People v. Kriho

• Decision Date: 29 April 1999
• Docket Number: No. 97CA0700.,97CA0700.
• Citation: 996 P.2d 158
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Laura J. KRIHO, Defendant-Appellant.
• Court: Colorado Court of Appeals

996 P.2d 158

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Laura J. KRIHO, Defendant-Appellant.

No. 97CA0700.

Colorado Court of Appeals, Div. I.

April 29, 1999.

Rehearing Denied September 2, 1999.¹ Certiorari Denied March 20, 2000.²

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Paul Grant, Parker, Colorado, for Defendant-Appellant.

Miller, Lane, Killmer & Greisen, David A. Lane, Denver, Colorado for Amicus Curiae American Civil Liberties Union.

H. Patrick Furman, Boulder, Colorado, for Amicus Curiae Colorado Criminal Defense Bar.

Opinion by Judge ROTHENBERG.

Defendant, Laura J. Kriho, appeals the order entered by the trial court finding her in contempt. We reverse and remand for a new trial.

This case arose from a May 1996 criminal proceeding in which Kriho served as one of twelve jurors in a trial concerning charges of unlawful possession of a schedule II controlled substance (methamphetamine), criminal impersonation, and unlawful possession of drug paraphernalia (underlying case).

During voir dire in the underlying case, the trial court spoke to the prospective jurors as a group, informed them of the charges and of court procedure, and administered an oath in which the jurors swore or affirmed "to answer truthfully the questions asked ... by the court or the attorneys concerning [their] competency to sit as [jurors]" in the case. The court advised jurors that if they thought they would have problems following the law or any bias against either the defendant or the prosecution, they should bring it to the court's attention.

The court also conducted the following colloquy with the entire panel of prospective jurors:

Would all of you agree to follow my instructions on the law even if you don't agree with them or you don't think that they are what the law is or should be?

....

What I need from you is a commitment that you will follow my instructions even if you don't agree with them. And you all agree to do that? Follow the instructions on the law? My job is to tell you what the law is, and will you all agree to follow my instructions? Will you all agree? Anyone saying no?

The panel members were not seated in the jury box at the time, but were in the gallery. No one gave an individual answer to these questions by the court.

In the next phase of voir dire, certain of the jurors were called into the jury box and questioned. Kriho sat with the unselected members of the venire in the courtroom gallery while approximately 350 questions were asked of those persons in the box.

There were individual discussions by the court and counsel with a number of prospective jurors about their obligation to follow the law given by the court, their attitudes regarding drug laws and alleged violations of drug laws, and their abilities to serve fairly and impartially. There was also discussion about issues surrounding drug-law enforcement, and instruction that they were not to consider punishment.

During the individual questioning of other prospective jurors, the court asked these questions among others:

Have any of you ever been a party to or a witness in a court trial?

....

Has anybody in the panel been accused of a crime other than traffic stuff? Had to go to court for something?

Later, the prosecutor asked the jurors in the jury box this question:

[D]oes anyone have any particular strong feelings, either pro or con, about the laws we have including the law that will apply here that you will get from his Honor ... about the control of dangerous drugs or controlled substances? In other words, it is against the law to possess methamphetamine and that is why we're here. Does anybody have any particular views about these laws including specifically this one?

The prosecutor also asked the prospective jurors in the jury box whether they had had "[a]ny experience with the justice system? Positive or negative?"

Eventually Kriho was called to the jury box as a replacement juror, and a relatively brief period of questioning ensued. She was initially asked by the court whether she had heard all the questions previously asked to other prospective jurors:

Court: Is there any one of those questions that raised in your mind an answer that might be different?

Kriho: I was involved in a civil court proceeding where we sued a developer down in Boulder District Court....

Court: Was there anything about that experience that makes you unhappy or angry with the judicial system?

Kriho: No.

....

Court: Is there anything, whether I asked it or not, that you can think of that would interfere with your sitting as a fair and impartial juror.

Kriho: No, sir.

