People v. Urrutia

• Decision Date: 22 September 1994
• Docket Number: No. 92CA0966,92CA0966
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arthur L. URRUTIA, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1338

893 P.2d 1338

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arthur L. URRUTIA, Defendant-Appellant.

No. 92CA0966.

Colorado Court of Appeals,

Div. IV.

Sept. 22, 1994.

Rehearing Denied Nov. 3, 1994.

Certiorari Denied May 8, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErckenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Amy W. Naes, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Lindy Frolich, Ellen K. Eggleston, Deputy State Public Defenders, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Arthur L. Urrutia, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of second degree murder, first degree sexual assault, and second degree kidnapping. We affirm.

In the evening of November 15, 1989, defendant's estranged wife left the supermarket where she was employed after telling co-workers she was going to attend a pool tournament. At approximately 11:00 p.m., defendant drove to the apartment building where his brother lived and honked the horn until his brother came outside. Defendant was bleeding; his wife was lying on the back seat of the car wearing only a jacket. Defendant's brother called the police and both defendant and his wife were taken to the hospital where she was pronounced dead.

At the hospital, while waiting to go into surgery, defendant told police that he had picked up his wife from her job and that they had driven to a secluded spot where he told her that he would agree to a divorce. He stated that they then "made love," but then began to argue. He told police that she picked up a knife that he had purchased earlier that evening and began to stab him and that she received her fatal injuries in the course of an ensuing struggle for control of the knife. He related that, when he saw that she was fatally wounded, he became despondent and stabbed himself several times.

Defendant was tried on one count of first degree murder after deliberation, one count of felony murder, one count of first degree sexual assault, one count of first degree sexual assault with use of a deadly weapon, and one count of second degree kidnapping involving sexual assault. Defendant's first trial ended in a mistrial after the court concluded that the jury was deadlocked. After a second trial, defendant was found guilty of second degree murder, first degree sexual assault with use of a deadly weapon, and second degree kidnapping involving sexual assault.

I.

Defendant first argues that the trial court erred by engaging in an ex parte colloquy with the jury concerning the likelihood of reaching a unanimous verdict and by shortly thereafter declaring a mistrial without first making additional inquiry or giving appropriate instruction. He further contends that, because the mistrial was improperly declared over his objection, the subsequent re-trial on the same charges constitutes a denial of his constitutional protection against double jeopardy. We disagree. Although the trial court's ex parte discussion with the jury in the first trial was error, we conclude that the mistrial was not improperly declared and dismissal of these convictions is not required.

A.

On November 1, after the jury had deliberated for more than three days and just prior to dismissing them for the weekend, the trial court inquired of the jurors as to the state of their progress towards a unanimous verdict. Counsel was absent pursuant to an agreement that the jury could be dismissed for the weekend outside counsel's presence.

THE COURT: Members of the jury, I have been informed that you have not reached a verdict, and I am ready at this time to recess for the weekend and ask that you come back at 8:30 on Monday. Let me just ask you, [jury foreperson], is there a lik[e]lihood of progress toward reaching a unanimous verdict in this case?

[JURY FOREPERSON]: My own personal opinion, no, Sir.

THE COURT: Do you all share that opinion?

[JUROR 1]: We are working.

THE COURT: Don't get me wrong. I know you have been working, but what I want to find out is, you know, what the lik[e]lihood of you reaching a unanimous verdict is because, you know, I am not going to keep you here until Thanksgiving. I want you to resolve this if you can do that, but I have not inquired about the status of your deliberations and it's really not my place except to determine if further deliberations will be productive.

[JUROR 1]: Could I make a suggestion?

THE COURT: Yes.

[JUROR 1]: Could you ask us individually if that is possible?

THE COURT: Well, no, I don't think I will be doing that.

[JURY FOREPERSON]: We started a process this morning where we were trying to reach agreement on several parts of it. We have not gone all the way through that process.

