v. Avila
Colo. Ct. App.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 12, 2019
2019COA145
No. 17CA1299, People v. Avila — Criminal Law; Juries —
Challenges for Cause — Compensated Employee of a Public Law
Enforcement Agency
In this appeal of a defendant’s criminal conviction, a division
of the court of appeals considers whether a prospective juror who is
employed by the Colorado Office of Prevention and Security’s
“fusion center” is a “compensated employee of a public law
enforcement agency.” The division answers “no” and, after
addressing defendant’s remaining contentions, affirms the
judgment of conviction.
COLORADO COURT OF APPEALS 2019COA145
Court of Appeals No. 17CA1299
Adams County District Court No. 16CR185
Honorable Sharon D. Holbrook, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tina Louise Avila,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE HAWTHORNE
Taubman and Grove, JJ., concur
Announced September 12, 2019
Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Is a prospective juror who is employed by the Colorado Office
of Prevention and Security’s “fusion center” a “compensated
employee of a public law enforcement agency?” We answer “no,”
and after addressing the remaining contentions of defendant, Tina
Louise Avila, we affirm the judgment of conviction entered on jury
verdicts finding her guilty of possessing a controlled substance and
resisting arrest.
I. Factual Background and Procedural History
¶2 Avila was at a bar early one morning, and the staff asked her
to leave. She refused, they argued, and the staff called police. Avila
was outside the bar when police arrived. She appeared upset and
intoxicated, and told the officers about the argument. Without
prompting, Avila said, “I don’t have anything on me” and “you don’t
have shit on me.” Avila avoided making eye contact with the
officers and put her hands in her pockets numerous times, even
after being told not to do so by the officers.
¶3 One officer conducted a pat-down search of Avila, and she
became agitated, again telling the officer that she didn’t have
anything on her. When the officer reached toward Avila’s pocket,
she resisted, and the officer arrested her.
1
¶4 The arresting officer took Avila to jail, where another officer
searched her. That officer found a small piece of white paper with a
powdery substance in it. The substance was sent to the Colorado
Bureau of Investigation (CBI), where an analyst tested it and
identified it as cocaine.
¶5 The arresting officer and the analyst testified at trial for the
prosecution. The arresting officer said that he believed the white
paper was found in Avila’s bra or pocket, but he wasn’t positive
which one. The analyst said he was unable to weigh the cocaine
because it coated the inside of the plastic bag used to store it, so he
could only shake out a portion of the material to test.
¶6 The jury convicted Avila of possessing a schedule II controlled
substance and resisting arrest.
II. Sufficient Evidence Supported the Possession Conviction
¶7 Avila contends that insufficient evidence supported her
conviction for possessing a controlled substance. “Because this is a
dispositive issue,” we address it first and conclude that the evidence
was sufficient. People v. Rawson, 97 P.3d 315, 323 (Colo. App.
2004), as modified on denial of reh’g (May 6, 2004).
2
A. Standard of Review and Applicable Law
¶8 We review the evidence’s sufficiency de novo. People v. Davis,
2012 COA 56, ¶ 11. ¶9 Constitutional due process requirements prohibit a defendant’s criminal conviction except on proof of guilt beyond a reasonable doubt. People v. Serra,2015 COA 130
, ¶ 18. To determine whether sufficient evidence supported a conviction, we ask “whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty . . . beyond a reasonable doubt.” Clark v. People,232 P.3d 1287
, 1291 (Colo. 2010) (citation omitted). ¶ 10 We must afford the prosecution the benefit of every reasonable inference that may be fairly drawn from the evidence.Id. at 1292.
These inferences must be supported by a “logical and convincing connection between the facts established and the conclusion inferred.” People v. Perez,2016 CO 12
, ¶ 25. But inference may not rest on inference, People v. Ayala,770 P.2d 1265
, 1268 (Colo.
3
1989), nor can an inference “be supported by guessing, speculation,
conjecture, or a mere modicum of relevant evidence.” Perez, ¶ 25.
¶ 11 “[I]t is unlawful for a person knowingly to possess a controlled
substance,” § 18-18-403.5(1), C.R.S. 2018, which includes cocaine.
§ 18-18-204(2)(a)(IV), C.R.S. 2018. And a jury may return a guilty
verdict “if it finds, beyond a reasonable doubt, that the defendant
knowingly possessed any quantity of a controlled substance.”
