author: Judge PIERCE.

text:
    Harlen AINSCOUGH; Michael Coulter; Barbara Johnson; Ron Parker; Robert Becker; Lorraine Surprenant; Colorado Federation of Public Employees; Colorado Association of Public Employees; and American Federation of State, County, and Municipal Employees, Colorado Council 76, Plaintiffs-Appellants, v. Bill OWENS, Governor, State of Colorado; and Troy Eid, Acting Executive Director of the Colorado Department of Personnel and General Support Services, Defendants-Appellees.
    No. 02CA0436.
    Colorado Court of Appeals, Div. I.
    Jan. 30, 2003.
    Certiorari Granted Sept. 22, 2003.
    Brauer, Buescher, Goldhammer, Kelman & Eckert, P.C., Thomas B. Buescher, Joseph M. Goldhammer, Denver, Colorado, for Plaintiffs-Appellants.
    Hogan & Hartson, LLP., Ty Cobb, Peter Hauck Walsh, Denver, Colorado, for Defendant-Appellee Governor Bill Owens.

      Law Office of Michael E. McLachlan, Michael E. MeLachlan, Durango, Colorado; Le-Boeuf, Lamb, Greene & MacRae, Robert Miller, Stephanie E. Dunn, Michael D. Smith, Denver, Colorado, for Defendant-Appellee Troy Eid.
   Opinion by

Judge PIERCE.

In this case challenging the constitutionality of an executive order and payroll deduction policy, plaintiffs, Harlen Ainsecough, Michael Coulter, Barbara Johnson, Ron Parker, Robert Becker, Lorraine Surprenant, Colorado Federation of Public Employees, Colorado Association of Public Employees, and Ameri-ean Federation of State, County, and Municipal Employees, Colorado Council 76, appeal a trial court judgment dismissing their complaint against defendants, Governor Bill Owens and Troy Eid, Acting Executive Director of the Department of Personnel and General Support Services (GSS). We affirm.

As applied to plaintiffs, the executive order suggested and the payroll deduction policy required that state employers discontinue the practice of automatically deducting, upon request, union dues from union members' paychecks and forwarding the dues directly to the unions.

Specifically, Executive Order DOO70L of May 25, 2001, expressed the governor's desire that GSS discontinue automatically taking payroll deductions of any kind from employee paychecks unless the deductions were expressly authorized by statute, such as federal tax withholding, or were state-sponsored deductions available to all state employees, such as contributions to the Colorado Combined Campaign.

The order stated that "[als a policy, state government should not use taxpayer resources to duplicate services that can be provided by the private sector," and that state-implemented payroll deductions should be used for the convenience of the state in carrying out "employment related services to its employees." In addition, it stated that employees who wish to make deductions for "personal reasons" are able as effectively and with greater privacy protections "to arrange for personal deductions through their private financial institutions."

The order stated that it was based on the 1996 reforms to what is now § 24-50-104(8)(c)-(d), C.R.S.2002. The reforms gave the executive director discretion to approve payroll deductions, stating "the executive director shall regulate, approve, and review all payroll deductions for all state employees" other than those deductions expressly authorized by statute or those state-sponsored for all state employees. Colo. Sess. Laws 1996, ch. 273, § 24-50.83-104(8)(b) at 1507.

The 1996 reforms and the governor's executive order had no immediate practical effect on payroll deductions. Union dues were still automatically deducted from union members' paychecks via state-implemented deductions.

However, shortly after the executive order, the executive director established the payroll deduction policy in question, which ended all but certain approved state-implemented payroll deductions On August 27, 2001, the payroll deduction policy was announced to "provide interpretive guidance to state agencies and institutions of higher education regarding permissible payroll deductions for all state employees." The policy referred to § 24-50-104(8)(c) as its source.

The policy stated, in part, that "(tlhe State Personnel Director is charged by statute with administering payroll deductions" and that "[the state payroll system exists primarily for the State's administrative convenience."

The policy prohibited state agencies and institutions of higher education from permitting or processing payroll deductions except for the following:

1) [deductions] required by federal law or statute (eg. tax withholdings, garnishments, court ordered child support);
2) [deductions] authorized by federal or state statute (e.g. employee benefits, "eco passes," tax treatment elections);
3) [deductions] expressly authorized for state sponsorship by executive order of the governor and available to all state employees (e.g. Colorado Combined Campaign); or
4) [deductions] ... for the purpose of facilitating the reimbursement of monies owed to the state from an employee (e.g. higher education tuition, uniforms, salary overpayments).

Plaintiffs filed a complaint against defendants challenging the constitutionality of the executive order and the payroll deduction policy. Defendants removed the case to federal court based on plaintiffs' alleged claims under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs subsequently dismissed their claims in federal court and refiled the state case at issue here. The trial court granted defendants' motions to dismiss, but did not specify the grounds.

L,

Plaintiffs assert that the executive director's payroll deduction policy is unconstitutional as a violation of the right to free speech, is void as contrary to the policy set forth in § 24-50-104(8)(c)-(d), and is a violation of the state administrative procedure act. They also assert that the actual denial of their requests for state-implemented payroll deductions violates § 24-50-104(8)(c)-(d). Because we conclude plaintiffs lack standing, we will not consider the merits of their assertions.

We review de novo a trial court's grant of a motion to dismiss. Connecticut General Life Insurance Co. v. A.A.A. Waterproofing, Inc., 911 P.2d 684 (Colo.App.1995) aff'd sub nom. Constitution Associates v. New Hampshire Insurance Co., 930 P.2d 556 (Colo.1996).

To have standing, a plaintiff must have been injured in fact, and the injury must be to a legally protected right. Romer v. Colorado General Assembly, 810 P.2d 215 (Colo.1991); Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

Injury in fact may be proved by showing that "the action complained of has caused or has threatened to cause injury," and, because judicial power may be exercised only when a true controversy exists, injury in fact is a constitutional prerequisite to a case being heard. Romer v. Colorado General Assembly, supra, 810 P.2d at 218 (quoting Colorado General Assembly v. Lamm, 700 P.2d 508, 516 (Colo.1985)).

The injury must be to a legally protected right to satisfy "prudential considerations of judicial self restraint." Romer v. Colorado General Assembly, supra, 810 P.2d at 218 (quoting Colorado General Assembly v. Lamm, 704 P.2d 1371, 1377 (Colo.1985)).

Here, plaintiffs' alleged injury is the loss of state-implemented automatic payroll deductions. Without deciding whether this loss is an injury in fact, we conclude that it is not an injury to a legally protected right.

A survey of the Colorado Constitution and the Colorado Revised Statutes reveals no legally protected right to state-implemented payroll deductions, except for those deductions "expressly authorized by statute or state-sponsored for all state employees." Section 24-50-104(8)(c). No statute now expressly authorizes the deduction of labor union dues from employee paychecks, and the payment of union dues cannot be characterized as a state-sponsored deduction for all state employees. Therefore, plaintiffs have failed to show that they have standing. See Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo.2001).

IL.

Similarly we conclude the claims asserted against the Governor were also properly dismissed for lack of standing. His order showed only a policy preference, did not assert a legal compulsion, and cannot be classified as legislative in nature. See Travelers' Insurance Co. v. Industrial Commission, 71 Colo. 495, 208 P. 465 (1922). It only declared his desire that § 24-50-104(8)(c)-(d) be implemented. No direct injury could have resulted from it. Therefore plaintiffs have no standing to contest it.

Accordingly, the trial court properly granted the motions to dismiss.

The judgment is affirmed.

