People v. Sherman, No. 98CA2254.

• Citation: 45 P.3d 774
• Decision Date: 11 October 2001
• Docket Number: No. 98CA2254.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol SHERMAN, Defendant-Appellant.
• Court: Court of Appeals of Colorado

45 P.3d 774

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol SHERMAN, Defendant-Appellant.

No. 98CA2254.

Colorado Court of Appeals, Div. III.

October 11, 2001.

Certiorari Denied May 13, 2002.

Ken Salazar, Attorney General, Esteban A. Martinez, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Carol Sherman, appeals the judgment of conviction entered on a jury verdict finding her guilty of two counts of theft. We affirm.

Defendant was the treasurer and a sales person for a mobile home company. According to the prosecution's evidence, she stole money borrowed by two customers in connection with their attempted purchases of mobile homes.

I.

Defendant first contends the trial court denied her a fair trial by granting the prosecution's challenge for cause to a potential juror. We disagree.

To ensure a fair trial, the trial court must excuse jurors who demonstrate bias or prejudice. People v. Young, 16 P.3d 821 (Colo.2001).

Section 16-10-103(1)(j), C.R.S.2001, provides that the court must sustain challenges for cause where:

[t]he existence of a state of mind in the juror evinc[es] enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.

See also People v. Young, supra.

When reviewing the trial court's ruling on a challenge for cause, we examine the ruling for an abuse of discretion. See Carrillo v. People, 974 P.2d 478 (Colo.1999)

. The trial court is in a unique position to evaluate demeanor and body language of jurors. The abuse of discretion standard discourages appellate courts from interfering with such rulings based on a cold record. Carrillo v. People, supra; see Morgan v. People, 624 P.2d 1331, 1332 (Colo.1981) (where juror repeatedly indicated he would have difficulty applying the proper burden of proof, trial court abused its discretion by refusing to excuse him).

During voir dire, the prosecutor questioned one of the potential jurors regarding her understanding of the reasonable doubt instruction that the court had read to the panel. The prosecutor first asked the juror whether there was a distinction between reasonable doubt and "beyond all doubt." She responded that she thought they could mean the same thing. The prosecution next asked whether she thought the prosecution had to prove a crime beyond "any and all doubt in your mind." The juror replied affirmatively.

After further clarifying the meaning of reasonable doubt, the prosecution again asked the juror whether she would require the People to "prove a crime was committed beyond any and all doubt," and the juror again replied affirmatively.

At the prosecution's request, the trial court excused this juror for cause. The court gave more than one rationale for its decision to excuse her, including that she "remained firm in her belief that the evidence had to be proved beyond any and all doubt" (emphasis added)

The trial court had the benefit of viewing the juror and assessing her demeanor under all the circumstances, and we view its ruling as a determination that this juror was unwilling or unable to follow the court's reasonable doubt instruction. Accordingly, looking at the record as a whole and applying the standard established in Carrillo v. People, supra,

we perceive no abuse of discretion by the trial court in excusing this juror.

II.

Defendant next contends the trial court erred in denying her motion for mistrial because the court impermissibly elaborated on the model jury instruction regarding reasonable doubt. Although we agree part of the court's oral instruction was erroneous, we conclude reversal is not required.

At the beginning of the voir dire, the court read the model instruction on reasonable doubt to the jury panel as follows:

Reasonable doubt means doubt based upon reason and common sense which arises from a fair and rational consideration of all the evidence, or the lack of evidence, in the case. It is a doubt which is not vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

CJI-Crim. 3:04 (1983).

After the trial court dismissed one potential juror because of her misapprehension of reasonable doubt, as discussed earlier, the court attempted to clarify any confusion in the other jurors' minds by orally instructing them as follows:

You realize that the proof or the burden on the People is to prove beyond a reasonable doubt not beyond any doubt at all. And one way to look at this is that a reasonable doubt is a doubt for which you could give a reason. It's a rational, objective statement of why you feel that something hasn't been proven, or why you have a doubt. As opposed to speculating about it or just guessing that gee, I just — I don't know, I just feel like they didn't prove it. That is not good enough. The proof needs to be beyond a reasonable doubt as I defined it earlier. (emphasis added)

Defendant did not object when the court gave this oral instruction. Later, however, after the jury was sworn, she moved for a mistrial, contending that the emphasized portions of the court's oral instruction were erroneous.