Richardson v. People, 25 P.3d 54, 58 (Colo. 2001) (citing People v. Ceja,904 P.2d 1308
, 1310 (Colo. 1995)). Where there is “evidence of a usable quantity,” that “alone is sufficient evidence of knowledge to permit the case to go to a jury.”Id. But if
“the quantity involved is so minute that it amounts to only a trace, there is no basis, from that fact alone, for any logical or reasonable inference that the defendant had knowledgeable possession.” People v. Theel,180 Colo. 348
, 350,505 P.2d 964
, 966 (1973); seeCeja, 904 P.2d at 1311
(“Absent a usable quantity, the prosecution must present
other evidence from which a jury can reasonably infer knowledge.”).
B. Analysis
¶ 12 Avila asserts that the evidence established she only possessed
a “mere residue of cocaine,” and the prosecution didn’t present
4
sufficient additional evidence from which the jury could infer that
she knowingly possessed it.
¶ 13 The analyst testified at trial that he couldn’t weigh the
substance because it was inside “a heat sealed bag . . . with static
electricity. It was coating the inside of the bag. So I could only
shake out a little bit of the material. My report calls it a residue.”
When asked if there was enough material to adequately test it, the
analyst responded, “Oh yes, there was.” The analyst’s report,
admitted at trial, described the substance as “.5 [g]rams of white
cocaine powder substance” and “a schedule II controlled substance
residue.”
¶ 14 The record evidence doesn’t establish whether the cocaine
powder found on Avila was a usable quantity. While the analyst’s
report states the substance’s weight, the analyst said at trial that
he didn’t actually weigh it. And the substance itself isn’t in the
appellate record. But our supreme court has found as little as 0.16
grams of cocaine to be a usable quantity. People v. Stark, 691 P.2d
334, 337-39 (Colo. 1984) (“The amount of cocaine seized, while not
a large weight, was a usable quantity and not a ‘mere trace.’”)
(citation omitted).
5
¶ 15 But even if we assume the evidence didn’t establish that the
cocaine powder found on Avila was a usable quantity, other
sufficient evidence supported the jury’s finding that Avila knowingly
possessed it.
¶ 16 When officers contacted Avila, she acted evasively by refusing
to make eye contact with them and continuing to put her hand in
her pocket despite being ordered by one officer not to do so. And
she made unprompted statements that she didn’t have anything on
her. See Ceja, 904 P.2d at 1311 (“[T]he prosecution introduced evidence that [defendant] . . . acted in an evasive manner when confronted by the police officer.”); see also People v. Richardson,8 P.3d 562
, 564 (Colo. App. 2000) (“A reasonable fact finder could infer that his . . . denial was motivated by his guilty knowledge of the existence of the drug within the wallet.”), aff’d,25 P.3d 54
(Colo. 2001). She also acted confrontationally toward the officers, resisted one officer’s attempt to search her, and resisted arrest. See People v. Yeadon,2018 COA 104
, ¶ 28 (sufficient evidence existed
for jury to infer that defendant knowingly possessed
methamphetamine where, in part, “[t]he evidence demonstrated
that . . . [defendant] fled from the accident” where the
6
methamphetamine was found) (cert. granted Mar. 25, 2019). From
this evidence, the jury could have inferred that Avila knowingly
possessed the cocaine powder found on her later.
¶ 17 Also, the paper wrapping holding the cocaine, described as a
“bindle” at trial, was found on Avila, and the arresting officer
testified that he thought it was either in her bra or in a pocket. The
jury could also have inferred knowing possession from the cocaine’s
location and packaging. See Richardson, 8 P.3d at 564 (“The methamphetamine was packaged in a manner to preserve it, and it was located in a wallet containing several documents identifying defendant.”); see alsoCeja, 904 P.2d at 1311
(“[T]he prosecution
introduced evidence that Ceja owned the fanny pack in which the
cocaine was found[.]”).
¶ 18 Viewing this evidence in the light most favorable to the
prosecution, including all reasonable inferences fairly drawn from
it, we conclude sufficient evidence supported the jury’s finding that
Avila knowingly possessed the cocaine.