Judge VOGT and Judge GRAHAM concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deborah L. WADLE, Defendant-Appellant.
    No. 01CA1484.
    Colorado Court of Appeals, Div. V.
    Jan. 30, 2003.
    Rehearing Denied April 24, 2003.
    Certiorari Granted Oct. 6, 2003.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Dennis W. Hartley, P.C., Dennis W. Hart-ley, Colorado Springs, Colorado; Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Burke & Neuwirth P.C., Dean S. Neuwirth, Denver, Colorado, for Defendant Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Deborah L. Wadle, appeals the judgment of conviction entered on a jury verdict finding her guilty of child abuse resulting in death. Because we conclude there was sufficient evidence to support defendant's conviction, we reject defendant's contention that she is entitled to acquittal as a matter of law. However, we reverse the trial court's order denying defendant's motion for new trial based on juror misconduct and remand for a new trial.

L.

Defendant was the stepgrandmother of the victim, a four-month-old infant male. At the request of the victim's mother, defendant agreed to babysit the victim. She picked up the victim and took him to her apartment. About one hour later, she called 911 and reported that the victim had stopped breathing.

When paramedics arrived, the victim was blue from lack of oxygen. After clearing an airway and stabilizing the victim, paramedics transported him to the hospital where a CAT sean showed signs of a subdural hematoma, bleeding under the membrane that lines the skull. A pediatric ophthalmologist observed retinal hemorrhaging in the victim's eyes, and based on these observations, doctors concluded he suffered from shaken baby syndrome.

Three days later, the victim was determined to be brain dead. He was removed from life support and died. An autopsy confirmed the subdural hematoma and retinal hemorrhaging and also showed diffuse axonal injury, the disruption and shearing of nerves in the brain.

Defendant was charged with first degree murder, § 18-3-102(1)(f), C.R.S.2002, and child abuse resulting in death, § 18-6-401(M)(@)(I), C.R.9S.2002. At her first trial, she was acquitted of murder, but the jury could not reach a verdict on the child abuse charge. At the second trial, defendant was convicted of child abuse resulting in death.

II.

Defendant first contends there was insufficient evidence to support her conviction and she is therefore entitled to acquittal as a matter of law. We disagree.

When assessing the sufficiency of the evidence, the reviewing court must determine whether any rational trier of fact could accept the evidence, taken as a whole and in the light most favorable to the People, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771 (Colo.1999).

It is the fact finder's function to consider and determine what weight should be given to all parts of the evidence and to resolve conflicts, inconsistencies, and disputes in the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988). We may not disturb the jury's determination on issues of credibility and weight unless the evidence is legally insufficient to support a finding of guilt beyond a reasonable doubt. People v. Brassfield, 652 P.2d 588 (Colo.1982).

The issue here was whether the vie-tim died from having been violently shaken or from nontraumatic causes. Numerous experts testified for each side, and medical testimony interpreting the same physical evidence was offered to support both theories. The verdict in large part depended on the weight given each side's expert testimony.

According to the People's evidence, an autopsy of the victim revealed a subdural he-matoma, retinal hemorrhaging, and diffuse axonal injury. There was expert medical testimony that the. coincidence of these conditions is consistent with shaken baby syndrome and that the victim's death was not attributable to other causes. There was also testimony that the victim's injuries were sustained while he was in defendant's care.

Defendant called a number of experts who testified that the victim's death was not caused by trauma. A pediatric neurologist testified that the victim had a preexisting brain anomaly that may have caused his brain to seize, and two other specialists testified that the victim's CAT sean was consistent with cerebral venous thrombosis, or clotting of veins in the brain. Another expert testified that the victim's death was caused by the rebleeding of chronic subdural hema-tomas.

Defendant relies on Solis v. People, 175 Colo. 127, 485 P.2d 903 (1971), and Stevenson v. People, 148 Colo. 538, 367 P.2d 339 (1961), for the proposition that evidence equally consistent with a hypothesis of innocence as with that of guilt is insufficient to support a criminal conviction. She maintains that because the medical evidence presented at trial is as consistent with a natural cause of death as with death from shaking, it was insufficient to support a finding of guilt beyond a reasonable doubt. We are not persuaded.

The standard set forth in these decisions has been modified by later decisions. See People v. Sprouse, supra. Also, Solis and Stevenson are factually distinguishable. In Solis, the supreme court concluded the prosecution's only evidence, fingerprints found in a publicly accessible area, left too much to speculation and was therefore insufficient to support the defendant's burglary conviction. In Stevenson, another burglary case, the supreme court concluded the cireumstantial evidence that the defendant was a friend of the person in whose house stolen goods were found was insufficient to establish guilt beyond a reasonable doubt.

Here, the cause of death was sharply disputed, and there was considerable evidence presented by both sides. The issue was not a paucity of evidence, but conflicting interpretations of the same evidence by the numerous experts. We therefore conclude the evidence, viewed in the light most favorable to the prosecution, was sufficient for the jury to have found that defendant committed child abuse resulting in death.

III.

Defendant next contends the trial court erred in denying her motion for new trial based on jury misconduct. She contends there is a reasonable possibility that information obtained from the Internet by a juror, in violation of the trial court's order, improperly exposed the jury to extraneous information and tainted the verdict. We agree and remand for a new trial.

A. Standard of Review

Rulings on motions for new trial are generally reviewed for abuse of discretion, see People v. McNeely, 68 P.3d 540, 2002 WL 31600819 (Colo.App. No. 00CA1187, Nov. 21, 2002), and recent decisions by divisions of this court have applied this standard to motions for new trial based on jury misconduct. See People v. Sherman, 45 P.3d 774 (Colo.App.2001); People v. Hayes, 923 P.2d 221 (Colo.App.1995); People v. Fox, 862 P.2d 1000 (Colo.App.1993); People v. Moore, 701 P.2d 1249 (Colo.App.1985); People v. Key, 851 P.2d 228 (Colo.App.1992), rev'd on other grounds, 865 P.2d 822 (Colo.1994).

However, after tracing the history of cases that have considered motions for new trial based on jury misconduct, including Colorado Supreme Court decisions from Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961), to the present, defendant maintains that divisions of this court recently have applied an incorrect standard of review. Defendant contends the trial court's conclusion is a matter of law that should be reviewed de novo.

While we acknowledge there has been some confusion and inconsistency on this issue, we conclude that under Butters and Wiser v. People, 732 P.2d 1139 (Colo.1987), we are required to treat the issue as a mixed question of law and fact, applying the normal deferential standard to the trial court's factual findings, but reviewing de novo the trial court's conclusions of law. See People v. Matheny, 46 P.3d 453 (Colo.2002).

Butters was a wrongful death action resulting from an automobile accident. During trial, one of the jurors conducted an independent investigation, later explaining that she was "just curious." Butters v. Wann, supra, 147 Colo. at 356, 363 P.2d at 496. The juror learned, among other things, the amount the decedent drank and the fact that his driver's Heense had been revoked.

The supreme court ordered a new trial, concluding the juror had engaged in gross misconduct because "in total and deliberate disregard of the court's instructions, [the juror] made an independent investigation into matters not permitted to be inquired into at the trial." Butters v. Wann, supra, 147 Colo. at 356, 363 P.2d at 496. The court stated:

Tt is not the province of the court to speculate, conjecture or determine what or how much effect upon a verdict the gross misconduct of a juror or jurors may in fact have in a particular case. While a correct determination might be possible in some cases, the inquiry would be impractical and fruitless in many cases and in all cases contain an element of speculation.
The proper function of the court is to hear the facts of the alleged misconduct and to determine as a matter of law the effect reasonably calculated to be produced upon the minds of the jury by such misconduct.

Butters v. Wann, supra, 147 Colo. at 356, 363 P.2d at 496-97 (emphasis added). The court then proceeded to state the test to be applied as follows: "The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so." Butters v. Wann, supra, 147 Colo. at 357, 363 P.2d at 497 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61, 80 A.2d 302, 305 (1951)).

In Wiser v. People, supra, a criminal case involving juror misconduct, the majority did not cite Butters in concluding that one juror's use of a dictionary did not require reversal. The Wiser court discussed the requirements of CRE 606(b), which severely limit the court's inquiry into jury deliberations.

