Sixth Amendment right to counsel at all critical stages of his trial. We agree.

A. Standard of Review

¶ 15 We review whether a defendant has been denied representation at a critical stage of the proceedings de novo. Cf. Key v. People, 865 P.2d 822, 825–26 (Colo.1994)

; see United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993) ("We review ... the legal question[ ] of ... whether the presentence interview was a critical stage of the proceedings de novo.").

¶ 16 "In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard." People v. Fritts, 2014 COA 103, ¶ 11, ––– P.3d ––––

(citing Key, 865 P.2d at 826–27 ; People v. Moore, 251 P.3d 451, 454 (Colo.App.2010) ).⁵

¶ 17 "[W]e reverse if ‘there is a reasonable possibility that the [error] might have contributed to the conviction.’ " Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116

(quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ); accord People v. Cardenas, 2015 COA 94M, ¶ 23, ––– P.3d ––––. "Under this standard, the prosecution has the burden of demonstrating that the ex parte [communication] did not contribute to the defendant's conviction." Key, 865 P.2d at 827 ; see Hagos, ¶ 11 ("[T]he State bears the burden of proving the error was harmless beyond a reasonable doubt.").

B. Law

¶ 18 "The right to counsel exists at every critical stage of a criminal proceeding." Key, 865 P.2d at 825

(citing U.S. Const. amend. VI ; Colo. Const. art. II, § 16 ; United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; People v. Roybal, 618 P.2d 1121, 1126 (Colo.1980) ); see People v. Payne, 2014 COA 81, ¶ 6, –––P.3d ––––. "Stages of criminal proceedings have been held to be ‘critical’ where there exists more than a ‘minimal risk’ that the absence of the defendant's counsel might impair the defendant's right to a fair trial." Key, 865 P.2d at 825 (citing Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ; Sandoval v. People, 172 Colo. 383, 389, 473 P.2d 722, 725 (1970) ).

¶ 19 "[A] defendant in a criminal case has a fundamental right under the Colorado Constitution to have counsel present ‘when the judge gives instructions to the jury or responds to questions from the jury.’ " Id.

(quoting Leonardo v. People, 728 P.2d 1252, 1257 (Colo.1986) ). "It is therefore constitutional error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant's counsel." Id. (quoting Leonardo, 728 P.2d at 1257 ).

C. Analysis

¶ 20 Because a defendant is entitled to counsel at every critical stage of the proceedings, and the court's discussions with the prosecutors and the jurors...