7
III. The District Court Didn’t Err in Declining to Strike Prospective
Juror E.D. for Cause
¶ 19 Avila contends the district court erred in denying her
challenge for cause as to prospective juror E.D. because (1) he was
legally biased as a “compensated employee of a public law
enforcement agency” under section 16-10-103(1)(k), C.R.S. 2018;
and (2) he was actually biased. We disagree as to the first
contention and don’t address the second one.
A. Standard of Review and Applicable Law
¶ 20 We review de novo whether a prospective juror is a public law
enforcement agency’s compensated employee. People v.
Sommerfeld, 214 P.3d 570, 572 (Colo. App. 2009). ¶ 21 We agree with the People that, at trial, Avila didn’t challenge the prospective juror for cause based on actual bias. Thus, this challenge is waived, and we don’t address it. See Crim. P. 24(b)(2); People v. Romero,197 P.3d 302
, 305 (Colo. App. 2008) (“The
challenge is waived, however, if it is not made before the jurors are
sworn in.”).
¶ 22 A trial court must sustain a challenge for cause to any
prospective juror who is a public law enforcement agency’s
8
compensated employee. § 16-10-103(1)(k); accord Crim. P.
24(b)(1)(XII). A public law enforcement agency is “a division or
subdivision of state or federal government that has the authority to
investigate crimes and to arrest, prosecute, or detain suspected
criminals.” People v. Bonvicini, 2016 CO 11, ¶ 11; Ma v. People,121 P.3d 205
, 210 (Colo. 2005). Numerous government agencies are statutorily designated as public law enforcement agencies, including “any police department, sheriff’s department, or district attorney’s office; the office of the state attorney general; the Colorado bureau of investigation[]; and the Colorado state patrol.” People v. Speer,255 P.3d 1115
, 1121 (Colo. 2011). ¶ 23 But “simply because a state or federal agency holds investigative powers or has contact with law enforcement personnel does not render the agency a ‘public law enforcement agency’ within the meaning of the statute.” People v. Urrutia,893 P.2d 1338
, 1345 (Colo. App. 1994). The agency’s predominant purpose or mission must also be considered. SeeSpeer, 255 P.3d at 1122
(“Neither [the
United States Department of Homeland Security or the
Transportation Safety Administration] has as its predominant
purpose or mission the enforcement of penal laws.”); People v.
9
Carter, 2015 COA 24M-2, ¶ 20 (“Although the [Colorado Public Utilities Commission] has some authority to arrest and investigate a limited assortment of criminal violations, its primary functions involve the civil regulation of public utilities, services, and rates.”); People v. Simon,100 P.3d 487
, 491 (Colo. App. 2004) (“[T]he [Environmental Protection Agency] is properly characterized as an investigatory and rulemaking body, and not a law enforcement agency[.]”). If an agency’s law enforcement authority “is not merely incidental to but is an integral part of its essential functions,” that supports a conclusion that it’s a public law enforcement agency.Sommerfeld, 214 P.3d at 573
. ¶ 24 We focus on “the nature of the employing agency rather than the specific duties of the venireman in question”; thus, “that the job description of any particular venireman may not directly involve law enforcement functions is not dispositive of his ability to sit.”Speer, 255 P.3d at 1120-21
; see People v. Scott,41 Colo. App. 66
, 68,583 P.2d 939
, 942 (1978) (concluding that challenges for cause to a
counselor and baker employed by the Colorado State Penitentiary
should have been sustained).
10
B. Additional Facts
¶ 25 At trial, defense counsel raised her concern that prospective
juror E.D. was employed by a public law enforcement agency, and
the court conducted an in camera hearing with counsel. At the
hearing, E.D. stated that he worked for “the State Homeland
Security Fusion Center,” whose role is to provide “analytical support
to investigations throughout Colorado and law enforcement
agencies . . . across the state.” He further specified that “[i]f any
agency requests services, much like CBI, if they request a driver’s
license photo request, or any workups on individuals, they can
request it from us.” He also said that the fusion center provides
“[c]riminal background history . . . . If [an agency] want[s] us to
look at GPS data . . . we can do analysis for that. If they are doing a
high-risk warrant [and] want a law enforcement workup on an
individual to see if there [are] any dangerous things in their
criminal history, we can do [that.]” He also said his daily work
“involves taking law enforcement reports from those criminal justice
agencies, law enforcement agencies, and redirecting them to law
enforcement across the state.”
