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concluding that constitutional harmless error analysis applied when defendant was not totally deprived of counsel
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No. 92SC802
Decided January 10, 1994
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner
Gale A. Norton, Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Katherine M. Clark, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Respondent
We granted certiorari to decide whether the court of appeals properly concluded in People v. Key, 851 P.2d 228 (Colo.App. 1992) (Key I), that the defendant was deprived of his constitutional right to counsel when the trial judge held an ex parte scheduling conference with the jury during its deliberations. We also granted certiorari to determine whether the court of appeals correctly analyzed such a violation under the harmless error standard. For the reasons stated below, we affirm in part and reverse in part and return the case to the court of appeals with directions to remand to the trial court for a new trial.
I
On July 4, 1990, Vincent Garcia (Garcia) and his family were having an outdoor barbecue dinner at their home. At approximately 6:00 p.m., two cars with several young male occupants drove slowly past Garcia's home, flashing "gang signs" with their hands out of the car windows. Approximately twenty minutes later, the occupants of the cars reappeared and entered Garcia's front yard. After challenging Garcia to a fist-fight, Alex Cowans (Cowans), one of the vehicle occupants and a defendant in the instant action, threw a punch at Garcia. A fight then erupted between the group of young men and Garcia's family. Garcia's father, uncle, brother-in-law, sister and neighbors were all involved in the melee.
At some point during the skirmish, one of the other vehicle occupants appeared with a gun and began brandishing it in the air. Cowans evidently took possession of the gun and pointed it at various people, asking them if they wanted to die. According to the testimony of five eyewitnesses at a pre-trial motions hearing, Cowans stood three feet away from Garcia and pointed the gun directly at Garcia's head. According to the same testimony, Cowans eventually pulled the trigger, but the gun failed to discharge. Garcia's father then wrestled Cowans to the ground, removing the gun from his hand.
The police arrived shortly thereafter and arrested several of the young men involved in the fight, including Cowans and the defendant, Ryan Key (Key). Several members of the Garcia family identified Cowans to the police out of a group of arrestees as the individual who had pointed the gun at Garcia and pulled the trigger. The prosecution subsequently charged both Cowans and Key with attempted first degree murder, menacing and conspiracy to commit first degree murder.
At a pre-trial motions hearing in September 1990, the state presented five eyewitnesses, including Garcia, who testified under oath that it was Cowans who pointed the gun at Garcia's head. Officer Brian Fowle of the Denver Police Department specifically testified that on the day of the incident, a crowd of between fifteen and twenty people identified Cowans as the one who had the gun.
A jury trial in which both Cowans and Key were tried together commenced on December 17, 1990. At the trial, Garcia, his mother, father, sister and a close friend all testified that Key, and not Cowans, had in fact been the one who pointed the gun at Garcia. Defense counsel attempted to impeach these witnesses with their testimony from the pre-trial hearing as well as from police reports in which they had previously identified Cowans as the individual who pointed the gun at Garcia and pulled the trigger. The only explanations offered by these witnesses for their inconsistent statements as to the identification of the perpetrator were that the witnesses either "forgot" within twenty minutes of the brawl which defendant had pulled the trigger or that they were "mistaken" on both the day of the incident and at the pre-trial hearing ten weeks later.
Garcia explained the discrepancy in testimony by stating that on the day of the incident "I was freaked out, scared, and I just said whatever came to my mind." Garcia's father stated that the description he gave of the person with the gun did not match the clothing worn by Key because he had been mistaken on the day in question.
The jury began its deliberations early on Friday afternoon, December 21, 1990. After the jury had been deliberating for approximately three hours, the trial judge sua sponte reconvened the jury in the courtroom, without first notifying the defendants, their counsel or the prosecution. The judge proceeded to discuss scheduling matters with the jurors outside of the presence of all counsel and the defendants. He prefaced the conference with the following remarks:
The following dialogue occurred between Key's attorney and the trial court just prior to the commencement of jury deliberations: THE COURT: Okay. Let us know where you can be reached shortly — rather, on short notice. MR. KORECKI: Judge, my office is about 15 minutes away — not even; it's about 12. Is that close enough? THE COURT: That's fine. If you're within 15 minutes' traveling time, that's fine.
You haven't had a whole lot of time to deliberate, about three hours or so, which is not a whole lot of time. We may need to talk about when we can reschedule your reconvening as a jury. We've got the holidays coming up, and I'm not sure if everyone's available to come back Monday morning or not, so I thought we better take a poll and chat about when we can reappear.
