People v. Jacobson

• Decision Date: 06 November 2014
• Docket Number: Court of Appeals No. 10CA1476
• Citation: 425 P.3d 1132
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Sandra L. JACOBSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

425 P.3d 1132

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

v.Sandra L. JACOBSON, Defendant–Appellant.

Court of Appeals No. 10CA1476

Colorado Court of Appeals, Division IV.

Announced November 6, 2014

John W. Suthers, Attorney General, Rebecca A. Jones, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE WEBB

¶ 1 A jury convicted Sandra L. Jacobson of vehicular homicide, driving under the influence (DUI), and other related charges, all arising from a collision between her truck and a taxi cab. Two passengers in the taxi were killed. On appeal, Jacobson primarily contends the trial court erred when it refused her counsel's request to poll the jury concerning exposure to mid-trial publicity that included inadmissible, prejudicial information.

¶ 2 We conclude that the court abused its discretion when it declined to poll the jury, instead relying solely on its assumption that the jurors had followed repeated admonitions to avoid news reports. Because we also conclude that this error was not harmless beyond a reasonable doubt, we reverse Jacobson's convictions and remand the case for a new trial on all charges.

I. Background

¶ 3 On the fourth day of trial, while the prosecution was still presenting its case, defense counsel alerted the court to the possibility that Channel 4, the local affiliate of a national television network, would air on its evening news program a report containing information prejudicial to the defense. When the day's proceedings ended, the court gave the jury an extended admonition to avoid "newscasts" and "newspaper sites."

¶ 4 The next morning, defense counsel told the court that a report about the case had appeared the preceding night on Channel 4 and the station's website. The court and defense counsel agreed that the broadcast and the text which appeared alongside video content on the website included the following:

• references to Jacobson's prior convictions, including a DUI;

• references to her prior traffic accidents resulting in injury;

• an allegation that she had been driving with a suspended license when her truck struck the taxi cab;

• a suggestion that she was facing at least two additional trials on other matters;

• an interview with someone involved in a previous accident with her who said that she had been driving with a suspended license in that accident and offered that she should be incarcerated forever; and

• reference to her other driving violations.

¶ 5 The record lacks any direct information about the telecast or the website. But the prosecutor did not take issue with anything said between the court and defense counsel about the content, nor does the Attorney General do so on appeal. When defense counsel asked the court to inquire of the jury regarding exposure to this material, the prosecution did not take a position.

¶ 6 The court responded that the information was "absolutely not anything [that was] going to come up in [the] trial" and that the "timing was unfortunate." The court referred to the expanded admonition given when the prior day's proceedings had ended, and mentioned that several jurors had looked serious and nodded affirmatively during that admonition. Then the court "decline[d] to inquire of [the jury] any further about any specific program" because it decided to "take them at their word," saying that telling the jury about the broadcast would be like "dangling a cookie under a 2–year old's nose." Finally, it noted that defense counsel had made the necessary record.

II. Preservation and Standard of Review

¶ 7 The Attorney General contends Jacobson did not preserve this issue because her counsel acquiesced in the trial court's decision to rely on the admonitions, thereby inviting any error. The record belies this contention.

¶ 8 A defendant preserves an issue when the defendant timely requested relief at trial on the same ground raised on appeal. See People v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296. Jacobson's counsel timely asked the court to poll the jury based on publicity of extraneous, prejudicial information. This request is the basis for her argument on appeal. As well, the court acknowledged that the necessary record had been made. See People v. Coughlin, 304 P.3d 575, 582 (Colo. App. 2011) (objection "sufficient to preserve an issue for appeal if the objecting attorney presents arguments or utilizes language that alerts the trial court to the impending error").

¶ 9 Still, citing People v. Cook, 22 P.3d 947 (Colo. App. 2000), the Attorney General argues that because defense counsel implicitly agreed with the court's reliance on its admonitions, Jacobson cannot now argue that the court erred in refusing to poll the jury. In Cook, the division held that because defense counsel told the trial court additional jury instructions would be "fine," the defendant had explicitly agreed with the trial court's decision to rely on these instructions rather than polling. Id. at 949. But Jacobson's counsel never explicitly agreed with the trial court's decision. And counsel's failure to take exception to the ruling, after having urged polling, is not implicit agreement. Cf . C.R.C.P. 46.

