Petition for Writ of Certiorari by the State of Colorado

1. Whether the holding in United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) is the appropriate standard for determining whether evidence of jury deliberations can properly be considered in a contempt prosecution of a juror for giving false or misleading information during voir dire with the intent to obstruct justice?

2. Whether the holding in Clark v. United States, 289 U.S. 1 (1933) should be the proper standard for determining the admissibility of jury deliberation evidence in such a contempt prosecution, and whether that holding in Clark was properly applied by the trial court in this case?

3. Whether, even assuming that evidence of jury deliberations should not have been admitted, the admission of such evidence was harmless because there was sufficient other evidence to support the finding of contempt based on the areas of concealment and nondisclosure identified by the district court in its order?

4. Whether the issue of admissibility of the evidence concerning deliberations was properly before the court of appeals?

5. Whether, if a remand for another trial is required, the order of contempt needs to be clarified to correct an alleged ambiguity?

OPINION BELOW AND STATEMENT OF JURISDICTION

The People are aggrieved by the published 2-1 decision of the court of appeals reversing the order of the district court that found the respondent/cross-petitioner, Laura J. Kriho (who will be referred to as the respondent or Ms. Kriho) in contempt of court. People v. Kriho, P. 2d , No. 97CA0700 (Colo. App. April 29, 1999) (Attachment A).

The court of appeals found that misconduct by a juror need not be disruptive to amount to contempt. A juror's failure to disclose relevant information during voir dire can obstruct the judicial process and constitute contempt. Slip op. 10-12. However, the majority applied a rule that greatly narrowed the circumstances under which the party prosecuting the contempt citation would be able to present evidence based on jury deliberations.

The majority held that evidence of jury deliberations may not be used in prosecuting a juror for contempt if there is "any possibility" that the juror engaged in proper deliberation and acted on the basis of her view of the sufficiency of the evidence. Slip op. at 18. This standard was taken from United States v. Thomas, supra. Thomas was a federal criminal prosecution involving a defendant's challenge to the dismissal of a juror during deliberations. Thomas held that a juror cannot be removed during deliberations in the absence of proof "beyond a reasonable doubt" that the juror intended to disregard the court's instructions. The decision stated that if there is any possibility that a recalcitrant juror is attempting to apply the law and is simply not persuaded by the prosecutions evidence, there can be no further inquiry in to (sic) deliberations and the juror cannot be removed.

The majority in Kriho, applied the Thomas rule to a contempt prosecution based on a juror's alleged withholding of information during voir dire with the intent to obstruct justice. Using this test, the majority looked at testimony from the contempt trial that Ms. Kriho engaged in discussions on the issues raised by the evidence. Slip op. at 23-25. The majority also noted that Ms. Kriho agreed to convict on one of the three charges, that all jurors agreed to acquit on another charge, and that there was some evidentiary basis for Ms. Kriho's decision to hold out for acquittal on the possession charge. Slip op. at 23-26. The majority concluded that these facts brought the case within the Thomas rule, and that once it was shown that Ms. Kriho participated in deliberations, there should have been no further testimony on the subject of what was said during deliberations. Slip op. at 25.

The majority decision discussed what it perceived to be the differences between Ms. Kriho's case and the holding in Clark v United States, supra. In Clark, the United States Supreme Court held that a prima facie case of juror wrongdoing must first be shown, and only then will jury discussions be admissible as corroborative evidence, to supplement and confirm the case that would exist without them. The Kriho majority found that the testimony about statements made during deliberations in Clark was "merely confirmatory," whereas in Ms. Kriho's case the statements made during deliberations "were pivotal to the prosecution's case" to show that she made knowingly false or misleading statements during voir dire in order to secure a place on the jury. Slip op. at 29.

The majority opinion noted that, based on the questions asked the entire jury panel, Ms. Kriho would have been required to disclose her prior arrest for possession of LSD and the resulting deferred judgment. Slip op. at 38. However, the majority noted that Ms. Kriho's motivation was crucial in determining whether the failure to disclose was deliberate (sic) done to obstruct justice or, was based on Ms. Kriho's assertion that she believed she had no duty to disclose. Slip op. at 37-40.

The majority rejected the respondent's claims that her right to due process was 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. Slip op. at 43-49.

