Arapahoe County District Court No. 10CR2839 Honorable John L. Wheeler, Judge
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Luis Enrique Guzman-Rincon, appeals the jury verdicts finding him guilty of six counts of attempted extreme indifference murder (crime of violence). Under the circumstances presented in this case, we conclude that defendant's Sixth Amendment right to counsel and his Fourteenth Amendment right to be present at critical stages of the proceedings were violated. Accordingly, we reverse defendant's conviction, vacate his sentence, and remand for a new trial.
¶ 1 On December 6, 2010, the victim and her friends were standing across the street from Aurora Central High School. The victim saw a black sedan "race" down the street, make a u-turn, and drive back towards the group. As the victim jumped out of the way of the sedan, the vehicle's left rear passenger fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her.
¶ 2 Defendant was tried on six counts of attempted extreme indifference murder (crime of violence) after he was identified by one of the witnesses as the shooter. The prosecution alleged at trial that defendant was a gang member and was targeting members of a rival gang at the time of the shooting.
A. Decision to Sequester the Jury
¶ 3 On the fifth day of trial, the prosecutors requested an ex parte audience with the court. In chambers, and outside the presence of defendant and defense counsel, the prosecutors disclosed that the investigating officer had received information from a confidential informant (CI) that defense counsel had given defendant's family access to recorded witness interviews. According to the prosecutors, the CI had reported that gang members had watched those interviews and created a "hit list" including the witnesses, investigating officer, and prosecutors. The prosecutors also said that the CI had warned the officer to be on the lookout for a suspicious vehicle in the courthouse parking lot and not to allow the jurors to be followed on the way home.
¶ 4 The prosecutors alleged defense counsel acted unethically in providing defendant's family with the interviews and that he should not be told "about this information" to protect the identity of the CI. The prosecutors then suggested that the court sequester the jurors for their protection and tell the jurors that sequestration was necessary "because of the publicity on the case, or because we're worried there's going to be some sort of outside tampering."
¶ 5 The trial court agreed that sequestration was necessary to protect the jurors. The court determined it would be improper to suggest to the jurors they were in danger, and agreed to tell the jurors they were being sequestered based on publicity and the temptation to do outside investigation.
¶ 6 After the defense presented its final witness for the afternoon, the court informed defendant and defense counsel of the sequestration. The court did not tell defendant or counsel that there was a credible threat, but rather focused on the publicity the case had received. Defense counsel requested that the court "inform [him] as to the factual basis regarding" the sequestration "so [he is] not left in the dark." The court said "[w]e can have that discussion after" it informed the jury, but no such discussion is in the record.
B. Decision to Inform the Jury of the Threat
¶ 7 The next day, the jury began deliberations. At the end of the day, the jury had not reached a verdict. Therefore, a second night of sequestration was necessary. Before leaving for the night, the jury submitted the following question to the court:
There is a concern among the jury that if there is a threat to us and our family that leaving our cars in the parking lot overnight for two nights could be a concern. Can we be identified because of our cars in the lot, same spot, 2 nights in a row?
¶ 8 Because it was early evening and the jury had been deliberating for several hours, the prosecutors, defense counsel, and defendant were no longer in the courthouse. The court telephoned all counsel to discuss the question and, over defense counsel's objection, decided to inform the jury of the threat.
¶ 9 After the telephone conversation, without the attorneys or defendant present, the court told the jurors:
Based on your last question, I want to tell you why we've taken these extraordinary procedures.
Everything that I told you is absolutely true about the fact that there had been inquiries concerning publicity in this matter, and about the issue involving the temptation you might have concerning the Internet. Those things are true. But those exist in many cases.
Based on what you indicated in your question, we have taken these extraordinary precautions because there was an unidentified, fairly undifferentiated threat that was reported about this case. I will tell you that there was no identification of any juror, nothing specific to any juror. The only concern that we had about jurors was about you leaving here, and ...