284 P.3d 124
Colo. Ct. App.2011Background
- Harmon cared for his 3.5-month-old daughter H.H. during his wife's workday; wife observed initial absence of injury, later noticed significant swelling and bruising.
- Medical exams revealed skull fracture, rib fractures, adrenal injury, multiple bruises; pediatrician diagnosed nonaccidental trauma/child physical abuse.
- Harmon gave varying explanations for injuries; ultimately claimed accidental dropping during bathing.
- Harmon was charged with one count of knowing or reckless child abuse; opening statement framed defense as negating guilt but allowing for carelessness.
- Trial court admitted a lesser included offense instruction (criminally negligent abuse) and Harmon maintained innocence throughout; jury convicted on the greater offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror note and corrective action | Harmon argues juror misperceived guilt and court failed to correct | Harmon asserts juror prematurely decided guilt; requests excusal or mistrial | Reversal; remand for new trial due to improper handling of juror note. |
| Opening statement photograph of H.H. | Not specifically argued here, but challenged as potentially inflammatory | None, court allowed photograph as opening statement | No abuse of discretion; photograph properly permitted in opening statement. |
Key Cases Cited
- Bloom v. People, 185 P.3d 797 (Colo.2008) (due process right to an impartial jury; improper juror misconduct handling)
- Dunlap v. People, 173 P.3d 1054 (Colo.2007) (constitutional error standard for juror misconduct)
- Williams v. Bagley, 380 F.3d 932 (6th Cir.2004) (duty to inquire into juror bias under certain circumstances)
- United States v. Brooks, 569 F.3d 1284 (10th Cir.2009) (court may hold hearings to assess juror bias in discretion)
- State v. Cherry, 20 S.W.3d 354 (Ark.2000) (R.E. rules on juror misconduct and remedial actions)
- Parker v. Commonwealth, 919 A.2d 943 (Pa.2007) (display of evidence opening statement within court discretion)
- Billings v. State, 607 S.E.2d 595 (Ga.2005) (photographs in opening statements permissible when relevant)
- Bustos v. Bustos, 725 P.2d 1174 (Colo.App.1986) (opening statements; use of photographs to illustrate expected evidence)
- Maass v. People, 981 P.2d 177 (Colo.App.1998) (photographs illustrating evidence not precluded when admissible)
- Viduya v. People, 703 P.2d 1281 (Colo.1985) (photographs; probative value vs. prejudice)