v.

• Decision Date: 11 March 2019
• Docket Number: Supreme Court Case No. 17SC120
• Citation: 2019 CO 17
• Parties: Petitioner: Crystal Lynn Johnson, v. Respondent: The People of the State of Colorado.
• Court: Colorado Supreme Court

2019 CO 17

Petitioner: Crystal Lynn Johnson, v. Respondent: The People of the State of Colorado.

Supreme Court Case No. 17SC120

Supreme Court of the State of Colorado

March 11, 2019

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Jury Instructions—Reasonable Doubt—Burden of Proof—Due Process.

In this case, the supreme court considers whether the trial court's jury instruction defining "hesitate to act" lowered the prosecution's burden of proof in violation of due process. The supreme court holds that the instruction did not lower the prosecution's burden of proof in violation of due process. Because the instruction was nonsensical, given only once during voir dire, not referenced by either party at any time, and flanked by the proper instruction regarding the burden of proof at the beginning and end of trial, there is not a reasonable likelihood that the jury understood the instruction and applied it in a manner that lowered the prosecution's burden.

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA71

Judgment Affirmed

en banc

Attorneys for Petitioner:

Megan A. Ring, Public Defender

John Plimpton, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Carmen Moraleda, Assistant Attorney General

Denver, Colorado

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 In this appeal, we consider whether the court of appeals erred when it held that the trial court's extraneous jury instruction concerning reasonable doubt did not unconstitutionally lower the prosecution's burden of proof. During voir dire, after giving the standard definition of reasonable doubt, the trial court described how hesitating to act relates to having a reasonable doubt. While the trial court's extraneous "hesitate to act" instruction was improper, there is not a reasonable likelihood that it prejudiced the defendant. The instruction was nonsensical, given only once during voir dire, not referenced by either party at any time, and flanked by the proper instruction regarding the burden of proof at the beginning and end of the trial. Therefore, we hold that the instruction did not lower the prosecution's burden of proof in violation of due process, and we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶2 After observing Crystal Johnson conduct an apparent drug transaction, police officers followed her vehicle and initiated a traffic stop. Officers searched Johnson's vehicle and seized methamphetamine and a digital scale. Her four-year-old daughter was in the car at the time. Johnson was then arrested and charged with possession of more than two grams of methamphetamine, possession with intent to distribute, possession of drug paraphernalia, and child abuse.

¶3 Prior to jury selection, the court asked the parties if they had any matters to discuss. After discussing other preliminary matters, defense counsel, based on previous experience before this same judge, requested "that the Court not explain hesitancy to act as a person cannot possibly find the Defendant not guilty." Following a brief exchangebetween the court and defense counsel, the court denied the request. After the court and the parties finished discussing the preliminary matters, the court brought out the potential jurors to begin jury selection.

¶4 During jury selection, the court read several instructions, which it framed as six "bedrock" principles of the American criminal justice system. One of those instructions was the pattern instruction for proof beyond a reasonable doubt. Specifically, the court stated that a reasonable doubt is "a doubt that is not vague, speculative, or imaginary, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves." Then, the court elaborated on what the phrase "hesitate to act" means:

I've heard some lawyers say, "Well if you get back in the jury room and you can't come to an immediate decision you have hesitated to act." Well, that's just not true . . . . [H]esitate to act doesn't mean if you get back in the jury room and you don't come to an instantaneous verdict that you have hesitated to act. Instead what it means is that after you evaluate all the evidence and you evaluate whether or not any doubts are reasonable or not, and you talk to everybody else, and you think about it, and you deliberate, you would find Ms. Johnson guilty only if, after hearing all of that evidence, you just can't bring yourself to do it. You just have to hesitate. It's not there. You can't find her guilty because the quality or quantity of evidence just doesn't let you. That's when you've hesitated to act.

After jury selection, Johnson stood trial for three days. At the conclusion of the trial, the court provided the jury with the pattern reasonable doubt instruction, both verbally and in writing. The court did not reference its "hesitate to act" instruction again, nor did the attorneys. The jury found Johnson guilty on all three drug charges and not guilty on the child abuse charge.

