P.O. Box 729, Nederland, CO 80466, Vmail: (303) 448-5640
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P.O. Box 729, Nederland, CO 80466, Vmail: (303) 448-5640 |
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State Files Petition for RehearingThe Colorado Attorney General’s office filed the below Petition for Rehearing with the Colorado Court of Appeals on May 20, 1999. If this petition is denied, it is likely that the state will petition the Colorado Supreme Court to hear this case. Update (11/99): This petition was denied and the Colorado Attorney General did appeal the case to the Colorado Supreme Court. COLORADO COURT OF APPEALS Case No. 97CA0700 PETITION FOR REHEARING Appeal from the District Court of Jefferson (sic – should be Gilpin) County Honorable HENRY E. NIETO, Judge THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee, v. LAURA J. KRIHO, Defendant-Appellant. DIVISION I ORDER REVERSED AND CAUSE Opinion by ROTHENBERG REMANDED WITH DIRECTIONS Jones, concur Kapelke, J., concurs in part and dissents in part
KEN SALAZAR
ROGER BILLOTE Pursuant to C.A.R. 40, the People respectfully petition for a rehearing on the following grounds:
Evidence of Jury Deliberations This court’s opinion concluded that evidence of jury deliberations should not have been, but was considered by the trial court in finding Ms. Kriho in contempt. This court reasoned that this required reversal of the trial court order and remand for a new trial. This conclusion, to a large extent, is based on the opinion of the United States Court of Appeals for the Second Circuit in United States v. Thomas, 116 F.3d 606 (2nd Cir. 1997). The Thomas case is focused on the issues of the propriety of a federal trial court’s dismissal of a juror allegedly engaged in nullification during the course of deliberations in a criminal prosecution. The case is concerned with whether such alleged misconduct constitutes just cause for the dismissal of a deliberating juror under Rule 23 (b) of the Federal Rules of Criminal Procedure so that a jury of eleven persons may continue to deliberate and return a verdict; and what evidentiary standard must be met to support a dismissal on this ground. The Thomas opinion has a lengthy discussion of the need and advisability of jury confidentiality. However, much of the language appears to be dicta. Further, the context of the issues in Thomas is significantly different than the one in this case. Ms. Kriho’s case did not involve an inquiry of jurors while they were deliberating. This case involved calling jurors to testify about what occurred in the jury room after a mistrial was declared. The contempt citation against Ms. Kriho did not center on the jury deliberations. The focus was on the allegation of concealment or false swearing during voir dire with the intent to be placed on the jury for the purpose of obstructing justice. The application of the evidentiary standard developed in Thomas to the testimony in this case is misplaced. This court has also incorrectly concluded that the entire testimony of juror Ronald Ramsey should have been excluded. Even accepting as correct this court’s finding that evidence of jury deliberations should have been excluded, evidence of what Ms. Kriho said to Ramsey in a private conversation during a break in deliberations should be admissible in any possible retrial of this case. This court found no inconsistency between its conclusion in the case and the holding in Clark v. United States, 289 U.S. 1. This court found that the testimony about statements made during jury deliberations in Clark was "merely confirmatory," whereas in Ms. Kriho’s case the statements made during deliberations "were pivotal to the prosecution’s case." Slip op. at 29. The admission of testimony about Ms. Kriho said in jury deliberations (sic) was evidence going to Ms. Kriho’s behavior and intent on voir dire. Admission of this testimony was entirely consistent with the holding in Clark, which is more closely related to the situation in this case than the holdings in Thomas. The Clark decision does not permit evidence of jury deliberations unless the trial court finds a prima facie case has been shown by the prosecution. This court concluded that this foundation requirement was not met in this case. However, the trial court made findings about what factors made up the prima facie case, and those findings were entirely sufficient. Any error in not making these findings prior to the admission of this evidence was harmless, given that that (sic) the circumstances warranted the admission of the evidence. Finally, the People would agree with the view articulated in the dissent that the admissibility of evidence concerning jury deliberations was not properly before this court, nor the propriety of the trial court’s consideration of that evidence. See Slip op. at 53-57. Sufficiency of the Evidence This court found that, if evidence of jury deliberations was excluded, the only remaining evidence to support the prosecution theory that Ms. Kriho deliberately lied in order to further her own agenda regarding the drug laws and the jury system would be: 1) a transcript of the voir dire; 2) documents showing Ms. Kriho’s prior arrest and deferred judgement; 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 on the use of industrial hemp; and 5) a July 1994 newspaper article about the Boulder Hemp Initiative Project’s attempt to legalize marijuana use, quoting Ms. Kriho as a project organizer. The proper standard for the review of sufficiency of the evidence is 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 accused is guilty of the charged offense beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo. 1988). Giving the prosecution the benefit of every reasonable inference which might be drawn from the totality of the evidence, a conclusion should be reached that Ms. Kriho deliberately withheld information or mislead the court and counsel during voir dire so that she could be placed on the jury to give effect to her opinions regarding the inappropriateness of criminal drug laws and the alleged right of juror’s (sic) to ignore the law as given to them by the court. This court has misapplied the facts of this case to the appropriate standard. The Hemp Initiative Project This court agreed with Ms. Kriho’s assertion 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. However, the questions asked the jurors about "hobbies and special interests" were sufficient to create a duty for Ms. Kriho to inform the court and counsel of her membership in the Boulder Hemp Initiative Project which, among other things, supports the legalization of marijuana in Colorado. Ms. Kriho’s membership in the group and her activities on its behalf was obviously a special interest that any reasonable person would know should be revealed in the context of the voir dire question. Prior Contacts with the Court System As this court noted, it is undisputed that Ms. Kriho failed to disclose her prior arrest and deferred judgment for possession of LSD. A review of the nature of the questions asked on voir dire establishes that any reasonable person would have known that she had a duty to disclose an involvement with the justice system as the one Ms. Kriho had. Her failure to disclose it supports a finding that the nondisclosure was done with an intent to obstruct justice. The trial’s courts findings are not so inextricably intertwined with the evidence of jury deliberations that a finding of contempt needs to be vacated and remanded for a new trial. CONCLUSIONS For the above stated reasons, the People ask that the opinion be withdrawn, that a rehearing be granted, and a new opinion issued affirming the trial court order of contempt.
KEN SALAZAR
ROGER G. BILLOTE, 16782* * Counsel of record
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