Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 17CA620
Attorneys for Petitioner/Cross-Respondent: Megan A. Ring,
Public Defender Meredith K. Rose, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner: Philip J. Weiser,
Attorney General Jacob R. Lofgren, Assistant Attorney General
Denver, Colorado
JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD,
JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
OPINION
GABRIEL, JUSTICE
¶1
This case, a companion case to Pettigrew v. People,
2022 CO 2, __P.3d__, which we also decide today, requires us
to consider again whether a trial court's comments to a
jury venire attempting to explain the concept of reasonable
doubt effectively lowered the prosecution's burden of
proof. Although we granted certiorari to consider three
questions, [1] these questions really present two issues
for our determination. First, we must decide the proper test
for determining whether a trial court's comments to
prospective jurors lowered the prosecution's burden of
proof. Second, we must consider whether the example that the
trial court used here to explain the concept of reasonable
doubt lowered the prosecution's burden of proof.
¶2
We now conclude that the proper test for determining whether
a trial court's statements to the jury lowered the
prosecution's burden of proof is a functional one.
Specifically, an appellate court must ask whether there is a
reasonable likelihood that the jury understood the
court's statements, in the context of the instructions as
a whole and the trial record, to allow a conviction based on
a standard lower than beyond a reasonable doubt. In this way,
statements made to the venire during voir dire can, in
context, have the effect of instructing the jury on the law
to be applied, whether or not such statements can be
characterized as formal "instructions," and other
facts and circumstances of the trial may well inform the
question of how the jury would reasonably have understood
such statements.
¶3
Applying the foregoing standard to the specific facts
presented here, in which the court equated the concept of
reasonable doubt to the doubt that a prospective homebuyer
would have upon observing a structurally significant,
floor-to-ceiling crack in the home's foundation, we
further conclude that it is reasonably likely that the jury
understood the court's statements to allow a conviction
on a standard lower than beyond a reasonable doubt, which
constitutes structural error.
¶4
Accordingly, we reverse the judgment of the division below.
I.
Facts and Procedural History
¶5
On March 4, 2016, Ernest Tibbels called 911 while
experiencing a mental health crisis. Commerce City police
officers responded to the call and, rather than taking
Tibbels to a hospital as he had requested, arrested him under
the mistaken belief that he was violating the terms of a
protection order.
¶6
The officers transported Tibbels to the Adams County
Detention Facility, where he resisted the officers'
attempts to complete the booking process. Because he was
agitated and combative, the officers did not remove his
handcuffs or take him through the body scanner, which would
have required removing the handcuffs. Instead, they took him
to the so-called "booking quiet room," where they
could pat him down, remove his handcuffs, and let him sit and
cool down.
¶7
Approximately one hour later, an officer walked by the quiet
room and noticed that Tibbels had torn pieces from his shirt
and placed the pieces around his neck. Tibbels threatened to
kill himself and anyone else who entered the quiet room and
then hit the window of that room with a sharpened metal
spike. Officers called for lethal cover, locked down the
jail, and repeatedly ordered Tibbels to set the spike down.
Although Tibbels did not initially comply, he eventually
dropped the spike and complied with requests to lie down with
his hands behind his back, at which point officers entered
the room, re-handcuffed him, placed him in a restraint chair,
and confiscated the three-inch long spike.
¶8
The prosecution subsequently charged Tibbels with first
degree introduction of contraband, felony menacing, and first
degree possession of contraband, and the case proceeded to
trial.
¶9
During voir dire of the prospective jurors, the trial court
read a portion of the pattern instruction defining
"reasonable doubt." The court, however, then
immediately undermined that definition, stating, "Now,
you're all sitting there saying what the hell does that
mean. It's a lengthy definition, okay. And don't lose
heart. I'll give you an example and see if we can put
some teeth and make this concrete."
¶10
The trial court then offered the following as an illustration
of reasonable doubt:
All right. So you and your spouse and your children are in a
market to by [sic] a house, okay. And you're looking for
a ranch, 2, 000 square foot, full basement, and you want to
be on an acre of land. You know, the school-you want to be in
the 27-J School District.
You-so you get yourself a realtor, you and your husband and
your kids, you start go looking for a house [sic]. Let's
just say in the Brighton area, for example. And you're
looking for that ranch and that size property. And you come
upon that ranch and it's just like the dream come true,
okay. The price is right. Interest rates are still good.