A.

We conclude that the trial court erred in elaborating on reasonable doubt. Counsel have not cited, and we are unaware of, any reported Colorado case addressing the propriety of an instruction describing a reasonable doubt as "a doubt for which you could give a reason." However, this issue has been addressed by other jurisdictions. There is a split of authority whether this or a similarly worded definition of reasonable doubt is error, and if so, whether it mandates reversal of the defendant's conviction.

We have found only one jurisdiction that has held such an instruction is not erroneous. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, 687 (1996)

(court found no error in an instruction defining reasonable doubt as doubt "for which you could give a reason"; court did not refer to a "moral certainty"). But see State v. Manning, 305 S.C. 413, 409 S.E.2d 372, 374 (1991) (reversing a conviction based on three errors, including an instruction defining reasonable doubt as "a doubt for which you can give a real reason" and as a "moral certainty").

A number of other jurisdictions, in reported cases dating from 1891 to 1922, have expressly disapproved such an instruction and have concluded that defining reasonable doubt in these terms is an error requiring reversal. See Gilcoat v. State, 155 Ark. 455, 244 S.W. 723 (1922); Morgan v. State, 48 Ohio St. 371, 27 N.E. 710 (1891); Gibbons v. Territory, 21 Okla. 340, 1 Okla.Crim. 198, 96 P. 466 (1908). In holding such an instruction "inherently erroneous," these jurisdictions have explained that a juror "should not be under any legal compulsion to have to give or be able to formulate and state the reason which may raise a reasonable doubt in his mind and conscience." Gilcoat v. State, supra, 155 Ark. at 465, 244 S.W. at 727 (quoting Klyce v. State, 78 Miss. 450, 454, 28 So. 827, 828 (1900)).

In more recent cases, several jurisdictions have criticized the use of such language in the reasonable doubt instruction, but have held reversal was not automatically required. See Ex parte McWilliams, 640 So.2d 1015 (Ala.1993)

(criticizing instruction that defines reasonable doubt as a "doubt for which you can give a reason," but determining that the instruction as a whole was not infirm); Sulie v. State, 269 Ind. 204, 379 N.E.2d 455 (1978) (accepting such an instruction when not coupled with other erroneous instructions, and distinguishing Siberry v. State, 133 Ind. 677, 33 N.E. 681 (1893), which reversed defendant's conviction based on several improper instructions); State v. Hudson, 286 N.J.Super. 149, 668 A.2d 457, 459 (1995) (stressing that "portions of a charge alleged to be erroneous cannot be evaluated in isolation," court disapproved judge's comments but was convinced "the remarks were not capable of producing an unjust result").

We are persuaded by those jurisdictions that have disapproved instructions advising the jury that a reasonable doubt is a doubt for which one could give a reason, because it imposes on jurors the requirement that they not only maintain a reasonable doubt regarding a defendant's guilt, but also articulate a reason for that doubt. Further, Colorado's model jury instruction does not contain such a requirement. See CJI-Crim. 3:04.

B.

However, we reject defendant's contention that the oral instruction violated her constitutional right to due process.

In support of this contention, defendant relies on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), in which the United States Supreme Court held that a Louisiana jury instruction on reasonable doubt violated the Due Process Clause of the United States Constitution because it lowered the threshold of doubt necessary to convict the defendant. The reasonable doubt instruction there equated reasonable doubt with "grave uncertainty" and "actual substantial doubt," and the Court concluded the instruction, when considered in reference to "moral certainty," violated the defendant's right to due process. See also Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)

(erroneous reasonable doubt instruction was structural error mandating reversal).

Although the holding in Cage remains intact, the standard for reviewing jury instructions enunciated in Cage was later disapproved by the Court in ...