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holding that the invited error doctrine applied where defendant's counsel "was fully advised and acquiesced in the court's response to the jury's question" and "did agree that the appropriate response" was the response suggested by the court
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No. 90SC377
Decided July 9, 1991.
Certiorari to the Colorado Court of Appeals.
David F. Vela, Colorado State Public Defender, Katherine Campbell, Deputy State Public Defender, for Petitioner.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Clement P. Engle, Assistant Attorney General, for Respondent.
The defendant, Michael Bryan Boothe, was convicted in the Larimer County District Court of sexual assault on a thirteen-year-old female, J.C., in violation of section 18-3-405, 8B C.R.S. (1986). The court of appeals affirmed the conviction in People v. Boothe, No. 87CA0796 (Colo.App. Apr. 19, 1990) (an unpublished opinion), rejecting the defendant's contention that the trial court erred by failing to respond adequately to a question posed by the jury during its deliberations. We granted certiorari to review the decision of the court of appeals, and now affirm.
I.
The evidence presented at trial established the following facts. At approximately 6:30 p.m. on January 8, 1987, the defendant, who was twenty-one years old, and his seventeen-year-old male cousin, L.C., met three teenage females, all under fifteen years of age, in a department store parking lot. One of the females, J.C., was L.C.'s girlfriend at that time. The defendant, L.C., and the females discussed various plans for the evening and finally agreed to purchase some liquor and then "party" in a hotel room. Using L.C.'s car, the group drove to a liquor store where the defendant purchased a case of beer. They then proceeded to the Rosebud Motel, where they rented a room for the evening. The testimony at trial varied as to what transpired in the motel room.
One of the females, R.M., testified that J.C. had sexual intercourse with the defendant once and with L.C. several times. R.M. denied having sexual intercourse with the defendant or L.C. that evening. The second female, T.S., testified that she saw the defendant in bed with J.C., but she could not tell if they had sexual intercourse. T.S. also testified that neither she nor L.C. had sexual intercourse with anyone the entire night. J.C. testified that she had sexual intercourse with the defendant once, but that she did not have sexual intercourse with L.C. that evening. She also testified that both T.S. and R.M. had sexual intercourse with L.C. The defendant admitted that he spent the night in the motel room and slept in the same bed with J.C., but denied having sexual contact with any of the females. The defendant testified that L.C. engaged in sexual intercourse with all three females.
The prosecution charged the defendant with sexual assault on a child based on his alleged sexual contact with J.C., but elected not to charge the defendant with complicity related to any crimes L.C. may have committed. L.C. was returned to California as a juvenile escapee and was not charged in this case. Accordingly, the jury was not given an instruction on complicity. The trial court instructed the jury that the crime of sexual assault on a child consisted of "knowingly subjecting another, not the defendant's spouse, to any sexual contact, when the other person was less than fifteen years of age and when the defendant was at least four years older than that person." "Sexual contact" was defined as "knowingly touching of [sic] the victim's intimate parts by the actor, or of the actor's intimate parts by the victim." "Intimate parts" was defined as "the external genitalia or the perineum or the anus or the pubes of any person."
During its deliberations, the jury sent a note to the judge asking, "Can one be judged guilty by association?" The judge contacted the prosecutor and defense counsel by telephone and informed them of the contents of the note. Both counsel were asked if they had any suggestions. According to the judge's affidavit, the judge suggested that the appropriate response "may well be to simply advise the jury to read the instructions," and the prosecutor and defense counsel agreed. The judge responded to the jury's question by stating, "Please read the instructions."
While the case was pending on appeal in the court of appeals, the defendant sought a limited remand to develop the record. The limited remand was granted. The prosecutor and defense counsel agreed to supplement the record with affidavits from the defendant, defense counsel, the court reporter, and an affidavit and order from the trial judge. The trial judge's order and affidavit states in relevant part: "Upon receiving the note from the jurors, the Court contacted trial counsel and advised of the contents of the note. Counsel were asked if they had any suggestions or requests as to how to respond. I believe I did suggest that the appropriate response may well be to simply advise the jury to read the instructions. Both trial counsel had no other requests or suggestions and did agree that the appropriate response would be to advise the jury to read the instructions. Upon consent of counsel to this response, the jury was so advised."
The jury returned a guilty verdict and the defendant was sentenced to a prison term of five years. In affirming the defendant's conviction, the court of appeals distinguished, on two grounds, this court's decision in Leonardo v. People, 728 P.2d 1252 (Colo. 1986), in which we held that the trial court erred by failing to obtain the defendant's presence during proceedings to determine an appropriate response to the jury's question and by directing the jury to reread the instructions. The court of appeals' first basis of distinction was that the requirements of Leonardo were not implicated because the jury's question about guilt by association was not an issue in this case. Second, unlike Leonardo, defense counsel was consulted and concurred in the court's response to the jury's question. The court of appeals concluded that the judge's response did not amount to plain error because it was not an incorrect statement of the law.
II.
The defendant argues that the jury's question concerning complicity indicated that the jury did not understand a matter of law central to the determination of the defendant's guilt or innocence. The defendant contends that the trial court committed reversible error by not further instructing the jury that the defendant could not be guilty by association.