11
¶ 26 E.D. was asked if he worked with non-law enforcement
agencies, and he responded that he also worked with “emergency
medical” and “all public safety agencies.” When asked whether his
work required having “contact with criminals,” he responded that
“[w]e don’t do investigation. We do analytical support. We don’t
have an investigatory side of our office. If an agency requests
pulling background information, we can do that. We can’t initiate
an investigation or conduct investigation unless we are working
with the agency.” When asked if his agency’s role had changed over
time, he noted that an “auto theft coordination center was created
inside of our office. They look at auto theft across the State of
Colorado, along with a couple other functions. . . . [W]e are [also]
doing more strategic functions, looking at . . . drug trafficking
organizations . . . .” The court asked E.D. if his agency investigated
crimes, and he replied: “We [aren’t] lead investigators.” He then
provided an example of his work, where a police department
“wanted to have . . . support because they had cell phone pings that
they wanted mapped. They requested us to do those mappings and
link analysis. . . . So once we finished it, we handed it to [the police
department.]”
12
¶ 27 Defense counsel asked E.D. how the fusion center compared
to CBI, to which he responded,
CBI has statutory authority to conduct
investigation[s] if agencies ask. We can’t
conduct investigations. We can just support
the investigator. So if they request
background checks, driver’s license photos,
any of that, they have to request it of us. We
can give it to them. Unlike CBI, where they
can bring in CBI, conduct investigation with
them. We can’t do it without the local agency.
The court followed up by asking, “[Y]ou don’t arrest anyone,
prosecute anyone, [or] detain anyone?” E.D. responded, “Negative.”
¶ 28 Defense counsel argued that E.D. worked for a public law
enforcement agency because he primarily worked with law
enforcement officers investigating crimes, which was the agency’s
main purpose. The court disagreed, finding that E.D. and his
agency didn’t perform “any of the traditional law enforcement
functions[.]” It denied defense counsel’s request to strike E.D. for
cause. Defense counsel later exhausted her peremptory strikes.
C. Analysis
¶ 29 Avila asserts that E.D.’s employer, “[t]he Homeland Security
Fusion Center[,] is a public law enforcement agency . . . because its
primary mission is to enforce criminal laws.”
13
¶ 30 The General Assembly created the Office of Prevention and
Security (OPS) within the Colorado Division of Homeland Security
and Emergency Management (DHS). § 24-33.5-1603(2)(b), C.R.S.
2018. OPS is tasked with “[o]perating the state’s fusion center,” as
well as “[e]nhancing interagency cooperation through information
sharing” and “[d]eveloping and maintaining, through cooperation
with other tribal, state, local, regional, and federal agencies, a
standardized crisis communication and information-sharing
process.” § 24-33.5-1606(2), C.R.S. 2018.
¶ 31 The fusion center is defined as “the program administered by
[OPS] . . . that serves as the primary focal point within the state for
receiving, analyzing, gathering, and sharing threat-related
information among federal, state, local, tribal, nongovernmental,
and private sector partners.” § 24-33.5-1602(8), C.R.S. 2018.
¶ 32 We conclude that the fusion center isn’t a “public law
enforcement agency” under section 16-10-103(1)(k) because it isn’t
a “police-like division of government that has the authority to
investigate crimes and to arrest, to prosecute, or to detain
suspected criminals.” Ma, 121 P.3d at 211; seeRomero, 197 P.3d at 307
(collecting cases and noting that prior case law had found an
14
agency was not a public law enforcement agency when it “did not
have the authority to arrest, prosecute, or detain suspected
criminals, or any such authority was entirely incidental to the
agency’s essential functions”).
¶ 33 While the fusion center, as E.D. described it, provides
investigatory support to law enforcement officials, it doesn’t have
the authority to investigate crimes on its own. Any such support is
only provided after it’s requested by law enforcement officials. As to
the broader “strategic” initiatives, such as “looking at” statewide
auto theft and drug trafficking, it’s unclear whether investigations
are conducted without request. E.D. said that the fusion center
cannot “initiate an investigation or conduct investigation unless we
are working with [an] agency.” During the in camera review, the
court followed up by asking “when you say that if the agency
requests it of you to do an investigation, it sounds to me that [it’s]
just the data and the analytical support, you are not reaching
conclusions, you are giving the information to the agency for them
to reach a conclusion?” E.D. agreed.