CRE 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

The Wiser court then applied virtually the same test used in Butters, stating: "We be-leve that the objective test of whether there is a reasonable possibility that extraneous information or influence affected the verdict should be used to determine if a new trial is required...." Wiser v. People, supra, 732 P.2d at 1142.

Wiser did not specifically state the applicable standard of review, but the court appears to have proceeded de novo in concluding a remand for a hearing by the trial court was unnecessary because the definition used by the juror had favored the defendant. The court added that "[clonsidering the reasonable inferences most favorable to the defendant ... we fail to see how he could have been prejudiced by the [jury's] conduct." Wiser v. People, supra, 732 P.2d at 1143.

Any question whether the supreme court intended juror misconduct to be treated differently in criminal and civil cases was resolved in Ravin v. Gambrell, 788 P.2d 817 (Colo.1990). Previously, in Gambrell v. Ravin, 764 P.2d 362 (Colo.App.1988), a division of this court had applied the Wiser test in a civil ease and concluded, contrary to the ruling of the trial court, there was a reasonable possibility the jury was affected by a bailiffs misconduct. The division's conclusion appears to have been based on its de novo review. On further appeal, the supreme court upheld the division's ruling, concluding the objective tests set forth in Butters and Wiser were the same. Ravin v. Gambrell, supra, 788 P.2d at 821. Although the supreme court in Ravin did not mention the standard of review, in other decisions applying Butters and Wiser, divisions of this court essentially conducted de novo reviews.

In T.S. v. G.G., 679 P.2d 118, 120 (Colo.App.1984), for example, a case factually similar to the one before us, a division of this court held that a jury foreperson's consultation of a medical textbook in a paternity suit constituted juror misconduct requiring a new trial. During trial there, experts had testified as to the most reliable method of determining paternity. The textbook read by the foreperson stated that human leukocyte antigen (HLA) testing was the most reliable method. Applying the Butters test, the division concluded the communication of this information to the other jurors possessed the capacity to influence the jury's verdict. Thus, the division reversed the trial court's ruling to the contrary, explaining:

There is no dispute here that it was misconduct for a member of the jury to consult extraneous materials even if, as she indicated, the purpose was merely to determine what the initials HLA stood for. That misconduct was compounded when she disclosed to other jurors the result of her research and her opinion relative thereto. ~ ‘ B
The crucial evidence at trial was the testimony of the testing physician and respondent's expert who essentially disagreed as to whether the HLA test, by itself, was sufficient to establish paternity. The introduction of an additional opinion as to the validity or persuasiveness of the test by way of the textbook may well have tipped the balance and influenced the jury in arriving at its verdict. Such acts, by a juror, while deriving from a legitimate concern for a proper result, are nonetheless to be severely [condemned], and if, as here, they have the capacity to influence the jury the prejudiced party is entitled to a new trial >

T.S. v. G.G., supra, 679 P.2d at 119-20 (citation omitted); see Montrose Valley Funeral Home Inc. v. Crippin, 835 P.2d 596, 598 (Colo.App.1992)(in light of numerous extraneous matters in deposition to which jury was improperly exposed, "we conclude that there is a- reasonable possibility" verdict was taint, ed).

Decisions from other jurisdictions that have applied a test like the one articulated in Wiser also have held that appellate review is de novo. The Ninth Cireuit has explained that:

The judge's conclusion about the effect of the alleged juror misconduct deserves substantial weight. Nevertheless, because of the threat to the fundamental right of defendants to an impartial jury, the trial judge's determination must be considered in the context of the entire record. We conduct an independent review of the alleged juror misconduct, but remain mindful of the trial court's conclusions.

United States v. Steele, 785 F.2d 743, 746 (9th Cir.1986) (emphasis added); quoting United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.1981); see also Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980)("We conclude that there is a reasonable possibility that the extrinsic evidence affected the ver-diet."). |

In People v. Staggs, 740 P.2d 21, 23 (Colo.App.1987), the division stated that it was applying the abuse of discretion standard, but appeared to conduct a de novo review in reversing the trial court's finding that a juror's misconduct was incapable of influencing the jury's verdiet. The Staggs division cited People v. Thornton, 712 P.2d 1095 (Colo.App.1985), rev'd on other grounds, 716 P.2d 1115 (Colo.1986), as supporting the abuse of discretion standard.

However, the issue in Thornton was whether the trial court abused its discretion in refusing to conduct an evidentiary hearing on allegations that some of the jurors learned certain information during deliberations. The trial court's ruling was upheld on appeal because most of the affidavits submitted showed the jurors had received the improper information after the deliberations were completed. The juror who recalled otherwise submitted an affidavit stating that the information "didn't affect the deliberations in any way." People v. Thornton, supra, 712 P.2d at 1099.

Thornton did not cite Butters, and it predated Wiser. Hence, it relied on other pre-Wiser cases that held defendants had to show they were prejudiced by the jury misconduct. See Torres v. People, 149 Colo. 314, 369 P.2d 80 (1962), overruled in part by Callis v. People, 692 P.2d 1045 (Colo.1984); People v. Hunter, 43 Colo.App. 406, 607 P.2d 1026 (1979). The division in Thornton also did not mention CRE 606(b), which precludes inquiry into any effect the information may have had on jury deliberations.

The People are correct that in more recent opinions, divisions of this court have applied the abuse of discretion standard of review in juror misconduct cases. For example, People v. Sherman, supra, relied on People v. Hayes, supra, which, in turn, relied on another division's decision in People v. Key, supra. However, Key did not involve jury misconduct or apply an abuse of discretion standard.

In Key, the division concluded that the trial court's ex parte "scheduling conference" with the jury denied the defendant his right to counsel during a crucial stage of the proceedings. However, the division concluded the error was not structural and did not automatically require reversal, as the defendant urged, and instead applied the harmless beyond a reasonable doubt test. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

On review, the Colorado Supreme Court reversed, agreeing with the division's assessment of the standard, but concluding the error was not harmless beyond a reasonable doubt. Key v. People, 865 P.2d 822 (Colo.1994). Again, the abuse of discretion standard was not in issue.

Thus, we conclude that under Wiser and Butters, we are required to give the normal deference to the trial court's factual findings, but review its conclusions of law de novo. See People v. Matheny, supra. To the extent People v. Sherman, supra, and People v. Hayes, supra, conclude otherwise, we view them as inconsistent with the supreme court's rulings on the standard of review issue.

B. Application of Wiser Test

At the hearing on the motion for new trial, the trial court did not make findings on credibility and appears to have accepted the testimony of all three juror-witnesses as true. Further, the events during deliberations are undisputed. Accordingly, we have conducted our own review of the misconduct and conclude there was a reasonable possibility the outside information affected the verdict.

The testimony at the hearing revealed that the jurors had questions about Paxil, an anti-depressant medication. The prosecution had presented testimony at trial that defendant was taking daily medication for stress and holiday season depression. And when defendant testified, she stated she had taken Paxil for two years, from October to March, to relieve holiday-related stress and was taking it on the day of the victim's death.

At the posttrial hearing, testimony was presented that on the first day of deliberations juror R, who had training as an emergency medical technician, volunteered that Paxil was "a very strong drug" used for "serious problems," that it "wasn't an ordinary anti-depressant," and that it was used for people who are antisocial, violent, or suicidal. Juror B, the jury foreperson, asked how Paxil compared to Prozac, another antidepressant drug, and juror R stated that Paxil was more powerful.

At the suggestion of juror G, the jury sent this note to the trial court; "Why would a doctor prescribe Paxil instead of one of the other anti-depression or anti-anxiety drugs? May we read a copy of a Physicians' Desk Reference?" After consulting with counsel, the court sent back a note stating, "[The Law prohibits supplying reference materials of any kind to the jury. Please reread the instructions." This response by the trial court was appropriate. See Wiser v. People, supra; Alvarez v. People, 653 P.2d 1127 (Colo.1982); Niemand v. District Court, 684 P.2d 931 (Colo.1984)(error to allow jurors to consult dictionaries to clarify the meaning of legal terms).

