City and County of Denver District Court No. 09CR510 Honorable Robert L. McGahey, Jr., Judge
John W. Suthers, Attorney General, Rebecca A. Jones, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 A jury convicted Sandra L. Jacobson of vehicular homicide, driving under the influence (DUI), and other related charges, all arising from a collision between her truck and a taxi cab. Two passengers in the taxi were killed. On appeal, Jacobson primarily contends the trial court erred when it refused her counsel's request to poll the jury concerning exposure to mid-trial publicity that included inadmissible, prejudicial information.
¶ 2 We conclude that the court abused its discretion when it declined to poll the jury, instead relying solely on its assumption that the jurors had followed repeated admonitions to avoid news reports. Because we also conclude that this error was not harmless beyond a reasonable doubt, we reverse Jacobson's convictions and remand the case for a new trial on all charges.
¶ 3 On the fourth day of trial, while the prosecution was still presenting its case, defense counsel alerted the court to the possibility that Channel 4, the local affiliate of a national television network, would air on its evening news program a report containing information prejudicial to the defense. When the day's proceedings ended, the court gave the jury an extended admonition to avoid "newscasts" and "newspaper sites."
¶ 4 The next morning, defense counsel told the court that a report about the case had appeared the preceding night on Channel 4 and the station's website. The court and defense counsel agreed that the broadcast and the text which appeared alongside video content on the website included the following:
• references to Jacobson's prior convictions, including a DUI;
• references to her prior traffic accidents resulting in injury;
• an allegation that she had been driving with a suspended license when her truck struck the taxi cab;
• a suggestion that she was facing at least two additional trials on other matters;
• an interview with someone involved in a previous accident with her who said that she had been driving with a suspended license in that accident and offered that she should be incarcerated forever; and
• reference to her other driving violations.
¶ 5 The record lacks any direct information about the telecast or the website. But the prosecutor did not take issue with anything said between the court and defense counsel about the content, nor does the Attorney General do so on appeal. When defense counsel asked the court to inquire of the jury regarding exposure to this material, the prosecution did not take a position.
¶ 6 The court responded that the information was "absolutely not anything [that was] going to come up in [the] trial" and that the "timing was unfortunate." The court referred to the expanded admonition given when the prior day's proceedings had ended, and mentioned that several jurors had looked serious and nodded affirmatively during that admonition. Then the court "decline[d] to inquire of [the jury] any further about any specific program" because it decided to "take them at their word, " saying that telling the jury about the broadcast would be like "dangling a ...