No. 91CA0604Colorado Court of Appeals.
Decided November 5, 1992. Rehearing Denied November 5, 1992. Certiorari Granted May 10, 1993 (92SC802).
Certiorari Granted on the following issue: Whether the court of appeals properly concluded that a colloquy between the trial court and the jury occurred at a critical stage of the trial proceedings and, if so, whether the court of appeals erred in applying a harmless error standard to what it concluded constituted a denial of the petitioner’s constitutional right to counsel.
Appeal from the District Court of the City and County of Denver Honorable J. Stephen Phillips, Judge
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Katherine M. Clark, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, for Defendant-Appellant.
Division IV.
Opinion by JUDGE METZGER.
[1] Defendant, Ryan C. Key, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder and menacing. We affirm. [2] The defendant’s conviction arose out of a July 4, 1990, incident in which an altercation developed between the victim and his family members and two carloads of youths, including the defendant. During the fight between the two groups, one of the individuals from the automobiles went to an automobile and returned with a gun. Thereafter, the defendant grabbed the gun from a counterpart, pointed it at the victim’s head, and pulled the trigger. The gun failed to discharge. I.
[3] Defendant first contends that the actions of the trial court in holding an ex parte “scheduling conference” with the jury denied him his constitutional right to counsel during a critical stage of the proceedings and that this error mandates reversal of his convictions. While we agree with the premise of defendant’s argument, we do not agree with its conclusion.
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People v. Johnson, 802 P.2d 1105 (Colo.App. 1990), rev’d on other grounds, 815 P.2d 427 (1991).
[7] Defendant asserts that the trial court’s failure to notify his attorney of the “scheduling conference” was error, violating his constitutional right to counsel and, relying in part on Holloway v. Arkansas, 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978), he maintains that such error can never be treated as harmless. [8] We agree with defendant that the trial court’s actions in conducting this ex parte proceeding were improper and constituted error depriving defendant of his right to counsel at a critical stage of the proceedings. However, we hold that the absence of defense counsel at this critical stage does not mandate automatic reversal. Instead, we believe that each case should be analyzed on the totality of its facts and circumstances. [9] Essentially, defendant’s contentions are based upon Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967), wherein, while discussing the harmless error standard as applied to constitutional errors, the Supreme Court stated that certain constitutional errors may never be held to be harmless. Chapman v. California, supra, (fn. 8) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792(1963), which established the right to counsel at trial). [10] Thereafter, in Arizona v. Fulminante, 499 U.S. 279, 113 L.Ed.2d 302, 111 S.Ct. 1246 (1991), the Court recognized and reaffirmed the principle stated in the Chapman footnote that the total deprivation of the right to counsel at trial could never constitute harmless error. However, the majority implicitly left open the door for those situations in which something less than total deprivation of the right to counsel could be construed as harmless error. Indeed, in Rushen v. Spain, 464 U.S. 114, 78 L.Ed.2d 267, 104 S.Ct. 453 (1973), the court had held that a harmless error analysis applied to ex parte communications between the trial court and a juror outside the presence of defense counsel or defendant. [11] In cases of constitutional 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 v. People, 728 P.2d 1252 (Colo. 1986). Error in a criminal trial is harmless if it did not substantially influence the verdict or affect the fairness of the trial proceedings. Chapman v. California, supra. [12] Based on our review of the record, we conclude that the absence of defense counsel at the “scheduling conference” here was harmless beyond a reasonable doubt. Initially, it must be noted that there is no evidence that the jury was deadlocked. In fact, during the “scheduling conference” the jury foreperson stated that she felt the jurors were “fairly close” to a verdict. Additionally, there was no reference made to any of the evidence, instructions, or issues of fact during the short conference. The impaneled jury contained a number of individuals who had irreconcilable holiday plans. The trial court was simply attempting to produce a schedule that would be acceptable to each juror. [13] Thus, because the “scheduling conference” spoke specifically to administrative needs and not to the substantive law, the error in conducting it outside the presence of defendant and his attorney was harmless beyond a reasonable doubt.
II.
[14] Defendant next asserts that, during the “scheduling conference,” the trial court coerced the jury into reaching a verdict in violation of his constitutional right to a fair trial. We disagree.
(Colo. 1984). The unanimity required in a criminal trial verdict requires a free and untrammeled deliberative process that expresses the conscientious conviction of each individual juror. People v. Lewis, 676 P.2d 682 (Colo. 1984).
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[16] Defendant relies chiefly on Allen v. People, 660 P.2d 896 (Colo. 1983) and People v. Lazdins, 728 P.2d 354 (Colo.App. 1986). However, both of those cases are factually distinguishable from the case here. Both concerned deadlocked juries. For example, in Lazdins, the jury had deliberated for over 13 hours and the foreman indicated that there were “serious differences and no anticipation of an unanimous decision.” Additionally, in Allen and Lazdins, the trial court placed an express time limit on the jury’s deliberations, indicating that, thereafter, a mistrial would be declared. [17] Here, the jury was not deadlocked and no time limit was placed on its deliberations. In fact, the foreperson expressed the belief that the jurors were “fairly close” to a decision. The very purpose of the scheduling conference enhanced the possibility that jury deliberations could continue for more than just one day and, thus, was designed to prevent a compromise verdict. [18] Additionally, the trial court did not state to the jury that, if a verdict were not reached by the end of the day, a mistrial would be declared. Thus, in our view, the record does not support defendant’s contention that the jury was coerced by the court. III.
[19] Defendant next contends that the trial court committed reversible error in denying his motion for new trial based on a juror’s failure to disclose that she was acquainted with him. We disagree.
IV.
[24] Defendant asserts the trial court failed to instruct the jury properly on the elements of attempted first degree murder. We agree, but conclude that the error was harmless.
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[29] `(3) with intent, [30] `(4) engaged in a conduct constituting a substantial step toward the commission of Murder In The First Degree.'” [31] The defendant argues that the instruction erroneously omits any reference to the requirement that he must have acted after deliberation and with the intent to cause the death of another person. We agree. [32] In Gann v. People, 736 P.2d 37 (Colo. 1987), our supreme court addressed the identical issue and held that, although error occurred, it was not plain error. In Gann, the criminal attempt instruction was given without any reference to the after deliberation requirement for murder in the first degree. As occurred here, the instruction in Gann following the criminal attempt instruction advised the jury of the elements of murder in the first degree and included the after deliberation requirement. [33] The Gann court concluded that, read as a whole, the instructions sufficiently communicated to the jury the culpability elements which were required to convict the defendant of criminal attempt first degree murder. In our view, Gann is dispositive. [34] Additionally, defendant claims error occurred because the trial court failed to give the appropriate culpability instruction pertaining to the attempted crime immediately following the substantive instruction, as provided in COLJI-Crim. No. 8:01 (1990 Supp.). However, the notes on use pertaining to that instruction indicate that such a requirement is necessary only when the sole charge against the defendant is criminal attempt. The immediacy of the culpability instruction was not necessary here because defendant was charged with more than one offense.V.
[35] Defendant’s final contention is that the evidence was insufficient to sustain his conviction for attempted first degree murder. We disagree.
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