People v. Rivers, 00CA2275.

• Decision Date: 21 November 2002
• Docket Number: No. 00CA2275.,00CA2275.
• Citation: 70 P.3d 531
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith RIVERS, Defendant-Appellant.
• Court: Colorado Court of Appeals

70 P.3d 531

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith RIVERS, Defendant-Appellant.

No. 00CA2275.

Colorado Court of Appeals, Div. I.

November 21, 2002.

Certiorari Denied June 2, 2003.

Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Daniel W. Edwards, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Keith Rivers, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder after deliberation. We affirm.

The victim was shot to death outside a tavern. Based on initial information, the police obtained an arrest warrant for L.D.D. However, further investigation implicated defendant, and he was charged with first degree murder after deliberation.

Two eyewitnesses, who testified at trial, positively identified defendant as the shooter, and the police investigation established that the murder weapon was a .25 caliber gun. Defendant argued that the prosecution failed to prove beyond a reasonable doubt that he was the perpetrator, and he suggested that L.D.D. had killed the victim.

To meet its burden of proof, the prosecution sought to introduce, over defendant's objections, the following evidence: (1) defendant was at the tavern on the day of the shooting, and while there, he had a small, shiny gun that he showed to a number of people and pointed at one patron's head; (2) defendant said he wanted to see what it felt like to shoot someone; and (3) defendant stated that "there's going to be some gun smoke." After a pretrial hearing, the trial court concluded that this evidence was admissible.

In the first trial, the jury submitted questions to the court regarding issues of guilt and innocence, and the trial court, on recommendation from defendant, referred the jury to the original instructions. After nearly two and a half days of deliberation, the foreman informed the court that the jury had reached a deadlock as to defendant's guilt or innocence. The trial court then declared a mistrial sua sponte and discharged the jurors. Defendant moved to dismiss on double jeopardy grounds, arguing that the trial court erred in declaring a mistrial sua sponte and in failing to poll each juror concerning the deadlock. The court denied relief.

Before the second trial, defendant renewed his motion to dismiss based on double jeopardy grounds, advancing both the arguments previously raised and the argument that the court should consider a juror's postdeliberation statement that the jury had been split eleven for acquittal and one for conviction. The court declined to consider the juror's statement under CRE 606(b) and denied the motion.

In the second trial, the jury found defendant guilty of first degree murder after deliberation, and he was sentenced to life in the DOC. This appeal followed.

I.

Defendant contends that the second trial constituted double jeopardy and his conviction therefore should be reversed. We disagree.

A.

Defendant first argues that the jury's questions in the initial trial indicated its misunderstanding of the prosecution's burden of proof, and therefore, the trial court erred in referring the jury to the original jury instructions. We are not persuaded.

The doctrine of invited error precludes a party from complaining on appeal of an error that he has injected into the case. People v. Gregor, 26 P.3d 530 (Colo.App. 2000). Active participation in the preparation of a response to a jury question, or express agreement with it, bars the participant from arguing that the response constitutes error. People v. White, 64 P.3d 864, 2002 WL 1339115 (Colo.App. No. 99CA2415, June 20, 2002)(citing People v. Bielecki, 964 P.2d 598 (Colo.App.1998)).

Here, during deliberations, the jury requested clarification of the following questions:

(1) If I cannot find Keith Rivers guilty, must I find him not guilty? (2) Do I have another choice or option between guilty and not guilty? In my mind not being able to find him guilty does not make him not guilty. (3) I want to know what happens if we feel we are deadlocked?

Defendant expressly requested that as the response to these questions, the jury be directed to the original instructions. Therefore, defendant cannot now complain that referral to the original instructions was improper.

Furthermore, United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), is not dispositive of this issue, nor is it inconsistent with our holding. There, the doctrine of invited error did not prevent the court from addressing a question raised on certiorari, although the court observed that a party's request for a particular jury instruction is one of several factors to be considered in determining the merit of an inconsistent position on appeal.

B.