¶ 34 So the record doesn’t support concluding that the fusion
center has the authority to investigate crimes.
15
¶ 35 The record also doesn’t support concluding that the fusion
center has the authority to “arrest, prosecute, or detain suspected
criminals.” Bonvicini, ¶ 11. E.D. denied having any authority to
arrest, prosecute, or detain anyone. See Speer, 255 P.3d at 1122
(“[T]he prospective jurors denied having any authority to detain or make arrests. . . . Neither juror gave the slightest indication that their employing unit prosecuted suspected criminals[.]”); People v. Zurenko,833 P.2d 794
, 796 (Colo. App. 1991) (“While certain
personnel of DSS [the Department of Social Services] investigate
complaints of abuse, these personnel have no power to arrest or
prosecute offenders. Thus, the trial court did not err by refusing
defendant’s challenge for cause to the juror employed by DSS.”).
¶ 36 Also, the fusion center’s purpose, while somewhat related to
law enforcement, isn’t to enforce criminal laws. Instead, it “serves
as the primary focal point within the state for receiving, analyzing,
gathering, and sharing threat-related information.” § 24-33.5-
1602(8). Prospective juror E.D. said that the fusion center works
with “emergency medical” and “all public safety agencies” in
addition to law enforcement agencies. While the work he described
mostly involved assistance to law enforcement agencies, an agency
16
having “contact with law enforcement personnel” doesn’t alone
“render the agency a ‘public law enforcement agency’ within the
meaning of the statute.” Urrutia, 893 P.2d at 1345. ¶ 37 Further, the fusion center isn’t DHS’s or OPS’s “law enforcement branch.”Ma, 121 P.3d at 212
. Nor are its employees “trained and authorized to arrest suspected criminals, to investigate crimes, and to detain prisoners.”Id. Thus, the
fusion center’s “predominant purpose or mission” isn’t “the enforcement of penal laws.”Speer, 255 P.3d at 1122
. ¶ 38 While OPS’s manager is a statutorily designated peace officer, § 24-33.5-1606(1)(b), OPS and fusion center employees aren’t, unlike CBI agents. Compare § 24-33.5-1606(1)(b) (OPS’s manager is a designated peace officer), with § 16-2.5-113, C.R.S. 2018 (designating CBI’s director and CBI “investigation agent[s]” as peace officers). Regardless, an agency’s employees being “classified by statute as ‘peace officers’ while engaged in their duties is not determinative.” Carter, ¶ 17. ¶ 39 Because we focus on the nature of the employing agency rather than the specific duties of the prospective juror in question,Speer, 255 P.3d at 1120-21
, we conclude the fusion center isn’t a
17
public law enforcement agency, and thus the court didn’t err in
denying Avila’s challenge for cause as to prospective juror E.D.
IV. The District Court’s Reasonable Doubt Illustrations Didn’t
Violate Avila’s Due Process Rights
¶ 40 Avila contends that the district court’s reasonable doubt
illustrations during voir dire impermissibly lessened the
prosecutor’s burden of proof, violating her right to due process. We
disagree.
A. Additional Facts
¶ 41 During voir dire, the district court instructed the prospective
jurors as to the definition of reasonable doubt using an instruction
that mirrored the model jury instructions. See COLJI-Crim. E:03
(2018). The court also explained that the beyond a reasonable
doubt standard applies to every element of a charged crime. Later,
during voir dire, the court returned to reasonable doubt, describing
it as “a concept that is difficult for all of us to understand.” The
court then provided an illustration “in terms that everybody can
kind of get their head around.”
THE COURT: . . . Have you ever purchased a
home?
JUROR: Yes.
18
THE COURT: All right. If you were going to
purchase a home and you were doing the
walk-thru after you made the offer, with the
inspector, right, looking at all aspects of the
house, and you saw a little crack in the
foundation, or up in the corner of one of the
walls, what would you do?
THE JUROR: I would inquire about the crack,
why it is there.
THE COURT: . . . Exactly. In Colorado that is
common to have a few cracks here and there
with our soil, okay? If you saw a huge crack
going all the way across the slab, what would
you think, would you still want to buy the
house?