It's in the location that you want. The schools are good.
The neighborhood is wonderful, it's perfect.
So one Saturday morning you go out to the property with the
realtor and your family and you fall in love with it,
it's just wonderful. So you're walking around the
exterior. You're walking inside, it looks great. And you
descend the flight of stairs down to the basement and as you
get to the bottom of the basement steps you look around and
to the far concrete wall you look and you see a crack in the
foundation from the floor to the ceiling. And it's not
that superficial cracking that concrete will do. And
structurally it's significant. Are you going to buy that
house?
¶11
A prospective juror answered that she would not buy the house
because she would not want a house with a bad foundation.
¶12
The trial court continued:
Okay. You've got a reason. And it's this crack that
is structurally significant. And that's causing you to
hesitate, causing you to pause with going forward with a home
purchase. This is my example of reasonable doubt.
Now the lawyers usually do a better job, all right. But does
that kind of put some-you can kind of touch and feel what
reasonable doubt is. It's not-it's not aliens coming
down and telling you don't buy the house, okay. It's
something that you can kind of touch or feel or an inference
that you may be able to draw.
¶13
The trial court returned to this example later during voir
dire, telling the prospective jurors that the
prosecution's burden is "proof beyond a reasonable
doubt. And it's that example that I gave you, what a
reasonable doubt is. So that's the burden that the
government has to surmount to prove this case beyond a
reasonable doubt."
¶14
Defense counsel did not object to the court's example.
Nor did the trial court ever withdraw its example or instruct
the jury to disregard it.
¶15
At the conclusion of the evidence the court instructed the
jury on the applicable law and gave the pattern jury
instruction on reasonable doubt. The jury
ultimately found Tibbels guilty of possession of contraband
but acquitted him of the other two charges.
¶16
Tibbels appealed, arguing that the trial court's example
lowered the prosecution's burden of proof by setting too
high a standard for what qualifies as reasonable doubt and
that this was structural error requiring reversal. In a
split, published opinion, a division of the court of appeals
affirmed Tibbels's conviction. People v.
Tibbels, 2019 COA 175, 490 P.3d 517.
¶17
As pertinent here, the majority concluded that the trial
court's reasonable doubt illustration did not
unconstitutionally lower the prosecution's burden of
proof. Id. at ¶ 35, 490 P.3d at 525. The
majority reached this conclusion for five reasons: (1) the
trial court had characterized its illustration as an
"example" and said that the attorneys would do a
better job of explaining reasonable doubt; (2) the
illustration was given only during the jury selection portion
of the trial; (3) the court told the prospective jurors that,
at the conclusion of the evidence, it would tell the jurors
the rules of law that they were to use in reaching their
verdict and would provide copies of those rules to the jury,
and the court never provided its illustration in writing; (4)
before giving its illustration and again at the close of the
evidence, the court properly instructed the jury on the
meaning of reasonable doubt; and (5) the jury never indicated
any confusion about reasonable doubt, and
the majority therefore presumed that the jury understood and
followed the trial court's instructions. Id. at
¶¶ 35-39, 490 P.3d at 525.
¶18
The majority nonetheless "strongly discourage[d]"
trial courts from using "everyday illustrations" to
explain the concept of reasonable doubt, id. at
¶ 40, 490 P.3d at 525, because such illustrations
"run the risk of confusing jurors, lowering the
prosecution's burden of proof, and diminishing the
presumption of innocence," id. at ¶ 23,
490 P.3d at 523. Indeed, the majority noted that divisions of
the court of appeals had repeatedly discouraged trial courts
from using such illustrations to explain reasonable doubt,
the presumption of innocence, and other legal concepts.
Id. at ¶ 33, 490 P.3d at 525.
¶19
Judge Pawar dissented. In her view, it was reasonably likely
that the trial court's illustration had set too high a
bar for what constitutes reasonable doubt and suffices for an
acquittal, thereby lowering the prosecution's burden of
proof and constituting structural error. Id. at
¶¶ 56, 58, 490 P.3d at 527-28 (Pawar, J.,
dissenting). Judge Pawar reached this conclusion for several
reasons: (1) the trial court never told the jury to
disregard, ignore, or otherwise not apply its example; (2)
the court's illustration did not contradict the abstract
explanations of reasonable doubt contained in the court's
final instructions but rather more specifically and precisely
defined those explanations, informing the jury how to apply
the abstract concepts in a real-life situation; and (3) the
fact that the court's
example "was not technically a formal instruction"
was unimportant because "it was an uncontradicted
explanation of reasonable doubt from the judge, the one
person in the courtroom whose words everyone, including the
jury, must heed." Id. at ¶¶ 60-64,
490 P.3d at 528-29.
¶20
Tibbels then petitioned for certiorari, and the People filed
a cross-petition. We granted both petitions.