Judge Kapelke dissented in part. The dissent stated that the issue of admissibility of jury deliberations was not properly before the court. Slip op at 50-62.

STATEMENT OF THE CASE

Ms. Kriho was a juror convicted of contempt. The allegation was that she knowingly failed to disclose information during voir dire in a case that, among other charges, involved a charge of methamphetamine possession (People's Exhibit 1, pp. 3-4). During voir dire, the court informed the group of prospective jurors of the charges and administered an oath in which the jurors swore or affirmed to answer truthfully the questions asked by the court of counsel (People's Exhibit 1, p. 5). The court advised jurors that if they thought they would have problems following the law or have any bias against either the defendant or the prosecution, they should bring it to the court's attention (v. 4, pp. 35, 74, 75, 76, 125-126, 186).

There were individual discussions by the court and counsel with a number of prospective jurors about their obligations to follow the law given by the court, their attitudes regarding drug laws and drug law enforcement, and their abilities to serve fairly and impartially (v. 4, pp. 82, 128; People's Exhibit 1, pp. 17, 18, 24, 41, 42). There was also questioning about whether jurors had any experience, positive or negative, with the justice system.

Ms. Kriho was called into the jury box as a replacement juror. Ms. Kriho told the court about her involvement in a civil suit, but made no mention that she had once received a deferred judgment for possession of LSD (People's Exhibit 1, p. 90). The charge had been dismissed after she successfully completed the terms and conditions of the deferred judgment. Ms. Kriho also did not tell the court or counsel about her activities with the Boulder Hemp Initiative Project (an organization advocating legalization of marijuana in Colorado) (See People's Exhibits 4 and 5). She also did not make any statements indicating that she was opposed to the criminal prosecution of drug laws. At the end of voir dire, Ms. Kriho was one of the selected jurors.

During deliberations, Ms. Kriho became the sole holdout for acquittal on the drug possession charge. On the second day of deliberations, a note was sent out of the jury room complaining that Ms. Kriho had used the Internet to research the potential sentence in the case and arguing in deliberations that that (sic) drug cases should be handled by the family and community and not the courts (People's Exhibit 2; v. 4, p. 150).

On the motion of the defendant, the court declared a mistrial (People's Exhibit 1, pp. 4-5). Following the mistrial and release of the jurors, Ms. Kriho handed one of the other jurors a pamphlet advocating jury nullification (v. 4, p. 200). On the back of the brochure, persons were invited to contact the Boulder Hemp Initiative Project for further information (People's Exhibit 3). The juror took the brochure to the trial court judge.

Later, the People initiated a contempt proceeding against Ms. Kriho. The prosecution alleged, in relevant part, that Ms. Kriho had obstructed the administration of justice by concealing her prior involvement with the criminal justice system, her opposition to the enforcement of drug laws, her involvement with the Hemp Initiative Project, and her intention not to follow the court’s instructions on the law (v. 1, p. 164). Evidence at the contempt trial, included testimony of other jurors concerning statements Ms. Kriho made during deliberations.

The court found for Ms. Kriho and against the People on the allegations that Ms. Kriho had disobeyed an order of the trial court and that she committed perjury (v. 1, p. 172). The court later sentenced the respondent to pay a fine of $1200 (v. 1, p. 245). Ms. Kriho then brought this appeal.

REASONS FOR GRANTING THE PETITION

This case is the first decision by an appellate court in Colorado involving the prosecution of a juror for contempt based on allegations that the juror knowingly gave misleading and false responses to questions effecting her qualifications as a juror with the intent to obstruct justice. The court of appeals has applied a test (based on a federal appellate court decision) for determining when evidence of jury deliberations can be admitted in such contempt prosecutions. The test applied in the majority decision is inapplicable to the context and circumstances of this case. In contrast, the trial court applied a test that is appropriate to this type of contempt prosecution. This standard meets the policy concerns raised by inquiring into what occurred during deliberations. This court has the opportunity with this case to determine the appropriate standard and clarify to what extent the secrecy of jury deliberations need to be protected in cases that do not involve an attack on the validity of a verdict or a ruling for a mistrial. Certiorari review is also necessary to correct the misapplication by the court of appeals of well settled law regarding appellate review of the sufficiency of the evidence. The majority opinion represents an invasion of the fact finder’s role as the determiner of the facts. Review is also necessary to clarify when an issue has sufficiently been raised in the district court to warrant review on appeal. This court should also take up the question of whether any remand of this case for a new trial would warrant amending of the contempt order to clarify an alleged ambiguity in the original order.

