People v. Payne
| Decision Date | 03 July 2014 |
| Docket Number | Court of Appeals No. 10CA0173 |
| Citation | 361 P.3d 1040,2014 COA 81 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Darrell Demark PAYNE, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Darrell Demark Payne, appeals the judgment of conviction entered on jury verdicts finding him guilty of burglary and theft. He also appeals his adjudication as a habitual offender and the resulting sentence. We reverse his convictions, vacate his sentence, and remand for a new trial.
¶ 2 V.V.'s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.'s house. Several of the car doors were open, and a man was putting something into the back seat of the car. According to the neighbor, the man was acting “kind of nervous.” The neighbor noted the car's license plate number and called the police to report a suspected burglary. V.V. later informed officers that his home had been burglarized, “everything was out of place,” and his television and other personal items were missing.
¶ 3 Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description that the neighbor had given to the police. Officers later included defendant's photograph in a photo lineup that was presented to the neighbor. She identified two photographs—one of defendant and one of a different person—as potentially resembling the burglar. Officers then arrested defendant at his home, which was several blocks from the location of the burglary.
¶ 4 The People charged defendant with second degree burglary (a class 3 felony), theft (a class 4 felony), and five habitual criminal counts. A jury found him guilty of the burglary and theft charges. The trial court subsequently adjudicated him a habitual criminal and sentenced him to forty-eight years in the custody of the Department of Corrections.
¶ 5 Defendant contends that his right to be present at his trial was violated when the trial court delivered a modified Alleninstruction to the jury in his absence during jury deliberations.1We agree.
¶ 6 “Article II, section 16, of the Colorado Constitution, and the Due Process Clause, as well as the Sixth Amendment to the United States Constitution, guarantee the right of a criminal defendant to be present at all critical stages of the prosecution.” People v. White,870 P.2d 424, 458 (Colo.1994); see Larson v. Tansy,911 F.2d 392, 395–96 (10th Cir.1990).
¶ 7 Because defendant preserved this claim, and because any error in the denial of his right to be present at trial would be of constitutional dimension, we review for constitutional harmless error. People v. Ragusa,220 P.3d 1002, 1009 (Colo.App.2009). If a review of the entire record demonstrates a reasonable possibility that defendant could have been prejudiced by the error, the error cannot be harmless. Chapman v. California,386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see People v. Orozco,210 P.3d 472, 476 (Colo.App.2009). Under this standard, the prosecution has the burden of demonstrating, beyond a reasonable doubt, that the error in proceeding in defendant's absence did not contribute to his conviction. Chapman,386 U.S. at 23–24, 87 S.Ct. 824; see Key v. People,865 P.2d 822, 827 (Colo.1994).
¶ 8 The jury informed the court that it was unable to reach a unanimous decision after approximately two hours of deliberating. The court excused the jurors for the evening and instructed them to return the following morning. At approximately 11:30 a.m. the next morning, the jury advised the court that it was still unable to come to a unanimous decision. The court decided to provide a modified Alleninstruction. Before the court read the instruction to the jury, defense counsel indicated that defendant, who was in custody, should be present and requested that he be brought in, noting, “the stakes are fairly high here.” The court responded, “All that will end up doing is delay that for about a half hour and that's a half hour that they could be deliberating.” Defense counsel asserted:
I think it's strange for the jur[ors] to see me sitting here without him here, and that's going to cause them to speculate where he is. They'll think that he took off, as they already think he's in custody because he keeps getting paraded in the hallway. I think he should be here. This is his trial.
¶ 9 The court offered to tell the jury that it “[had] waived [defendant's] appearance for the reading of [the] instruction so that no blame falls on him.” Defense counsel declined the court's offer, stating, The court then read the modified Alleninstruction to the jury in defendant's absence.2
¶ 10 After the instruction was provided, defense counsel supplemented the record on her previous objection regarding defendant's absence. Defense counsel cited United States v. Fontanez,878 F.2d 33, 34–38 (2d Cir.1989), for the proposition that the reading of a modified Alleninstruction is a critical stage of the proceedings, and that defendant had a right to be present when the jury received the instruction. The trial judge reviewed the supplemental authority and agreed that the court had committed error under federal law by failing to recognize that reading the modified Alleninstruction to the jury in the courtroom qualified as a “critical stage.” The judge opined that it may also have been an error under state law, but elected not to initiate further contact with the jury. The jury returned a verdict after approximately two hours of further deliberation.
¶ 11 The Due Process Clause of the Fourteenth Amendment guarantees defendants the right to be present in criminal proceedings whenever their presence has a reasonably substantial relation to the fullness of their opportunity to defend against the charges. People v. James,937 P.2d 781, 783 (Colo.App.1996)(citing Kentucky v. Stincer,482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). However, a defendant's right to be present during trial is not absolute; “due process ‘does not require the defendant's presence when his presence would be useless, or the benefit nebulous.’ ” White,870 P.2d at 458(quoting in part Larson,911 F.2d at 394).
¶ 12 In Leonardo v. People,728 P.2d 1252 (Colo.1986), the Colorado Supreme Court recognized that neither it nor the United States Supreme Court had conclusively decided whether a defendant has a constitutional right to be present when the judge communicates with the jury after deliberations have begun. Id.at 1257 n. 5. However, several federal cases have determined that a defendant has a right to be present when a jury is given instructions in open court, regardless of whether the defendant can provide any assistance to his or her counsel. See Larson,911 F.2d at 395–96; Fontanez,878 F.2d at 38; Wade v. United States,441 F.2d 1046, 1050 (D.C.Cir.1971). These cases recognize that a defendant's presence during in-court communications with the jury can have a psychological impact on the jury that may benefit the defendant. Larson,911 F.2d at 396; Fontanez,878 F.2d at 38; Wade,441 F.2d at 1050.
¶ 13 Citing Fontanezand Wade,defendant urges that the trial court denied his constitutional right to be present during the in-court reading of the modified Alleninstruction to the jury because he had a right to the “psychological function of his presence on the jury.”
¶ 14 The People urge that loss of the ability to psychologically influence a jury does not support a violation of due process. First, they note that a criminal defendant's right to be present at trial is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, and thus pertains primarily to proceedings in which the defendant is confronting witnesses or evidence. See United States v. Gagnon,470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985)(“The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e.g.,Illinois v. Allen,397 U.S. 337 [90 S.Ct. 1057, 25 L.Ed.2d 353] (1970), but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.”).
¶ 15 Because the reading of the modified Alleninstruction does not involve confrontation of witnesses or evidence, the People contend that defendant's presence or psychological influence would not be of sufficient benefit to satisfy the due process standard. The People argue that defendant had no due process right to be present during the legal discussion about giving the modified Alleninstruction, and that, therefore, his presence during the reading of the instruction to the jury also was not necessary. See id.; Esnault v. People,980 F.2d 1335, 1337 (10th Cir.1992); People v. Isom,140 P.3d 100, 104 (Colo.App.2005).
¶ 16 We are not persuaded by the People's assertions. The cases cited by the People in support of their due process argument are inapposite because they do not address a defendant's right to be present during an in-court communication between the judge and the jury. See Gagnon,470 U.S. at 523–24, 105 S.Ct. 1482(the defendants were excluded from in-camera discussions between the court, a juror, and counsel for one of the defendants); Esnault,980 F.2d at 1337(the...
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