Despite this instruction, that evening after court had recessed, juror V downloaded a description of Paxil from the Internet, and the next day he read the following pharmacological description of Paxil to the jury:

Paroxetine (pa-ROX-uh-teen) is used to treat mental depression, obsessive-compulsive disorder, panic disorder, and social anxiety disorder (also known as social phobia).
Paroxetine belongs to a group of medicines known as selective serotonin reuptake inhibitors (SSRIs). These medicines are thought to work by increasing the activity of the chemical serotonin in the brain.

At the suggestion of juror V and possibly juror R, the jurors agreed not to disclose that they had received this information.

On the morning after the verdict was received by the court, juror G contacted the jury foreperson, juror B. They then informed the trial court of what had occurred and their concern that review of the Internet definition had violated the court's instructions. The trial court notified counsel, and thereafter, jurors G, V, and B were examined on the record. Juror G testified that the Internet information was "a little bit more shocking" than what juror R had said.

Juror V was asked whether there was any doubt he was violating the court's instructions by providing the definition. He replied: "Well, no. The letter of the law, but, geez, if [Paxil] was going to be an issue, I felt it [was not] really smart not to have it [when] one of the jurors said she was familiar with it. And, indeed, it showed it was more benign."

Defendant moved for a new trial based on juror misconduct. Initially, the prosecution conceded, and the trial court found, that the introduction of the Internet information was Juror misconduct. We agree.

However, the court went on to conclude there was no reasonable possibility that the extraneous information affected the verdict. The trial court reasoned that the Internet definition of Paxil confirmed, rather than contradicted, defendant's testimony that she took the medication to relieve stress and the Internet definition did not support juror R's comments regarding the violent tendencies of people who take the medication. We do not agree.

When a defendant contends the defense was prejudiced by juror exposure to extraneous information, the trial court must apply the objective test articulated in Wiser v. People, supra, to assess the effect of the information on a typical jury. Thus, a new trial is required "where there is a reasonable possibility that the verdict was tainted by the introduction of outside information or influences into the jury deliberations." Wiser v. People, supra, 732 P.2d at 1143.

The party alleging juror misconduct may introduce evidence to establish that external matters improperly influenced the verdict, However, how the improperly received information was used by the jurors in their deliberative process is not a proper subject of inquiry. Vento v. Colo. Nat'l Bank-Pueblo, 907 P.2d 642 (Colo.App.1995).

This case is factually similar to T.S. v. G.G., supra, where the jury foreperson's consultation of a medical textbook in a paternity suit was held to constitute Juror misconduct that required a new trial. Applying the Butters test, the division concluded the communication of this information to the other jurors had the capacity to influence the jury's verdict. T.S. v. G.C., supra, 679 P.2d at 119; see also Gibson v. Clanon, supra, 633 F.2d at 853 (new trial required where one juror used an encyclopedia to confirm his belief that blood type AB was rare, and another juror consulted a medical dictionary to determine whether a morphine dosage was too small to have affected a witness's perceptions).

Here, the evidence of defendant's guilt was sharply contested, and there was considerable expert testimony supporting both parties' positions. Because she took the stand on her own behalf and denied shaking the victim, defendant's possible motive, her state of mind at the time of the offense, and her credibility became key issues. Moreover, she testified that she used Paxil before and on the day of the victim's death.

In our view, the fact that defendant was taking an anti-depressant, anti-anxiety prescription medicine, the type of prescription medicine she was taking, the possible side effects of that medicine, and the implications about defendant's disposition and behavior arising from use of this medication, were of significance to some, if not all, of the jurors. This significance is evidenced by the jury's earlier note to the court asking for further medical information about Paxil.

We disagree with the trial court's determination that the improper information taken from the Internet merely clarified or corrected the information about Paxil volunteered by juror R. The above-quoted language from the Internet contains a number of medical terms, such as "mental depression," "obsessive-compulsive disorder," "panic disorder," and "social anxiety disorder or phobia." While these terms are being used more frequently now in general publications and by the media, they are nevertheless specialized psychiatric terms with complex meanings and connotations, not in the parlance of the average juror and not properly definable by jurors.

We also recognize the problems created by the widespread use and availability of the Internet. Although the Internet has made information more accessible for the average person, the information obtained thereby may be misleading, taken out of context, outdated, or simply inaccurate. Nor is this the first time a juror has looked to the Internet for information during deliberations. See People v. Kriho, 996 P.2d 158 (Colo.App.1999). In view of the problems and dangers associated with the unsupervised use of the Internet, trial courts should emphasize that jurors should not consult the Internet, or any other extraneous materials, at any time during the trial, including during deliberations.

In summary, we discern a reasonable possibility that the introduction of extraneous information about Paxil, in direct violation of the court's denial of the same request by the jury, may well have influenced the verdict. See Wiser v. People, supra, 732 P.2d at 1143; T.S. v. G.G., supra.

Accordingly, we conclude the trial court erred as a matter of law in determining that the verdict would not have been affected by the information, and we remand for a new trial on that basis.

IV.

In view of our conclusion, we need not address defendant's related contention that a new trial also is required because juror R imparted specialized knowledge to the jury that turned out to be erroneous and that also tainted the verdict. Similarly, the other issues raised by defendant are unlikely to arise on retrial, and we need not address them.

The judgment is reversed, and the case is remanded for a new trial.

Judge TAUBMAN and Judge WEBB concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Victor MILLIGAN, Jr., Defendant-Appellant.
    No. 01CA0435.
    Colorado Court of Appeals, Div. V.
    Jan. 30, 2003.
    As Modified on Denial of Rehearing April 24, 2003.
    Certiorari Denied Sept. 22, 2003.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant. Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, David Victor Milligan, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance. We affirm.

Officers responded to a female caller's complaint that an "unwanted person" named David Milligan was at the door of her apartment complex. She also reported that he drove a gray Cadillac. j

The officers saw defendant standing near the door of the specified apartment and asked what he was doing there. Defendant gave his name and said he was checking on his ex-girlfriend. He also volunteered that he had outstanding warrants for his arrest and that a friend had dropped him off at the apartment.

While an officer was checking on the warrants, defendant was allowed to use his cell phone to call a friend, and during that call, an officer overheard him giving directions to his car. When defendant ended his call, officers asked defendant about the discrepancy between his statements, and defendant admitted he had driven to the scene.

Meanwhile, police dispatch informed the officers that defendant's license had been suspended and confirmed he had outstanding warrants. After receiving this information, an officer advised defendant of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and further informed him he was under arrest and his car would be towed. The car was parked several houses away from the apartment, and defendant asked officers to retrieve his fanny pack from it. The officers located the fanny pack in the car, checked it for weapons, and found none. But, when defendant's possessions were inventoried at the police station, police discovered cocaine inside the pack. The following day, after again receiving a Miranda advisement, defendant admitted to police the drugs were his.

Defendant later filed a motion to suppress the physical evidence and his statement admitting it belonged to him. The trial court denied the motion, finding that the police had properly impounded his car, that the search of his fanny pack was a proper inventory search, and that the cocaine inevitably would have been discovered in an inventory search of the car. >

At defendant's jury trial, his statements and the cocaine were admitted as evidence against him.

I.

Defendant contends the trial court erred in denying his motion to suppress. He maintains that: (1) the physical evidence was obtained through an illegal investigatory stop or seizure and an illegal impoundment and inventory of his car; and (2) his statements were obtained in violation of Miranda v. Arizona, supra. We disagree.

When we consider a trial court's suppression ruling, we defer to its findings of fact, but review de novo its conclusions of law. People v. Smith, 13 P.3d 300 (Colo.2000). A trial court's determination whether a person was in custody for Miranda purposes is reviewed de novo. People v. Matheny, 46 P.3d 453 (Colo.2002).

A.

We first reject defendant's contention that his initial contact with police was an investigatory stop or a seizure made without articu-lable suspicion or probable cause.