During the discussion, Juror Nichting stated that he would be leaving town the following morning on vacation and would not return until December 31. Juror Hurst then informed the judge that she was getting married on January 1, 1991, after which she would be departing for a two-week honeymoon. The judge then suggested that the jury reconvene on December 31, to which Juror Nichting responded that although he did not know what time he would arrive from Illinois by car that day, he could make it back in time to reconvene. The following dialogue then ensued:
JUROR BROWN: Your Honor, would it be possible for us to continue? I feel we're fairly close.
Juror Brown was the jury foreperson.
THE COURT: We can go for a little while, but not too much longer, because they start locking this building up and we kind of lose access to it. But you certainly may deliberate further.
JUROR BROWN: Could we stay till 5:30?
THE COURT: Yes, that's probably about the fail-safe time, and then we'll reschedule.
All right. We've got the 31st available. You don't want to do this the day before you get married, anyway, do you?
JUROR HURST: I hope not.
The meeting was then adjourned. The trial court did not inform either defense counsel or the prosecution of these ex parte communications.
Before the end of the day, the jury returned to the courtroom to deliver its verdicts. The jury found Key guilty of criminal attempt to commit murder in the first degree and menacing. The jury acquitted Cowans of all charges.
It is unclear from the record how much time transpired between the end of the scheduling conference with the jury and the termination of the jury's deliberations.
§§ 18-2-101 18-3-102, 8B C.R.S. (1986 1993 Supp.).
§ 18-3-206, 8B C.R.S. (1986).
Key appealed his convictions to the court of appeals, arguing that the actions of the trial court in holding an ex parte conference with the jury denied him his constitutional right to counsel at a critical stage of the proceedings. He further argued that the conference coerced the jury into reaching a verdict in violation of his constitutional right to a fair trial. He contended that these alleged errors mandated automatic reversal of his convictions.
Key also argued before the court of appeals that: (1) the evidence was insufficient to sustain his conviction for attempted first degree murder; (2) the trial court committed reversible error by denying his motion for a new trial based on a juror's failure to disclose that she knew Key; and (3) the trial court failed to properly instruct the jury on the elements of attempted first degree murder.
The court of appeals affirmed the judgment of conviction, holding that although Key was denied his constitutional right to counsel at a critical stage of the trial, harmless error analysis should be applied to ex parte communications between the trial judge and jurors. Citing the fact that the judge and jurors discussed only administrative matters and not the substantive law and that there was no evidence that the jury was deadlocked, the court of appeals concluded that the absence of counsel at the "scheduling conference" in this case was harmless beyond a reasonable doubt. Key I, 851 P.2d at 230.
II
The right to counsel exists at every critical stage of a criminal proceeding. U.S. Const. amend. VI; Colo. Const. art. II, § 16; United States v. Cronic, 466 U.S. 648, 659 (1984); People v. Roybal, 618 P.2d 1121, 1126 (Colo. 1980); People v. Johnson, 802 P.2d 1105, 1107 (Colo.App. 1990), rev'd on other grounds, 815 P.2d 427 (Colo. 1991). Stages of criminal proceedings have been held to be "critical" where there exists more than a "minimal risk" that the absence of the defendant's counsel might impair the defendant's right to a fair trial. Gilbert v. California, 388 U.S. 263, 267 (1967); Sandoval v. People, 172 Colo. 383, 389, 473 P.2d 722, 725 (1970). The defendant argues that the ex parte scheduling conference with the jurors during their deliberations occurred at a critical stage of the proceedings. We agree.
We have held that the defendant in a criminal case has a fundamental right under the Colorado Constitution to have counsel present "when the judge gives instructions to the jury or responds to questions from the jury." Leonardo v. People, 728 P.2d 1252, 1257 (Colo. 1986); see also Nieto v. People, 160 Colo. 179, 183, 415 P.2d 531, 533 (1966). "It is therefore 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; Nieto, 160 Colo. at 183, 415 P.2d at 533 (stating that had the trial court waited until counsel could be present, it was doubtful any reversible error would have transpired over counsel's objection).
