People v. Munsey, Court of Appeals No. 04CA1405 (Colo. App. 5/28/2009), 04CA1405.

Decision Date28 May 2009
Docket NumberNo. 04CA1405.,04CA1405.
PartiesThe People of the State of Colorado, Plaintiff-Appellee, v. Nancie Munsey, Defendant-Appellant.
CourtCourt of Appeals of Colorado

John W. Suthers, Attorney General, Paul E. Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Richard A. Hostetler, P.C., Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE MILLER

I. Procedural Background and Facts

Defendant, the former chief financial officer of the Elbert County School District Elizabeth C-1 (school district), was charged by indictment with unlawfully causing the school district to pay her compensation in excess of the amount authorized by the school board (Board). She was also charged with improper use of bond-redemption fund money and self-insurance fund money to pay the school district's operating expenses. Defendant was tried jointly with Bruce Bartlett, who had been the school district's superintendent and who was charged with similar crimes concerning his compensation.

Evidence presented at trial shows the following. Defendant's salary was approved each year by a general Board resolution based on "salary schedules" that she prepared and distributed to the Board in advance of public meetings. The salary schedules included proposed salaries for all school district employees other than the superintendent. Each year, the Board approved the proposed employee salaries by a general resolution with little or no discussion or review of the information provided by defendant. Defendant's staff then prepared a contract for each employee, including defendant, which was signed by the employee and stamped with a signature stamp of two Board members. At trial, testimony by Board members revealed that each of them had a different understanding of what was to be included in defendant's compensation. In any case, defendant actually received payment in excess of the amounts stated in the signed contracts.

In 2001 and 2002, the school district proposed property tax increases to cover the costs of serving a growing student population and increasing teacher salaries. Both were defeated at the polls. However, bonds were issued to fund construction of new schools. Between July and December 2002, defendant used money from the bond-redemption fund to cover the school district's cash flow problems.

With respect to each of her employment contracts for the school years 2000-2001, 2001-2002, and 2002-2003, defendant was charged with:

• Theft or criminal attempt to commit theft, § 18-2-101, C.R.S. 2008, and a former version of § 18-4-401 (dollar figures in the theft statute were raised after defendant's indictment, cf. § 18-4-401, C.R.S. 2008);

• Embezzlement of public property, § 18-8-407, C.R.S. 2008; and

• Issuing a false certificate, § 18-8-406, C.R.S. 2008.

The attempted theft charge related to defendant's 2002-2003 contract only — in that year the Board discovered the discrepancy in defendant's salary figures.

Defendant's use of the bond-redemption fund and self-insurance fund resulted in two charges of embezzlement of public property, § 18-8-407. Defendant was also jointly charged with Bartlett for attempt to influence a public servant, § 18-8-306, C.R.S. 2008.

At the conclusion of a three-week trial, the jury found defendant not guilty of misusing the self-insurance fund but found her guilty on all other counts. Bartlett was convicted on all sixteen counts against him and has filed a separate appeal.

II. Discussion
A. Response to Jury Question

Defendant contends that the trial court committed structural error in responding to a jury question by instructing the jurors that it was their sworn duty to return verdicts on all counts submitted to them. We disagree.

It is the trial court's duty to instruct the jury on all matters of law. People v. Gordon, 160 P.3d 284, 288 (Colo. App. 2007). If no timely and specific objection is made to the instructions as they are given at trial and no alternative instructions are tendered, a plain error standard of review is appropriate. People v. Miller, 113 P.3d 743, 748 (Colo. 2005); Thomas v. People, 820 P.2d 656, 659 (Colo. 1991); People v. Galimanis, 944 P.2d 626, 633 (Colo. App. 1997). "Plain error is a trial error that affects the substantial rights of the accused and so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction." Hodges v. People, 158 P.3d 922, 927 (Colo. 2007).