THE JUROR: No.
THE COURT: Okay. All right. That was
enough then to make you not feel comfortable
in acting in a matter of importance to yourself.
Is that fair?
THE JUROR: Yes.
....
THE COURT: . . . There is no such thing as
beyond a shadow of a doubt. It is beyond a
reasonable doubt. It is a doubt that is based
on reason, right? You could have a couple
cracks. You don’t have to know everything
about the case. None of us were there. You
told me that. None of us saw what happened.
So there is really no way to know beyond all
doubt what happened. You could still have a
reasonable doubt. There could be a few pieces
missing. They can’t be big pieces or that big
crack in the slab. Does that make sense? We
19
hold the prosecution to a high burden, but not
an unreasonable burden. Does that make
sense?
THE JUROR: Yes.
¶ 42 The court then asked another prospective juror if she
understood “reasonable doubt” and provided another illustration:
THE COURT: Are you comfortable using the
standard of beyond a reasonable doubt in
evaluating evidence?
THE JUROR: I think so. I mean, I don’t have
any experience with it, but I would say I would
be, yes.
THE COURT: Would you agree we sort of do
this all the time in our personal lives?
Everything from buying produce? How many
brown spots are too many for me to buy this
apple all the way up to the big house decision.
If it is a matter of importance to yourself. You
take a critical look at all of the surrounding
circumstances. Is that fair to say?
THE JUROR: Yes.
Avila didn’t object to the court’s illustrations.
B. Standard of Review and Applicable Law
¶ 43 We review de novo whether a jury instruction accurately
informed the jury of the law or whether, to the contrary, it
impermissibly lowered the prosecution’s burden of proof and
requires reversal. Johnson v. People, 2019 CO 17, ¶¶ 8-9.
20
¶ 44 “When reviewing an ambiguous jury instruction . . . we ask
whether there is a reasonable likelihood that the jury applied the
contested instruction in an unconstitutional manner.” Id. at ¶ 14; see Victor v. Nebraska,511 U.S. 1
, 6 (1994). “As the Supreme Court cautioned . . . attempts to further define reasonable doubt do not provide clarity. Even if well-intentioned[.]” Johnson, ¶ 19; see, e.g., Carter, ¶ 58 (“Given the case law from other jurisdictions, we will assume, without deciding, that the trial court improperly analogized the concept of reasonable doubt to a puzzle.”). ¶ 45 But we don’t consider the instruction in isolation. Johnson, ¶ 14. Instead, if “[i]n the context of the entire record . . . the trial court properly instructed the jury on the law — even with ‘objectionable language . . . [in] the trial court’s elaboration of the reasonable doubt instruction’ — then there is no violation of due process.”Id. (quoting People
v. Sherman,45 P.3d 774
, 779 (Colo. App. 2001)). So, when the trial court uses an illustration to explain the concept of reasonable doubt, we consider the illustration’s nature, scope, and timing in determining whether its use violated due process. See People v. Villa,240 P.3d 343
, 357 (Colo. App.
2009); see also Johnson, ¶ 18 (“We note that the trial court provided
21
the instruction to the jury verbally and only once. It was not
mentioned or referenced again throughout the entirety of the
proceedings, including closing arguments.”).
C. Analysis
¶ 46 We conclude that the court’s illustrations didn’t lower the
prosecution’s burden of proof because “[i]n the context of the entire
record, the trial court properly instructed the jury on the law.”
Johnson, ¶ 16.
¶ 47 The illustrations here were limited to voir dire. Neither the
district court nor trial counsel mentioned them after the jury was
selected. Also, the court properly defined the beyond a reasonable
doubt standard for the jury in accordance with the model jury
instructions, once during voir dire, and again orally and in writing
before deliberations. Id. at ¶¶ 16-18; see also People v. Van Meter,2018 COA 13
, ¶ 33 (considering an improper analogy’s brief and isolated use followed by a correct jury instruction on reasonable doubt in determining whether plain error occurred). And during closing arguments, the prosecutor and defense counsel referenced the proper reasonable doubt definition and directed the jury to follow it. See People v. Cevallos-Acosta,140 P.3d 116
, 124 (Colo.