In Leonardo v. People, 728 P.2d 1252 (Colo. 1986), the defendant, Leonardo, was charged with theft by receiving and conspiracy to commit theft by receiving. During its deliberations, the jury sent the judge a note asking, "Is Knowing or Believing in instruction Number 6 The Same as Having a Suspicion of?" The judge, without consulting counsel for either side or informing Leonardo, responded to the jury's question by directing them to reread the instructions. In his appeal to this court, Leonardo contended that the trial court had committed two errors in its response to the jury's question: first, that the trial court's response to the jury's question was inadequate; second, that the trial court failed to consult counsel or the defendant before deciding upon the appropriate reply to the jury's question.
In Leonardo, we applied Standard 15-4.3(a), ABA Standards for Criminal Justice (2d ed. 1980), in determining when a trial court was required to provide the jury with additional instructions in response to a question. We held that the trial court committed prejudicial error by directing the jury back to the original instructions when the jury's confusion related to a matter of law central to the guilt or innocence of the defendant and none of the exceptions listed in Standard 15-4.3(a) applied. Prejudicial error was also found with regard to the trial court's failure to obtain the presence of defense counsel to permit defendant's counsel an opportunity to be heard before the judge responded to the jury's question. We held that it was "constitutional error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant's counsel." Leonardo, 728 P.2d at 1257.
Standard 15-4.3(a) provides: "(a) If the jury, after retiring for deliberation, desires to be informed on any point of law, they shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury's request unless: "(i) the jury may be adequately informed by directing their attention to some portion of the original instructions; "(ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or "(iii) the request would call upon the judge to express an opinion upon factual matters that the jury should determine."
In People v. Alexis, 806 P.2d 929 (Colo. 1991), we reviewed an issue similar to the one presented in Leonardo. In Alexis, the prosecutor and defense counsel entered into a stipulation regarding a witness's statement. At the conclusion of the trial, the jury was given instruction No. 19, which explained the stipulation. During the course of its deliberations, the jury sent a note to the judge asking, "On the stipulation, did the defendant knowingly agree to the stipulation as indicated in instruction #19?" The trial judge entertained a number of suggestions from both counsel on how to respond to the jury's question, and then instructed the jury to reread the original instructions.
Instruction No. 19 provided: "The prosecution and the defendant have stipulated to certain facts in this case, and you were so instructed about these stipulations during the trial. A stipulation renders unnecessary the presentation of any evidence to prove those facts, and the jury must regard those facts as conclusively proved. The effect of a stipulation is to make the stipulated facts true for purposes of the trial."
As an initial matter, we noted that "the question from the jury did not relate to the law of the case, but to the extent and meaning of the evidence set forth in the stipulation," Alexis, 806 P.2d at 931, whereas in Leonardo, the jury's question indicated that "the jury misunderstood the applicable legal standard," Leonardo, 728 P.2d at 1254. We then applied Standard 15-4.3(a) and determined that the jury's question fell within the exceptions listed in Standard 15-4.3(a). The jury's question related to a matter that was explained in the instructions and could be answered by referring back to instruction No. 19 and the stipulation. See Standard 15-4.3(a)(i). Moreover, providing the jury with additional instructions would have been contrary to Standard 15-4.3(a)(ii) and (iii), and would have required the trial judge to express "an opinion both on a matter not in evidence (the truth of the stipulation), and a factual matter that was properly determinable by the jury." Alexis, 806 P.2d at 932. The distinguishing factor between Alexis and Leonardo is that in Alexis the jury's question concerned a factual issue and did not involve a matter of law central to the guilt or innocence of the defendant. Accordingly, we held that, pursuant to Standard 15-4.3(a), the trial judge acted properly in directing the jury to reread the original instructions.
III.
The People argue in this case that the trial judge's response to the jury's question was appropriate because the jury "could be adequately informed by directing their attention to . . . the original instructions." See Standard 15-4.3(a)(i). We agree.
The instructions given to the jury referred only to the charge against the defendant of sexual assault on a child. The instructions stated that the defendant had to knowingly subject another to sexual contact to commit the offense and that sexual contact required a touching of the victim by the actor. The defendant was never charged with complicity, the prosecution never presented any evidence on complicity, and the instructions did not contain any reference to complicity. Contrary to the situation presented in Leonardo, it was apparent in this case that referring the jury back to the original instructions would "answer the jury's inquiry." Leonardo, 728 P.2d at 1255. Also, the jury's question about guilt by association was an abstract question which did not pertain to the law of the case. See Standard 15-4.3(a)(ii). If the judge had instructed the jury on complicity, he would have gone beyond the instructions presented to the jury and expressed an opinion on a matter not in evidence. Id.
"Absent a contrary showing, it is presumed that the jury understood and heeded the trial court's instructions." Leonardo, 728 P.2d at 1255. There was no showing that the jury did not understand the court's instructions in this case. The jury's question concerning guilt by association did not indicate that the jury misunderstood "an element of the offense charged or some other matter of law central to the guilt or innocence of the accused." Id. at 1256. Accordingly, the trial court was not required to give additional instructions on an issue that did not concern an element of the offense charged and was not central to the guilt or the innocence of the defendant.
The prosecution, on appeal, presented the question of whether defense counsel waived any objection to the supplemental instruction by failing to raise it at trial. See Valley v. People, 165 Colo. 555, 441 P.2d 14, cert. denied, 393 U.S. 925 (1968). Because of our resolution of this case under Standard 15-4.3(a), we need not reach this issue.
The judgment of the court of appeals is affirmed.
JUSTICE LOHR concurs in part, dissents in part, and concurs in the judgment, and JUSTICE QUINN and JUSTICE MULLARKEY join in the concurrence, dissent, and concurrence in the judgment.