Lead Opinion
The defendant in this criminal case, Joseph Lee Leonardo, III (Leonardo),
I.
Viewing the facts in the light most supportive of the jury’s verdicts, the record discloses the following course of events. Early in June of 1982, Leonardo and a co-worker, his brother-in-law, Michael Robinson, were eating lunch at a fast food restaurant in Colorado Springs when they were approached by an unidentified man who offered to sell them some tools. Both Leonardo and Robinson were carpenters and had been working on a roofing project that day. Leonardo and Robinson decided to see what the man had for sale and accompanied him to his van where the tools were located. Leonardo testified that carpenters who are in need of money commonly sell their tools for less than true value in order to subsist. After inspecting the tools, Leonardo purchased several extension cords, levels and saws, for a total of between $75 and $100. Except for the extension cords, each of these tools had the initials “A.E.W.” scratched on it. Al E. Walton, the rightful owner of the tools, had previously reported that his tools had been stolen out of his van sometime over the Memorial Day weekend when the van was parked on a construction site.
Shortly after purchasing the tools, Leonardo pawned them at three different pawn shops. Leonardo was out of work at this time and needed money to pay his bills. Michael Robinson also pawned some of the tools he had purchased. In the course of
Both Leonardo and Robinson were charged in El Paso County District Court with theft by receiving and conspiracy to commit theft by receiving. Robinson entered into a plea agreement and pleaded guilty to a lesser charge. The case against Leonardo proceeded to trial.
At the conclusion of the evidence, the jury was instructed on the elements of theft by receiving. One of the elements listed in the instruction was that the defendant could be convicted only if he acted while “knowing or believing” that the thing of value in question had been stolen. The court also gave the jury a standard instruction on the term “knowingly” but did not define the term “believing” for the jury.
In the course of deliberations, the jury sent a note to the court which read:
Is Knowing or Believing in instruction Number 6 The Same as Having a Suspicion oft
The court, without consulting counsel for either side or informing Leonardo, responded in writing as follows:
Ladies and Gentlemen:
You must reach your verdict applying the words as you find them in the instructions.
The jury made no further inquiries and returned their verdicts of guilty a short time later.
On the basis of the court’s handling of the jury’s question, Leonardo moved for a new trial. His motion was denied and he was sentenced to four years probation. He subsequently appealed his convictions to the court of appeals, again based upon the trial court’s handling of the jury’s question. A divided panel of the court of appeals upheld Leonardo’s convictions, People v. Leonardo,
II.
In order to convict a defendant of theft by receiving, the jury must find that he “receive[d], retain[ed], loan[ed] money by pawn or pledge on, or dispose[d] of anything of value of another, knowing or believing that said thing of value [had] been stolen....” § 18-4-410, 8B C.R.S. (1986) (emphasis added); see also People v. Griffie,
We have held that an instruction employing the language of the statute is sufficient if the language is clear. E.g., People v. Freeman,
The issue in this case is not the adequacy of the original instructions given, but rather the jury’s demonstrated misunderstanding of those instructions. “Absent a contrary showing, it is presumed that the jury understood and heeded the trial court’s instructions.” People v. Moody,
Both parties in this case urge that ABA Standards for Criminal Justice, Standard 15-4.3(a) (2d ed. 1980), should serve as a guide for determining when the trial judge should give additional instructions in response to an inquiry from the jury. We agree. Standard 15-4.3(a) provides:
If the jury, after retiring for deliberation, desires to be informed on any point of law, they shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless:
(i) the jury may be adequately informed by directing their attention to some portion of the original instructions;
(ii) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or
(iii) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
The People argue, and the majority in the court of appeals apparently agreed, that the trial judge’s failure to answer the jury’s question was appropriate since the jury could “be adequately informed by directing their attention to ... the original instructions.” See ABA Standards for Criminal Justice, Standard 15-4.3(a)(i) (2d ed. 1980). However, this was obviously not the case. The question asked by the jury, “[i]s Knowing or Believing in instruction Number 6 The Same as Having a Suspicion of "l,” demonstrates that the jury had considered the relevant instruction on mental state but did not know if suspicion was encompassed within the culpable mental state described in that instruction. Referring the jury back to the same instruction that created the doubt in their minds could serve no useful purpose. A jury should be referred back to instructions only when it is apparent that the jury has overlooked some portion of the instructions or when the instructions clearly answer the jury’s inquiry. Here, the jury did not overlook the relevant instruction and the instructions provided no clear answer to the jury’s⅜ question.