22
Ohio App. 2005). The court also explained that the prosecutor must
prove every element of the charged offense beyond a reasonable
doubt. We presume the jury followed the court’s instructions.
Johnson, ¶ 14.
¶ 48 So the court’s illustrations as to reasonable doubt didn’t lower
the prosecution’s burden of proof.
V. Extraneous Information Presented to the Jury Didn’t Violate
Avila’s Due Process Right to a Fair Trial
¶ 49 Avila contends that the district court plainly erred by refusing
to declare a mistrial because two prospective jurors exposed the
jury to extraneous information about the arresting officer during
voir dire, violating her right to a fair trial. We disagree.
A. Additional Facts
¶ 50 During voir dire, the district court had the following
discussion with a prospective juror:
THE COURT: . . . [I]f I had to ask you for a
verdict right now, before you heard any
evidence, what would you have to say, guilty or
not guilty?
JUROR: I would have to say guilty.
THE COURT: Why would you say guilty?
JUROR: Because I know the officer involved,
and I think he is a standup person. If [a
23
charge] is resisting arrest, I have a
predisposition to believe him.
The prosecutor later questioned the prospective juror:
COUNSEL: Okay. I know that you know [the
arresting officer]. Let’s talk about that. Do
you have concerns about it affecting your
fairness?
THE JUROR: Yes.
COUNSEL: Okay. Can you tell us about that,
other than what you have already said?
THE JUROR: Not really. I have — I know him.
I know him to be an upstanding officer. I have
had dinner with him, sat at my kitchen table
with him, included him in family activities. So
I think I am predisposed to agree with what he
says.
COUNSEL: Do you have concerns about being
fair to the defense?
THE JUROR: I do.
Avila didn’t object to these comments. The prospective juror was
later removed for cause.
¶ 51 Later during voir dire, the prosecutor asked another
prospective juror about his relationship with the arresting officer:
COUNSEL: [Do] you know [the arresting
officer] as well?
THE JUROR: I am his dentist. . . . He is my
patient, my friend.
24
....
COUNSEL: Do you think you can be fair in this
case even though you know him?
THE JUROR: I believe it would be very difficult
to completely distance myself from the fact
that having a personal relationship with the
officer, to not believe him would be harder. . . .
I think it would be a little difficult for me to
separate myself from that situation that we
have already had a personal relationship.
COUNSEL: Even if the law says that?
THE JUROR: Of course I would try terribly to
do that because that is what the law says, but
. . . it is my feeling that if two people were
standing there, already had a relationship, you
know, somebody is a good person, they say
one thing, someone says another, that is not
impartiality.
....
COUNSEL: Do you think you can judge his
credibility?
THE JUROR: I think I already know his
credibility, which is part of the problem, to
already have a set thought in your mind.
Avila didn’t object to these comments, and this prospective juror
was also removed for cause.
B. Standard of Review and Applicable Law
¶ 52 Because Avila didn’t object or request any relief from the
district court, we review for plain error. Hagos v. People, 2012 CO
25
63, ¶ 14; People v. Marko,2015 COA 139
, ¶ 39, aff’d,2018 CO 97
. Plain error occurs where the trial court has committed an error that is obvious and substantial, and so undermines the trial’s fundamental fairness as to cast serious doubt on the judgment of conviction’s reliability. Hagos, ¶ 14. ¶ 53 A defendant is entitled to a jury verdict that is based solely on the evidence presented in the courtroom. Dunlap v. People,173 P.3d 1054
, 1091 (Colo. 2007). A jury’s exposure to extraneous information implicates a defendant’s due process right to a fair trial.Id. When a
prospective juror makes a potentially prejudicial remark during voir dire, the trial court may issue a curative instruction, canvass the jury, or declare a mistrial. People v. Mersman,148 P.3d 199
, 203-04 (Colo. App. 2006). But where a defendant doesn’t request a curative instruction, a trial court doesn’t plainly err by failing to give one on its own.Id. A mistrial
“is the most drastic of remedies” and “is only warranted where the prejudice to the accused is too substantial to be remedied by other means.” People v. Abbott,690 P.2d 1263
, 1269 (Colo. 1984). Whether a prospective
juror’s statement is potentially prejudicial depends significantly on
26
the facts and circumstances. Vititoe v. Rocky Mountain Pavement
Maint., Inc., 2015 COA 82, ¶ 26.