ARGUMENT

The court of appeals concluded that evidence of jury deliberations should not have been considered by the trial court in finding the respondent in contempt. This finding is heavily based on the opinion of the United States Court of Appeals for the Second Circuit in United States v. Thomas, supra. Thomas focused on the issues of the propriety of a federal district court’s dismissal of a juror allegedly engaged in nullification during the course of deliberations in a criminal prosecution. The issue was 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 dismissal of a juror on this ground.

The context of the issues and holding in Thomas is significantly different from the circumstances in this case. The respondent’s contempt trial did not involve an inquiry of jurors while they were deliberating. The case involved eliciting testimony from former jurors about what occurred in the jury room after a mistrial was declared and the jury disbanded. The contempt citation did not center on 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 respondent’s case did not concern issue of a defendant’s right to a unanimous verdict that was present in Thomas. The application of the evidentiary standard developed in Thomas to the testimony in this case is misplaced and should be reviewed by this court.

This court should also review the finding by the majority that the entire testimony of juror Ronald Ramsey should have been excluded. Slip op. at 25-26. Even accepting as correct the majority finding that evidence of jury deliberations should have been excluded, evidence of what Ms. Kriho said to another juror in a private conversation during a break in deliberations should be admissible in any possible retrial of this case.

II.

The majority opinion of the court of appeals found no inconsistency between its conclusion in this case and the holding in Clark v. United States, supra. Slip op. at 28. The majority found that the testimony about statements made during 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. However, the admission of testimony about what the respondent said in jury deliberations was evidence going to her 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 Kriho than 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. The majority opinion concluded that this foundation requirement was not met in this case. Slip op. at 31-32. However, the trial court made findings about what factors made up the prima facie case, and those findings were clearly sufficient (v. 1, p. 171). 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.

The gist of the offense in this type of criminal contempt prosecution is not the statements or conduct in the jury room, but rather the concealment or false swearing by virtue of which a juror is seated, and under cover of which the course of justice is obstructed. Clark v. United States, supra. The focus is on the voir dire proceedings, not the deliberations or the verdict.

The rights of both defendants and the prosecution to a fair hearing would be seriously endangered if persons, with whatever motivations, could purposefully conceal information during voir dire to get on the jury for the purpose of obstructing justice without the consequence of a subsequent prosecution for contempt. Prosecutions of the type exhibited here do not undermine respect for the jury system or make citizens fearful of serving on juries. Rather, these prosecutions instill faith in the jury system and reinforce the concept that both sides in a criminal prosecution are entitled to a fair hearing and that all members of the court must act within certain limits.

The sanctity of jury deliberations and the privacy of jurors are important considerations. See Ravin v. Gambrell, 788 P.2d 817, 820 (Colo. 1990). But, however important these concepts are, where fundamental flaws in the voir dire process have occurred in conjunction with the efforts to obstruct justice, courts must weigh the force of these policies against the overriding concern that parties to the judicial process be assured of a fair result and the integrity of the process. See Id. At 821. As the Clark court noted;

Assuming that there is a privilege which protects from impertinent exposure the arguments and ballots of a juror while considering is verdict, we think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. 289 U.S. at 13-14.

This court should review the applicability of the holding in Clark and adopt it as the standard in Colorado.

III.

Even assuming that the trial court should not have considered the evidence of what occurred in jury deliberations, a review shows that there was other evidence presented at trial that sufficiently supports the contempt order. The majority opinion is at variance with the applicable case law. Certiorari review is necessary to rectify the majority’s finding that certain aspects of the evidence were insufficient.

As the dissent noted (Slip op. at 57), an assertion that the evidence is insufficient will not result in reversal of a judgment by a trial court sitting as a trier of fact where there is competent evidence in the record to support the court’s findings of fact. People v. Storey, 191 Colo. 546, 554 P.2d 694 (1976). Appellate court’s (sic) 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 the appellate court may have reached a different result had it been acting as the trier of fact. People v. Thomas, 853 P.2d 1147, 1149 (Colo. 1993).

