People v. Key

• Decision Date: 05 November 1992
• Docket Number: No. 91CA0604,91CA0604
• Citation: 851 P.2d 228
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ryan C. KEY, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 228

851 P.2d 228

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ryan C. KEY, Defendant-Appellant.

No. 91CA0604.

Colorado Court of Appeals,

Div. IV.

Nov. 5, 1992. ^*

Rehearing Denied Nov. 5, 1992.

Certiorari Granted May 10, 1993.

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

David F. Vela, State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Ryan C. Key, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder and menacing. We affirm.

The defendant's conviction arose out of a July 4, 1990, incident in which an altercation developed between the victim and his family members and two carloads of youths, including the defendant. During the fight between the two groups, one of the individuals from the automobiles went to an automobile and returned with a gun. Thereafter, the defendant grabbed the gun from a counterpart, pointed it at the victim's head, and pulled the trigger. The gun failed to discharge.

I.

Defendant first contends that the actions of the trial court in holding an ex parte "scheduling conference" with the jury denied him his constitutional right to counsel during a critical stage of the proceedings and that this error mandates reversal of his convictions. While we agree with the premise of defendant's argument, we do not agree with its conclusion.

The defendant's jury trial took place from December 17 through 21, 1990. On Friday afternoon, December 21, after it had been deliberating for approximately three hours, the jury was summoned into the courtroom by the court for the purpose of scheduling further deliberations. This "scheduling conference" took place outside the presence of the prosecutor, defense counsel, and defendant, none of whom had been notified. The trial court had been advised where each could be reached, but evidently made no attempt to contact any of them.

The trial court advised the jury that it would have until 5:30 that afternoon to deliberate and, absent a verdict, would need to return at some point the following week. Since that week was Christmas week, the court sought to accommodate the jurors' holiday schedules by arranging in advance for the next possible day of deliberations. The court and jury agreed that December 31, New Year's Eve Day, would be the next day deliberations would resume if a verdict were not reached by 5:30 p.m. Friday. However, the jury returned a verdict later that afternoon.

The right to counsel exists at every critical stage of criminal proceedings, and jury deliberations are a critical stage for purposes of the right to counsel. People v. Romero, 767 P.2d 782 (Colo.App.1988); People v. Johnson, 802 P.2d 1105 (Colo.App.1990), rev'd on other grounds, 815 P.2d 427 (1991).

Defendant asserts that the trial court's failure to notify his attorney of the "scheduling conference" was error, violating his constitutional right to counsel and, relying in part on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), he maintains that such error can never be treated as harmless.

We agree with defendant that the trial court's actions in conducting this ex parte proceeding were improper and constituted error depriving defendant of his right to counsel at a critical stage of the proceedings. However, we hold that the absence of defense counsel at this critical stage does not mandate automatic reversal. Instead, we believe that each case should be analyzed on the totality of its facts and circumstances.

Essentially, defendant's contentions are based upon Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), wherein, while discussing the harmless error standard as applied to constitutional errors, the Supreme Court stated that certain constitutional errors may never be held to be harmless. Chapman v. California, supra, (fn. 8) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which established the right to counsel at trial).

Thereafter, in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Court recognized and reaffirmed the principle stated in the Chapman footnote that the total deprivation of the right to counsel at trial could never constitute harmless error. However, the majority implicitly left open the door for those situations in which something less than total deprivation of the right to counsel could be construed as harmless error. Indeed, in Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), the court had held that a harmless error analysis applied to ex parte communications between the trial court and a juror outside the presence of defense counsel or defendant.

In cases of constitutional error involving the right to counsel, reversal is required unless the appellate court can declare a belief that the error was harmless beyond a reasonable doubt. Leonardo v. People, 728 P.2d 1252 (Colo.1986). Error in a criminal trial is harmless if it did not substantially influence the verdict or affect the fairness of the trial proceedings. Chapman v. California, supra.

Based on our review of the record, we conclude that the absence of defense counsel at the "scheduling conference" here was harmless beyond a reasonable doubt. Initially, it must be noted that there is no evidence that the jury was deadlocked. In fact, during the "scheduling conference" the jury foreperson stated that she felt the jurors were "fairly close" to a verdict. Additionally, there was no reference made to any of the evidence, instructions, or issues of fact during the short conference. The impaneled jury contained a number of individuals who had irreconcilable holiday plans. The trial court was simply attempting to produce a schedule that would be acceptable to each juror.

Thus, because the "scheduling conference" spoke specifically to administrative needs and not to the substantive law, the error in conducting it outside the presence of defendant and his attorney was harmless beyond a reasonable doubt.

II.

Defendant next asserts that, during the "scheduling conference," the trial court coerced the jury into reaching a verdict in violation of his constitutional right to a fair trial. We disagree.

There is a compelling concern that a jury not be coerced into rendering a verdict in criminal cases. People v. Schwartz, 678 P.2d 1000 (Colo.1984). The unanimity required in a criminal trial verdict requires a free and untrammeled deliberative process that expresses the conscientious conviction of each individual juror. People v. Lewis, 676 P.2d 682 (Colo.1984).

Defendant relies chiefly on Allen v. People, 660 P.2d 896 (Colo.1983) and People v. Lazdins, 728 P.2d 354 (Colo.App.1986). However, both of those cases are factually distinguishable from the case here. Both concerned deadlocked juries. For example, in Lazdins, the jury had deliberated for over 13 hours and the foreman indicated that there were "serious differences and no anticipation of an unanimous decision." Additionally, in Allen and Lazdins, the trial court placed an express time limit on the jury's deliberations, indicating that, thereafter, a mistrial would be declared.

Here, the jury was not deadlocked and no time limit was placed on its deliberations. In fact, the foreperson expressed the belief that the jurors were "fairly close" to a decision. The very purpose of the scheduling conference enhanced the possibility that jury deliberations could continue for more than just one day and, thus, was designed to prevent a compromise verdict.

Additionally, the trial court did not state to the jury that, if a verdict were not reached by the end of the day, a mistrial would be declared. Thus, in our view, the record does not support defendant's contention that the jury was coerced by the court.

III.

Defendant next contends that the trial court committed reversible error in denying his motion for new trial based on a juror's failure to disclose that she was acquainted with him. We disagree.

If an error is called to the court's attention for the first time by way of a motion for a new trial, the question whether a new trial should be granted involves the exercise of the court's discretion. Abeyta v. People, 145 Colo. 173, 358 P.2d 12 (1960). This discretion will not be interfered with on appeal unless it manifestly appears that such discretion has been abused. Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969).

The failure of a juror during voir dire to answer material questions truthfully, if discovered during trial, may justify the removal of that juror and replacement with an alternate, or it may justify the declaration of a mistrial. People v. Borrelli, 624 P.2d 900 (Colo.App.1980). However, a prospective juror's untruthful answers on voir dire concerning material matters do not entitle a party to a new trial per se....