¶5 Johnson appealed her conviction. As relevant here, she argued that the court's "hesitate to act" instruction lowered the prosecution's burden of proof in violation of due process. The court of appeals disagreed with Johnson in a split decision. People v. Johnson, No. 14CA0071 (Colo. App. Jan. 26, 2017). Although the majority described the trial court's "hesitate to act" instruction as "confusing" and "nonsensical," it ultimately held that, because the instruction was given only once and was "flanked by the proper reasonable doubt jury instruction," there was not a reasonable likelihood that the jury understood and applied the "hesitate to act" definition in a manner that lowered the prosecution's burden. Id. at ¶¶ 12-13, 15.

¶6 Judge Ashby dissented. She reasoned that the trial court's "hesitate to act" instruction unconstitutionally lowered the prosecution's burden for four reasons: (1) the trial court instructed "the jury to find Johnson guilty if the evidence was unconvincing enough to make the jury hesitate"; (2) the trial court "defined hesitating to act as being unable to act"; (3) the instruction "restricted the circumstances under which the jury could find Johnson not guilty to those in which the evidence did not permit a finding of guilt"; and (4) the instruction was the only time that "hesitate to act" was defined, "[a]nd appellate courts must presume that the jury followed all of the trial court's instructions." Id. at ¶¶ 31-35. After determining that the trial court erred in giving the "hesitate to act" instruction, Judge Ashby asserted that the error was structural and necessitated automatic reversal. Id. at ¶ 43.

¶7 We granted certiorari to determine whether the trial court's definition of "hesitate to act" lowered the prosecution's burden of proof in violation of due process.¹ We now hold that the instruction did not lower the prosecution's burden of proof in violation of due process, and we affirm the decision of the court of appeals.

II. Standard of Review

¶8 We review de novo the question of whether jury instructions accurately informed the jury of the law. People v. Waller, 2016 COA 115, ¶ 55, 412 P.3d 866, 877. An instruction that lowers the prosecution's burden of proof below reasonable doubt constitutes structural error and requires automatic reversal. Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993).

III. Analysis

¶9 We must determine whether the trial court's "hesitate to act" instruction lowered the prosecution's burden of proof in violation of due process. To make this determination, we first look to the reasonable doubt standard and its attendant due process considerations. Then, we examine the law on ambiguous jury instructions. Finally, we conclude that the "hesitate to act" instruction was too isolated and nonsensical to have created a reasonable likelihood that the jury understood and appliedthe instruction, and we therefore hold that the instruction did not lower the prosecution's burden in violation of due process.

A. Reasonable Doubt

¶10 In criminal cases, the prosecution is required to "prove every factual element necessary to constitute the crime charged beyond a reasonable doubt." Vega v. People, 893 P.2d 107, 111 (Colo. 1995). This requirement "dates at least from our early years as a Nation" and is nothing short of "indispensable." In re Winship, 397 U.S. 358, 361, 364 (1970). The U.S. Supreme Court has held that the Due Process Clause mandates the universal application of the reasonable doubt standard in criminal prosecutions. See id. at 364 ("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). While the standard's application is universally mandated, courts retain some flexibility in defining what constitutes a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994) ("[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt . . . the Constitution does not require that any particular form of words be used . . . .").

¶11 Courts have instructed juries on the reasonable doubt standard dating back as early as 1827. See Henderson v. Poindexter's Lessee, 25 U.S. 530, 533 (1827) ("[I]f, on the whole matter, the jury should have a reasonable doubt, then their verdict should be for the defendant."). In Commonwealth v. Webster, 59 Mass. 295 (1850), the Supreme Judicial Court of Massachusetts arguably presented the first widely accepted definition of reasonable doubt in criminal cases. Victor, 511 U.S. at 8 ("The Webster charge isrepresentative of the time when 'American courts...