The United States and Colorado Constitutions afford protection from unreasonable searches and seizures. See U.S. Const. amend. IV; Colo. Const. art. II, § 7.

Three types of police-citizen encounters have been recognized: (1) consensual interviews, (2) investigatory stops, and (8) arrests. Arrests and investigatory stops are seizures that implicate constitutional protections. Investigatory stops are justified by reasonable and articulable suspicion of erimi-nal activity, while lawful arrests require probable ecause. An investigatory stop is less intrusive than an arrest and is considered reasonable within the meaning of the Fourth Amendment if it is supported by "some minimal level of objective justification" designated "reasonable articulable suspicion." People v. Polander, 41 P.3d 698, 703 (Colo.2001)(quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).)

A consensual interview is not a seizure and occurs when a police officer seeks the voluntary cooperation of a citizen by asking noncoercive questions. People v. Johnson, 865 P.2d 836 (Colo.1994). An officer's act of approaching an individual in a public place or asking for identification does not, in itself, constitute a seizure within the meaning of the Fourth Amendment. People v. Paynter, 955 P.2d 68 (Colo.1998).

Here, defendant's initial encounter with police constituted a consensual interview and not an investigatory stop or seizure. But, when the officers learned defendant had outstanding warrants against him, the encounter became an investigatory stop that was justified by defendant's voluntary statement. See People v. Polander, supra; People v. Padgett, 932 P.2d 810 (Colo.1997). Once the warrants were confirmed, the officers had probable cause to arrest defendant. People v. Hillyard, 197 Colo. 83, 589 P.2d 939 (1979).

Hence, defendant's initial encounter did not constitute an illegal investigatory stop or seizure.

B.

Defendant next contends the trial court erred in denying his motion to suppress two statements he made to police before his Miranda advisement and the evidence obtained as a result of those statements. The first statement is his admission that he drove his car to the scene. The second statement is his request to the officers to retrieve his fanny pack from the car. Defendant maintains that his first statement led to the officers' decision to impound his car, which in turn led to his request that officers retrieve his fanny pack from the car and to discovery of the cocaine. We disagree.

1.

Initially, we address the People's contention that defendant challenges these two statements for the first time on appeal. We disagree.

The People correctly observe that defendant's pretrial motion to suppress did not mention these two statements or claim they were obtained in violation of Miranda. However, because the trial court addressed defendant's statements and the Miranda issue at the suppression hearing, we conclude the issue was properly preserved for appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988).

2.

Turning to the merits of the Miranda issue, we agree with the trial court's ruling denying defendant's motion to suppress his two statements.

Miranda does not apply unless the defendant was in custody when the statement was made and the statement was obtained as a result of police interrogation. People v. Haurey, 859 P.2d 889 (Colo.1993).

In People v. Matheny, supra, the supreme court discussed the manner in which an appellate court should review a trial court's custody determination. Earlier cases described the test of custody as whether a reasonable person in the suspect's position would have considered himself or herself deprived of freedom of action in any significant way. See People v. Hamilton, 831 P.2d 1326 (Colo.1992).

However, Matheny requires a greater deprivation of freedom, explaining that a court should engage in "[an objective assessment of whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest." People v. Matheny, supra, 46 P.3d at 467 (emphasis added)(quoting People v. Taylor, 41 P.3d 681, 691 (Colo.2002)).

Interrogation includes express questioning and any words or actions by the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. People v. Haurey, supra.

As to defendant's first statement, the trial court found defendant was in custody, but was not formally under arrest when the officer asked him, "Did you drive here?" The trial court then proceeded to analyze the Miranda issue.

We conclude, however, that because a reasonable person in defendant's position would not have believed himself or herself to be deprived of his or her freedom of action to the degree associated with a formal arrest, and because the trial court expressly found defendant was not yet formally arrested, defendant was not in custody for Miranda purposes when the officer asked that question. See People v. Matheny, supra. Accordingly, Miranda has no applicability to that statement by defendant.

As to defendant's second statement asking the officers to retrieve his fanny pack from the car, we agree with defendant that he was in custody when he made it. At that time, 'the officers had verified the warrants against him. See People v. Padgett, supra.

However, we conclude the statement was not a result of police interrogation. Onee the police decided to impound defendant's vehicle and informed him of that fact, he asked them to retrieve his pack. The police did not pose any question to defendant that prompted the statement about the fanny pack, nor did they make any statements or take any actions that they should have known were reasonably likely to elicit an incriminating response. See People v. Haurey, supra, 859 P.2d at 894. Thus, we conclude there was no Miranda violation as to that statement.

IL.

Defendant also contends the trial court erred in concluding the items discovered in his car were admissible under the inevitable discovery rule. We disagree.

The trial court found that onee defendant was arrested and the officers became aware his car was parked nearby, the car would have been towed and impounded in accordance with police department procedure. Thus, the cocaine in the fanny pack would have been inevitably discovered. See People v. Clouse, 859 P.2d 228 (Colo.App.1992)(although initially discovered in an unlawful manner, evidence is admissible if it inevitably would have been obtained lawfully).

Defendant maintains, however, that the officers did not have a reasonable basis for towing his car. And, because their decision to tow his car led him to request that they retrieve his fanny pack containing cocaine, defendant argues that the evidence was illegally obtained -and should have been suppressed. We are not persuaded.

If departmental regulations give police discretion whether to impound a vehicle, decisions to impound will be upheld as long as that discretion has been exercised according to standard criteria. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). After validly impounding a vehicle, an officer may make an inventory search of its contents. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Here, the officers were members of the Arvada Police Department, which has the following towing policy:

Whenever a driver of the vehicle is found to have [his or her] driving privileges suspended/revoked, [he or shel will not be allowed to drive from the seene. In such cases the vehicle must be driven away by a properly licensed driver, parked and locked with the owner's permission, or towed.

The officers testified that they learned defendant's driving privilege had been suspended and decided to tow his car after he was arrested because the car was parked illegally and no one was there to take control of it.

Although the trial court rejected the justification that the car was parked illegally, it also found, as relevant here, that the police had impounded the vehicle because "they realized [that] they were taking the defendant [into] custody; that the defendant had lied to them; that the defendant had, in fact, driven the car to the scene; that he did not have a license to do so; that the car was sitting there at the scene, and that was reason enough for [the decision]." The court also rejected defendant's argument that the impoundment was unnecessary because defendant's friend had been called to pick up the car and came to the seene to drive the car away.

The trial court correctly recognized that a decision to impound must be based on a standardized police policy or procedure. See People v. Gee, 33 P.3d 1252 (Colo.App.2001)(upholding trial court's finding that officers followed proper procedures in impounding the defendant's vehicle). The trial court credited the testimony of one of the officers who participated in the impoundment decision. The officer testified that where, as here, a vehicle was driven illegally and the driver has been arrested, the practice is to impound the vehicle, unless a passenger has a valid driver's license and is then allowed to drive the car away.

We therefore conclude the record supports the trial court's findings that the decision to impound defendant's car was in accordance with standardized police procedure and that the impoundment and inventory did not violate defendant's right to be free from unreasonable searches and seizures.

United States v. Ibarra, 955 F.2d 1405 (10th Cir.1992), does not support defendant's contention that he should have been given an opportunity to remove his car before im-poundment. In Ibarra, the court considered a Wyoming statute authorizing impoundment if the "person in charge of the vehicle is unable to provide for its custody or removal" and concluded on multiple grounds the im-poundment was not in accordance with that statute. Here, the towing policy does not expressly condition impoundment on the driver's inability to provide for custody or removal. Hence, Ibarra is factually distinguishable from this case.

For these reasons, we perceive no error in the trial court's determination that the inventory search was proper and that the cocaine in defendant's fanny pack inevitably would have been discovered during an inventory of his vehicle. Accordingly, we conclude the trial court did not err in denying defendant's motion to suppress this evidence.

