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Johnson v. People

Supreme Court of Colorado, En Banc

March 11, 2019

Crystal Lynn Johnson, Petitioner
v.
The People of the State of Colorado. Respondent

          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 ...


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