II.
Analysis
¶21
We begin by addressing the applicable standard of review.
After next reviewing the legal principles governing the
necessity of instructing the jury on the concept of
reasonable doubt, we articulate the test to be applied to
determine whether a trial court's statements to the jury
regarding the applicable law lowered the prosecution's
burden of proof. We then proceed to apply this standard to
the facts now before us.
A.
Standard of Review
¶22
We review de novo the question of whether a trial court
accurately instructed the jury on the law. Johnson v.
People, 2019 CO 17, ¶ 8, 436 P.3d 529, 531.
Instructions that lower the prosecution's burden of proof
below the reasonable doubt standard constitute structural
error and require automatic reversal. Id.;
accord Sullivan v. Louisiana, 508 U.S. 275, 281-82
(1993).
B.
Applicable Law
¶23
The Due Process Clause of the United States Constitution
"protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged." In
re Winship, 397 U.S. 358, 364 (1970); accord Vega v.
People, 893 P.2d 107, 111 (Colo. 1995). The Supreme
Court has thus made clear that the reasonable doubt standard
is "indispensable" in criminal prosecutions.
See Winship, 397 U.S. at 364.
¶24
Intrinsically related to this standard is the presumption of
innocence afforded criminal defendants. See Delo v.
Lashley, 507 U.S. 272, 278 (1993) (per curiam)
(observing that the presumption of innocence "operates
at the guilt phase of a trial to remind the jury that the
State has the burden of establishing every element of the
offense beyond a reasonable doubt"). As the Supreme
Court has stated, "The [reasonable doubt] standard
provides concrete substance for the presumption of
innocence-that bedrock 'axiomatic and elementary'
principle whose 'enforcement lies at the foundation of
the administration of our criminal law.'"
Winship, 397 U.S. at 363 (quoting Coffin v.
United States, 156 U.S. 432, 453 (1895)).
¶25
In light of the foregoing, the court must properly instruct
the jury on-and, as the fact finder, the jury must apply-the
reasonable doubt standard. Johnson, ¶ 13, 436
P.3d at 533. In this regard, trial courts retain some
flexibility in defining
for the jury what constitutes a reasonable doubt.
Id. at ¶ 10, 436 P.3d at 532; see also
Victor v. Nebraska, 511 U.S. 1, 5 (1994) ("[S]o
long as the court instructs the jury on the necessity that
the defendant's guilt be proved beyond a reasonable
doubt, the Constitution does not require that any particular
form of words be used in advising the jury of the
government's burden of proof.") (citation omitted).
Nonetheless, both this court and the Supreme Court have
repeatedly cautioned that attempts by trial courts to define
"reasonable doubt" in ways beyond the
long-established pattern instructions do not often clarify
the term, see, e.g., Holland v. United
States, 348 U.S. 121, 140 (1954); Johnson,
¶¶ 13, 19, 436 P.3d at 532, 534, and that trial
courts must guard against defining "reasonable
doubt" in a way that allows the jury to convict on a
lesser showing than due process requires, see
Victor, 511 U.S. at 22; Johnson, ¶ 13, 436
P.3d at 532. The trial courts' decisions not to heed this
admonition in both this case and in Pettigrew,
¶¶ 15-16, which we also decide today, have again
placed before us the question of whether a trial court's
efforts to define "reasonable doubt" violated a
defendant's due process rights.
C.
Test for Instructional Error on Reasonable Doubt
¶26
To decide the test that we should apply to determine whether
a trial court's instructions to the jury lowered the
prosecution's burden of proof, we are guided by Supreme
Court case law regarding the standard for assessing allegedly
defective jury instructions.
¶27
In Boyde v. California, 494 U.S. 370, 372 (1990),
the Court considered whether two jury instructions used in
the penalty phase of a capital murder trial were consistent
with the Eighth Amendment. The defendant claimed that the
instructions did not allow the jury to consider mitigating
evidence of his background and character and therefore
prevented the jury from making the requisite individualized
assessment as to whether the imposition of the death penalty
was appropriate. Id. at 375-76.