IIL

Defendant next contends the trial court violated his constitutional rights to equal protection and due process and committed strue-tural error in permitting jurors to question witnesses. He contends that he received inadequate notice that the juror questions would be allowed and that he is entitled to uniform proceedings and practice in all courts of the same class. We perceive no basis for reversal.

Structural errors affect "the framework within which the trial proceeds." Griego v. People, 19 P.3d 1, 7 (Colo.2001)(quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)); see Blecha v. People, 962 P.2d 931, 942 (Colo.1998). Structural errors are not subject to a harmless error analysis. See People v. Willcoxon, - P.3d -, 2002 WL 31719852 (Colo.App. No. 01CA0524, Dec. 5, 2002)(the remedy for structural error is automatic reversal).

No federal cireuit court of appeals has treated the issue of juror questioning as one of structural error. In fact, every federal appellate court considering the issue has upheld the decision to allow juror questioning as within the sound discretion of the trial court. See United States v. Richardson, 233 F.3d 1285 (11th Cir.2000); United States v. Collins, 226 F.3d 457 (6th Cir.2000); United States v. Hernandez, 176 F.3d 719 (3d Cir.1999); United States v. Feinberg, 89 F.3d 333 (7th Cir.1996); United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995)(concluding that allowing juror-originated questioning of witnesses lies within the trial court's discretion, but strongly discouraging the practice except in extraordinary or compelling circumstances); United States v. Cassiere, 4 F.3d 1006 (1st Cir.1993); United States v. Groene, 998 F.2d 604 (8th Cir.1993); United States v. Polowichak, 783 F.2d 410 (4th Cir.1986); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.1979)("There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses.").

Similarly, the majority of the states that have considered the issue have permitted jurors to ask questions of witnesses. See United States v. Richardson, supra, 233 F.3d at 1289 (collecting decisions from twenty-five states approving the practice); cf. State v. Costello, 646 N.W.2d 204, 209 (Minn.2002)(prohibiting jury questioning, but recognizing the practice is "supported by the American Bar Association and is allowed, in some form or another, in federal courts and in the majority of states").

A few states have refused to do so. See State v. Williamson, 247 Ga. 685, 279 S.E.2d 203 (1981)(disapproving practice of allowing jurors to ask questions, but concluding reversal was not required; defendant's counsel approved the procedure by failing to object); State v. Costello, supra; Wharton v. State, 734 So.2d 985 (Miss.1998); State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991)(disap-proving practice, but concluding reversal was not required because defendant argued against prosecution's motion for mistrial and thereby invited the error); State v. Gilden, 144 Ohio App.3d 69, 759 N.E.2d 468 (2001); Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App.1992). However, only two of these states-Minnesota and Texas-have refused to apply a harmless error analysis and have instead concluded that reversal is required. See State v. Costello, supra; Morrison v. State, supra.

In State v. Costello, supra, 646 N.W.2d at 213, the Minnesota Supreme Court explained its reasons for not allowing jurors to question witnesses:

[OJur concern about allowing jurors to question witnesses is two-fold. First, the opportunity to pose questions may prevent jurors from keeping an open mind until all the evidence has been presented. Second, the opportunity to pose questions may upset the burden of production and persuasion in a criminal trial. We believe the passive-juror system minimizes these problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from affecting the production of evidence.

We are more persuaded, however, with the reasoning of the numerous decisions concluding that any error in this context is subject to a harmless error analysis and prejudice must be shown. See United States v. Richardson, supra (concluding defendant failed to present any evidence of prejudice resulting from the juror questioning).

Applying that standard of review here, we conclude the testimony elicited by the jurors was not new or different from other evidence already admitted. On the morning of trial, the court informed counsel that defendant's case would be part of the Colorado Supreme Court's pilot project, which allows jurors to submit written questions to witnesses. Defendant objected, pointing out that only even-numbered cases were to be included in the pilot project and therefore, his odd-numbered case should be excluded. He further objected to the lack of notice and maintained that the practice impermissibly shifted the prosecution's burden of proof and therefore violated due process. The trial court overruled his objections.

The court gave jurors the following instruction about the pilot project:

going to permit you folks, if you wish, to ask questions. It's up to you, but as you listen to a witness testify, if there's something you feel you would like to know that would help you better understand the case and the facts that hadn't come up in the questioning, you may write out the question on a piece of paper.
We don't advise you start asking questions, but we would ask you to write those questions out on a [piece] of paper, and when the witness is finished that is when the lawyer is finished, then the bailiff will collect any questions you might have.
I'll go over those with the lawyers and they can register any objections. I'll do that at the bench, I don't want [to] put the lawyers on the spot in objecting to a juror's questions, and you can understand that they might not feel comfortable, but they have every right to object ....
[If there's a question that you ask that doesn't get, in turn, asked to the witness, don't think a thing about it, it's just sometimes things can't be asked. But we'll try to make sure that the questions get asked and you get the answers so you can do your job.

During the course of the trial, Jurors submitted three written questions that were eventually propounded to witnesses over defendant's objections.

The first question asked a police officer: "What reason did [you] use to have the car impounded?" The officer responded:

Any time we make an arrest ... if there is a vehicle on seene that is the owner's .... when we arrest them and take them into custody ... we become responsible for their vehicle, for any damage that may occur to the vehicle, if it's stolen or anything like that, so we have their vehicles towed ... so that we know that the vehicle is safe....

A juror then asked this follow-up question: "Reason for revocation for illegal parking?" The court clarified the question to be whether "the reason for the decision to have the car impounded [was] the revocation of the driver's license or the illegal parking." The officer testified that he relied more upon the car's being illegally parked than defendant's license revocation. The officer then directly asked the juror, "Does that answer your question?" Defendant objected to the witness's question to the juror. The court overruled the objection and proceeded with other juror questions.

The next written question asked was: "Where was the field test for a controlled substance done, and what time?" The witness answered that the tests were performed at the police department shortly after defendant was processed.

The final written question asked was: "When impounding a car, is it locked up before towing, and is it inventoried for possessions?" Over defendant's objection, the witness answered that in the ordinary course, the key to the vehicle is given to the towing company, and every possession in the vehicle is inventoried.

Defendant's case was assigned an odd number and thus should not have been included in the pilot project, and the better practice would be to provide more notice of the procedure. We also observe that the officer should not have been permitted to address a juror individually.

Nevertheless, we reject defendant's contention that the trial court's decision to allow written questions by the jurors constitutes structural error that requires automatic reversal, and defendant has not shown how these questions by the jurors prejudiced him. See United States v. Thompson, 76 F.3d 442, 449 (2d Cir.1996)(concluding trial court erred in permitting juror-originated questions to witnesses, but it was not structural error); People v. Willcoxon, supra, - P.3d at - (trial court erred by allowing jurors to take notebooks home overnight to study their contents, but it was not structural error). We therefore conclude the trial court's implementation of the pilot project did not violate defendant's constitutional rights, and the court's decision to permit juror questioning did not constitute an abuse of discretion.

Judgment affirmed.

Judge TAUBMAN and Judge WEBB concur.


author: Judge MARQUEZ.

text:
    In re the Matter of the 2000-2001 DISTRICT GRAND JURY in and for the FIRST JUDICIAL DISTRICT, STATE OF COLORADO, and Concerning the City of Black Hawk, Appellant.
    No. 00CA2081.
    Colorado Court of Appeals, Div. II.
    Feb. 13, 2003.
    Certiorari Granted Oct. 6, 2003.

      David J. Thomas, District Attorney, Dennis Hall, Senior Deputy District Attorney, Golden, Colorado.
    Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Lee D. Foreman, Rachel A. Bellis, Denver, Colorado, for Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge MARQUEZ.

Appellant, the City of Black Hawk, appeals the trial court's orders denying all pending motions and ordering the release of a grand jury report pursuant to § 16-5-205.5, C.R.S. 2002, by the 2000-2001 District Grand Jury in and for the First Judicial District. We affirm.