C. Analysis
¶ 54 Even assuming that the prospective jurors’ comments were
potentially prejudicial because they vouched for the arresting
officer’s veracity as a trial witness, we can’t conclude without more
that the comments so undermined the trial’s fundamental fairness
as to cast serious doubt on the judgment of conviction’s reliability.
¶ 55 The comments weren’t so prejudicial that they required the
court to order a mistrial on its own motion. See Marko, ¶¶ 36-38
(prospective juror’s statements about defendants found not guilty
by reason of insanity being quickly released didn’t warrant a
mistrial); Mersman, 148 P.3d at 204-05 (prospective juror’s
reference to a defense witness’s involvement in the “drug scene”
didn’t warrant a mistrial). But Avila argues to the contrary,
because the comments vouched for the credibility of the
prosecution’s main fact witness. Yet there’s no “clear statutory
command[,] . . . well-settled legal principle[,] or . . . Colorado case
law” that establishes such a principle, so it wasn’t so obvious that
the district court should have declared a mistrial on its own motion.
27
People v. Stroud, 2014 COA 58, ¶ 33 (quoting People v. Pollard,2013 COA 31M
, ¶ 40). ¶ 56 We also find this case distinguishable from Mach v. Stewart,137 F.3d 630
, 634 (9th Cir. 1997), a case on which Avila relies. In Mach, the defendant was charged with sexual conduct with a minor, and during voir dire a prospective juror said that “in her experience as a social worker, children never lie[] about sexual assault.”Id. Given that
“[t]he bulk of the prosecution’s case consisted of a child’s testimony that [the defendant] had sexually assaulted her,” the Ninth Circuit concluded that the statements “substantially affected or influenced the verdict,” and reversed the conviction.Id. It noted
that “[a]t a minimum, when [the defendant] moved for a mistrial, the court should have conducted further voir dire to determine whether the panel had in fact been infected by [the prospective juror’s] expert-like statements.”Id. at 633.
¶ 57 But because Avila didn’t object or request any relief, the district court here didn’t plainly err in failing to give a curative instruction or canvass the jurors on its own motion.Mersman, 148 P.3d at 204
. And again, it wouldn’t have been obvious to do so
28
simply because the prospective jurors’ comments vouched for the
prosecution’s main fact witness.
¶ 58 The prospective jurors’ comments vouched for a witness’s
veracity, similar to Mach, but not to the same level. Both jurors
indicated that, as the witness’s friends, they believed him to be an
“upstanding” or “good person,” and they would be partial toward
him if asked to judge his credibility versus another person’s. The
court struck both jurors for cause. This was the appropriate
remedy for those jurors who indicated that they couldn’t be
impartial. Van Meter, ¶ 14. And their comments about their bias
toward the arresting officer may have resulted in better screening of
other prospective jurors. Indeed, a third juror who said that he was
biased against Avila in part by another juror’s “confidence in the
officer” was also struck for cause. See United States v. Guzman,
450 F.3d 627, 631-33 (6th Cir. 2006) (“One of the primary purposes
of voir dire is to aid counsel in their exercise of peremptory
challenges,” and “voir dire in front of the entire jury pool may
actually result in more effective screening” because “[p]otential
jurors are often emboldened to be more candid after witnessing
other potential jurors’ voir dire.”).
29
¶ 59 Also, the “the record indicates that all who ultimately served
on the jury indicated that they would be fair and impartial; the
[prospective jurors] who indicated that [they] could not be impartial
were dismissed for cause.” Van Meter, ¶ 14; Vititoe, ¶ 31. So,
Avila’s “contention relies solely ‘on speculation as to the effect, if
any, the potential jurors’ statements had on the actual jurors.’”
Vititoe, ¶ 31 (quoting Guzman, 450 F.3d at 632); see United States v. Jones,696 F.2d 479
, 492 (7th Cir. 1982) (“Except for the . . .
dismissed panel members, no juror displayed prejudice. . . . We
believe that the defendant[] w[as] tried by an impartial jury.”).
¶ 60 We conclude the district court didn’t plainly err by not
declaring a mistrial on its own motion.
VI. Conclusion
¶ 61 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE GROVE concur.
30
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