Text of Court of Appeals Opinion

Division I                                                          ORDER REVERSED
Opinion by JUDGE ROTHENBERG               AND CAUSE REMANDED
Jones, J., concurs                                             WITH DIRECTIONS
Kapelke, J., concurs in part
and dissents in part
________________________________________________________________

Gale A. Norton, Attorney General, Martha Phillips Allbright,
Chief Deputy Attorney General, Richard A. Westfall, Solicitor
General, Roger G. Billotte, Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee

Paul Grant, Parker, Colorado, for Defendant-Appellant

Miller, Lane, Killmer & Greiser, David A. Lane, Denver,
Colorado for Amicus Curiae Laura J. Kriho

H. Patrick Furman, Boulder, Colorado, for Amicus Curiae
Colorado Criminal Defense Bar

Defendant, Laura J. Kriho, appeals the order entered by
the trial court finding her in contempt. We reverse and
remand for a new trial.

This case arose from a May 1996 criminal proceeding in
which Kriho served as one of twelve jurors in a trial
concerning charges of unlawful possession of a schedule II
controlled substance (methamphetamine), criminal
impersonation, and unlawful possession of drug paraphernalia
(underlying case).

During voir dire in the underlying case, the trial
court spoke to the prospective jurors as a group, informed
them of the charges and of court procedure, and administered
an oath in which the jurors swore or affirmed "to answer
truthfully the questions asked . . . by the court or the
attorneys concerning [their] competency to sit as [jurors]"
in the case. The court advised jurors that if they thought
they would have problems following the law or any bias
against either the defendant or the prosecution, they should
bring it to the court's attention.

The court also conducted the following colloquy with
the entire panel of prospective jurors:

          Would all of you agree to follow my
     instructions on the law even if you don't agree
     instructions on the law even if you don't agree
     with them or you don't think that they are what
     the law is or should be?
                             . . . .

          What I need from you is a commitment that you
     will follow my instructions even if you don't
     agree with them. And you all agree to do that?
     Follow the instructions on the law? My job is to
     tell you what the law is, and will you all agree
     to follow my instructions? Will you all agree?
     Anyone saying no?

The panel members were not seated in the jury box at
the time, but were in the gallery. No one gave an
individual answer to these questions by the court.

In the next phase of voir dire, certain of the jurors
were called into the jury box and questioned. Kriho sat
with the unselected members of the venire in the courtroom
gallery while approximately 350 questions were asked of
those persons in the box.

There were individual discussions by the court and
counsel with a number of prospective jurors about their
obligation to follow the law given by the court, their
attitudes regarding drug laws and alleged violations of drug
laws, and their abilities to serve fairly and impartially.
There was also discussion about issues surrounding drug-law
enforcement, and instruction that they were not to consider
punishment. During the individual questioning of other
prospective jurors, the court asked these questions among others:

          Have any of you ever been a party to or a
     witness in a court trial?
                             . . . .

          Has anybody in the panel been accused of a
     crime other than traffic stuff? Had to go to
     court for something?

Later, the prosecutor asked the jurors in the jury
box this question:

          [D]oes anyone have any particular strong
     feelings, either pro or con, about the laws we
     have including the law that will apply here that
     you will get from his Honor . . . about the
     control of dangerous drugs or controlled
     substances? In other words, it is against the law
     substances? In other words, it is against the law
     to possess methamphetamine and that is why we're
     here. Does anybody have any particular views
     about these laws including specifically this one?

The prosecutor also asked the prospective jurors in the
jury box whether they had had "[a]ny experience with the
justice system? Positive or negative?"

Eventually Kriho was called to the jury box as a
replacement juror, and a relatively brief period of
questioning ensued. She was initially asked by the court
whether she had heard all the questions previously asked to
other prospective jurors:

          Court: Is there any one of those questions
     that raised in your mind an answer that might be
     that raised in your mind an answer that might be
     different?i

          Kriho: I was involved in a civil court
     proceeding where we sued a developer down in
     Boulder District Court . . . .

          Court: Was there anything about that
     experience that makes you unhappy or angry with
     the judicial system?

Kriho: No.
. . . .

          Court: Is there anything, whether I asked it
     or not, that you can think of that would interfere
     with your sitting as a fair and impartial juror.

Kriho: No, sir.

Kriho did not mention the fact that, 11 years earlier,
she had received a deferred judgment and sentence for
possession of Lysergic Acid Diethylamide (LSD). Following
entry of the judgment in that case, she had successfully
completed two years probation and 40 hours of community
service, after which the charges had been dismissed.

She also was asked to give a routine biographical
sketch indicating, among other things, her "special
interests and hobbies" and to state "anything else" that
would prevent her from being a fair and impartial juror.
She provided particulars as to her marital status,
education, and employment, and various hobbies and
interests. She did not mention the fact that she was a
member of the Boulder Hemp Initiative Project, an
organization that supports the legalization of marijuana in
Colorado. Nor did she voice any antipathy towards drug laws
or their enforcement.

During individual questioning by the prosecutor, when
asked whether she was "familiar with this drug,
methamphetamine," she answered: "Just that it is a
stimulant." The prosecutor also asked: "You listened to
all our topics; would you have answered anything
differently?" She answered, "No."

On the first day of deliberations, the jurors
reportedly had reached unanimity on two of the counts.
According to the testimony presented in the contempt
proceeding, Kriho had deliberated with the others and had
voted to convict on the criminal impersonation charge, and
she also had agreed with the others to acquit on the
paraphernalia charge. But, the jurors were divided on the
possession of a controlled substance charge with
approximately three jurors leaning toward acquittal. By the
end of the day, however, Kriho apparently was the sole
holdout for acquittal on that count. The jurors were then
excused for the evening.

On the second day of deliberations, Kriho remained the
sole holdout for acquittal and the mood in the jury room
changed as other jurors, apparently irritated with Kriho,
urged her to vote to convict. Although Kriho's original
refusal to convict was attributed to her assertion that she
believed the arresting officer had lied, testimony at the
contempt hearing also indicated that she had told the other
jurors that drug cases should be handled by the family and
community, not by the courts, and that the jury had the
right to create the law and to refuse to convict.

She also referred vaguely to the Salem witchcraft
trials as an example of intolerable prosecutions and told
the other jurors what she believed to be the potential
sentence the accused would receive if found guilty of
possession. She obtained such information, later found to
be inaccurate, at home by use of the Internet. Kriho
emphasized the harshness of the penalty in urging the others
that they ought not to convict on that count.

At some time during the second day of deliberations,
certain of the jurors sent this note to the trial court
asking:

Can a juror be disqualified for:

          Looking up the sentence on the [I]nternet for
     the possession charge. IE (4-6 years)
          Juror stated the court criminal system is no
     place to decide drug charges that they should be
     decided by family and community. Many of my
     friends aquan (sic) have used illegal drugs.

The court did not inquire further of the jury or
attempt to accept a verdict based on the two counts on which
the jury had reached unanimity, see People v. Lewis, 676
P.2d 682 (Colo. 1984), but granted a mistrial.

Following the mistrial and the release of the jurors, Kriho
handed one of the other jurors a pamphlet outside the courthouse
which purported to be sponsored by the Boulder Hemp Initiative
Project and the "Fully Informed Jury Association." It was
entitled: "True or False? When you sit on a jury, you have the
right to vote your conscience."

It stated, among other things, that:

          Most Americans are aware of their right to
     trial by jury, but how many know that the jury has
     more power than anyone else in the courtroom and
     that in pursuit of a just verdict, jurors are free
     to judge the merits of the law itself, its use in
     the case at hand, or the motives of the accused.
                             . . . .
          Jurors are rarely informed they may vote
     according to conscience, even after swearing to
     apply the law as given or told that it's better to
     hang the jury than to violate one's conscience in
     order to reach consensus. These are some of the
     reasons why FIJA was formed. (original emphasis)

The juror receiving the pamphlet became angry, returned
to the courtroom, and gave it to the judge in the underlying
case. According to the contempt hearing testimony, the
judge then spoke with certain jurors including Kriho. A few
of the jurors also spoke to the prosecutor and expressed
anger about Kriho's conduct during deliberations.

Thereafter, the People initiated this contempt action
against Kriho pursuant to C.R.C.P. 107 and 18-1-104(3),
C.R.S. 1998. The contempt citation alleged that she should
be held in contempt for:

     (1) disobedience to an order of the court, (2)
     obstructing the administration of justice, and (3)
     committing Perjury in the First Degree, C.R.S. 18-
     8-502, a class 4 Felony, by lying under oath to
     8-502, a class 4 Felony, by lying under oath to
     the Judge and the attorneys.

The prosecution's list of witnesses included the judge,
the defense counsel, and certain jurors in the underlying
case. The contempt action was ultimately reassigned to a
judge other than the one who had presided in the underlying
case, and over Kriho's objection, a bench trial rather than
a jury trial was conducted.