A grand jury was convened in the First Judicial District to look into allegations of illegality in connection with annexation procedures. The facts underlying this case are set forth in In re 2000-2001 District Grand Jury, 22 P.3d 922 (Colo.2001)(Grand Jury I), and will not be extensively detailed here. No indictment was issued as a result of the grand jury investigation, but the grand jury elected to issue a report pursuant to § 16-5-205.5. Black Hawk acknowledges that it and other persons named in the report received a copy of the report in July 2000.

Black Hawk and others then filed various motions, including motions for discovery. In September 2000, the trial court issued an order addressing the statutory role of the presiding court regarding a grand jury report and denying suppression of the report, discovery requests, and other motions.

Black Hawk and others filed notices of appeal in this court, and one party filed a C.A.R. 21 petition in the supreme court, requesting suppression or expungement of the grand jury report.

The supreme court in Grand Jury I, supra, addressed two issues: the grand jury's authority to issue a report and the appropriate role of the trial court regarding the pub-lie dissemination of that report. The supreme court rejected the request to suppress and determined that the grand jury had dis-eretion to seek to release the report. It also held that the trial court's role in reviewing the grand jury proceedings is limited. The court must be satisfied that the grand jury and the prosecutor complied with § 16-5-205.5(4)(a) and (4)(b)(IID)-(IV), C.R.S.2002. Further,

Should the grand jury and district attorney meet these statutory requirements to the court's satisfaction, then the court accepts and files the report. At that point, the report becomes public. The statute does not authorize the court to inquire into the underlying facts that comprise the report, except to the extent that the court must determine that the certifications of the grand jury foreperson and prosecuting attorney are borne out by the report: specifically, that the report contains matters of public interest within the narrow definition of the statute.

Grand Jury I, supra, 22 P.3d at 926 (citation omitted).

The supreme court further stated that § 16-5-205.5 removes any inquiry into sufficiency of the evidence from the trial court and that the role of the trial court is to review the report independently to determine whether, on its face, the report satisfies the requirement that it concern matters of public interest, as defined by the statute.

Limiting its review to the report and attachments, the supreme court concluded that those documents support the trial court's finding that this grand jury report may be released. It found that the grand jury, the district attorney, and the trial court complied with the provisions of § 16-5-205.5 and that the plain language and legislative history of the statute allowed release of grand jury reports in precisely this situation. It declined to expand the court's limited role in review beyond what the General Assembly clearly intended. The court then remanded the case to the trial court for consideration of "any other pending matters before release of the report." See Grand Jury I, supra, 22 P.3d at 929.

This court remanded the case to the district court for a ruling on motions filed by Black Hawk after the September 2000 order. On remand, the trial court in September 2001 determined that the pending motions included Black Hawk's motions to quash based on three arguments: (1) the grand jury was improperly impaneled; (2) the grand jury did not have authority to issue the report; and (8) the grand jury was given improper instructions of law. After reviewing the parties' filings, the trial court denied the pending motions without a hearing, and the matter was recertified to this court.

As a threshold matter, Black Hawk now raises discovery issues that were previously denied in the trial court's September 2000 order and were not addressed by the supreme court. Because the district attorney does not object to Black Hawk's issues and the supreme court did not otherwise define the issues to be reviewed, we address all matters raised by Black Hawk.

I.

To resolve the issues before us, we must review § 16-5-205.5. When reviewing any statute, we must attempt to effectuate the intent of the General Assembly, and the plain language of the statute is the best indication of that intent. See Grand Jury I, supra.

IL.

Black Hawk contends that the district court's failure to convene and select the district grand jury in accordance with the procedure mandated by § 183-74-101, et seq., C.R.S.2002, divests this grand jury of any jurisdiction to issue a report pursuant to § 16-5-205.5. We disagree.

The Colorado Constitution expressly delegates the power to regulate the grand jury to the General Assembly. Colo. Const. art. II, § 23; Grand Jury I, supra.

Section 16-5-205.5(4)(a) provides that the court is to examine the report and make an order accepting and filing it, if the court is satisfied that "[the grand jury and the prosecuting attorney were acting within the statutory jurisdiction of such persons in convening the grand jury."

Section 13-74-101, C.R.S.2002, provides in relevant part that upon the district attorney's petition, the chief judge of a district court "shall, for good cause shown, order the impaneling of a judicial district grand jury which shall have judicial districtwide jurisdiction."

Section 13-74-1083, C.R.S.2002, requires, in relevant part, that the state court administrator, upon receipt of the chief judge's order "shall prepare a list of prospective judicial district grand jurors," and the chief judge "shall impanel the judicial district grand jury from the list compiled by the state court administrator."

Here, the record reflects that the district attorney filed a motion to impanel the district grand jury and that the chief judge entered an order finding good cause and granting the motion. However, to use the court's resources more efficiently, predecessors to the present district attorney and chief judge had agreed to impanel a single district grand jury, which would also serve as the Gilpin County grand jury. According to the district attorney's brief,; instead of issuing an order each year, the chief judge has given a standing order to the state court administrator to provide names for the district grand jury venire each year.

The chief judge explained the procedure as follows:

In the First Judicial District, the State Court Administrator automatically prepares a list of grand jury panel members each year. Such list is furnished to the First Judicial District Jury Commissioner. The Jury Commissioner then summons jurors from the list furnished by the administrator to appear in court for grand jury selection. In this case, the Chief Judge impaneled the grand jury from the list compiled by the State Court Administrator. So the only way in which the Court did not follow the statute was in that the State Court Administrator was not sent a copy of the Chief Judge's Order. - Since the Administrator automatically furnishes the list of prospective grand jurors, there is no need for transporting the Court Order to the Administrator each year.

Black Hawk argues that § 18-74-101 does not authorize the court to adopt procedures used to impanel county grand juries when impaneling district grand juries. According to Black Hawk, the procedure used here improperly delegates authority to the administrator to prepare district grand jury lists before there has been an executive determination to seek impanelment, before a petition is submitted, before a court has determined good cause exists, and before the administrator receives notice of an order granting a specific impanelment petition. Allegedly, this improper delegation of authority violates the separation of powers provision of article III of the Colorado Constitution. We disagree.

The district attorney concedes that the procedure used does not precisely follow the sequence of events described in § 13-74-1038. However, as the district attorney points out, other than the court's issuance of a standing order, rather than an annual order, Black Hawk identifies no manner in which impanelment proceedings in the First Judicial District depart from the procedures set forth in § 18-74-108. >

The trial court did not find this variance "to be of any significance as to whether the grand jury and the prosecuting attorney were acting within the statutory jurisdiction in convening the grand jury." Further, it found no nexus between the failure to file the court order with the state court administrator and the grand jury's criticisms of Black Hawk and others.

Relying on § 13-71-140, C.R.S.2002, the trial court concluded that Black Hawk had failed to establish injury or prejudice as required by statute. This statute prohibits a court from declaring a mistrial or setting aside a verdict based upon alleged irregularities or defects in jury selection procedures, absent objection and demonstration of specific injury or prejudice.

While the grand jury reporting process under § 16-5-205:5 applies only where there is no indictment and the prosecuting attorney does not choose to file charges, we nevertheless agree with the trial court's conclusion that Black Hawk has failed to assert any prejudice flowing from the manner in which the grand jury was impaneled. Procedural matters not specifically addressed by the provisions of § 18-74-101, et seq., are to be governed by other applicable Colorado statutes. Section 18-74-110, Black Hawk does not allege that the composition of the grand jury would have been different but for the irregularities. At oral argument, Black Hawk's counsel conceded that the purpose of sending the chief judge's order to the state court administrator is to notify the administrator to prepare a list of grand jurors. Further, Black Hawk cites no authority that would allow it to go beyond questioning whether the procedural steps were followed.

We conclude that the steps taken substantially satisfied the required procedures in that the grand jury was impaneled from a list provided by the state court administrator. Therefore, Black Hawk suffered no prejudice.