¶28
The Court began its analysis by recognizing the
"well-established proposition that a single instruction
to a jury may not be judged in artificial isolation, but must
be viewed in the context of the overall charge."
Id. at 378 (quoting Cupp v. Naughten, 414
U.S. 141, 146-47 (1973)). Noting that the legal standard for
reviewing allegedly defective jury instructions had been
"less than clear," id., the Court
determined that the proper inquiry in such a case is
"whether there is a reasonable likelihood that the jury
has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant
evidence," id. at 380. The Court opined that
such a standard "better accommodates the concerns of
finality and accuracy than does a standard which makes the
inquiry dependent on how a single hypothetical
'reasonable' juror could or might have interpreted
the instruction." Id. The Court further
explained:
Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way
that lawyers might.
Differences among them in interpretation of instructions may
be thrashed out in the deliberative process, with commonsense
understanding of the instructions in the light of all that
has taken place at the trial likely to prevail over technical
hairsplitting.
Id. at 380-81.
¶29
Applying the foregoing standard to the case before it, the
Court concluded that there was no reasonable likelihood that
the jurors had interpreted the instructions at issue to
prevent consideration of mitigating evidence. Id. at
381.
¶30
The Supreme Court returned to the question of the proper
standard for interpreting allegedly faulty jury instructions
in Estelle v. McGuire, 502 U.S. 62 (1991), a case in
which the defendant had been convicted of murdering his
infant daughter. Specifically, in examining the propriety of
a prior bad acts instruction, which the defendant claimed
amounted to a propensity instruction that violated his right
to due process, the Court reiterated that a challenged
instruction may not be assessed in isolation "but must
be considered in the context of the instructions as a whole
and the trial record." Id. at 71-72. The Court
thus again applied the "reasonable likelihood"
standard, stating, "[I]n reviewing an ambiguous
instruction such as the one at issue here, we inquire
'whether there is a reasonable likelihood that the jury
has applied the challenged instruction in a way' that
violates the Constitution." Id. at 72 (quoting
Boyde, 494 U.S. at 380).
¶31
In accordance with that standard, the Court perceived no
reasonable likelihood that the jury would have concluded that
the instruction, read in the
context of the other instructions, authorized the use of
propensity evidence to establish the defendant's guilt.
Id. at 74-75.
¶32
Lastly, in Victor, 511 U.S. at 5-10, 14-19, the
Court applied the foregoing line of reasoning in the context
of trial courts' attempts to define "reasonable
doubt." Victor involved two separate murder
convictions in which the defendants challenged the trial
courts' instructions on reasonable doubt. Id. at
7-10, 18-19.
¶33
In the first case, the trial court defined "reasonable
doubt" as "not a mere possible doubt; because
everything relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt."
Id. at 7. The court continued, "It is that
state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the
jurors in that condition that they cannot say they feel an
abiding conviction, to a moral certainty, of the truth of the
charge." Id. The defendant objected to the
phrases "moral evidence" and "moral
certainty," arguing that modern jurors would have
understood those phrases to mean a standard of proof lower
than beyond a reasonable doubt. Id. at 10, 14.
¶34
In the second case, the court instructed the jury on
reasonable doubt using the same concept of "moral
certainty" and further advised the jury, among other
things, that "[a] reasonable doubt is an actual and
substantial doubt" arising from the evidence or lack
thereof. Id. at 18. The defendant challenged this
instruction
on the ground that equating a reasonable doubt with a
substantial doubt overstated the degree of doubt required for
a conviction. Id. at 19.
¶35
The Court began its analysis by noting that as long as a
trial court instructs the jury that the defendant's guilt
must be proved beyond a reasonable doubt, the Constitution
does not require that any particular words be used in
advising the jury of the prosecution's burden of proof.
Id. at 5. Instead, the instructions, taken as a
whole, must correctly convey the concept of reasonable doubt
to the jury. Id. Thus, the question in the cases
before the Court was "whether there is a reasonable
likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the
Winship [i.e., reasonable doubt] standard."