At the contempt trial, the People alleged the following
three areas of concealment by Kriho during voir dire:

     [Kriho] failed to reveal that she had previously
     been arrested, charged with, and pled guilty to a
     felony charge of Possession of a Scheduled I
     Controlled Substance and was thereafter granted a
     Controlled Substance and was thereafter granted a
     deferred judgment and sentence;

     [She] failed to reveal that she was opposed to the
     enforcement of drug laws through the courts and
     that she was actively involved in an organization
     which had as its purpose the modification of
     certain Colorado drug laws; and

[She] failed to reveal that she did not intend to
follow the judge's instructions on the law.

The prosecution further asserted that her failures to
disclose her prior experience with the justice system, her
view that drug cases were a family matter and do not belong
in the court system, her unwillingness to follow the law,
and her belief that jurors can change the law or disregard
it in the jury room, were acts of deliberate deception done
with the intent to obstruct justice. According to the
prosecution, Kriho did not disclose such information "in
order to further her own agenda, her own personal beliefs
about the jury system, about drug laws, and whether or not
she should or should not convict."

Consistent with its theory that Kriho had no intent to
Abide by the oath taken at the beginning of voir dire, the
People introduced evidence including: (1) a transcript of the
voir dire in the underlying criminal case; (2) testimony by a
number of the jurors in the underlying case concerning statements
Kriho had made during jury deliberations; (3) the information
Kriho had obtained from the Internet regarding sentencing; and
(4) the fact that, after the mistrial was declared, Kriho had
distributed the "juror nullification" pamphlet described above.

Approximately three months after the close of the
evidence, the trial court issued a written order finding
that two of the prosecution's charges -- disobedience to a
court order and perjury -- had not been sustained. However,
it found that Kriho had intended to obstruct the judicial
process and that her actions had prevented the seating of a
fair and impartial jury. On that basis, the court found her
in contempt under C.R.C.P. 107 for obstructing the
administration of justice and imposed a $1200 fine payable
within one year. It is from this order that Kriho now
appeals.
These facts require us to address the following broad
issues:

     (1) Under what circumstances can a juror be found in
     contempt for failing to disclose information
     during voir dire?

(2) Can evidence of jury deliberations properly be considered in
such a contempt prosecution?

     (3) Was improper evidence admitted and considered in the
          contempt action against Kriho, and if so, can the finding of
          contempt be sustained without reference to the improper evidence?

Our consideration of these issues leads us to conclude that,
in certain narrow circumstances, a juror can be found in contempt
for the failure to disclose during voir dire information asked
for with sufficient specificity, but that the presentation of
evidence to prove such contempt must be carefully circumscribed.
Because we conclude that improper evidence was considered by the
trial court here which affected Kriho's substantial rights,
reversal and remand for a new trial are required.

I. Disruption Not Required

Kriho first contends that the trial court erred
generally in finding her in contempt of court for actions
taken in the presence of the court when those actions were
not disruptive to the dignity and authority of the court at
that time. We disagree.

Under the controlling statute and procedural rule, 16-
10-103, C.R.S. 1998; Crim. P. 24(a), prospective jurors have
an obligation to answer as completely as possible the
questions asked. People v. Borrelli, 624 P.2d 900 (Colo.
App. 1980). Further, a person accepted as a member of a
jury becomes a part or member of the court. See Clark v.
United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993
(1933).

C.R.C.P. 107(a)(1) defines contempt as:

          Disorderly or disruptive behavior, a breach
     of the peace, boisterous conduct or violent
     disturbance toward the court, or conduct that
     unreasonably interrupts the due course of judicial
     proceedings; behavior that obstructs the
     administration of justice; disobedience or
     resistance by any person to or interference with
     any lawful writ, process, or order of the court;
     or any other act or omission designated as
     contempt by the statutes or these rules. (emphasis
     added)

See In re Marriage of Nussbeck, ___ P.2d ___ (Colo. No.
97SC540, March 1, l999); Schnier v. District Court, 696 P.2d
264 (Colo. 1985)(decided before rule amended); People v.
Barron, 677 P.2d 1370 (Colo. 1984)(same).

C.R.C.P. 107(a) permits the imposition of remedial and
punitive sanctions for behavior that obstructs the
administration of justice. A knowing and willful
concealment of relevant information by a prospective juror
may be an obstruction of the judicial process if it hinders
the court's ability to provide a defendant with a fair and
impartial jury. See Clark v. United States, supra.

Hence, we reject Kriho's general contention that she
cannot be held in contempt under C.R.C.P. 107 because her
actions during voir dire were not disruptive of the trial
proceedings at that time.

II. Evidence of Jury Deliberations

Relying primarily on United States v. Thomas, 116 F.3d
606 (2d Cir. 1997), which was announced shortly after the
notice of appeal was filed in this case, Kriho next contends
the trial court erred in basing its finding of contempt on
testimony by jurors in the underlying case concerning
statements she had made during jury deliberations. In her
briefs, she describes the process employed by the
prosecution in proving its case, and the trial court's
finding of contempt, as "unprecedented intrusion[s] into the
sanctity of jury deliberations."

At issue, therefore, is the extent to which the trial
court should have considered, and did consider, the
testimony of former jurors regarding the contents of jury
deliberations in the contempt action against Kriho for her
alleged intentional failure to disclose certain information
during voir dire. Our analysis of the law and our
examination of the record leads us to conclude that evidence
of jury deliberations should not have been, but was,
considered by the trial court in finding Kriho in contempt.
Hence, reversal is required and the cause must be remanded
for a new trial.

A. Procedural Issue

Initially, we conclude that the issue of the propriety
of admitting jury deliberations is properly before us.

Both parties' briefs and those of amici curiae have
focused on the propriety of the trial court's consideration
of the evidence of jury deliberations and Kriho's challenge
to this evidence. In various arguments to the court, and in
a pre-trial motion to dismiss, Kriho asserted that she was
being punished for what she had said in the jury room during
deliberations and because she had held out for acquittal on
the possession count.

In her notice of appeal, Kriho also listed the issues
to be raised on appeal as including:

          Whether the trial court erred when refusing [her]
     pre-trial motion for dismissal, based on the assault on
     the jury system embodied in the prosecution; Whether
     [Kriho] can be convicted of contempt of court for the
     thoughts she held during voir dire, thoughts the trial
     court found corroborated through evidence of her acts
     and speech during jury deliberations; Whether the trial
     court erred when it allowed the privilege of jury
     communications to be breached by [admitting] evidence
     as to the jury's deliberations; and Whether a juror
     can be prosecuted based on evidence of her "improper
     deliberations" without violating the Sixth Amendment
     right of criminal defendants to trial by a fair and
     impartial jury.

Furthermore, the People have defended the trial court's
consideration of the jury deliberation evidence on the
merits and have not asserted that Kriho waived this issue,
otherwise failed to preserve it, or that there was invited
error.

Accordingly, we believe the issue was adequately
preserved and, unlike the dissent, do not further address
this procedural issue on appeal. Cf. Sanchez v. State, 730
P.2d 328 (Colo. 1986)(court of appeals erred in ruling on an
issue the parties had not raised or argued in their briefs
to that court). See also Uptain v. Huntington Lab, Inc.,
723 P.2d 1322 (Colo. 1986)(objection to evidence adequately
preserved if objection was made in pre-trial motion in
limine); Luce v. United States, 469 U.S. 38, 105 S.Ct. 460,
83 L.Ed.2d 443 (1984)(fn. 2)("in limine" refers to any
motion made before or during trial to exclude anticipated
prejudicial evidence).

B. The Thomas Decision

In United States v. Thomas, supra, five African-
American defendants were charged with selling cocaine.
During deliberations, one juror, the only African-American
on the panel, insisted that the other jurors did not
understand the defendants' situation. Despite considerable
evidence of guilt, that juror also insisted the
prosecution's case had not been proven.

Eventually, the other jurors notified the court that
the recalcitrant juror was not deliberating fairly. After
conducting interviews with the jury members, the court
dismissed the juror from the panel for allegedly engaging in
jury nullification after finding that, in essence, the juror
had ignored the evidence and wanted to acquit based on his
preconceived ideas concerning the defendants' conduct.

The dismissed juror was replaced and the reconstituted
jury panel convicted the defendants. They appealed.

The federal appeals court began its analysis of the issues
by categorically rejecting the argument that jury nullification
was desirable, stating that:

          [A] juror who intends to nullify the
     applicable law is no less subject to dismissal
     than is a juror who disregards the court's
     instructions due to an event or relationship that
     renders him biased or otherwise unable to render a
     fair and impartial verdict.

United States v. Thomas, supra, 116 F.3d at 614.

Nevertheless, it concluded that removal of the recalcitrant
juror was improper.

The court further held a juror cannot be removed during
deliberations without proof "beyond doubt" that the juror
intended to disregard the court's instructions. If there
was any possibility that the juror was attempting to apply
the law, but simply was unpersuaded by the evidence, the
inquiry into deliberations must cease and the juror cannot
be removed from the jury. United States v. Thomas, supra,
116 F.3d at 608, 621-22.

