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People v. Van Meter

Court of Appeals of Colorado, Sixth Division

February 8, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Wayne Jared Van Meter, Defendant-Appellant.

         El Paso County District Court No. 14CR2764 Honorable Michael P. McHenry, Judge

          Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          FOX, JUDGE

          ¶ 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 affirm.

         I. Background

         ¶ 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 his car.

         ¶ 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 guilty.

         II. The 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.

         A. Additional Facts

         ¶ 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 hardship[?]
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 court.

         The 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.

         B. 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).

         C. Law and Analysis

         ¶ 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 at 43.

         ¶ 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 robbery.

         ¶ 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 were dismissed).

         ¶ 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, ¶ 31.

         III. Prosecutorial Misconduct

         ¶ 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.

         A. Additional Facts

         ¶ 18 The trial court instructed the prospective jurors on the prosecution's burden of proof and ...

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