2014 COA 149
Colo. Ct. App.2014Background
- Sandra L. Jacobson was convicted by a jury of vehicular homicide, DUI, and related charges after her truck collided with a taxi, killing two passengers.
- Mid-trial, defense counsel warned the court that a local TV station (Channel 4) published a report and website text containing inadmissible, prejudicial information (prior convictions including DUI, prior accidents, alleged suspended license, interviews alleging past suspended-license driving, and other driving violations).
- Defense requested the court to poll the jury about exposure to that publicity; the prosecution did not oppose the request.
- The trial court declined to poll the jurors, instead relying on repeated admonitions given to jurors to avoid news sources and observing jurors’ apparent attention to those admonitions.
- On appeal the court held the trial court abused its discretion by refusing to poll the jury about potentially prejudicial mid-trial publicity; the error was not harmless beyond a reasonable doubt, so convictions were reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant preserved claim that court should have polled jurors about mid-trial publicity | Jacobson: counsel timely requested polling and preserved the issue for appeal | Attorney General: defense counsel acquiesced to court’s reliance on admonitions and therefore invited error | Preserved: request to poll was timely and preserved; failure to object after requesting polling is not implicit agreement |
| Whether trial court abused discretion by refusing to poll jurors after learning of potentially prejudicial media content | Jacobson: publicity contained inherently prejudicial, inadmissible information closely related to defense and raised realistic risk of juror exposure | Court/AG: admonitions were given; record did not show juror exposure so polling unnecessary; evidence of guilt was overwhelming | Abuse of discretion: material was inherently prejudicial and created reasonable possibility of exposure; admonitions alone were insufficient |
| Standard of review and proper remedy when court refuses to question jury about extraneous prejudicial material | Jacobson: appellate court should review trial court’s step-one (prejudice potential) and step-two (whether polling required) under abuse of discretion and, if error constitutional, apply harmless-beyond-reasonable-doubt test | AG: any error harmless given evidence | Court: review for abuse of discretion; where abuse occurred and prejudice cannot be shown harmless beyond reasonable doubt, reversal and new trial required |
| Whether error was harmless beyond a reasonable doubt | Jacobson: error not harmless because affirmative defense (post-driving alcohol consumption) was central and evidence was equivocal | AG: prosecution presented overwhelming evidence of guilt | Held: AG did not meet burden to show harmlessness beyond reasonable doubt; reversal required |
Key Cases Cited
- Harper v. People, 817 P.2d 77 (Colo. 1991) (adopted three-step test for mid-trial publicity: assess inherent prejudice, canvass jury collectively, examine exposed jurors individually)
- Dunlap v. People, 173 P.3d 1054 (Colo. 2007) (applied Harper; addressed harmless-error analysis for jury-related errors)
- United States v. Thompson, 908 F.2d 648 (10th Cir. 1990) (applying constitutional harmless error review where court failed to question jurors about exposure)
- State v. Bey, 548 A.2d 846 (N.J. 1988) (polling jury may show no exposure; absent polling, appellate court cannot assume no effect)
- People v. Holmes, 553 P.2d 786 (Colo. 1976) (presumption that jurors follow instructions; Harper distinguished Holmes and rejected reliance on that presumption alone)
- People v. Coughlin, 304 P.3d 575 (Colo. App. 2011) (objection that alerts trial court to impending error preserves issue for appeal)