County District Court No. 14CR2764 Honorable Michael P.
Cynthia H. Coffman, Attorney General, Erin K. Grundy,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Meredith
K. Rose, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Wayne J. Van Meter, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
possession of a weapon by a previous offender (POWPO).
Although the prosecutor's use of a partially completed
puzzle of an iconic and easily recognizable space shuttle
image to explain the concept of reasonable doubt constituted
prosecutorial misconduct, we ultimately conclude that the
trial court did not reversibly err by allowing the conduct
where no contemporaneous objection was made. We therefore
2 In 1988, Van Meter pleaded guilty to multiple crimes,
including two counts of felony aggravated robbery, and was
sentenced to serve thirty-two years in the Department of
Corrections' custody. In June 2013, Van Meter was
released on parole.
3 Johnny Gilliland, a construction industry employer, hired
Van Meter after his release. In June 2014, Gilliland told Van
Meter's parole officer that Van Meter had a gun in his
car and was possibly using heroin and stealing from
customers. Gilliland directed Van Meter to a jobsite, where
the parole officer and three other officers waited. When Van
Meter arrived, the officers arrested him and found a loaded
semi-automatic handgun inside of a toolbox in the trunk of
4 Van Meter was charged with one count of POWPO, pursuant to
section 18-12-108(1), (2)(c), C.R.S. 2017. A jury found him
Prospective Juror Panel
5 Van Meter argues that the trial court reversibly erred in
failing to declare a mistrial after a prospective juror
stated in front of the panel that he was aware of the
underlying case because he was a deputy sheriff and had
transported Van Meter to court. We disagree.
6 During voir dire, the following interaction occurred in
front of the panel of prospective jurors:
[THE COURT:] Anyone else believe they're suffering a true
PROSPECTIVE JUROR: Yes, sir. Not a hardship, but I'm
aware of the case. I'm a deputy sheriff.
THE COURT: And you look familiar to me . . . . You're
aware of this particular case, the [Van Meter] case?
PROSPECTIVE JUROR: Yes, sir. I've transported him to
trial court then dismissed the prospective juror for cause,
and defense counsel asked to approach the bench.
7 Defense counsel argued that the prospective juror's
statement suggested that Van Meter "is in custody"
and, thus, might bias the entire panel. Defense counsel then
requested a new panel of prospective jurors. The trial court
denied the request, determining that the statement did not
taint the panel "in a trial that's necessarily going
to involve the jurors gaining knowledge of the fact that [Van
Meter] has a prior felony conviction." The trial court
also noted that the statement did not indicate when
the prospective juror transported Van Meter to court.
Preservation and Standard of Review
8 The parties agree that this issue was properly preserved.
9 We review a trial court's decision to deny a mistrial
for an abuse of discretion. People v. Marko, 2015
COA 139, ¶ 29 (cert. granted on other
grounds Oct. 24, 2016). An abuse of discretion occurs
when a trial court's ruling is manifestly arbitrary,
unreasonable, or unfair, or contrary to law. People v.
Relaford, 2016 COA 99, ¶ 25. "Under the
abuse-of-discretion standard, an appellate court must affirm
the trial court's decision if there is any evidence in
the record to support the trial court's finding."
People v. Muckle, 107 P.3d 380, 383 (Colo.
2005). Moreover, the "trial court is in a better
position to evaluate any adverse effect of improper
statements or testimony on a jury, [so] it has considerable
discretion to determine whether a mistrial is
warranted." People v. Tillery, 231
P.3d 36, 43 (Colo.App. 2009), aff'd sub nom.
People v. Simon, 266 P.3d 1099 (Colo. 2011).
10 "When a prospective juror makes a potentially
prejudicial statement during voir dire, the trial court may
issue a curative instruction; canvass the jury; or declare a
mistrial." Vititoe v. Rocky Mountain
Pavement Maint., Inc., 2015 COA 82, ¶ 20.
Generally, a curative instruction issued after a prejudicial
statement is made remedies any harm caused by the statement.
People v. Mersman, 148 P.3d 199, 203 (Colo.App.
2006). "However, to receive a curative instruction, a
defendant must request it, and a trial court does not commit
plain error if it does not give a curative instruction sua
sponte." Id. (concluding that the trial court
did not commit plain error in failing to issue a curative
instruction or canvass the jury where defense counsel failed
to request either remedy).
11 Because a mistrial is the most drastic of remedies, one is
"only warranted where the prejudice to the accused is
too substantial to be remedied by other means."
People v. Collins, 730 P.2d 293, 303 (Colo. 1986).
Factors relevant to whether a mistrial is warranted include
the nature of the inadmissible evidence, the weight of the
admissible evidence of the defendant's guilt, and the
value of a cautionary instruction. Tillery, 231 P.3d
12 A defendant's due process right to a fair trial may be
implicated when a jury is exposed to information outside of
properly admitted evidence or information included in the
court's instructions. Marko, ¶¶ 30,
32. In determining whether a jury's exposure to such
extraneous information violated a defendant's right to a
fair trial, we ask, first, whether the information was
improperly before the jury and, second, "whether there
is a reasonable possibility that the extraneous information
influenced the verdict" to the defendant's
detriment. Id. at ¶ 31.
13 Even if the prospective juror's comments here were
potentially prejudicial, we conclude that the trial court did
not err in declining to declare a mistrial because there is
no "reasonable possibility that the extraneous
information influenced the verdict" to Van Meter's
detriment. See id. The challenged comments were
brief, totaling only a few lines in the multi-page transcript
from the two-day trial, and trial counsel never mentioned
them again. See People v. Lahr, 2013 COA 57, ¶
24 (noting that inadmissible evidence typically will have
less prejudicial impact if it appears only in a fleeting
reference). The record supports the trial court's
determination that the challenged comments did not taint the
entire panel because they did not necessarily imply that the
deputy sheriff transported Van Meter to court for the
underlying case - rather than for a previous case -
especially where the POWPO charge required the jury to learn
that Van Meter had a prior felony conviction: aggravated
14 Moreover, the record indicates that all who ultimately
served on the jury indicated that they would be fair and
impartial; the deputy sheriff and the only other potential
juror who indicated that she could not be impartial were
dismissed for cause. "As a result, plaintiff's
contention relies solely 'on speculation as to the
effect, if any, the potential jurors' statements had on
the actual jurors.'" Vititoe, ¶ 31
(citation omitted); see also United States v. Jones,
696 F.2d 479, 491-92 (7th Cir. 1982) (holding that the
defendants were tried by an impartial jury even though two
prospective jurors made improper comments and the entire
panel heard those comments where the two prospective jurors
15 Additionally, defense counsel did not request that the
trial court canvas the jury or issue a curative instruction -
two lesser means to remedy any prejudice from the challenged
statements. See Collins, 730 P.2d at 303. The trial
court, therefore, did not err in failing to act sua sponte.
See Mersman, 148 P.3d at 203.
16 For these reasons, we conclude that the trial court did
not abuse its discretion in declining to declare a mistrial
and the jury's exposure to the deputy sheriff's brief
comments did not deprive Van Meter of a fair trial or due
process. See Relaford, ¶ 25; Marko,
17 Van Meter next asserts that the trial court reversibly
erred by allowing the prosecutor to show the jury a picture
of an incomplete puzzle depicting an iconic and easily
recognizable image of a space shuttle to explain the
prosecution's burden of proof, despite the lack of a
contemporaneous objection. Although the challenged behavior
constituted prosecutorial misconduct, the trial court did not
commit plain error by allowing it.
18 The trial court instructed the prospective jurors on the
prosecution's burden of proof and ...