The court created this exceptionally high evidentiary
barrier to the removal of a juror in order to protect the
fundamental right of an accused to a unanimous jury and to
protect the secrecy of the jury's deliberations. It
explained that the vital interest involved was "the core
principle of the secrecy of jury deliberations":

          The jury as we know it is supposed to reach
     its decisions in the mystery and security of
     secrecy; objections to the secrecy of jury
     deliberations are nothing less than objections to
     the jury system itself.

United States v. Thomas, supra, 116 F.3d at 619. See

United States v. Brown, 823 F.2d 591, 596 (D.C. Cir.
1987)("[A] court may not delve deeply into a juror's
motivations because it may not intrude on the secrecy of
the jury's deliberations.").

The Thomas court recognized that its decision left open
the possibility "jurors will engage in irresponsible
activity that will remain outside the court's powers to
investigate or correct." United States v. Thomas, supra,
116 F.3d at 622. Nevertheless, in support of its holding,
the court stated:

          Where the duty and authority to prevent
     defiant disregard of the law or evidence comes
     into conflict with the principle of secret jury
     deliberations, we are compelled to err in favor
     of the lesser of two evils--protecting the
     secrecy of jury deliberations at the expense of
     possibly allowing irresponsible juror activity.

United States v. Thomas, supra, 116 F.3d at 623. (emphasis
added)

Because there was evidence that the removed juror was
deliberating with the other jurors and had some basis
derived from the evidence for acquitting the defendants, the
Thomas court concluded that the trial court had erred in
removing him during the deliberations. On that basis, it
granted defendants a new trial.

The Thomas court's almost per se rule prohibiting
intrusions into the secrecy of the deliberative process
recognizes that our forefathers chose to entrust lay
citizens, guided by judges, with the ultimate
responsibility of determining guilt beyond a reasonable
doubt. That trust in the jury's collective judgment, and
the necessity of complete privacy for jurors during their
deliberative process, have become bedrock principles in our
system of justice. See Duncan v. Louisiana, 391 U.S. 145,
88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). See also Tanner v.
United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed.2d 90
(l987)(discussing FRE 606(b)).

It should also be noted that, while Thomas contained a
lengthy discussion on the doctrine of jury nullification, it
is not so limited. Issues involving the propriety of
invading the secrecy of jury deliberations and a charge of
contempt against a juror may involve nullification, as well
as other types of alleged misconduct during deliberations.
See People v. Metters, 72 Cal. Rptr. 2d 294 (Cal. App.
1998)(cert. granted)(holdout juror excused during
deliberations; other jurors claimed she was "unfairly
sympathetic" to the defendant because she had worked in
drug and rehabilitation center, and that this affected her
ability objectively to view the facts and law).

We recognize that the juror in Thomas was not charged
with contempt for his activities in the jury room.
Nevertheless, because of its thorough consideration of the
issue of jury secrecy, we conclude that the Thomas court's
analysis offers a focused way of resolving the analogous
issue before us.

We thus adopt the conclusion in Thomas that the secrecy
of jury deliberations is a "core principle" in the American
system of justice, that excursions into the jury
deliberation process are anathema to our system, and that
jury secrecy may be invaded only under the most carefully
delineated circumstances. See CRE 606(b). The central
principle of Thomas is that the need to preserve the secrecy
of jury deliberations requires an investigation of juror
misconduct to cease once "any possibility" arises that the
juror is acting during deliberations based on his or her
view of the sufficiency of the evidence.

Application of the Thomas rule to the circumstances
presented by Kriho serves several important purposes.
First, it protects jurors, especially lone holdout jurors,
from intimidation and from fear that their inability to
explain why they favored acquittal, despite a strong
prosecution case, might result in criminal charges being
brought against them. See United States v. Brown, supra.
Cf. Carrillo v. People, ___ P.2d ___, (Colo. No. 97SC517,
February 22, 1999)(allowing substitution of juror during
deliberation who had hearing difficulty, but stating that
"where the juror excused was a lone holdout for acquittal on
one count -- extraordinary scrutiny is required . . . .").

In addition, the Thomas rule promotes finality in court
proceedings by preventing counsel, except under
well-recognized and very limited circumstances, from
mounting challenges to jury proceedings, or from seeking
mistrials during deliberations in cases that appear to have
gone badly.

We view it as essential that the standard to be applied
with respect to jury secrecy not be speculative or incapable
of consistent application. The Thomas rule is precise. It
involves no balancing tests, but provides trial courts with
a bright line rule. Ambiguity and inconsistency are
avoided, and reviewing courts are assisted in adjudicating
claims that the jury deliberation process has been invaded.

This heightened protection of jury secrecy is
especially appropriate, given the fact that the initiation
and prosecution of contempt proceedings against jurors for
nondisclosure during voir dire have been exceptionally rare
occurrences in the history of American jurisprudence.
Indeed, we are not aware of any Colorado case in which a
juror has been prosecuted for or found in contempt based
upon a failure to provide complete or truthful answers to
questions asked during voir dire.

Colorado cases concerning the deliberate concealment of
material information by jurors during voir dire have focused
instead on the remedy afforded to the defendants who were
being tried or who were convicted in the underlying cases.
In such cases, where juror concealment or other misconduct
has been shown, the remedy normally has been removal of the
juror from the panel or, following a verdict, an order
granting defendant a new trial. See People v. Garcia, 964
P.2d 619 (Colo. App. l998)(where record shows juror
deliberately disobeyed court's instructions, court has
authority to remove juror); People v. Dunoyair, 660 P.2d 890
(Colo. 1983)(new trial not required by juror's inadvertent
failure to disclose his acquaintance with a prosecution
witness); People v. Borrelli, supra (juror's failure to
disclose her severe mental illness and long continued use of
psychoactive drugs was a basis for setting aside defendant's
convictions and ordering new trial); People v. Rael, 40
Colo. App. 374, 578 P.2d 1067 (1978)(juror's nondisclosure
of his burglary conviction was misconduct and denied
defendant right to exercise a peremptory challenge;
prejudice presumed and new trial ordered).

In fact, we have been referred to only a handful of
cases in the history of this country in which contempt
prosecutions have been initiated against jurors under such
circumstances. See Bays v. Petan Co., 94 F.R.D. 587 (D.
Nev. 1982)(no contempt because trial court found no knowing
and willful concealment or false swearing by juror).
Of these, there are only four reported cases in which
jurors were convicted of criminal contempt, or otherwise
adjudicated in contempt, for failing to disclose information
during voir dire.

Three of these cases arose under the federal contempt
statute. See 18 U.S.C. 401 (1966). Two of these federal
contempt convictions resulted from the jurors' failures to
disclose personal knowledge about the cases during voir
dire, coupled with the conduct of both jurors in refusing to
deliberate with the other jurors. See Clark v. United
States, supra (juror deliberately failed to disclose that
she had been employed by one of the principals in the court
action and also refused to deliberate with other jurors); In
re Brogdon, 625 F. Supp. 422 (W.D. Ark. 1985)(juror found in
contempt for failing to disclose bias in favor of defendant;
evidence showed juror refused to listen to the debate during
deliberations).

In the third federal case, a juror was convicted of
criminal contempt for his failure to disclose his felony
conviction. See United States v. Lampkin, 66 F. Supp. 821
(S.D. Fla. 1946)(juror concealed criminal conviction for
mutiny on the high seas; case proven by showing contemnor's
answers during voir dire and evidence of prior conviction).

Under case law applying the federal statute, contempt
by a juror for nondisclosure during voir dire requires the
prosecution to show beyond a reasonable doubt that: (1) the
prospective juror knowingly and willfully gave an untruthful
answer in response to a voir dire question; (2) the
untruthful answer was used by the prospective juror to gain
acceptance on the jury; and (3) by doing so, the juror
obstructed the administration of justice. See Bays v. Petan
Co., supra.

The only state court conviction for criminal contempt
of which we are aware was based on a juror's failure to
reveal that she had a prior felony conviction and that she
had independent outside knowledge of the case. The evidence
further showed she had used the outside knowledge in an
attempt to influence the verdict. See Witherspoon v.
Arkansas, 322 Ark. 376, 909 S.W.2d 314 (1995).

Thus, while we do not discount the possible danger of
excesses by jurors that the prosecution seeks to prevent here,
there is also a danger in overreacting to a perceived threat that
the paucity of cases indicates is far more apparent than real.
The danger of such overreaction is that we could impair public
confidence in a jury system that has served Colorado well since
pre-territorial days when its early settlers formed ad hoc
People's Courts and Miners' Courts. See Hal Sayre Collection (7-
7), Record, Miners Court, Gregory District, Central City (1859-
60), Archives, University of Colorado at Boulder Libraries;
Robert Lawrence Stearns, Colorado: A Study in Frontier
Sovereignty 17, Address at the Thirtieth Annual Meeting of the
American Association of Law Libraries in Joint Session with the
National Association of State Libraries (June 26, 1935)
(Reprinted in 28 Law Library Journal, Number 3 (July 1935))(on
file at Colorado Supreme Court Library). Another danger is that we
could chill the willingness of our citizens to serve on juries which
they now do, often at considerable personal sacrifice.