If an error is structural, however, reversal is mandatory and plain error analysis does not apply. Id. An error is structural when it fundamentally affects the framework within which the trial takes place or denies the defendant a basic protection with unquantifiable results. Bogdanov v. People, 941 P.2d 247, 253 (Colo.), amended, 955 P.2d 997 (Colo. 1997); see also Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (denial of right to jury trial is structural error because consequences are "necessarily unquantifiable and indeterminate," rendering criminal trial unable to reliably serve its function).

"Examples of structural error include the complete deprivation of the right to counsel, trial before a biased judge, improper exclusion of a member of the defendant's ethnic group from a grand jury, and violation of the right to a public trial." People v Baenziger, 97 P.3d 271, 273 (Colo. App. 2004) (citing People v. Willcoxon, 80 P.3d 817 (Colo. App. 2002)). Improper jury instructions may constitute structural error when the jury is "not properly aware of the standards used in determining a defendant's guilt or innocence" such as when the jury lacks knowledge of the presumption of innocence and requirement of proof beyond a reasonable doubt. Id. at 273-74.

Here, the alleged error did not implicate so fundamental a right as those described by Baenziger. We therefore reject defendant's contention that the alleged error was structural. Because defendant made no objection at trial, we analyze her contention under the plain error standard of review.

During deliberations, the jury asked the court: "If the jury is hung on one or more counts, but has reached a verdict on the majority of counts, is it considered to be a hung jury for the entire case?" With the approval of counsel for both defendants, the court responded, "It is your sworn duty to reach verdicts on all counts contained in the indictment." Defendant now contends that, by not reiterating that no individual juror should be influenced to change his or her opinion by the opinions of other jurors, this instruction unduly coerced the jury to return verdicts on all counts. We disagree.

A trial court may not give an instruction that expressly or impliedly coerces the jury to reach a verdict regardless of whether that would require a juror to "surrender his conscientious convictions to secure an agreement." Lowe v. People, 175 Colo. 491, 494-96, 488 P.2d 559, 561-62 (1971); see also Jenkins v. United States, 380 U.S. 445, 446 (1965); People v. Lewis, 676 P.2d 682 (Colo. 1984); People v. Dahl, 160 P.3d 301, 306 (Colo. App. 2007); People v. Raglin, 21 P.3d 419, 423 (Colo. App. 2000). "Upon receiving information that a jury cannot agree on a verdict," a trial court may instruct the jury to continue deliberations, but such instruction must make clear that jurors "should not be influenced to change their opinion by the opinions of the other jurors" and that failure to reach a unanimous verdict will result in a mistrial. Raglin, 21 P.3d at 423; see also People v. Schwartz, 678 P.2d 1000, 1012 (Colo. 1984); Allen v. People, 660 P.2d 896 (Colo. 1983).

In Dahl, a division of this court found coercive a trial court's threat to sanction a juror who failed to appear on the first day of deliberations. Dahl, 160 P.3d at 302-03. After he was arrested and brought in front of the court, the juror explained that he was despondent because his friend had committed suicide the day before. Id. at 303. The trial court told the juror:

[T]he defendant's wondering what's going to happen in this case. And the People are wondering what's going to happen in this case, and it's all because you chose to inflict your personal problems on this process, and that's just not acceptable. Do you understand what the Court is saying?

Id. The court also said that it was interested in "trying this case to conclusion." Id.

On appeal, a division of this court found that

these circumstances created an unacceptably high risk of a coerced verdict, in that the juror would be too preoccupied to give serious attention to analyzing the evidence and arriving at a personal opinion of guilt or innocence and, consequently, would simply fall in line with whatever view prevailed among the other jurors, in order to promptly bring "the case to conclusion."

Id. at 306.

In Lowe, the jury foreman came to the court after four hours of deliberation and reported that the jury was deadlocked. Lowe, 175 Colo. at 492-93, 488 P.2d at 560. The foreman said that a unanimous verdict would only be reached if "at least one juror [had] a change of mind that [was] not based upon true feeling and belief." Id. at 493, 488 P.2d at 560. The trial court replied, "[F]undamentally I think that's how juries finally reach verdicts," and insisted that the jury continue deliberations. Id. A verdict was returned about fifty minutes later. Id. at 494, 488 P.2d at...

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