Id. at 6. Applying that standard, the Court
determined that, although the instructions in the two cases
were concerning and "somewhat problematic," when
considered in the context of the instructions as a whole and
the trial record, there was no reasonable likelihood that the
jurors would have understood the challenged instructions to
allow conviction on a standard of proof lower than the
reasonable doubt standard. Id. at 13, 16-17, 19,
21-23.
¶36
As the foregoing makes clear, in a wide array of
settings-including in the context of deciding whether
instructions on the meaning of reasonable doubt
unconstitutionally lowered the prosecution's burden of
proof-the Supreme Court has employed a functional test,
asking whether there is a reasonable
likelihood that the jury understood a contested instruction,
in the context of the instructions as a whole and the trial
record, to allow a conviction based on a standard lower than
beyond a reasonable doubt. And we have applied this standard
as well. Thus, in Johnson, ¶ 14, 436 P.3d at
533, we stated, "When reviewing an ambiguous jury
instruction . . ., we ask whether there is a reasonable
likelihood that the jury applied the contested instruction in
an unconstitutional manner," noting further that we do
not consider instructions in isolation, but rather in the
context of the instructions as a whole.
¶37
The question thus becomes whether the same standard should
apply to statements regarding the law that a trial court
makes either during the jury selection process or otherwise
outside the context of the court's formal instructions to
the jury. Although we did not need to address this issue in
Johnson, in which the trial court also made the
challenged statements during voir dire, the issue is squarely
presented here because the People contend that the
court's illustration was neither a definition of
"reasonable doubt" nor an instruction of law and
therefore did not implicate the above-described principles
and structural error analysis.
¶38
For several reasons, we reject the People's apparent
premise that only formal instructions of law implicate the
above-described principles.
¶39
First, such a view ignores the facts that the court advises
the jury of applicable principles of law throughout a trial
(including during the jury selection process) and jurors
listen carefully to the court's explanation of the law
that they must apply in deciding the case. Accordingly,
although it is certainly true that not every statement that a
trial judge makes in the course of a trial amounts to a
statement of the law that the jury must apply, we cannot
exclude the possibility that, when considered in context,
certain statements by the court, whether made in the context
of formal jury instructions or not, may well rise to such a
level-or at least impact the formal instructions that the
court provides.
¶40
Second, we do not expect jurors to make fine distinctions
between statements of applicable law that the court makes in
one context as opposed to another. Rather, as the Supreme
Court said in Boyde, 494 U.S. at 381, we anticipate
that jurors will rely on their "commonsense
understanding of the instructions in the light of all that
has taken place at the trial" and that this
understanding will "prevail over technical
hairsplitting." See also United States v.
Hernandez, 176 F.3d 719, 733-34 (3d Cir. 1999)
(rejecting arguments that a trial court's comments during
voir dire regarding the meaning of "reasonable
doubt" would not likely have influenced the jury's
decision because such comments came early in the trial and
were merely comments and not formal instructions, reasoning,
(1) "We will not assume that jurors, contrary to their
oath, ignored part of the judge's initial
instruction simply because it came early in the trial";
and (2) the record did not show that the jurors would have
drawn the "fine distinction" between a judge's
comments on the law and more formal instructions, and the
jury was never instructed to ignore the substantive portion
of the court's initial instructions in determining the
meaning of reasonable doubt).
¶41
Thus, whether it is reasonably likely that a jury would have
understood a trial court's statements regarding the
applicable law so as to lower the prosecution's burden of
proof depends on the nature of the statements, the context in
which they were made, any other explanations or instructions
that the court may have provided, and, of course, the
court's final jury charge.
¶42
Third, we believe that a functional test, rather than one
that, as a matter of law, excludes from consideration all
statements by a trial judge other than those contained in
formal jury instructions, will allow reviewing courts to
consider the trial judge's statements in context, with a
realistic eye as to how jurors would likely have understood
those statements.
¶43
Accordingly, we now conclude that in considering whether a
court's statements to a jury regarding the meaning of
"reasonable doubt" (whether in formal instructions
or not) unconstitutionally lowered the prosecution's
burden of proof, an appellate court must ask whether there is
a reasonable likelihood that the jury understood the
court's statements, in the context of the instructions as
a
whole and the trial record, to allow a conviction based on a
standard lower than beyond a reasonable doubt.
¶44
Having thus articulated the governing standard, we proceed to
apply that standard in the case now before us.
D.
Application
¶45
Although we have found no case directly on point, a number of
cases decided by sister courts are instructive.