C. Applicability of the Thomas Decision
At the time of Kriho's contempt trial, the trial court
did not have the benefit of the Thomas decision, and the
record reflects that the court was mindful of the need to
balance the important interests involved. Nevertheless,
there was considerable testimony at the contempt hearing
that Kriho had, to some extent, properly performed as a
juror by engaging in lengthy deliberations with the other
jurors on the issues raised by the evidence. There was also
testimony that she had some evidentiary basis for her
decision on the possession charge.

More specifically, the testimony showed that: (1)
after deliberating for part of one day and most of the next
day, Kriho and the other jurors reportedly had agreed on a
verdict of guilty on the criminal impersonation count and
not guilty on the possession of drug paraphernalia count;
(2) during deliberations, several jurors had changed their
minds on all three counts; (3) all of the jurors, including
Kriho, had participated in a discussion of the evidence on
the three charges; (4) there was argument in the jury room
that although a small amount of drugs had been found in the
bottom of defendant's purse, "[S]omebody could have put it
there."

One juror testified that:

     [W]e were talking about it and a lot of them was [sic]
     saying that how could she put it on the bottom of the
     purse . . . and there was [sic] some jurors who were
     saying that she must have known that it was in her
     purse.

     Question: And were there jurors who argued that they
     didn't believe that the prosecutor had proved his case
     on that point [of knowing possession]?

Juror: Right.

Question: And you remember what the arguments were.

Juror: We all had differences. I mean a lot of us had
different things to say about it . . . .

Question: Was there one person who said she might not
have known it was in her purse?

     Juror: Yes. I think it got down to about three
     people.
                             . . . .

     Question: So [Kriho] was one of the three who wasn't
     convinced that the prosecutor had shown that the
     defendant knew she had a drug in her possession?

Juror: That's about the way I look at it.

Another juror testified that Kriho "just kept on reiterating
that I just don't see there's evidence beyond a reasonable
doubt."

Under Thomas, once the evidence shows "any possibility"
that a juror was attempting to apply the law, but simply was
unpersuaded by the evidence, all further inquiry into the
jury deliberations should end. In our view, the above
testimony brings this case within the scope of the Thomas
mandate and there should have been no further testimony
about jury deliberations. Because inquiry concerning jury
deliberations did not cease, we conclude that the evidence
of those deliberations was erroneously considered by the
court.

We reach the same conclusion with respect to the brief
testimony by a juror in the underlying case regarding a
conversation with Kriho which took place while deliberations
were ongoing, but during a short break outside the
deliberation room. Because this testimony was admitted in
connection with, and as explanatory material to, statements
made by Kriho during deliberations, we conclude that it was
inextricably intertwined with the jury deliberations. It is
thus governed by our conclusion that evidence of
deliberations should not have been admitted.

Given our conclusion that this evidence was so
demonstrably tied to jury deliberations as to have been
improperly admitted, we need not determine whether this
testimony also violated the court's general instructions to
jurors that they deliberate together only in the jury room.
See COLJI-Crim. No. 1:03, No. 1:04, No. 38:04; cf. Tanner v.
United States, supra (trial court should not consider
affidavit obtained from juror in violation of trial court's
order not to contact jurors).

D. Use of Internet

     We also do not determine whether there was a basis for
admitting evidence of deliberations pursuant to CRE 606(b)
as extraneous prejudicial information.
     Kriho admitted at the contempt trial that she had been
told "not to speak to anyone about the case." However, she
contended that obtaining information from the Internet did
not violate that instruction because it was not tantamount
to "speaking to anyone" about the case. In any event, she
maintained that she had not deliberately violated the
court's instruction.
     Kriho also challenged the necessity for the mistrial in
the underlying case. Specifically, her counsel attempted to
elicit testimony at trial showing that the mistrial was not
Kriho's fault, and that "a verdict could have been reached
and mistrial could have been avoided." The trial court
disallowed the evidence, stating that: "[T]he fact that
this ended in a mistrial has [nothing] to do with the issues
before this Court today."

Because the trial court did not determine whether
Kriho's action, in obtaining the sentencing information from
the Internet, constituted a violation of the specific
instructions given by the court, or constituted extraneous
prejudicial information within the meaning of CRE 606(b), we
do not address the issue involving Kriho's use of the
Internet. Nor do we determine whether there was a basis for
admitting any evidence of deliberations pursuant to CRE
606(b).

It is also unclear whether CRE 606(b) would apply to a
mistrial or is limited to verdicts. Colorado has not
addressed the issue and there is a split of authority in
other jurisdictions. See Witherspoon v. Arkansas, supra
(holding that the Arkansas counterpart to CRE 606(b) applies
whether a verdict is reached or a mistrial declared, and,
under the extraneous information exception, allows jurors to
testify about statements made during deliberations); but see
Bays v. Petan Co., supra (Fed. R. Evid. 606(b) does not
apply where inquiry is whether respondent should be held in
contempt because there was no verdict).

III. Applicability of the Clark Decision

The People do not dispute that evidence of the jury
deliberations was used to prove the contempt allegations
against Kriho. They maintain, however, that such evidence
was admissible to corroborate its theory that she lied
during voir dire to become a member of the panel, and that
her goal was to disregard the trial court's instructions and
acquit the accused in the underlying case against the weight
of the evidence or, alternatively, to hang the jury and
cause a mistrial.

In support of its argument, the People heavily rely on
Clark v. United States, supra. However, we perceive no
inconsistency between our conclusion and the holding in
Clark.

Clark was a 1933 federal criminal contempt action
brought against a juror. The prosecution showed the juror
had deliberately concealed during voir dire the fact that
she knew one of the principals in the court case in which
she served. The evidence at the contempt trial also showed
that this juror had cast the single vote for acquittal, and
that she had refused to deliberate by placing "her hands
over her ears when other jurors tried to reason with her."
Clark v. United States, supra, 289 U.S. at 9, 53 S.Ct. at
467-68, 77 L.Ed. at 997. Thus, the focus was on the juror's
conduct during deliberations.

The defendant in Clark based her objection to the use
of the jury deliberations on a claim of privilege. The
United States Supreme Court rejected her argument that
allowing testimony regarding the jury deliberations was a
denial or impairment of a lawful privilege. It ruled
instead that, if a prima facie case of juror wrongdoing
first was shown to the court's satisfaction, jury
discussions were admissible "as corroborative evidence,
supplementing and confirming the case that would exist
without them." Clark v. United States, supra, 289 U.S. at
14, 53. S.Ct. at 469, 77 L.Ed. at 1000.

In explaining its rule, the Court stated:

          [Clark] has not been held to answer for any
     verdict that she has rendered, nor for anything
     said or done in considering her verdict. . . .
     What was said and done in the jury room is not the
     gist of her wrongdoing. What was said and done in
     the jury room is no more than confirmatory
     evidence of her state of mind before.

Clark v. United States, supra, 289 U.S. at 17-18, 53 S.Ct.
at 470, 77 L.Ed. at 1001-02.

In Clark, the testimony about the statements during
jury deliberations was merely confirmatory. In contrast,
here, notwithstanding the trial court's statements to the
contrary, Kriho's comments during jury deliberations were
pivotal to the prosecution's case. It heavily emphasized
that evidence to support its theory that she deliberately
lied to the court during voir dire, motivated by a desire to
be selected on the jury and to interfere with the jury
system.

This emphasis can be seen in the prosecutor's closing
argument. He assured the court that Kriho's decision-making
in the jury room on the issue of guilt had nothing to do
with the case. Yet, in asking the court to assess her
motive for the nondisclosures, the prosecutor frequently
referred to, and relied on, Kriho's statements in the jury
room. He asserted that her statements during deliberations
urging the others to vote for acquittal supported the
prosecution's theory that Kriho's limited answers to the
court and counsel, and her nondisclosures during voir dire,
were acts of deliberate deception. And, according to the
prosecutor, they were done for the purpose of obstructing
justice by hanging the jury.

Furthermore, in its order finding Kriho in contempt for
obstruction of justice, the court repeatedly referred to the
evidence of jury deliberations. Despite its earlier
statements in the contempt trial that Kriho could not be
found in contempt based on what was said in the jury room,
the trial court found that:

     (1) the testimony of several jurors that at
     various times during jury deliberations they
     brought to Ms. Kriho's attention that they were to
     follow the law even if they disagreed with it; (2)
     that Kriho chose not to reveal her strong feelings
     about [following the law]; (3) Testimony of Ms.
     about [following the law]; (3) Testimony of Ms.
     Kriho's fellow jurors revealed that she informed
     these jurors that she did not believe drug laws
     should be enforced through the courts and she
     discussed her belief that jurors did not have to
     follow the law if they did not agree with it; (4)
     the jury deliberation pamphlet handed out by Kriho
     after the trial contained the same concepts Ms.
     Kriho was espousing in the jury room; and (5) a
     mistrial was pre-ordained. (emphasis added)

The court's ultimate finding that Kriho was in contempt
also referred to the testimony about deliberations.
Likewise, its conclusion regarding Kriho's motive -- that
she had "deliberately withheld this information [about her
prior experience with the court system and her views on the
drug laws] from the trial court and the parties so that she
could be selected to serve on the jury and obstruct the
judicial process" -- is saturated with references to the
jury deliberations, as is the court's conclusion that she
"obstructed the process of selecting a fair and impartial
jury."