IIL

Black Hawk further contends that the grand jury report statute does not prohibit discovery or disclosure of materials and information to a party protesting the impending release of a grand jury report based on a challenge to the grand jury's jurisdiction. We perceive no reversible error.

Black Hawk concedes that no provisions in § 16-5-205.5 authorize discovery of the grand jury proceedings in furtherance of the right to challenge the grand jury's report. Nor has Black Hawk pointed to any other statute providing such authority.

Although members of the public [generally have a right of access to ministerial court records, that right is subject to the rule of grand jury secrecy. A ministerial record is one that generally relates to the procedural aspects of the impanelment and operation of the special grand jury. An instructive standard in categorizing a record as ministerial is whether the disclosed information would reveal the substance or essence of the grand jury's investigation or deliberations. In re Grand Jury Proceedings, 813 F.Supp. 1451 (D.Colo.1992).

Here, Black Hawk sought discovery of motions, orders, correspondence, jury lists, instructions, and other information relating to the impanelment of the grand jury, as well as transcripts, exhibits, and other information before the grand jury. The trial court's September 2000 order denied that request, holding that § 16-5-205.5 does not provide for release of such information and that time-honored principles of grand jury secrecy remain in place.

Nevertheless, Black Hawk and others were provided copies of the district attorney's motion to impanel the district grand jury and the chief judge's order finding good cause and granting the motion to impanel. Additionally, Black Hawk concedes that it ultimately obtained some of the materials pertaining to jurisdictional matters from other sources, and it now seeks an answer because the question is likely to arise in future cases.

Black Hawk contends that the principles of grand jury secrecy favor disclosure. We are not persuaded.

Some of the justifications for grand jury secrecy favor nondisclosure, including insuring the utmost freedom to the grand jury in its deliberations, preventing subornation of perjury or tampering with witnesses who may testify before the grand jury, encouraging free and untrammeled disclosures by persons who have information, and protecting innocent persons from disclosure of the fact that they have been under investigation. See Granbery v. District Court, 187 Colo. 316, 531 P.2d 390 (1975); Parlapiano v. District Court, 176 Colo. 521, 491 P.2d 965 (1971).

In view of the lack of statutory authority and the foregoing principles pertaining to secrecy, the court properly denied Black Hawk's request.

Black Hawk also contends that it is entitled to discovery because the grand jury report statute protects the due process rights of persons and businesses named in a report by giving them the right to submit a response for public release with that report and because discovery from the grand jury record would aid in preparing such a response. Again, we are not persuaded.

As the supreme court stated in Grand Jury I, the statute has a number of procedural safeguards protecting against careless issuance of reports. Section 16-5-205.5(4)-(5). Further, the supreme court held that the trial court, and thus appellate courts, are not to inquire "behind the report." While this holding does not address whether the named parties should be entitled to discovery as an aid in exercising their statutory right to respond, the supreme court's interpretation of the trial court's limited role necessarily limits its authority to allow discovery for any purpose.

In view of the lack of statutory authority and the policy favoring grand jury secrecy, open-ended discovery is not an option.

-In Colorado, the rules of criminal procedure require that the proceedings of the grand jury shall be secret. The oath of secrecy continues until an indictment is made public or until a grand jury report dealing with the investigation is issued and made public as provided by law. . See Crim. P. 6.2(a).

An indicted defendant is entitled to discovery of grand jury testimony of witnesses the district attorney intends to call at trial. See Parlapiano v. District Court, supra; see also Crim. P. 16(a)(1)(I1) (requiring prosecuting attorney to provide defendant with all transcripts of grand jury testimony and all tangible evidence presented to the grand jury in connection with the case). However, even this disclosure to indicted defendants does not include access to everything that transpires before the grand jury. See People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980).

Black Hawk relies on In re Second Report of November 1968 Grand Jury, 26 N.Y.2d 200, 309 N.Y.S.2d 297, 257 N.E.2d 859 (1970), in which the New York Court of Appeals analyzed a grand jury reporting statute and held that the evidence before the grand jury should have been made available See N.Y.Crim. Proc. § 190.85.

However, as the supreme court noted in Grand Jury I, supra, the legislative history of the Colorado statute indicates that the General Assembly chose to limit the role of the trial court. Further, the procedural safeguards of the statute require that the trial court must be satisfied, inter alia, that the certifications of the grand jury foreperson and the prosecuting attorney are borne out by the report, including that the report contains matters of public interest within the narrow definition of the statute. See Grand Jury I, supra.

Because the power to regulate grand juries is expressly delegated to the General Assembly, Grand Jury I, supra; de'Sha v. Reed, 194 Colo. 367, 572 P.2d 821 (1977), the concerns raised here must be addressed to the General Assembly. See de'Sha v. Reed, supra.

Thus, we conclude that because the General Assembly did not provide in the statute for disclosure of grand jury proceedings and limited the court's role in reviewing grand jury reports, it intended that persons named respond only to the information contained in the report.

We also reject Black Hawk's contention that the court should have held a hearing to determine whether Black Hawk had shown a particularized need for its requested access to the grand jury record.

Black Hawk cites only the traditional rules of grand jury secrecy as set forth in Parlapiano, supra. Thus, it asserts that escape, witness tampering, and interference with grand jury deliberations are not at issue. However, it cites no statutory or other authority for such disclosure.

For the reasons set forth aboiie, we conclude that such discovery is not authorized.

IV.

Finally, we also reject Black Hawk's contention that the grand jury report must be quashed because it is the product of incomplete and misleading instructions,. Specifically, Black Hawk asserts that the prepon-derancee of the evidence and public interest instructions were inadequate.

The duty to instruct the grand jury correctly on legal issues falls to the district attorney. Section 20-1-106, C.R.S.2002; People ex rel. Lindsley v. District Court, 29 Colo. 5, 66 P. 896 (1901).

Here, the district attorney informed the grand jury that to prove something by a preponderance of the evidence means to prove that it is more probably true than not. Black Hawk concedes that this is not an incorrect statement of the basic legal concept. Although further explanation could have been provided, the instruction here sufficed.

Black Hawk also asserts that the district attorney did not instruct the grand jury that the presumptions and inferences described to them as applicable to a probable cause determination do not apply when findings must be based on the preponderance of the evidence. However, Black Hawk cites no authority requiring such an instruction, and we are not aware of any.

The trial court found that the grand jury received proper instructions to guide its certification that its report implicated misuse or misapplication of public funds and misfeasance or malfeasance with regard to a governmental function.

Black Hawk, however, asserts error in giving the grand jury the following instruction from the Colorado Code of Ethics, § 24-18-108(1), C.R.S.2002:

The holding of public office or employment is a public trust, created by the confidence which the electorate reposes in the integrity of public officers, members of the general assembly, local government officials, and employees. A public officer, member of the general assembly, local government official, or employee shall carry out his duties for the benefit of the people of the state.

Black Hawk asserts that the public trust provision was not implicated by the grand jury's investigation and that the grand jury was misled to believe that the conduct of Black Hawk's officials could be characterized as a breach of the public trust. According to Black Hawk, this was the basis for the grand jury's certification that its report addresses matters of public interest. In view of the grand jury's investigation of official conduct of Black Hawk, see Grand Jury I, supra, and the lack of other statutory guidance, we perceive no error.

Section 16-5-205.5(1) provides that a grand jury report will be accompanied by certification that the grand jury has determined that release of the report is in the public interest. Section 16-5-205.5(5) provides the criteria for a report deemed to be in the "public interest," and that statute in turn refers to other statutes for definitions. Thus, to make its certification, the grand jury is guided by § 16-5-205.5(5).

Further, by its review, the trial court measures the certification of the grand jury foreperson and the prosecuting attorney against the facts contained in the report. See Grand Jury I, supra. Upon review of the report and attachments, we are satisfied that the certification was appropriate.

Thus, Black Hawk's arguments as to the sufficiency of the district attorney's instructions to the grand jury were properly rejected.

The orders are affirmed.

Judge NEY and Judge STERNBERG concur,