The People argue that Leonardo and Nieto are limited to circumstances where the trial judge gives instructions or responds to questions from jurors on the legal issues or facts of the case. While we agree that during jury deliberations a colloquy between the judge and jurors on legal or factual issues in the case constitutes a critical stage of the trial, we do not believe that a defendant's right to counsel during jury deliberations is so limited.
Not every communication between the judge and jury constitutes a critical stage of the trial. However, an impromptu conference with the jury during its deliberations may constitute a critical stage of the proceedings even where the discussions are purportedly confined to "scheduling" matters, because the content of such ex parte communications and the context in which they occur may create more than a "minimal risk" that counsel's absence would impair the defendant's right to a fair trial. Certainly such ex parte conferences during jury deliberations are best avoided because of the ever-present risk that the discussions may take an unexpected turn.
Under the facts of this case, we find that conducting a "scheduling conference" outside the presence of counsel presented a substantial risk to the defendant's right to a fair trial. The record clearly reveals that because of scheduling difficulties, at least two jurors, Mr. Nichting and Ms. Hurst, had substantial incentives to arrive at a verdict by the end of the first afternoon of deliberations. Juror Hurst specifically stated her hope that the jury would not have to reconvene on what the trial judge determined to be the only available date — New Year's Eve, the day before her wedding. Juror Nichting faced the prospect of driving all the way from Illinois to Denver on the day the jury was to reconvene.
Such scheduling pressures created a risk of coercion on the jury's deliberative process similar to that which might occur with a "time-fuse" instruction from the judge. See Allen v. People, 660 P.2d 896, 898-99 (Colo. 1983) (holding that an instruction from the judge ordering the jury to end its deliberations with a verdict or have a mistrial declared presented a risk of coercion which may violate the defendant's right to a fair trial). The presence of counsel is essential in such circumstances to gauge, for example, the reactions of the jurors and to preserve any objections or to move for a mistrial if it should appear that the proposed schedule would infringe upon the defendant's right to a fair trial. See Leonardo, 728 P.2d at 1257 ("Implicit within this right [to counsel during communications between judge and jury] is the right of defense counsel to argue to the court concerning possible responses to the jury's inquiries and make objections, if desired, to those responses."). Accordingly, we agree with the court of appeals that the ex parte scheduling conference in this case constituted error depriving the defendant of his constitutional right to counsel at a critical stage of the proceedings.
III
Having determined that constitutional error was committed, we must now determine the appropriate standard of review. The defendant contends that the absence of defense counsel at a critical stage can never amount to harmless error and that such error mandates automatic reversal. We disagree.
The United States Supreme Court "has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, ___, 111 S. Ct. 1246, 1263 (1991); Rose v. Clark, 478 U.S. 570, 576 (1986); see generally Chapman v. California, 386 U.S. 18 (1967). The Fulminante Court segregated those cases in which the harmless error doctrine applies from those cases which may not be evaluated under harmless error analysis. Fulminante, 499 U.S. at __, 111 S. Ct. at 1263-65. Harmless error analysis does not apply when there is a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. at __, 111 S. Ct. at 1265.
Included within the category of "structural defects" are "total deprivation[s] of the right to counsel at trial." Id. (citing Gideon v. Wainwright, 372 U.S. 335 (1963)); Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992). Conversely, harmless error analysis has been applied where mere "trial error" deprived the defendant of his right to counsel during a discrete stage of the proceedings. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988) (admission of evidence at sentencing stage of capital case in violation of Sixth Amendment right to counsel); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission of identification evidence in violation of right to counsel); Coleman v. Alabama, 399 U.S. 1, 11 (1970) (denial of counsel at preliminary hearing); Siverson v. O'Leary, 764 F.2d 1208, 1217 (7th Cir. 1985) (absence of counsel during jury polling and delivery of verdicts); see also Rushen v. Spain, 464 U.S. 114, 118 n. 2, 121 (1983) (applying harmless error analysis to communications between judge and juror outside presence of counsel without deciding whether violation of constitutional right to counsel occurred).
Other constitutional errors which are not subject to harmless error analysis include: the presence on the bench of a judge who is not impartial, Tumey v. Ohio, 273 U.S. 510 (1927); the unlawful exclusion of members of the defendant's race from the grand jury, Vasquez v. Hillery, 474 U.S. 254 (1986); the denial of the right to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168 (1984); and the denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39 (1984).