The trial court's additional finding, that "Kriho's
lack of candor about her experiences and attitudes led to
the selection of a jury doomed to mistrial from the start,"
also cannot be sustained without reference to what Kriho
told the other jurors during deliberations.

Thus, while the trial court repeatedly and correctly
assured Kriho that she could not be punished for her
opinions during deliberations or how she voted there, we
nevertheless conclude that crucial findings of fact and
conclusions of law made by the court were based on the other
jurors' testimony of what Kriho and others had said during
deliberations. This testimony should not have been
considered under United States v. Thomas, supra, and is not
consistent with the holding of Clark v. United States,
supra, which was decided on a non-constitutional basis.
As noted above, the Clark decision also does not
permit evidence of jury deliberations unless the trial court
first finds a prima facie case has been shown by the
prosecution. That foundational requirement was not met in
Kriho's contempt trial.

Accordingly, contrary to the People's contention, we
conclude that Clark does not require a different result here.

IV. Sufficiency of the Evidence

Our analysis above requires that we address the issue
whether the trial court's contempt finding can be sustained
without considering the testimony about what was said by
jurors during deliberations, or whether, as Kriho asserts,
she is entitled to dismissal of the contempt.

The issue of the sufficiency of the evidence is a
question of law. See People v. Gonzales, 666 P.2d 123
(Colo. 1983). In determining sufficiency of the evidence, a
reviewing court must determine whether the evidence, viewed
as a whole and in the light most favorable to the
prosecution, is sufficient to support a conclusion by a
reasonable person that the defendant is guilty beyond a
reasonable doubt of the crimes charged. Kogan v. People,
756 P.2d 945 (Colo. 1988).
In a trial to the court, there is a presumption that
all incompetent evidence is disregarded by the court in
reaching its conclusions, and the judgment will not be
disturbed unless it is clear that the court could not have
reached the result but for the incompetent evidence. People
v. Mascarenas, 509 P.2d 303 (Colo. 1973). However, this
presumption generally does not apply if the trial court
accords weight to the improper evidence in its decision.
People v. Fulton, 754 P.2d 398 (Colo. App. 1987).

We conclude that the trial court did accord
considerable weight to the improper evidence in Kriho's
contempt trial.

A. Beliefs About Drug Laws and Jury System
As detailed earlier, in support of the prosecution's
theory that Kriho deliberately lied "in order to further her
own agenda," it presented six witnesses, all of whom were
former jurors. All but the alternate testified about what
was said during deliberations.

If that evidence is excluded, the People's evidence
consisted only of the following: (1) a transcript of the
voir dire in the underlying case; (2) documents showing
Kriho's prior arrest and deferred judgment; (3) her
distribution of the nullification pamphlet after the
mistrial was declared; (4) her letter to the editor of a
local newspaper in 1994 stating an opinion about the use of
industrial hemp; and (5) a July 1994 newspaper article about
the Boulder Hemp Initiative Project's attempts to legalize
marijuana use, which quoted Kriho as a project organizer.

We conclude that this remaining evidence, viewed in the
light most favorable to the prosecution, is insufficient as
a matter of law to find Kriho in contempt based on her
alleged failure to reveal that she opposed the enforcement
of drug laws through the courts, and her alleged failure to
reveal that she did not intend to follow the judge's
instructions on the law. On remand, the trial court should
dismiss the citation for contempt insofar as it was based on
those allegations.

Given this conclusion, it is unnecessary for us to address
the vitality, if any, of the doctrine of nullification in
Colorado. See People v. Wilson, 972 P.2d 701 (Colo. App. 1998).
Similarly, we need not discuss Kriho's contention that her First
Amendment rights were violated and that her prosecution was based
on the opinions she expressed in the local newspaper.

B. The Hemp Initiative Project

Kriho next asserts that her failure to disclose her
involvement in the Boulder Hemp Initiative Project cannot be
a basis for a finding of contempt because she was not asked
specific questions requesting such information during voir
dire. Under the circumstances at issue, we agree.

Jurors have a duty to answer truthfully, but voir dire
examination "always must be interpreted in the light of
realities of the setting in which it occurs." Bal Theatre
Corp. v. Paramount Film Distributing Corp., 206 F. Supp.
708, 721 (N.D. Cal. 1962).

In reversing a finding of contempt by a juror, the
court in In re Mossie, 768 F.2d 985 (8th Cir. 1985),
recognized the duty of jurors to answer questions honestly,
but concluded that voir dire questions must be read
literally. The court cautioned that:

          [H]onest answers hinge on fair
     interpretations of the voir dire questions, and
     when lay people and lawyers use legal language
     together, the resulting ambiguity can create
     great interpretive problems.
                             . . . .

          Although we recognize the burden this places on
     the courts and on parties in formulating voir dire
     questions, any other result shifts the burden of
     precision and legal interpretation away from the court
     and onto lay jurors, who might then be held accountable
     for their misunderstandings. This result would be
     neither just nor prudent.

In re Mossie, supra, 768 F.2d at 986. See also United States v.
Rhodes, 556 F.2d 599, 601 (1st Cir. 1977)("jurors, ignorant of
voir dire procedure, are to be held to the question asked, and
not to some other question that should have been asked"); Redman
v. United States, 77 F.2d 126 (9th Cir. 1935)(reversing contempt
conviction and discussing the danger of intimidating jurors with
contempt prosecutions based upon general questions during voir
dire, especially those jurors who leaned toward acquittals).

Thus, in a juror contempt prosecution, any ambiguity in
the questions asked should inure to the benefit of the
juror.

Applying that principle here, we agree with Kriho that
the general questions asked of her during voir dire about
"hobbies and special interests," were insufficient to create
a duty to inform the court of her membership in the Boulder
Hemp Initiative Project which, among other things, supports
the legalization of marijuana in Colorado.

One's membership in a political action committee such
as the Boulder Hemp Initiative Project is not per se a
hobby. While it arguably may be a special interest, the
jurors here were asked a very general question. Reasonable
persons could easily differ as to how extensively the
question should be answered. Unlike certain cases in which
jurors are given lengthy questionnaires, here, they were not
told they were expected to state any more than their general
interests. Nor was marijuana involved in the underlying
case.

Hence, while Kriho's association with a group
supporting the legalization of marijuana might have been a
valid area of inquiry by counsel, looking at the particular
questions asked of jurors, which were somewhat ambiguous, we
conclude Kriho was not under a duty to disclose that
association as a "special interest" during the voir dire at
issue here. See In re Mossie, supra; United States v.
Rhodes, supra. Although there were other questions asked
about drug laws and controlled substances, the People have
offered no other basis on which that particular disclosure
should have been made.

We therefore conclude that a finding of contempt cannot
be premised on the failure of Kriho to disclose her
involvement in the Hemp project. On remand, the trial court
should dismiss the citation for contempt insofar as it
relies on that allegation.

V. Prior Contacts with Court System

Kriho also maintains that she was not asked about
arrests or about her prior deferred judgment and that the
contempt citation should have been dismissed as a matter of
law insofar as it was based on that allegation. We are not
persuaded that Kriho is entitled to dismissal on that
ground. However, we do conclude she is entitled to a new
trial on that allegation.
We recognize that there exist certain ambiguities
concerning the legal effect of a deferred judgment. See
16-7-403(2), C.R.S. 1998; Weber v. Colorado State Board of
Nursing, 830 P.2d 1128 (Colo. App. 1992)(nurse could not be
disciplined for having been convicted of a felony during
pendency of deferred judgment, but could be disciplined for
procuring or attempting to procure nursing license by
fraudulent means); Hafelfinger v. District Court, 674 P.2d
375 (Colo. 1984)(after withdrawal of plea to deferred
judgment, earlier acceptance of the guilty plea is
vitiated); In re Mossie, supra (contempt could not be
premised on failure to disclose guilty plea to marijuana
possession that was not a "crime" under Missouri law); and
Bays v. Petan Co., supra (no contempt because juror's
untruthful answer in voir dire was not given knowingly or
willfully).

In the underlying case, the entire panel was asked
broad questions including: "Has anybody in the panel been
accused of a crime other than traffic stuff? Had to go to
court for something?" They were also asked if they had had
"[a]ny experience with the justice system? Positive or
negative?"

In our view, an appropriately responsive answer to these
questions necessarily would have required Kriho to disclose her
prior arrest and deferred judgment. Cf. People v. Rael, supra
(juror's failure to disclose during voir dire that he had felony
conviction was misconduct which constituted grounds for new
trial; contempt not involved).

There are two reported cases in which jurors have been
convicted of criminal contempt for nondisclosures during voir
dire which involved their failure to disclose prior felony
convictions. In both cases, the prosecution presented proof of
such an allegation that was largely independent of the evidence
of jury deliberations. See United States v. Lampkin, supra;
Witherspoon v. Arkansas, supra.