Also, the jury’s question concerned a matter that cannot be appropriately characterized as one “not in evidence” or “not pertain[ing] to the law of the case.” See ABA Standards for Criminal Justice, Standard 15 — 4.3(a)(ii) (2d ed. 1980). The question concerned the culpable mental state required to commit the crime of theft by a receiving — an issue central to the determination of guilt or innocence. Likewise, the jury’s question did not call for the judge to offer an opinion upon factual mat
Both knowledge and belief on the part of an actor are to be determined by examining the actor’s subjective state of mind. 4 C. Torcía, Wharton’s Criminal Law § 455, at 8 (14th ed. 1981). It has been said that knowledge is an assurance of a fact or proposition founded on perception by the senses, or intuition, while belief is an assurance based on evidence, and from other persons. Black’s Law Dictionary 141 (rev. 5th ed. 1979). “Knowing” literally imports a state of mind close to absolute certainty; “believing” requires something less. 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 8.10, at 427 (1986). Each of these mental states, however, requires a mental conclusion that the fact exists. This is not the case with suspicion.
Suspicion does not rise to the level of belief or knowledge. 2 W. LaFave & A. Scott, Jr., supra, at 427-28. It encompasses the apprehension of something without proof or upon little evidence. Black’s Law Dictionary 1298 (rev. 5th ed.). It includes a slight or even a vague idea that a fact exists. Black’s Law Dictionary 1297 (rev. 5th ed. 1979). When one suspects that a fact exists, he recognizes a possibility of the existence of that fact but has not reached a mental conclusion that the fact is true. Suspecting that a thing is stolen, then, cannot suffice to convict someone of receiving stolen property “knowing or believing” that it has been stolen.
We presume that a jury understands the instructions it is given. However, when the jury indicates to the judge that it does not understand an element of the offense charged or some other matter of law central to the guilt or innocence of the accused, the judge has an obligation to clarify that matter for the jury in a concrete and unambiguous manner. The jury’s confusion in this case could have been removed by a simple and direct response. Instead, the trial judge chose not to clarify the matter. Because the jury’s confusion related to a central element of the crime of theft by receiving, the court committed prejudicial error when it failed to respond adequately to the jury’s inquiry. See Bollenbach v. United States,
Leonardo also contends indirectly that the trial judge committed error when he failed to obtain the presence of Leonardo and his counsel and to permit the defendant’s counsel an opportunity to be heard before the court responded to the jury’s inquiry. The defendant in a criminal case has a fundamental right under the Colorado constitution to have counsel present when the judge gives instructions to the jury or responds to questions from the jury. Colo. Const, art. II, § 16; Nieto v. People,
In cases of constitutional error involving the right to counsel, reversal is required unless “the appellate court can ‘declare a belief that it was harmless beyond a reasonable doubt.’ ” Germany v. People,
The judgment of the court of appeals is reversed and the case is remanded to that court for return to the trial court with directions that the judgment of conviction be vacated and that the defendant be granted a new trial.
Notes
. The information named Joseph Noel Leonardo, Jr., as the defendant. However, the person actually charged and brought to trial was Joseph Lee Leonardo, III. Joseph Noel Leonardo, Jr., is the defendant’s father.
. Section 18-4-410(1), 8B C.R.S. (1986), provides in pertinent part:
[A] person commits theft by receiving when he receives, retains, loans money by pawn or pledge on, or disposes of anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value.
. The jury was instructed that
A person acts ‘knowingly’ or ‘willfully’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists. A person acts ‘knowingly’ or ‘willfully’ with respect to a re-suit of his conduct, when he is aware that his conduct is practically certain to cause the-result.