¶ 10 Because a trial court has broad discretion to decide whether a media report prejudiced the defendant's right to a fair trial, review is for an abuse of discretion. Harper v. People, 817 P.2d 77, 83–84 (Colo. 1991). A trial court abuses its discretion "when it misconstrues or misapplies the law," People v. Sieck, 2014 COA 23, ¶ 5, 351 P.3d 502 ; "fail[s] to exercise discretion," People v. Darlington, 105 P.3d 230, 232 (Colo. 2005) ; or rules in a manner "manifestly against the weight of evidence," Hytken v. Wake, 68 P.3d 508, 510 (Colo. App. 2002).

¶ 11 When a trial court abuses its discretion by declining to question the jury about exposure to extraneous, prejudicial information, the error is subject to constitutional harmless error review. Dunlap v. People, 173 P.3d 1054, 1091 (Colo. 2007) (concluding that the trial court's failure to poll the jury was harmless beyond a reasonable doubt); see also United States v. Thompson, 908 F.2d 648, 652–53 (10th Cir. 1990) (applying constitutional harmless error review).

III. Law

¶ 12 "The due process clauses of the United States and Colorado Constitutions guarantee every criminal defendant the right to a trial by an impartial jury." People ex rel. Faulk v. Dist. Court, 673 P.2d 998, 1000 (Colo. 1983). This guarantee is satisfied by " ‘a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.’ " People v. Dahl, 160 P.3d 301, 304 (Colo. App. 2007) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ); see also State v. Bey, 112 N.J. 45, 548 A.2d 846, 861 (1988) (Impartiality requires a jury to decide the case " ‘based on evidence received in open court, not from outside sources.’ " (quoting Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) )).

¶ 13 If jurors may have been exposed to extraneous, inherently prejudicial material, to protect this constitutional right an appellate court must be able to assess actual exposure from the record. See Gov't of Virgin Islands v. Dowling, 814 F.2d 134, 140 (3d Cir. 1987) ("Because the trial court did not conduct a voir dire, and because we cannot speculate what the jurors' responses would have been to an appropriate inquiry," the trial judge "erred when he failed to develop a record sufficient to permit evaluation of the potential prejudice to the defendant.") (cited with approval in Harper, 817 P.2d at 84 ); Thompson, 908 F.2d at 651–52 ("[T]he reason for the lack of specific evidence concerning the juror's connection with the newspaper article was the trial court's failure to question the jurors about their exposure.") (cited with approval in Harper, 817 P.2d at 84 ). Polling the jury may show that "no exposure to the publicity ha[s] occurred at all." Bey, 548 A.2d at 870 (cited with approval in Harper, 817 P.2d at 84 ). But absent polling, "we cannot assume that this was the case, or, if some exposure did occur, that it had no effect on the juror's impartiality." Id .

¶ 14 Harper is the most recent Colorado Supreme Court decision on possible jury bias from mid-trial exposure to extraneous, prejudicial information. The supreme court adopted a test to "determine the appropriate manner of evaluating the prejudicial effect of media reports when the issue is presented during trial." 817 P.2d at 82.

¶ 15 In Harper, the defendant faced charges of sexual assault on a child. After the jury had been empanelled, the court instructed the jurors to avoid any outside reading on the case. On the second day of trial, the local paper published an article on an interior page about the defendant's prior conviction of sexual assault on a different child victim. Although unrelated, this assault and the charged offense had allegedly occurred during the same time period. The next morning, defense counsel asked the court to question the jury about the article. The court refused, explaining that the defendant had not shown any juror had read the article.

¶ 16 The supreme court acknowledged the trial court's reliance on People v. Holmes, 191 Colo. 477, 481, 553 P.2d 786, 789 (1976), holding that because of the presumption that the jury had followed the trial court's instructions, polling the jury was unnecessary. Harper, 817 P.2d at 82. But the Harper court identified two flaws with this presumption: jurors may inadvertently learn about newspaper articles, and rules prohibiting counsel's communication with jurors during trial hinder the ability to acquire evidence of prejudice. Id. The court concluded that deciding prejudice on the basis of...