Kriho did not mention the fact that, 11 years earlier, she had received a deferred judgment and sentence for possession of Lysergic Acid Diethylamide (LSD). Following entry of the judgment in that case, she had successfully completed two years probation and 40 hours of community service, after which the charges had been dismissed. She also was asked to give a routine biographical sketch indicating, among other things, her "special interests and hobbies" and to state "anything else" that would prevent her from being a fair and impartial juror. She provided particulars as to her marital status, education, and employment, and various hobbies and interests. She did not mention the fact that she was a member of the Boulder Hemp Initiative Project, an organization that supports the legalization of marijuana in Colorado. Nor did she voice any antipathy towards drug laws or their enforcement.

During individual questioning by the prosecutor, when asked whether she was "familiar with this drug, methamphetamine," she answered: "Just that it is a stimulant." The prosecutor also asked: "You listened to all our topics; would you have answered anything differently?" She answered, "No."

On the first day of deliberations, the jurors reportedly had reached unanimity on two of the counts. According to the testimony presented in the contempt proceeding, Kriho had deliberated with the others and had voted to convict on the criminal impersonation charge, and she also had agreed with the others to acquit on the paraphernalia charge. But, the jurors were divided on the possession of a controlled substance charge with approximately three jurors leaning toward acquittal. By the end of the day, however, Kriho apparently was the sole holdout for acquittal on that count. The jurors were then excused for the evening.

On the second day of deliberations, Kriho remained the sole holdout for acquittal and the mood in the jury room changed as other jurors, apparently irritated with Kriho, urged her to vote to convict. Although Kriho's original refusal to convict was attributed to her assertion that she believed the arresting officer had lied, testimony at the contempt hearing also indicated that she had told the other jurors that drug cases should be handled by the family and community, not by the courts, and that the jury had the right to create the law and to refuse to convict.

She also referred vaguely to the Salem witchcraft trials as an example of intolerable prosecutions and told the other jurors what she believed to be the potential sentence the accused would receive if found guilty of possession. She obtained such information, later found to be inaccurate, at home by use of the Internet. Kriho emphasized the harshness of the penalty in urging the others that they ought not to convict on that count.

At some time during the second day of deliberations, certain of the jurors sent this note to the trial court asking:

Can a juror be disqualified for:

Looking up the sentence on the [I]nternet for the possession charge. IE (4-6 years)

Juror stated the court criminal system is no place to decide drug charges that they should be decided by family and community. Many of my friends aquan (sic) have used illegal drugs.

The court did not inquire further of the jury or attempt to accept a verdict based on the two counts on which the jury had reached unanimity, see People v. Lewis, 676 P.2d 682 (Colo.1984),

but granted a mistrial.

Following the mistrial and the release of the jurors, Kriho handed one of the other jurors a pamphlet outside the courthouse which purported to be sponsored by the Boulder Hemp Initiative Project and the "Fully Informed Jury Association." It was entitled: "True or False? When you sit on a jury, you have the right to vote your conscience."

It stated, among other things, that:

Most Americans are aware of their right to trial by jury, but how many know that the jury has more power than anyone else in the courtroom and that in pursuit of a just verdict, jurors are free to judge the merits of the law itself, its use in the case at hand, or the motives of the accused.

....

Jurors are rarely informed they may vote according to conscience, even after swearing to apply the law as given or told that it's better to hang the jury than to violate one's conscience in order to reach consensus. These are some of the reasons why FIJA was formed. (original emphasis)

The juror receiving the pamphlet became angry, returned to the courtroom, and gave it to the judge in the underlying case. According to the contempt hearing testimony, the judge then spoke with certain jurors including Kriho. A few of the jurors also spoke to the prosecutor and expressed anger about Kriho's conduct during deliberations.

Thereafter, the People initiated this contempt action against Kriho pursuant to C.R.C.P. 107 and § 18-1-104(3), C.R.S.1998. The contempt citation alleged that she should be held in contempt for:

(1) disobedience to an order of the court, (2) obstructing the administration of justice, and (3) committing Perjury in the First Degree, C.R.S. 18-8-502, a class 4 Felony, by lying under oath to the Judge and the attorneys.

The...