Thus, we perceive no reason why a finding of contempt
similarly cannot be brought under C.R.C.P. 107, and proved
with evidence other than jury deliberations, provided the
prosecution can show beyond a reasonable doubt all of the
required elements. Taking guidance from the federal
decisions and the language of C.R.C.P. 107(a)(1), those
elements in Colorado are: (1) the prospective juror
knowingly and willfully gave an untruthful answer or
deliberately failed to disclosure information during voir
dire in response to a specific question asked; (2) the
purpose of the juror's untruthful answer or nondisclosure
was to gain acceptance on the jury and to obstruct the
administration of justice; and (3) the juror's untruthful
answer or nondisclosure did obstruct the administration of
justice.

Here, it is undisputed that Kriho failed to disclose
her prior arrest and deferred judgment for possession of
LSD. Nevertheless, because inadvertent or negligent
disclosure is not contumacious, Kriho's motivation was
crucial in determining whether her failure to disclose the
information was deliberately done to obstruct justice, or
whether, as she has maintained, she believed the prior
proceeding had been expurgated and that she had no duty to
disclose it. See Clark v. United States, supra; Redman v.
United States, supra, 77 F.2d at 129 (Wilbur, J.,
concurring)("A man should not be sent to jail for
forgetfulness.").

We further acknowledge that it was within the trial
court's prerogative as factfinder to evaluate the properly
admitted evidence and to have resolved the credibility
question against Kriho. However, in resolving the
dispositive issues of motive and intent, the trial court
referred extensively to and relied on her statements during
deliberations. And, because significant portions of its
findings and conclusions regarding Kriho's intent and motive
were inextricably intertwined with the jury deliberation
evidence, we cannot say with confidence that the trial court
would have reached the same result without consideration of
the jury deliberation evidence.

Accordingly, we conclude that the finding of contempt
cannot stand insofar as it was based on the People's
allegation that Kriho failed to reveal her prior contact
with the court system, and that remand for a new trial on
this one remaining allegation is required. At the new
trial, for the reasons stated earlier, no evidence shall be
admitted regarding the jury deliberations in the underlying
case.

VI. Ambiguity of Trial Court Order

Before any retrial occurs on the sole remaining
allegation, the trial court should clarify an ambiguity in
its order.

Following the evidence, it concluded that two of the
three counts alleged by the prosecution could not be
sustained, rulings no longer subject to reconsideration due
to double jeopardy principles. Specifically, the court
determined that the allegation of disobedience to a court
order failed as a matter of law because the instructions to
the jury in the underlying case were not "court orders," and
therefore could not support a finding of contempt.
However, as to the allegation of contempt based upon
perjury, the trial court's order stated only that:

          On the issue of Ms. Kriho committing perjury, this
     Court finds in favor of Ms. Kriho and against the
     People. The case of Murer v. Rogowski, [29 Colo. App.
     235], 480 P.2d 853 (Colo. App. 1971) sets forth
     specific conditions under which perjury can constitute
     contempt of court. The evidence in this case does not
     meet those conditions. The absence of those conditions
     did not deprive the District Attorney of all remedies.
     The District Attorney could have filed a criminal
     charge against Ms. Kriho if he had chosen to do so.
     (emphasis added)

In Murer, a division of this court set aside a trial court's
order finding that defendant was guilty of contempt for having
perjured himself. There, the evidence consisted of collateral
evidence introduced by plaintiff to impeach the defendant's
testimony, and not upon anything inherently incredible or self-
contradictory.

The issue in Murer was whether the perjury had the effect of
substantially obstructing or halting the judicial process. The
panel concluded that, because defendant's perjury was not
"manifest," but required collateral proof, and there was no other
evidence that the perjury obstructed or halted the judicial
process, the contempt could not stand. See Ex Parte Hudgins, 249
U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919)(technical perjury
does not constitute criminal contempt unless it also amounts to
an obstruction to the administration of justice); Handler v.
Gordon, 111 Colo. 234, 140 P.2d 622 (l943)(trial court may punish
defendant for contempt for manifest perjury committed in its
presence).

As in Murer, Kriho's answers during voir dire did not
constitute manifest perjury in the presence of the court.
Collateral proof was required to determine whether she had lied
about a material aspect of the proceedings and whether such
obstructed the judicial process.

An ambiguity exists here because, unlike the situation in
Murer, the trial court found that Kriho was specifically asked
for the information, that she had deliberately withheld material
information from the court, and that she "did so with the intent
of serving on the jury for the purpose of obstructing justice."
In other words, it found that she had lied to the court for the
purpose of serving on the jury. It also found that her lies had
obstructed justice.

Based on these findings, the court then concluded that the
contempt based on obstruction of justice had been proven, but
that the contempt based on perjury allegation had not been
sustained. It did not explain why the evidence in this case
supported one count, which required proof beyond a reasonable
doubt of material falsity and obstruction of justice, but did not
support the other count, nor how the evidence failed to meet the
conditions of Murer v. Rogowski, supra.

Falsification or evasion may fall short of technical
perjury, but may still constitute contemptuous conduct if
its tendency is to obstruct the administration of justice.
See Clark v. United States, supra. Nevertheless, here, we
are unable to determine how the trial court rejected the
People's evidence of contempt arising from perjury, while at
the same time making a finding of contempt for obstruction
of justice. Nor can we determine if Kriho is entitled to
benefit from this inconsistency.

On remand, the trial court should clarify its order and
determine the effect, if any, of such clarification on the
remaining allegation.

VII. Due Process Violations

Because they may arise on retrial, we next address
Kriho's contention that her due process rights were violated
by: the trial court's refusal to allow her to call the
prosecutor and the judge in the underlying case as
witnesses; its refusal to appoint a special prosecutor; its
denial of her right to a jury trial; and the judge's failure
to recuse himself. We reject each contention in turn.

A. Calling Judge as a Witness

A strong public policy prohibits judges from being
called as witnesses to state the grounds upon which they
decided former cases. People v. Drake, 841 P.2d 364 (Colo.
App. 1992). A judge's testimony is inadmissible to prove or
contradict a judgment because the record is the best
evidence of the judgment. People v. Tippett, 733 P.2d 1183
(Colo. 1987).

In this case, the prosecution initially named the
trial judge as one of its witnesses and then decided not to
call him. When the defense also asked to call him as a
witness, the prosecution objected. The defense then filed a
written offer of proof stating its specific reasons for
wanting to elicit testimony from the judge.

These reasons included the fact that the judge could testify
about what orders he gave and what orders may have been
disobeyed; he could testify that defendant's answers on voir dire
were straightforward and that certain questions were put to
certain jurors but not to defendant; and that he could establish,
based on his experience on the bench, not to expect answers to
questions which are not asked. Although Kriho asserts on appeal
that the trial judge may have had a conversation with her after
the mistrial was declared and, therefore, may have relevant
information as a fact witness, an insufficient offer of proof was
made to show the relevancy of that testimony.

Because the defense failed to show that calling the
judge was necessary to the presentation of its case and
because most of the proposed evidence could be obtained from
the record of the underlying trial, we conclude that the
trial court did not err in refusing to allow Kriho to call
the judge in the underlying case as a witness.

B. Failure to Appoint Special Prosecutor

We also reject Kriho's contention that the trial court
abused its discretion in refusing to appoint a special
prosecutor to her case.

Section 20-1-107, C.R.S. 1998, grants the district
court discretion to disqualify the district attorney from a
case and appoint a special prosecutor if the district
attorney is interested in the outcome of the case. People
ex rel. Sandstrom v. District Court, 884 P.2d 707 (Colo.
1994). The statute was designed to permit the appointment
of a special prosecutor only when the district attorney has
an interest in the litigation apart from his or her
professional responsibility of upholding the law. People v.
District Court, 189 Colo. 159, 538 P.2d 887 (1975).

The policy considerations involved in making this
discretionary decision are broad, involving issues of public
confidence in the integrity and efficiency of the legal
system. People v. County Court, 854 P.2d 1341 (Colo. App.
1992).

Kriho asserted that the deputy district attorney who
prosecuted the underlying case would be a key witness and
that his testimony was needed to exonerate her. The defense
also asserted there had been improper contact between the
prosecution and a county court judge who had authored an
article on the subject of jury nullification.

However, the trial court found that: (1) the deputy
district attorney did not have evidence relevant to the
issues raised in the contempt citation that would disqualify
him from further prosecution of the case; and (2) any
discussions between the district attorney and the county
court judge were irrelevant and would not interfere with the
district attorney's ability to prosecute the case.

There was a verbatim transcript of the voir dire
proceedings which sets forth the statements that were made
by the court, the questions that were asked on voir dire by
counsel, and the responses given by Kriho and other
prospective jurors. Thus, because the district attorney's
evidence could have been obtained more accurately from the
transcript, the trial court concluded that the deputy
district attorney's testimony was unnecessary.

