People v. Moore

• Decision Date: 18 April 1985
• Docket Number: No. 81CA0826,81CA0826
• Citation: 701 P.2d 1249
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lewis Roger MOORE, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1249

701 P.2d 1249

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lewis Roger MOORE, Defendant-Appellant.

No. 81CA0826.

Colorado Court of Appeals Div. II.

April 18, 1985.

Rehearing Denied May 30, 1985.

Certiorari Pending August 20, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Gerald E. Piper, Rachel Bellis, Deputy State Public Defenders, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, Lewis Roger Moore, was charged and convicted of first degree murder after deliberation pursuant to § 18-3-102, C.R.S. (1978 Repl. Vol. 8). He appeals his conviction and sentence on three grounds: (1) that his constitutional right against double jeopardy barred his being brought to trial a second time after the trial court had, sua sponte, declared a mistrial and discharged the jury in the first trial; (2) that there was insufficient evidence to establish first degree murder after deliberation; and (3) that the trial court erred in denying his motion to dismiss based on the alleged negligence of the state in allowing potentially exculpatory evidence to be destroyed or removed. We affirm.

On February 19, 1980, defendant was charged by information with one count of first degree murder after deliberation in the death of his roommate. Defendant was arraigned and ultimately entered a plea of not guilty on May 19, 1980.

On August 8, 1980, defendant filed a motion to dismiss alleging that the state, after investigating the purported crime scene, was negligent in allowing it to be burglarized and set on fire by arsonists. Defendant also moved to dismiss on grounds that the state had allowed the remains of the victim to be shipped to the victim's family before the coroner's report stating the cause of death was issued. Following a hearing, the court denied this motion on September 4, 1980.

Trial commenced January 26, 1981. A jury of twelve and three alternates was empaneled and sworn on February 10, 1981. On February 13, certain alleged misconduct on the part of one of the bailiffs was brought to the attention of both attorneys and the court by one of the jurors. An in-chamber hearing was immediately held to determine the impact of the alleged misconduct. After surveying each of the jurors individually, the court gave the defendant an opportunity to move for a mistrial. Defendant declined to so move, and instead moved for dismissal. The trial court denied the motion to dismiss and, on its own motion, declared a mistrial over defendant's objection.

Defendant's retrial commenced March 30, 1981. Defendant moved to dismiss on grounds that the double jeopardy clause of the federal and state constitutions barred his retrial. The court again denied defendant's motion, and the jury returned a verdict of guilty to the first degree murder charge. Subsequently, defendant was sentenced to life imprisonment on the murder conviction.

I. Double Jeopardy

Defendant first contends that the trial court erred when it, sua sponte, declared a mistrial over defendant's objections because the misconduct of the bailiff did not make a mistrial a "manifest necessity." Accordingly, he asserts that his constitutional privilege against double jeopardy barred a retrial. We disagree.

Where prejudicial conduct has occurred which makes it unjust to proceed with a trial, the trial court, on grounds of "manifest necessity," may declare a mistrial even over defendant's objection. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). When the initial trial has been terminated in this manner, the court may order a new trial, and the double jeopardy protection is not applicable.

The doctrine of "manifest necessity" is a court devised standard which guides the court's exercise of discretion in declaring a mistrial over defendant's objection. Illinois v. Somerville, supra; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824); People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977). Although the court is not required to make specific findings regarding manifest necessity, the record must provide "sufficient justification" for the court to terminate the proceedings short of a verdict. Ortiz v. District Court, 626 P.2d 642 (Colo.1981).

Here, upon being alerted to the alleged misconduct, all of the jurors were individually questioned in the judge's chambers. Defendant is confined to a wheel chair, and five jurors testified that they had heard the bailiff say, on the previous evening, that the reason the defendant was disabled was because of a stabbing injury which occurred while he was incarcerated because of a previous offense. One juror indicated that she could not disregard the comment and that it would definitely influence her decision in the case. Two stated that they could disregard the statement although the matter upset them so, that they had trouble sleeping. The juror who initially reported the comment testified that he was shocked but did not indicate whether this would affect his ultimate decision in the case.

