People v. Rizo
| Decision Date | 14 April 2011 |
| Docket Number | No. 09CA1140.,09CA1140. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Martha RIZO, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Harvey Law Firm, Cynthia A. Harvey, Castle Rock, Colorado, for Defendant–Appellant.
Opinion by Judge BERNARD.
Defendant, Martha Rizo, was convicted by a jury of class two felony sexual assault. The evidence established that she assisted her boyfriend in perpetrating the crime.
Defendant appeals the judgment of conviction, raising two arguments. First, she argues that the jury that convicted her was “anonymous,” and, therefore, her rights to a public trial, a fair and impartial jury, due process, and equal protection were violated. Second, she contends that statements she made to the police on the morning after the assault should have been suppressed because she was not advised of her Miranda rights. We are not persuaded by either contention. Therefore, we affirm.
The prospective jurors here filled out questionnaires before they were called into the courtroom. These questionnaires, which were distributed to the court, the prosecution, and the defense, contained the jurors' first and last names, addresses, ages, telephone numbers, and occupations.
Outside the jury panel's presence, the trial court informed the attorneys that they were not to refer to the jurors by name in the courtroom. Rather, the court instructed them to refer to the jurors by their juror numbers. Neither side objected.
The trial court called all the prospective jurors into the courtroom. The court made several introductory remarks describing the process of a trial, including these:
Before you came into the courtroom ... each of you filled out a questionnaire. We have reviewed those questionnaires and we will ask questions of some of you individually back in my office....
Some of you may be able to see that there is a number that is affiliated with each of the seats [in the jury box]. Once you come up to the jury box, we will refer to you by your seat number as opposed to your name and I'll explain that in more detail when we start general voir dire.
The court told the prospective jurors that the court and counsel wished to speak with several jurors. The court then called the first name, last name, and juror number of about fifteen of them. The court and counsel questioned them individually in chambers about issues raised by information in their questionnaires. One of these people eventually sat as a juror.
After these private interviews, the parties and the court began to select the jury. Outside the jury panel's presence, but in open court and orally on the record, the court listed the first name, the last name, and the juror number of twenty-five of them.
Once the jurors entered the courtroom, these twenty-five prospective jurors took seats in the jury box. The trial court then told them:
I will be referring to you by your seat number as opposed to your last name. As you can now see, my reporter types very quickly, and she is writing everything down that is said in court. It makes a much cleaner record if we refer to you by your seat number rather than your surname. It's not done out of disrespect or being discourteous to you[;] it is to make sure that the record is more clearly taken.
The court, addressing the jury panel a short time later to describe the procedure to be taken during breaks, added:
We have a seating chart that has your name affiliated with each of the chair numbers and we need to keep all of you in the same position in the seating chart that you now occupy.
Thereafter, in open court, but outside the jury panel's presence, the court listed replacements—by first name, last name, and juror number—for those who had been removed for cause or by use of a peremptory challenge.
Because defendant did not raise this issue below, we review it to determine whether the court committed plain error. People v. Miller, 113 P.3d 743, 749 (Colo.2005). Plain error is error that is obvious and substantial and “so undermine[s] the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction.” Id. at 750 (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)).
“Generally, an ‘anonymous jury’ describes a situation where juror identification information is withheld from the public and the parties themselves.” State v. Sandoval, 280 Neb. 309, 325–26, 788 N.W.2d 172, 195 (2010). The concept of an anonymous jury arose in the federal courts and was first used to protect jurors from dangerous defendants. See People v. Williams, 241 Mich.App. 519, 522–23, 616 N.W.2d 710, 713 (2000). Use of anonymous juries has expanded and courts now consider several factors when determining if an anonymous jury is appropriate, such as
(1) the defendant's involvement in organized crime; (2) the defendant's participation in a group with the capacity to harm jurors; (3) the defendant's past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.
Sandoval, 788 N.W.2d at 196 (collecting federal cases).
Although “these are concerns commonly present in cases ... where courts have upheld the use of an anonymous jury ... [o]ther circumstances may also justify its use.” United States v. Branch, 91 F.3d 699, 724 (5th Cir.1996). Therefore, “courts should look to the ‘totality of the circumstances' ” when determining the propriety of an anonymous jury. Id. (quoting United States v. Ross, 33 F.3d 1507, 1521 n. 26 (11th Cir.1994)).
Even when justified, the impaneling of an anonymous jury can impair the rights of a defendant in two ways. First, such a jury “may interfere with defendants' ability to conduct voir dire and to exercise meaningful peremptory challenges, thereby implicating defendants' Sixth Amendment right to an impartial jury.” United States v. Shryock, 342 F.3d 948, 971 (9th Cir.2003). Second, “[a]n anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence.” United States v. Mansoori, 304 F.3d 635, 650 (7th Cir.2002)(quoting Ross, 33 F.3d at 1519).
In certain cases, the parties have access to identifying information, but the jurors are always referred to by number rather than by name. These are called “numbers” juries. See Sandoval, 280 Neb. at 326, 788 N.W.2d at 195.
Defendant contends on appeal that the jury in her case was “anonymous.” She argues that the use of an anonymous jury (1) denied her right, under the Sixth Amendment and Colo. Const. art. II, § 16, to a public trial before an impartial jury; (2) denied her right to due process because jury anonymity was not necessary to protect jurors from harm or improper influence; (3) denied her right to due process because the use of an anonymous jury would adversely affect the presumption of innocence by tainting the jurors' view of her; and (4) violated her right to equal protection of the law because other defendants in the same and other jurisdictions were not tried by anonymous juries.
We need not address these issues because we conclude that defendant's fundamental premise is flawed: she was not tried by an anonymous, or even a “numbers,” jury. Therefore, we hold that there was no error at all, let alone plain error.
We reach this conclusion because:
• The trial court, the prosecution, and the defense knew the prospective jurors' first and last names and their addresses, telephone numbers, ages, and occupations because this information was included in the questionnaires.
• The prospective jurors were aware that the court and the parties had this information because the court told them that (1) their questionnaires had been reviewed; and (2) the court and the parties had a seating chart in which the jurors' names had been placed next to their seat numbers.
• The public knew the prospective jurors' names because those names were announced in open court.
• The jurors had no reason to believe that their names would not be used in court because the trial court listed fifteen names, in the jury panel's presence, of prospective jurors who would be asked to speak with the court and counsel in chambers. One of those prospective jurors served on the jury.
• The court's explanation for referring to prospective jurors by number did not implicate the presumption of innocence because it did not suggest that defendant was a dangerous person. Rather, the court stated that this procedure would assist the court reporter by “mak[ing] sure that the record is more clearly taken.”
In reaching this conclusion, we recognize that another division of this court recently held that a jury was a “numbers” jury when prospective jurors were simply referred to by number. People v. Robles, 302 P.3d 269, 276–77 (Colo.App.2011). In that case, as here, the jury was not anonymous because the defendant had access to the prospective jurors' identifying information. Id. at 274–75. However, this case is readily distinguishable from Robles in three important respects.
First, there was no explanation offered to the prospective jurors in Robles for why numbers would be used rather than names. That happened here. Further, the explanation given here did not adversely affect the presumption of innocence.
Second, there was no indication in Robles that the trial court made the prospective jurors' identities public by announcing their names in open court. That happened here.
Third, there was no...
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Rizo v. People
...to life in prison. The court of appeals affirmed her conviction and sentence in a published opinion. People v. Rizo, No. 09CA1140, 302 P.3d 284, 2011 WL 1419653 (Colo.App. Apr. 14, 2011) (selected for official publication). ¶ 7 Because we find that this was not an anonymous jury and that Ri......