Reasonable minds could differ whether allowing the same
prosecutor to remain in the case created an appearance of
impropriety, where it has been alleged that the prosecutor
may have been a fact witness and originally had designated
the first trial judge and the defense counsel in the
underlying case as prosecution witnesses. However, we
cannot say that the trial court's determination to the
contrary was an abuse of discretion.

C. Failure of Judge to Recuse Himself

Kriho next asserts that the trial judge erred in
failing to recuse himself. We disagree.

Kriho's argument for recusal was that all judges in the
First Judicial District were too closely connected with this
particular case and, therefore, that they should have all
recused themselves from hearing the contempt charges. This
argument was based on an article written by a county court
judge concerning the jury nullification. However, no
written motion for recusal under C.R.C.P. 97 was filed by
Kriho.

Further, the judge hearing the contempt violation did
not preside at the underlying trial. He had not authored
any articles concerning jury nullification, and had not been
exposed to outside information about the case. The fact
that the contempt citation occurred in a court within the
same judicial district in which the case was heard does not
give rise to an inference of any impropriety on the part of
a particular judge.

We have read the record carefully and we are fully
satisfied that the trial court was impartial and did
everything within its power to ensure a fair trial to the
parties.

Under these circumstances, we conclude that the trial
judge did not err in failing sua sponte to recuse himself.

D. Right to Jury Trial

We also reject Kriho's contention that she was
improperly denied her right to a jury trial.
In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20
L.Ed.2d 522 (1968), the Supreme Court held that a defendant
has a constitutional right to a jury trial in a serious
criminal contempt proceeding. See Lewis v. United States,
518 U.S. 322, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996)(in
determining whether offense is sufficiently serious as to
grant right to jury trial, primary emphasis should be on
maximum prison term authorized, rather than on other
penalties such as fines or probation); United States v.
Unterburger, 97 F.3d 1413 (11th Cir. 1996)(maximum term of
imprisonment of six months and fine of $10,000 not
sufficiently severe to entitle defendant to a jury trial);
In re Brogdon, supra (criminal contempt determined to be a
"petty offense" rather than a "serious offense," and
respondent was not entitled to jury trial).

C.R.C.P. 107(d) provides that the maximum jail
sentence for one found in contempt of court shall not exceed
six months unless the person has been advised of the right
to a jury trial. See People v. Zamora, 665 P.2d 153 (Colo.
App. 1983).

Before Kriho was tried for contempt, the People filed a
document entitled "Notice of Maximum Sentence Not to Exceed
Six Months," which established that the People would not
seek a jail sentence exceeding six months. The court
treated the People's Notice as an irrevocable stipulation
that Kriho could not receive a sentence exceeding six
months. Accordingly, we reject Kriho's assertion that she
was denied the right to a jury trial.

The remainder of Kriho's arguments are moot.

The order finding Kriho in contempt for obstructing the
administration of justice is reversed and the cause is
remanded for a new trial consistent with the views expressed
in this opinion.

JUDGE JONES concurs.

JUDGE KAPELKE concurs in part and dissents in part. JUDGE KAPELKE concurring in part and dissenting in part.

I concur in the analysis and conclusions of the majority as
to Parts I and VII of its opinion. However, because Kriho has
not challenged the admissibility of the evidence regarding jury
deliberations in the underlying case, and because I believe the
trial court's contempt order is supported by the record, even
excluding that evidence, I would affirm. Accordingly, I
respectfully dissent from the majority's conclusion that
reversal and remand are required.

This punitive contempt proceeding arises from a 1996
criminal proceeding in which Kriho served as a juror. That case
(the underlying case) involved charges of unlawful possession of
a controlled substance (methamphetamine), criminal impersonation,
and unlawful possession of drug paraphernalia.

At the beginning of the trial in the underlying case, the
court informed Kriho and the other prospective jurors of the
criminal charges involved. The court then told them of the
importance of their listening to all the questions it asked, as
well as those asked by the attorneys, and explained the need to
obtain a fair and impartial jury. Kriho and the other jurors
took an oath in which they agreed to answer truthfully the
questions asked by the court or counsel concerning their service
as jurors on the case.

After some of the prospective jurors had been called into
the jury box, the court asked numerous additional questions,
including the following: "Has anybody in the panel been accused
of a crime other than traffic stuff? Had to go to court for
something?"

In response to the question, one potential juror indicated
that he had been accused of vandalism and that his case had gone
to trial. Another prospective juror indicated that his son had
had a problem with drugs and, as a result, had become involved in
the justice system in connection with his use of marijuana.
The prosecutor in his voir dire asked the jurors in the jury
box the following questions: "[D]oes anyone have any particular
strong feelings, either pro or con, about the laws we have
including the law that will apply here that you will get from his
Honor . . . about the control of dangerous drugs or controlled
substances? In other words, it is against the law to possess
methamphetamine and that is why we're here. Does anybody have
any particular views about these laws including specifically this
one?"

Thereafter, the prosecutor went on to ask individual members
of the panel whether they had "any particular views one way or
another about the laws in this area?"

After she was called into the jury box, Kriho stated that
she had heard all the questions asked by the court and counsel.
She was then asked whether any of the questions raised in her
mind an answer that might be different from those given by
others. She mentioned that she had been involved in a court
proceeding in Boulder District Court involving a suit against a
developer. Finally, the court asked if she could think of
anything that would interfere with her sitting as a fair and
impartial juror. She replied in the negative.

The trial in the underlying case resulted in a mistrial
after some of the jurors sent the following note to the court:

Can a juror be disqualified for:

Looking up the sentence on the internet for the
possession charge. IE (4-6 years)

          Juror stated The court criminal system is no
          place to decide drug charges that they should
          be decided by family and community. Many of
          my friends aquan (sic) have used illegal
          drugs.

In July 1996, the People filed a motion for contempt against
Kriho which included allegations that in the underlying criminal
action: 1) she had not disclosed that she had been arrested in
1984 for possession of a controlled substance (LSD) and had pled
guilty and received a deferred judgment and sentence for that
offense; and 2) she had not disclosed that she had views in
opposition to existing drug laws.

At Kriho's trial on the contempt motion, the People placed
in evidence, among other things, the transcript of the voir dire
questions at the trial of the underlying case and documents
relating to Kriho's deferred judgment on the controlled substance
possession charge. In addition, they introduced evidence showing
that Kriho was active in the Boulder Hemp Initiative Project, an
association advocating the legalization of marijuana use.

The People called as witnesses six of the jurors in the
underlying trial. Kriho did not object to the testimony of those
jurors concerning and revealing what had transpired in the jury
deliberations. Kriho herself called one of the jurors in the
underlying trial as a witness, and that juror also described what
had taken place in deliberations. In addition, in her own
testimony, Kriho discussed the deliberations and even indicated
how she had voted on the charges and for what reasons.

In my view, the admissibility of the evidence concerning
jury deliberations is not before us, nor is the propriety of the
trial court's having considered that evidence. As noted, Kriho
did not challenge the testimony in the trial court on that
subject and even presented her own evidence detailing what
occurred during the deliberations. Also, before trial she had
listed all the jurors in the underlying trial as prospective
witnesses.

To the extent that Kriho failed to object to the admission
of the evidence presented by the People, our review would
generally be for plain error. People v. Kruse, 839 P.2d 1 (Colo.
1992). Under that standard, reversal is not required unless the
error casts serious doubt upon the basic fairness of the trial
itself. Wilson v. People, 743 P.2d 415 (Colo. 1987).
Here, however, because Kriho not only failed to object but
also submitted substantial evidence of her own as to what
happened in the deliberations, an analysis based on waiver or
even invited error would seem more appropriate. Under the
invited error doctrine, a party may not complain on appeal of an
error that he or she has invited or injected into the case. See
People v. Zapata, 779 P.2d 1307 (Colo. 1989); People v.
Shackelford, 182 Colo. 48, 511 P.2d 19 (1973).

Notably, in Clark v. United States, 289 U.S. 1, 53 S.Ct.
465, 77 L.Ed 993 (1933), the leading case on contempt based on
juror misconduct, Justice Cardozo pointed out that, to the extent
the alleged contemnor there had voluntarily disclosed what
occurred in deliberations, she had waived any privilege to
protect the confidentiality of that information.

In its opinion the majority suggests that Kriho adequately
challenged the admissibility of the evidence of juror
deliberations in a pre-trial motion. However, none of the pre-
trial motions addressed the admissibility of such evidence.
Accordingly, I cannot share the view that the issue of
admissibility has been preserved.

Finally, and significantly, even in this appeal Kriho did
not contend either in the briefs or at argument that the evidence
regarding the juror deliberations should not have been admitted
by the trial court. While she identified admissibility of the
evidence as an issue in her notice of appeal, by having failed to
address it in the briefs she is deemed to have abandoned it, and
we cannot properly rule on the issue. See Sanchez v. State, 730
P.2d 328 (Colo. 1986).

Under these circumstances, I can find no basis for
reversal based on either the admission of the evidence or the
court's having considered it in determining whether Kriho
deliberately failed to disclose pertinent information in the voir
dire, whether she did so with the purpose of gaining acceptance
upon the jury, and whether she obstructed the administration of
justice.