In this case, the defendant was deprived of his right to counsel during only one stage of the proceedings — a scheduling conference with jurors during their deliberations. This does not amount to a "total deprivation" of his right to counsel, nor can such error be classified as a "structural defect affecting the framework in which the trial proceed[ed]." Apart from the short, impromptu scheduling conference, counsel for the defendant was present for the entire proceeding. Unlike Gideon, where the defendant was erroneously denied any representation of counsel throughout the proceedings, the error in this case is more appropriately viewed as a "trial error," the impact of which can be quantitatively assessed on appellate review. Fulminante, 499 U.S. at __, 111 S. Ct. at 1264. Therefore, we agree with the court of appeals that the harmless error doctrine should be applied in this case.
IV
In cases of trial error involving the right to counsel, reversal is required "unless the appellate court can `declare a belief that [the error] was harmless beyond a reasonable doubt.'" Leonardo, 728 P.2d at 1257 (quoting Chapman, 386 U.S. at 24). Under this standard, the prosecution has the burden of demonstrating that the ex parte scheduling conference did not contribute to the defendant's conviction. Fulminante, 499 U.S. at ___, 111 S. Ct. at 1257; Chapman, 386 U.S. at 26; Merritt v. People, 842 P.2d 162, 169 (Colo. 1992). For example, we have held that a constitutional error is harmless when the "evidence properly received against a defendant is so overwhelming" that such error was harmless beyond a reasonable doubt. Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991); People v. Myrick, 638 P.2d 34, 38 (Colo. 1981). By contrast, if there is a reasonable probability from a review of the entire record that the defendant could have been prejudiced, the error cannot be harmless. Chapman, 386 U.S. at 23-24; Leonardo, 728 P.2d at 1257; see Lybarger v. People, 807 P.2d 570, 581 (Colo. 1991).
In the instant case, we agree with the court of appeals that the trial judge was "simply attempting to produce a schedule that would be acceptable to each juror." Key I, 851 P.2d at 230. We do not agree, however, with its conclusion that the absence of defense counsel during that stage of the proceedings was harmless error. In our view, there is ample evidence to create a reasonable probability that the defendant was prejudiced by the deprivation of his right to counsel.
The record clearly shows that the evidence against Key was not "so overwhelming" that the constitutional violation in this case amounted to harmless error. Identification was the pivotal issue at trial. All of the witnesses who identified Key at trial as the one who pulled the trigger were impeached by their prior statements made under oath at the pre-trial hearing and immediately following the incident. Those statements identified Cowans, and not Key, as the perpetrator. For example, both Garcia and his father told the police on the day of the incident that the person who pulled the trigger was wearing a white T-shirt and blue jeans. Testimony at trial indicated that Cowans was wearing a white T-shirt and blue jeans that day and that Key was wearing a black shirt and black jeans. None of these witnesses offered an explanation for the fact that all of them, including several of Garcia's family members, changed their version of the events, except to mention that "everyone makes mistakes." Based on this testimony, Key was convicted and Cowans was acquitted.
The only evidence the prosecution cites to support its view that the jury's decision to convict Key was not affected by the ex parte colloquy is the fact that the jury apparently was not "deadlocked" at that time. This fact does not discharge the prosecution's burden of showing that the error was harmless beyond a reasonable doubt. It is undisputed that the jury had not reached a decision prior to its scheduling conference with the trial judge. Thus, it is entirely possible that at least some members of the jury felt compelled to reach a decision before the end of the day as a result of the ex parte discussions.
The court's decision to reconvene the jury on New Year's Eve created a substantial conflict for at least two of the jurors. Had the trial court permitted the presence of counsel at the colloquy, a record of the reactions of the jurors to the proposed schedule could have been made. Without such a record, however, we are left to speculate whether members of the jury "surrender[ed] [their] . . . honest conviction as to the weight and effect of the acts . . . for the mere purpose of returning a verdict." Allen, 660 P.2d at 898. Mere speculation cannot satisfy the prosecution's burden of showing that the constitutional error in this case did not contribute to the defendant's conviction.
For the foregoing reasons, we conclude that there is a reasonable probability that the defendant was prejudiced by the violation of his right to counsel. Accordingly, we reverse the judgment of conviction and return the case to the court of appeals with directions to remand the case to the trial court for a new trial.
JUSTICE SCOTT specially concurs, and JUSTICE KIRSHBAUM joins in the special concurrence. JUSTICE VOLLACK dissents, and CHIEF JUSTICE ROVIRA joins in the dissent.