People v. Wadle, No. 03SC340.

Decision Date13 September 2004
Docket NumberNo. 03SC340.
Citation97 P.3d 932
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Deborah WADLE, Respondent.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Catherine P. Adkisson, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, Colorado, Burke & Neuwirth, P.C., Dean Neuwirth, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

The People sought review of the court of appeals' judgment in People v. Wadle, 77 P.3d 764 (Colo.App.2003), reversing the defendant's conviction for child abuse resulting in death. The district court rejected the defendant's motion for new trial, which alleged improper consideration by the jury of information acquired through the Internet, after the evidence was closed and deliberations had already begun. That information briefly described the characteristics and uses of a prescription drug being taken by the defendant. Although the jury's misconduct and its exposure to extraneous information were clearly established, the district court declined to order a new trial, finding there to be no reasonable possibility that the extraneous information affected the verdict.

Because the court of appeals applied a proper legal standard and correctly determined that there indeed was a reasonable possibility that the extraneous information would have affected the verdict of a typical jury, its judgment is affirmed.


Deborah Wadle was charged with first-degree murder and child abuse resulting in death, following the death of her four-month-old step-grandson. At her first trial, Wadle was acquitted of first-degree murder, but the jury failed to reach a verdict on the additional, child abuse charge. At a second trial, she was convicted of child abuse resulting in death and was sentenced to a mandatory minimum term of sixteen years in the Department of Corrections.

It was undisputed that the infant had been in the defendant's sole care when she called 911 to report that he had stopped breathing. Because no one else was present and the infant exhibited no external signs of trauma, evidence of the cause of death (apart from the defendant's testimony that she never shook him) was presented entirely through medical experts — nine for the prosecution and eight for the defense. The prosecution sought to explain the child's death as the result of shaken baby syndrome; the defense, as the result of a seizure and subsequent choking on the child's own vomit.

The defendant's husband, who arrived home in time to help with the attempt to resuscitate the infant, was also called as a witness by both the prosecution and the defense. In response to prosecution questioning, he conceded that his wife was taking medication for stress at the time the death occurred. Later, as a witness for the defense, he explained, in the course of direct- and cross-examination, that the medication to which he referred was an anti-depressant called Paxil; that it made the defendant less exuberant or lively; and that the defendant had not told her friends about the medication. The defendant herself explained, in response to questions posed by the prosecution during her own cross-examination, that she sometimes took Paxil for holiday-related stress, including on the day in question, and she admitted that she never made this known to her friends. Neither prosecution nor defense pursued the matter further.

During its deliberations, the jury sent a note to the court, asking why a doctor would prescribe Paxil instead of another anti-depression or anti-anxiety drug and requesting a copy of the Physician's Desk Reference. The court responded that supplying reference materials of any kind to a jury was prohibited, and it referred the jury back to its instructions. The following day, the jury returned a verdict of guilty.

The morning after the verdict was received, two jurors contacted the court and informed it that after it denied the jury's request for a Physician's Desk Reference, a third juror researched and downloaded from the Internet a definition of Paxil. These two jurors expressed their concern that their review of the Internet definition violated the court's instructions. After notifying counsel, the trial court examined all three jurors. Among other things, the jurors' testimony indicated that despite the court's admonition, one of them searched the Internet, found a description of Paxil and its uses, and shared that description with the other jurors.

The juror who injected the extraneous information apparently reconstructed his search and testified that the description consisted of the following two, short paragraphs:

Paroxetine (pa-ROX-uh-teen) is used to treat mental depression, obsessive-compulsive disorder, panic disorder, and social anxiety disorder (also known as social phobia).
Paroxetine belongs to a group of medicines known as selective serotonin reuptake inhibitors (SSRIs). These medicines are thought to work by increasing the activity of the chemical serotonin in the brain.

Following this testimony, the defendant moved for a new trial. Although the trial judge and the prosecution both agreed with the defendant that juror misconduct was clear, the court denied the motion, finding that there was no reasonable possibility the extraneous information affected the verdict.

In reaching this conclusion, the trial court reasoned that the reference to "mental depression" in the description of Paxil was not contradictory of any testimony elicited at trial by the defense and that the extraneous information had no impact of significance on the jurors. Based on the jurors' testimony, it found that the Internet information failed to confirm the earlier statements of a fourth juror who told the others, from her own experience as an emergency medical technician, that Paxil was used for more serious conditions; that a juror who clearly understood the Internet information to confirm that Paxil was used for violent cases was simply mistaken; and that the Internet information did not actually engender further debate about the conditions for which Paxil might be prescribed.

The court of appeals reversed, disapproving the trial court's approach and finding a reasonable possibility that the extraneous information did influence the verdict to the defendant's detriment. Distinguishing the introduction of evidence to establish extraneous influences on a jury, from the introduction of evidence to demonstrate how the improperly received information was actually used by the jurors in their deliberative process, the appellate court looked to the possible effects of the extraneous information on a typical jury, in light of the record of trial and the jury's communication with the court. Noting especially the number of conflicting expert opinions offered at trial; the jurors' concerns (as evidenced by their earlier note) about the decision to prescribe Paxil and what that decision implied about the defendant's disposition and behavior; and the inferences that could be drawn by average jurors, without specialized knowledge or further explanation, from psychiatric terms like "obsessive-compulsive disorder," "panic disorder," and "social phobia," the appellate court concluded that the trial court erred as a matter of law in discounting the likelihood that the verdict was affected by the extraneous information.

The People petitioned for a writ of certiorari to address, in particular, the appropriate standard for reviewing the trial court's initial determination that there was "no reasonable possibility" that the extraneous information influenced the verdict.


It is well-settled that the exposure of a jury to information or influences outside of the trial process itself, whether or not that exposure occurred as the result of deliberate juror misconduct, may require reversal of a criminal conviction. See Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)

(jury verdict must be based on evidence developed at trial); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) ("presumption of prejudice" arises from private, third-party contacts with jurors); Wiser v. People, 732 P.2d 1139, 1141 (Colo.1987) (improper to use dictionary for definition of legal terms and to ask outside parties about the source of jury instructions); see generally 5 Wayne R. LaFave et al., Criminal Procedure § 24.9(f) (2d ed.1999). The precise circumstances under which particular contacts, information, or influences will require a new trial and the manner in which that determination should be made is, however, less well-settled. Compare United States v. Cheek, 94 F.3d 136 (4th Cir.1996) (explaining and applying Remmer's"presumption of prejudice" to "extrajudicial communications and contacts," whenever they amount to more than "innocuous interventions," and permitting rebuttal of the presumption only by a demonstration that there exists no reasonable possibility they influenced the verdict) with United States v. Williams-Davis, 90 F.3d 490 (D.C.Cir.1996) (rejecting application of Remmer's"presumption of prejudice" to juror contact with third parties, exposure to media reports, use of dictionary, failure to fully disclose during voir dire, and having pre-deliberation discussions, in light of subsequent holdings in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and adoption of FRE 606(b); and noting differences in treatment of jury exposure to outside source material in five other federal circuits); cf. Carpenter v. Gomez, 516 U.S. 981, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995) (Stevens, J., respecting the denial of the petition for writ of certiorari...

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