Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA71
Attorneys for Petitioner: Megan A. Ring, Public Defender John
Plimpton, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Carmen Moraleda, Assistant Attorney General Denver, Colorado
OPINION
BOATRIGHT DELIVERED, JUSTICE
¶1
In this appeal, we consider whether the court of appeals
erred when it held that the trial court's extraneous jury
instruction concerning reasonable doubt did not
unconstitutionally lower the prosecution's burden of
proof. During voir dire, after giving the standard definition
of reasonable doubt, the trial court described how hesitating
to act relates to having a reasonable doubt. While the trial
court's extraneous "hesitate to act"
instruction was improper, there is not a reasonable
likelihood that it prejudiced the defendant. The instruction
was nonsensical, given only once during voir dire, not
referenced by either party at any time, and flanked by the
proper instruction regarding the burden of proof at the
beginning and end of the trial. Therefore, we hold that the
instruction did not lower the prosecution's burden of
proof in violation of due process, and we affirm the judgment
of the court of appeals.
I.
Facts and Procedural History
¶2
After observing Crystal Johnson conduct an apparent drug
transaction, police officers followed her vehicle and
initiated a traffic stop. Officers searched Johnson's
vehicle and seized methamphetamine and a digital scale. Her
four-year-old daughter was in the car at the time. Johnson
was then arrested and charged with possession of more than
two grams of methamphetamine, possession with intent to
distribute, possession of drug paraphernalia, and child
abuse.
¶3
Prior to jury selection, the court asked the parties if they
had any matters to discuss. After discussing other
preliminary matters, defense counsel, based on previous
experience before this same judge, requested "that the
Court not explain hesitancy to act as a person cannot
possibly find the Defendant not guilty." Following a
brief exchange between the court and defense counsel, the
court denied the request. After the court and the parties
finished discussing the preliminary matters, the court
brought out the potential jurors to begin jury selection.
¶4
During jury selection, the court read several instructions,
which it framed as six "bedrock" principles of the
American criminal justice system. One of those instructions
was the pattern instruction for proof beyond a reasonable
doubt. Specifically, the court stated that a reasonable doubt
is "a doubt that is not vague, speculative, or
imaginary, but such a doubt as would cause reasonable people
to hesitate to act in matters of importance to
themselves." Then, the court elaborated on what the
phrase "hesitate to act" means:
I've heard some lawyers say, "Well if you get back
in the jury room and you can't come to an immediate
decision you have hesitated to act." Well, that's
just not true . . . . [H]esitate to act doesn't mean if
you get back in the jury room and you don't come to an
instantaneous verdict that you have hesitated to act. Instead
what it means is that after you evaluate all the evidence and
you evaluate whether or not any doubts are reasonable or not,
and you talk to everybody else, and you think about it, and
you deliberate, you would find Ms. Johnson guilty only if,
after hearing all of that evidence, you just can't bring
yourself to do it. You just have to hesitate. It's not
there. You can't find her guilty because the quality or
quantity of evidence just doesn't let you. That's
when you've hesitated to act.
After
jury selection, Johnson stood trial for three days. At the
conclusion of the trial, the court provided the jury with the
pattern reasonable doubt instruction, both verbally and in
writing. The court did not reference its "hesitate to
act" instruction again, nor did the attorneys. The jury
found Johnson guilty on all three drug charges and not guilty
on the child abuse charge.
¶5
Johnson appealed her conviction. As relevant here, she argued
that the court's "hesitate to act" instruction
lowered the prosecution's burden of proof in violation of
due process. The court of appeals disagreed with Johnson in a
split decision. People v. Johnson, No. 14CA0071
(Colo.App. Jan. 26, 2017). Although the majority described
the trial court's "hesitate to act" instruction
as "confusing" and "nonsensical," it
ultimately held that, because the instruction was given only
once and was "flanked by the proper reasonable doubt
jury instruction," there was not a reasonable likelihood
that the jury understood and applied the "hesitate to
act" definition in a manner that lowered the
prosecution's burden. Id. at ¶¶ 12-13,
15.
¶6
Judge Ashby dissented. She reasoned that the trial
court's "hesitate to act" instruction
unconstitutionally lowered the prosecution's burden for
four reasons: (1) the trial court instructed "the jury
to find Johnson guilty if the evidence was unconvincing
enough to make the jury hesitate"; (2) the trial court
"defined hesitating to act as being unable to act";
(3) the instruction "restricted the circumstances under
which the jury could find Johnson not guilty to those in
which the evidence did not permit a finding of guilt";
and (4) the instruction was the only time that "hesitate
to act" was defined, "[a]nd appellate courts must
presume that the jury followed all of the trial court's
instructions." Id. at ¶¶ 31-35. After
determining that the trial court erred in giving the
"hesitate to act" instruction, Judge Ashby asserted
that the error was structural and necessitated automatic
reversal. Id. at ¶ 43.
¶7
We granted certiorari to determine whether the trial
court's definition of "hesitate to act" lowered
the prosecution's burden of proof in violation of due
process.[1] We now hold that the instruction did not
lower the prosecution's burden of proof in violation ...