These definitions are substantially identical to the ones found in § 18-1-501(6), 8B C.R.S. (1986).
. On at least one prior occasion we have held that a trial judge in a criminal case did not err in merely referring the jury back to the original instructions after the jury had posed a question to the trial judge during deliberations. Phillips v. People,
In Phillips, an aggravated robbery case, the jury sent a question to the judge during deliberations which read: "Can the defendant be found guilty of aggravated robbery if the existence of a gun is doubted?” The judge, after consulting with counsel for both sides, replied:
I am sorry that I cannot answer your question directly, but the answer is contained in the instructions that you now have.
Again I must state that no single one of these instructions states all the law applicable to the case, but all of these instructions must be taken, read, and considered together, as they are connected with and related to each other as a whole.
As for the gun, this is one of the material allegations of the crime charged against the defendant.
Phillips v. People, 170 Colo, at 531-32,
. We have not previously decided whether either the United States constitution or the Colorado constitution requires the presence of the defendant when the judge communicates with the jury after deliberations have begun. Also, the United States Supreme Court has not conclusively decided whether this is a critical stage of criminal proceedings so that the presence of the defendant is required. See Rushen v. Spain,
. Under the "harmless beyond a reasonable doubt” standard, the "reasonable possibility” of prejudice requires reversal. Chapman v. California,
On occasion we have required that a defendant show prejudice when the judge has communicated with the jury before obtaining the presence of counsel. E.g., People v. Thomas,
This is not to say that such communications can never be harmless beyond a reasonable doubt. If the judge properly responds to an inquiry from the jury, there is no prejudice to the defendant. Also, if the matter is one that has no
Dissenting Opinion
dissenting:
The majority reverses the court of appeals’ ruling that the trial court committed harmless error in failing to obtain the presence of counsel before replying to a jury question during deliberations. I respectfully dissent.
I disagree with the majority’s analysis of the issue in this case. The majority writes:
The issue in this case is not the adequacy of the original instructions given, but rather the jury’s demonstrated misunderstanding of those instructions.
Majority op. at 1255. I believe the issue is whether there was error contained in the answer which the judge gave to the jury, and whether the court's action prejudiced the rights of the defendant. Phillips v. People,
A jury should be referred back to instructions only when it is apparent that the jury has overlooked some portion of the instructions or when the instructions clearly answer the jury’s inquiry.
Majority op. at 1255 (emphasis added). I do not believe this to be the applicable test. As I view the issue, the appropriate standard for determining when the jury, after retiring for deliberation, desires to be informed on any point of law is whether or not the court’s response correctly states the applicable law, and whether or not it is in any way prejudicial to the defendant. Phillips, 170 Colo, at 532,
Because the court’s response was that the jury reread the instructions, the response clearly did not misstate the law. The original instructions were in conformity with Colorado law. The instructions in question had been reviewed by counsel and approved prior to original submission to the jury.
The majority states that “frjeferring the jury back to the same instruction that created the doubt in their minds could serve no useful purpose.” Majority op. at 1255. I disagree. The ABA Standards for Criminal Justice, Standard 15-4.3(a)(i) (2d ed. 1982), provides:
[T]he jury may be adequately informed by directing their attention to some portion of the original instructions.
The trial court’s response to the jury question in applying the ABA Standard did not prejudice the defendant and resolved the question for the jury.
Clearly, the court erred in not informing counsel of the inquiry and in not conducting a hearing on the inquiry out of the presence of the jury. However, the majori
Here, the jury’s inquiry indicated that it was straining to supply content to the words “believing” and “knowing.” The court acted properly in informing the jury to refer back to “the words as you find them in the instructions.” Both the words, “knowing” and “believing,” are basic, commonly understood words, and we have rejected a vagueness challenge to those very words. People v. Holloway,
That the defense and the People were not given a chance to review whether the jury’s inquiry was incorrect procedure. However, because the defendant failed to establish that the trial court gave an erroneous statement of the law or that the actions of the trial court prejudiced the defendant’s rights, there was no reversible error. People v. Thomas,
I would affirm the court of appeals.