I appreciate the vital importance of safeguarding the
secrecy of jury deliberations and the critical policy concerns
expressed in United States v. Thomas, 116 F.3d 606 (2d Cir.
1997). Indeed, in Clark v. United States, supra, 289 U.S. at 13,
53 S.Ct. at 469, 77 L.Ed. at 999, the Supreme Court emphasized
that "freedom of debate might be stifled and independence of
thought checked if jurors were made to feel that their arguments
and ballots were to be freely published to the world."

Nevertheless, under Clark and its progeny, there is no
absolute bar to admission or consideration of evidence of juror
deliberations in a later proceeding concerning alleged juror
contempt. Rather, the Court stated in Clark that there first has
to be a prima facie presentation sufficient to show the court
"that the light should be let in." Clark v. United States,
supra, 298 U.S. at 14, 53 S.Ct. at 469, 77 L.Ed at 1000. See
also Bays v. Petan Co., 94 F.R.D. 587 (D. Nev. 1982) (allowing
evidence of juror deliberations but ultimately finding that juror
had not acted willfully); 8 J. Wigmore, Evidence 2354
(McNaughton rev. 1961); 3 J. Weinstein, M. Berger & J.
McLaughlin, Weinstein's Evidence 606[4] (1966).
Here, the trial court in its written findings determined
that such a prima facie showing had been made. It is evident,
however, that such a showing was not made before the first of the
jurors began testifying about the deliberations. At that point,
the court had before it the transcript of the voir dire but had
not yet received evidence as to the information withheld by
Kriho, such as that regarding her prior deferred judgment on a
drug possession charge.

Nevertheless, given the failure of Kriho to challenge the
testimony about juror deliberations, either in the trial court or
here, I conclude that the admission of that evidence and the
court's consideration of it as corroborative evidence do not
provide a basis for reversal.

Finally, because, as discussed below, I believe the court's
contempt order was sufficiently supported by evidence unrelated
to the juror deliberations, I conclude that the court's reception
and consideration of such evidence at a bench trial did not so
undermine the fundamental fairness of the trial itself as to cast
serious doubt upon the reliability of the court's order. See
Wilson v. People, supra. Thus, in my view, there was no plain
error.

II.
As noted above, even if I were to assume that the trial
court should not have considered the evidence of what occurred in
juror deliberations in the underlying case, in my view the other
evidence presented at trial sufficiently supports the trial
court's contempt order.
In considering a challenge to the sufficiency of the

evidence to support a conviction, we must review the evidence and
all reasonable inferences which could be drawn from that evidence
in the light most favorable to the prosecution. People v.
Rodriquez, 914 P.2d 230 (Colo. 1996).

An assertion that the evidence is insufficient will not
result in reversal of a judgment by a trial court sitting as
trier of fact where there is competent evidence in the record to
support that court's findings of fact. People v. Storey, 191
Colo. 546, 554 P.2d 694 (1976).

We must give deference to the trial court's findings and may
not overturn them provided they have record support. "This is
true even though a contrary position may find support in the
record and even though we might have reached a different result
had we been acting as the trier of fact." People v. Thomas, 853
P.2d 1147, 1149 (Colo. 1993).

Further, the determination of the credibility of the
witnesses is solely within the province of the factfinder. Kogan
v. People, 756 P.2d 945 (Colo. 1988); People v. Drake, 841 P.2d
364 (Colo. App. 1992).

Pursuant to C.R.C.P. 107, the definition of "contempt"
includes "conduct that obstructs the administration of justice."

In Clark v. United States, supra, the Supreme Court
recognized that concealment or misstatement by a juror upon voir
dire examination can constitute contempt if its tendency and
design are to obstruct the administration of justice. See also
In re Mossie, 768 F.2d 985 (8th Cir. 1985); In re Brogdon, 625 F.
Supp. 422 (W.D. Ark. 1985); United States v. Lampkin, 66 F. Supp.
821 (S.D. Fla. 1946); Witherspoon v. Arkansas, 322 Ark. 376, 909
S.W.2d 314 (1995).

As Justice Cardozo pointed out in Clark v. United States,
supra, 289 U.S. at 11, 53 S.Ct. at 468, 77 L.Ed. at 998, a
prospective juror whose answers are willfully evasive or
knowingly untrue is, when accepted, a juror in name only, whose
relation to the court "is tainted in its origin" and is "a mere
pretense and sham."

As our own supreme court has recognized, where a juror
conceals or misstates important biographical information relevant
to a challenge for cause or a peremptory challenge, "the juror's
deliberate misrepresentation or knowing concealment is itself
evidence that the juror was likely incapable of rendering a fair
and impartial verdict on the matter." People v. Dunoyair, 660
P.2d 890, 895 (Colo. 1985).

A juror who thus misrepresents or conceals relevant
information is guilty of misconduct which may be prejudicial to
either or both parties because it impairs the right to challenge
for cause or peremptorily. People v. Rael, 40 Colo. App. 374,
578 P.2d 1067 (1978).

Here, the trial court made the following findings of fact,
among others, with respect to Kriho's conduct or omissions as a
prospective juror in the trial of the underlying criminal case:

     Several times during voir dire the judge, [the
     prosecutor], and [defense counsel] discussed issues
     related to drugs with several different jurors. This
     Court finds that Ms. Kriho was aware that any
     experiences, or strong opinions she had concerning the
     drug laws were important issues in selecting the jury.
     The evidence shows that on 1983, in Boulder County
     District Court, Ms. Kriho had pled guilty to the felony
     crime of Possession of a Schedule I controlled
     substance and was granted a deferred judgment and
     sentence. The evidence further shows that Ms. Kriho
     holds strong opinions about the propriety of certain
     drug laws. She is a founder and activist in an
     organization called the Boulder Hemp Initiative
     Project, which has the goal of legalizing marijuana in
     Colorado. She failed to reveal any of this highly
     relevant information during the jury selection process.

The court went on to conclude that Kriho had deliberately
withheld the pertinent information from the trial court and the
parties during the jury selection process and had done so in
order that she could be selected to serve on the jury and
obstruct the judicial process. In addition, the court concluded
that, by deliberately withholding the information, Kriho had in
fact obstructed the process of selecting a fair and impartial
jury.

Viewed in the light most favorable to the prosecution, the
evidence unrelated to deliberations adequately supports the trial
court's findings and its contempt order. It was within the trial
court's province to find, based on such evidence, that Kriho
deliberately concealed both the pertinent fact that she had been
accused of and received a deferred judgment for unlawful
possession of drugs, and the fact that she harbored strong views
regarding certain of the drug laws. From that evidence, and
permissible inferences that can be drawn from it, the court could
also conclude that she had concealed such information for the
purpose of getting on the jury and obstructing justice.

III.

Rather than targeting either the admission of the evidence
of juror deliberations or the sufficiency of the other evidence
to sustain the contempt finding, Kriho's actual contention on
appeal is that: "A juror cannot be charged with criminal
contempt of court, and convicted, for actions taking place within
the jury room, actions which comprise jury deliberations."

In other words, Kriho is urging that she was improperly
convicted for her conduct in deliberations. As discussed above,
however, the evidence that she intentionally concealed pertinent
information regarding her previous drug charge and deferred
judgment was not derived in any way from the juror-witnesses'
testimony about deliberations. Similarly, the court's findings
concerning Kriho's concealment of her views about drug laws are
supported by the evidence unrelated to the deliberations.

The trial court in its findings emphasized that Kriho was
not being sanctioned for her vote in deciding the underlying case
but rather for deliberately misleading the court and counsel
during jury selection with the intent to obstruct the legal
process.

The court stated in its order:

     This case is not now and never has been about how Ms.
     Kriho voted during jury deliberations. This case is
     about whether Ms. Kriho misled the trial court and the
     trial attorneys about important matters during the
     trial selection process with the intent to remain on
     the jury and obstruct the legal process. The Court
     admitted evidence of Ms. Kriho's conduct during jury
     deliberations only as it was relevant to the issue of
     Ms. Kriho's conduct during the jury selection process.

In my view, the following observation by the Supreme Court
in Clark v. United States, supra, 289 U.S. at 17-18, 53 S.Ct. at
470, 77 L.Ed. at 1001-02, applies with equal force to Kriho here:

     She has been held to answer for the deceit whereby she
     made herself a juror, and was thereby placed in a
     position to vote upon the case at all. What was said
     and done in the jury room is no more than confirmatory
     evidence of her state of mind before.

In Clark, the Court concluded that the juror would have been
found in contempt even in the absence of any evidence concerning
the jury deliberations, based on the showing that she had
concealed pertinent information during voir dire. Essentially,
the Court concluded that even if it were assumed that the
evidence concerning deliberations should not have been allowed,
its admission would have been harmless error. In my view, the
same analysis would apply here if the harmless error standard
were applicable.

While Kriho could not be punished for her statements in
deliberations or for how she voted as a juror, she could be found
in contempt -- as she was -- for obstruction of justice stemming
from her deliberate failure to disclose critically pertinent
information on voir dire.

Accordingly, I would affirm the trial court's contempt
order.

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