Defendant contends that the trial court erred in declaring a mistrial sua sponte. The contention is unavailing.

When a jury is deadlocked, there is a "manifest necessity" to declare a mistrial and terminate the proceedings. People v. Schwartz, 678 P.2d 1000 (Colo.1984). Factors to be considered in reaching a determination that manifest necessity exists include: (1) the jury's collective opinion that it cannot agree; (2) the length of the trial; (3) the complexity of the issues; (4) the length of time the jury has deliberated; (5) whether the defendant has made timely objections to a mistrial; and (6) the effects of exhaustion or coercion on the jury. People v. Schwartz, supra. In the event of a deadlock, the court may terminate a prosecution sua sponte. Section 18-1-301(2)(b)(IV), C.R.S.2002. Thus, when a criminal trial is properly terminated by a declaration of mistrial, reprosecution of the accused is not barred by double jeopardy. People v. Schwartz, supra.

The decision to declare a mistrial is a matter of trial court discretion and will not be disturbed on appeal absent an abuse of discretion prejudicing the defendant. People v. Hayward, 55 P.3d 803 (Colo.App.2002). Some care must be taken when declaring a mistrial to confirm that the jury is in fact deadlocked. People v. Urrutia, 893 P.2d 1338 (Colo.App.1994).

After substantial deliberation, the jury submitted a note to the court reporting that they had "exhausted [their] efforts in attempting to reach a unanimous decision." Aided by suggestions from counsel, the court asked the jury whether it was deadlocked over guilt or innocence or degree of guilt. Defendant then suggested that deadlock should prompt a jury poll. The court determined that further deliberations would be futile when the foreman confirmed that the jury was deadlocked over guilt or innocence.

Because the trial court confirmed that meaningful progress toward a verdict had ceased, and it could observe first-hand the jury's responses to inquiries, we will not disturb its exercise of discretion in declaring the mistrial. See People v. Lewis, 676 P.2d 682 (Colo.1984).

C.

Defendant's contention that the jury must be polled in event of deadlock is a novel suggestion unsupported by reported decisions in Colorado.

Defendant cites Crim. P. 31(d) as support for his position that each juror should be polled by the court before declaring a mistrial. However, Crim. P. 31(d) specifically applies "when a verdict is returned" and contains no direction to poll jurors prior to a verdict. Although the rule contemplates that a juror may disagree with a verdict, thereby permitting the court to direct further deliberations or to discharge the jury, the rule contains no provision for the situation where the jury reports that it cannot, and likely will not, reach a verdict. The very reason for polling the jury—confirming that the verdict is unanimous—is obviated by the revelation that a lack of unanimity precludes a verdict.

Contrary to defendant's allegations, a court may declare a mistrial without further questioning the jury if the record supports the determination that the jury is unlikely to reach a unanimous verdict. See People v. Urrutia, supra (court properly declared a mistrial without questioning the jury in open court after receiving a note from the jury that it was deadlocked).

Here, the communications from the jurors support the determination that progress toward a unanimous verdict was unlikely. Thus, we perceive no abuse of discretion in the trial court's decision not to poll individual jurors. Cf. United States v. Jefferson, 258 F.3d 405 (5th Cir.2001)(control over the trial proceedings is within the discretion of the trial court). Indeed, the very result sought by defendant's request to poll was achieved when the court twice sent the jury back to deliberate before it was ultimately discharged.

D.

Defendant also contends that the trial court erred in finding that CRE 606(b) precluded it from considering a juror's statement when ruling on the motion to dismiss. We reject this contention.

CRE 606(b) provides, in pertinent part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict ... except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror.

Juror testimony divulging juror deliberations, thought processes, confusion, mistake, intent, or other grounds for impeaching the verdict is excluded under CRE 606(b). These restrictions emanate from the common law traditions of preserving the freedom and integrity of jury deliberations, stability in the judicial process, and finality of verdicts and of protecting jurors against annoyance, embarrassment, and coercion. Stewart v. Rice, 47 P.3d 316 (Colo.2002).

Here, defense counse...