People v. Russo

¶1concurring in part and dissenting in part:

¶2I agree with the majority opinion that the district court’s failure to separately instruct the jury on the essential elements of the crime of violence and on the prosecution’s burden to prove those elements beyond a reasonable doubt constituted plain error, but that the error was harmless under the circumstances of this case. I agree with the court of appeals, however, that the district court’s denial of the defendant’s causal challenge of the juror who worked as a part-time journalist constituted reversible error.

¶3In this case defense counsel challenged the prospective juror for cause because the juror had access to information not available to other jurors. Because a juror’s determination of guilt or innocence is to be made based on the evidence presented at trial, this court has granted a new trial in cases where jurors may have based their decision as to the defendant’s guilt on information gained outside of the trial. Blades v. DaFoe, 704 P.2d 317, 325 (Colo.1985) (retrial allowed in medical malpractice action where juror was an insurance claims adjuster, had reviewed insurance reports written by one defendant and potential expert witnesses, and stated that plaintiffs would have an “uphill battle”); Niemand v. District Court, 684 P.2d 931 (Colo.1984) (retrial allowed where juror consults legal dictionary outside of court); Alvarez v. People, 653 P.2d 1127 (Colo.1982) (same); see People v. Thatcher, 638 P.2d 760, 770 (Colo.1981) (“Independent investigation by jurors violates the defendant’s right to confront witnesses and to have his guilt determined solely on the evidence admitted at trial”); People v. Reed, 42 Colo.App. 275, 598 P.2d 148 (1979) (failure to grant new trial is not error where juror had merely conducted experiment related to defendant’s alibi defense and had not visited the scene of the crime nor driven any particular route that was involved in the case).

¶4The prospective juror in this case investigated the events surrounding the kidnapping and sexual assault. Not only had the juror written a story about the incident based on a police report, but he reread the police report in response to a complaint by the discotheque manager about the newspaper’s reporting of the complaint. Because of the discotheque manager’s challenge to the prospective juror’s article, the juror had an interest in which version of the facts came out at trial. Unlike prospective jurors who have been exposed to pretrial publicity, see People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (Colo.1976), this prospective juror’s source was not an objective news report but rather a police officer whose interests were aligned with those of the prosecution. The prospective juror’s position is similar to that of a prospective juror who has served on the grand jury that returned the indictment1 because in both instances the prospective juror has independent evidence from a police officer.

¶5The fact that a juror has given assurances that he can put aside what he has read about a case and the conclusions he has drawn is insufficient, by itself, to establish that such a juror will be fair and impartial. Beeman v. People, 193 Colo. 337, 565 P.2d 1340 (1977); McCrary, 190 *366Colo. 538, 549 P.2d 1320. Although the prospective juror stated that he would not consider anything that he had read in the report and that he would base his decisions solely on what he had heard in court, the testimony at trial could contradict something the reporter had learned from the police report, something he had learned from the discotheque manager, or something that he had written in his article. The fact that the prospective juror professed to be without bias is therefore not sufficient to guarantee the defendant an impartial juror. See McCrary, 190 Colo, at 547, 549 P.2d at 1327. The prospective juror in this case stated that he remembered very little about the kidnapping and sexual assault, but he undoubtedly would have remembered more information during the course of the trial, information that could contradict trial testimony and serve as an independent basis for a verdict. In addition, the fact that this juror became the foreperson put him in a position to influence other jurors. Because the sixth and fourteenth amendments to the United States Constitution and article II, sections 16 and 25, of the Colorado Constitution guarantee a defendant a fair trial by an impartial jury, Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972), and a juror should be “indifferent as he stands un-sworn,” Irvin v. Dowd, 366 U.S. 717, 722,. 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), I agree with the court of appeals that this juror should have been excused for cause.

¶6I am authorized to say that Justice LOHR and Justice NEIGHBORS join in this concurrence and dissent.