In addition, several of the jurors testified that, in contradiction to the direct orders of the court, the bailiff in question had not rendered their television sets inoperable, had not monitored their telephone calls, and had made newspapers available for them to read. The trial court found, in regard to the telephone, television and newspaper improprieties that:

"All these matters, taken as a whole, indicate inappropriate and possible influence of the jury outside the record of the case; notwithstanding the fact that it appears from the jurors comments that these matters individually did not affect their ability to sit in the case and be fair and impartial, the fact remains these incidents occurred, and this potential influence upon the jury is present."

In determining that a mistrial was required, however, the court relied primarily upon the bailiff's comment regarding defendant's prior incarceration. The trial court stated:

"It appears clearly of record that all of the above named jurors were clearly and unequivocally tainted by the conversation, fully appreciated the import of the disclosure, and were previously unaware of the fact disclosed by [the bailiff].... It appears from the court's review that at least five, perhaps six of the fifteen jurors have specific knowledge."

In addition, the court delineated the factors which it considered in reaching the conclusion that it had to declare a mistrial. It concluded:

"The sum and substance of the matter mandates that this Court give consideration to some conduct or prejudice, wherein a reasonable objective is the purpose of assuring the fair trial rights of the defendant and substantial justice. A mistrial may not be granted where this is just whimsical motion or frivolous impulse. Certainly, the Court concludes in this matter that the matters addressed in the findings above are neither whimsical or frivolous. The Court would further conclude that the matters set forth in the findings above are substantial and real, as mandated by the case law, and that they could affect in some way or manner ... the rights of the parties, or could retard or influence to more than a slight degree the administration of an honest, fair, and evenhanded justice for both of the parties here involved, either or both. The Court feels that it has, therefore, within the sincere and reasoned judgment of this Court, the power to declare a mistrial, and that it is mandated that this court exercise its fair discretion in that regard."

Improper reference to a defendant's prior conviction or imprisonment during trial, notwithstanding a cautionary instruction, requires a mistrial. People v. Goldsberry 181 Colo. 406, 509 P.2d 801 (1973); Salas v. People, 177 Colo. 264, 493 P.2d 1356 (1972). This is especially true if the information is obtained extrajudicially so that the defendant had no opportunity to deny or explain such information. Perry v. People, 63 Colo. 60, 163 P. 844 (1917).

Where such information comes to the jury's attention from outside of the courtroom, it is not necessary for the court to determine that the extraneous communication in fact prejudiced the jury, as the most sincere juror's statement that he or she would act impartially cannot compensate for factors which inherently produce prejudice. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Beeman v. People, 193 Colo. 337, 565 P.2d 1340 (1977). The fact that a juror assures that the information could be set aside when making a deliberation is not conclusive. See People v. Botham, 629 P.2d 589 (Colo.1981).

When a trial court concludes, based on the facts and reasonable inferences to be drawn from such facts, that a juror was exposed to information that in the slightest might taint his verdict, it is within the court's discretion to declare a mistrial. Whitfield v. Warden of Maryland House of Correction, 486 F.2d 1118 (4th Cir.1973), cert. denied, 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 116 (1974); Perry v. People, supra. Furthermore, if the information conveyed would warrant a reversal if offered directly into evidence a new trial is mandatory. Quintana v. People, 158 Colo. 189, 405 P.2d 740 (1965).

Here, the mistrial was not declared on the basis of an assumed taint, but rather the court found after personally questioning and observing each of the jurors that the bailiff's comment was, beyond any reasonable doubt, prejudicial, not only to the defendant, but to the prosecution as well. If a mistrial is required by manifest necessity, the public interest in a fair trial and just verdict outweighs defendant's dual interests in proceeding to a verdict or avoiding retrial for the same offense. People v. Baca, supra. The court therefore, being in the best position to observe the effect of the communication,...