The dissenting opinion points to specific findings of fact by the district court that included: 1) during voir dire, issues regarding drugs were discussed with a number of jurors; 2) Ms. Kriho was aware that any experiences, or strong opinions she had concerning drug laws were important in selecting the jury; 3) Ms. Kriho received a deferred judgement in 1983 based on a plea of guilty to felony possession of a Schedule I controlled substance; 4) Ms. Kriho holds strong opinions about the propriety of certain drug laws as evidenced by here activities with the Boulder hemp Initiative Project;, which has the goal of legalizing marijuana in Colorado; 5) Ms. Kriho failed to reveal any of this highly relevant information during jury selection.

The evidence unrelated to deliberations adequately supported the district court’s finding of contempt. The evidence and permissible inferences, allow a conclusion that the respondent concealed particular information for the purpose of getting on the jury and obstructing justice. The record, in contrast to the majority’s finding, supports a finding of contempt premised on Ms. Kriho’s withholding of information regarding her views about drug laws, the jury system, and her activities with the Boulder Hemp Initiative Project, even if the jury deliberation evidence is excluded. The majority opinion represents a significant lack of deference to the trial court as the trier of fact and shows the appellate court stepping out of its role as a reviewing court and making its own findings of fact. The majority opinion is at variance with well established case law and needs to be reviewed by this court.

IV.

The dissenting opinion raises the issue of whether the respondent adequately preserved the issue of the propriety of admitting jury deliberations so that it could be reviewed on appeal. Slip op. at 53. In the trial court, Ms. Kriho argued and asserted in motions that she was being punished for what she had said in the jury room during deliberations and because she had voted for acquittal on the possession count. However, as the dissent notes (Slip op. at 54), the respondent’s pretrial motions did not specifically address the admissibility of jury deliberation evidence. ON appeal, the respondent raised the claim that a juror cannot be charged with criminal contempt of court, and convicted, for actions taking place in the jury room, where such actions comprise jury deliberations (Opening Brief, p. 13). The respondent alleged that she was charged, in large part, for improper deliberations in the jury room. Although she identified admissibility of the evidence in her notice of appeal, the respondent did not address it in her brief with sufficient specificity, and, therefore, abandoned it so that appellate review was not appropriate. See Sanchez v. State, 730 P.2d 328 (Colo. 1986). The majority’s rejection of the dissent’s position on this procedural issue, presents this court with the opportunity to clarify the law regarding a party’s responsibility to articulate a claim in the trial court to insure that it will be appropriate for appellate review.

Finally, the majority opinion concluded that the ambiguity existed in the district court’s order, and that this ambiguity should be clarified in the event of retrial. Slip op. at 40. The majority stated that the trial court concluded that the contempt based on obstruction of justice had been proven, but the contempt based on perjury allegation had not been sustained. Slip op. at 41. The majority opinion asserted hat the trial court 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 set out in Murer v. Rogowski, 29 Colo. App. 235, 480 P.2d 853 (Colo. App. 1971) regarding when perjury can constitute contempt of court. Slip op. at 43.

However, as the opinion notes (Slip op. at 43), 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. Here, it is clear that the trial court based its finding that Ms. Kriho’s actions fell short of technical perjury, but constituted contemptuous conduct. There does not appear to be any ambiguity requiring clarification.

CONCLUSION

For the above stated reasons and authorities, the People request that this court grant the petition for writ of certiorari on the above stated issues.

KEN SALAZAR
Attorney General

ROGER G. BILLOTTE*
Assistant Attorney General
Appellate Division
Attorneys for Petitioner/Cross-Respondent
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Telephone: (303) 866-5785
FAX: (303) 866-3955

* Counsel of Record

CERTIFICATE OF SERVICE

This is to certify that I have duly served the within PETITION FOR WRIT OF CERTIORARI upon all parties herein by depositing copies of same in the United States mail, postage prepaid, at Denver, Colorado this 18^th day of October 1999 addressed as follows:

Paul Grant
19039 East Plaza Drive, #260E
Parker, CO. 80134

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