THE COURT: Don't tell me about your process. The main thing that I want to find out is if I continue to have you deliberate, will you be productive? You have indicated no. Other people have indicated yes, and so, you know, with the idea that there is still--you're still working on it with the idea that you can reach some unanimous verdicts in your conclusion in this case, I would like to have you come back on Monday, and I can make further inquiry at that time to see whether you are.

[JUROR 2]: I think if we can finish the process that we started today which wouldn't go past Monday, we will know whether we will be able to do it.

THE COURT: That is fair enough. You have worked very hard on this case. You have been at it and worked very hard and it's a difficult process. It's a difficult thing that you people are doing, and we ask an awful lot of you in doing that, but you know, it sounds like to me at least you're working on it and working on it hard, and I know that's what you are doing. But when it reaches the point where you are not going to get it done, I need to know because I can't keep you in there forever nor do I intend to do that.

The jury was then dismissed for the weekend. The jury returned and began deliberations at 8:30 a.m. Monday, November 4. Approximately one hour later, the trial court received a written communication from the jury which read:

Nov. 4, 1991

Dear Judge Robb;

The jury is unable to reach a unanimous decision on any of the Counts 1, 2, 3, 4, 5, or 6.

Sincerely,

[Jury foreperson]

9:27 a.m.

Defense counsel requested that the court make further inquiry and instruct the jury to continue deliberating. The prosecution indicated that it did not believe further instruction was necessary but that it would not be improper. The court declined either to make further inquiry into the status of the deliberations or to give the jury any supplemental instructions, called the jury into court, declared a mistrial, and dismissed the jury.

Defendant's claim of error regarding the ex parte colloquy is twofold. He contends that the colloquy represents an improper deprivation of his right to counsel at a critical stage in the proceeding. He also contends that the trial court gave the jury coercive instructions during that colloquy which caused the jury to declare a deadlock prematurely. We agree that the court erred in speaking with the jury outside the presence of counsel about the status of deliberations. However, we conclude such error was harmless and that the court's statements did not induce the jury to become deadlocked.

1.

A defendant in a criminal case has a fundamental right to have counsel present when the court instructs the jury or responds to jury questions or at other critical stages of the trial. See Leonardo v. People, 728 P.2d 1252 (Colo.1986); People v. Roybal, 618 P.2d 1121 (Colo.1980). Here, however, counsel agreed that the court could conduct the simple administrative act of dismissing the jury for the weekend without counsel present. Nevertheless, defendant contends that this agreement did not contemplate questioning the jury as to the status of their deliberations and that such questioning constitutes error. We agree.

Once the conversation took a turn towards the issue of progress towards a unanimous verdict, the simple administrative act of dismissing the jury was transformed into a critical stage of the proceedings requiring the presence of counsel. The trial court not only received information as to the status of the deliberations which counsel would have likely considered of great interest, but also, in essence, instructed the jury to return on the following Monday and inform the court when it had reached a point at which continued efforts would not be fruitful. See Key v. People, 865 P.2d 822 (Colo.1994); Leonardo v. People, supra, 728 P.2d at 1257 ("Implicit within this right [to counsel] is the right of defense counsel to argue to the court concerning possible responses to the jury's inquiries and make objections, if desired, to those responses.").

2.

Accordingly, we must examine the ex parte discussion to determine the impact, if any, that such discussion had on defendant's right to a fair trial. See Key v. People, supra.

Defendant contends that, but for the ex parte conversation, there was a likelihood that the jury would have proceeded to agreement on an acquittal instead of declaring a deadlock and that, therefore, the error cannot be considered harmless beyond a reasonable doubt. We do not agree. In our view, nothing in the above-quoted colloquy can reasonably be construed as coercive.

Upon receiving information that a jury cannot agree on a unanimous verdict, a trial court may not expressly or impliedly authorize the jury to render a verdict wherein some members sacrifice their sincere opinions merely for the sake of reaching an agreement. Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971). See Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957, 958 (1965) (Telling the jurors that they "have got to reach a decision in this case" is coercive.); Lowe v. People, supra, 175 Colo. at 496, 488 P.2d at 561 (The...