¶46
Stoltie v. California, 501 F.Supp.2d 1252 (C.D. Cal.
2007), aff'd sub nom. Stoltie v.
Tilton, 538 F.3d 1296 (9th Cir. 2008) (per curiam), was
a federal habeas corpus proceeding following a
defendant's conviction in state court. In that case, the
jury had repeatedly expressed confusion during its
deliberations regarding the meaning of "reasonable
doubt." Id. at 1253-55. In response, the court
gave the following example regarding Blythe, a town on the
Colorado River in the California Sonoran Desert, to
illustrate reasonable doubt:
If I were to tell you that I am going to Blythe . . . I'm
gonna go there in the middle of July and I am taking my skis
with me because it snows every July, you might say, I doubt
it. And that would be a reasonable doubt, wouldn't it?
But if I told you I am going to Blythe and I am taking my
swimming suit and water skiis [sic] to go skiing in the
Colorado River in the middle of July, but I am afraid it
might be too cold, you'd think, I doubt it, but maybe
that's not so unreasonable. Reason and logic apply.
Id. at 1255 (footnotes omitted).
¶47
A federal habeas court ultimately concluded that this
illustration, when considered in the context of the overall
jury charge, "raised the degree of doubt required for
acquittal from a reasonable doubt to an extreme doubt."
Id. at 1264. Specifically, the court observed that
this analogy improperly "suggested that the jury should
acquit only if the prosecution's theory was as utterly
improbable as a person going skiing in the desert in
July." Id. Accordingly, the court concluded,
"Because this instruction equated an extreme doubt with
a reasonable doubt, it created a reasonable likelihood that
the jury would apply an unconstitutional standard of proof,
believing [the defendant] could only be acquitted if the
prosecution's theory was essentially impossible."
Id.
¶48
Similarly, in Wansing v. Hargett, 341 F.3d 1207,
1209 (10th Cir. 2003), during voir dire, a prospective juror
asked the court for more guidance regarding the meaning of
"reasonable doubt." The trial judge then recalled a
trial in which he had been involved as a lawyer and in which
the prosecutor had told the jury that reasonable doubt was
the kind of serious doubt that causes one to act or not act
in serious matters like calling off a wedding at the last
minute after walking down the aisle. Id. The
defendant was convicted and appealed, and the appellate court
reversed, concluding that the trial court's remarks had
"made it reasonably likely that the jury would
overestimate the amount of latitude it had in defining the
reasonable doubt standard." Id. at 1215.
Specifically, the court determined that
the trial court's instruction had improperly suggested
that the reasonable doubt standard "comprises as broad a
range of burdens of proof as that suggested by the wedding
analogy." Id.
¶49
Applying similar reasoning here, we believe that it is
reasonably likely that the jury applied the trial court's
crack-in-the-foundation illustration in a manner that allowed
for conviction based on a standard lower than proof beyond a
reasonable doubt. We reach this conclusion for several
reasons.
¶50
First, the trial court began its discussion of reasonable
doubt by undermining the pattern instruction on that concept
and giving its own example to explain the principle.
Specifically, as noted above, after reading the pattern
reasonable doubt instruction to the prospective jurors, the
court immediately said that they must be "sitting there
saying what the hell does that mean." The court then
advised the prospective jurors not to "lose heart"
because the court would provide an example to make the
definition "concrete," and the court proceeded to
provide its nonlegal, crack-in-the-foundation illustration.
In our view, the trial court's focus on this nonlegal,
real-world example made the illustration highly significant
and ensured that the jury would give it undue weight. This is
particularly true given that (1) the court gave the example
immediately after undermining the pattern instruction on
reasonable doubt; (2) the court came back to its illustration
later in voir dire, expressly equating reasonable doubt with
"that
example that I gave you"; and (3) as in
Hernandez, 176 F.3d at 733, the court never
instructed the jury to disregard its example.
¶51
Second, the crack-in-the-foundation illustration established
a higher degree of doubt than is required for an acquittal.
Specifically, as noted above, the court equated the concept
of reasonable doubt with this scenario, but we would expect
that everyone would likely hesitate to buy a house with a
structurally significant, floor-to-ceiling crack in the
foundation. Accordingly, the court's example suggested
that a reasonable doubt was one that was so obvious that it
would give every reasonable person pause and cause them to
hesitate to act. As was the case with the wedding analogy in
Wansing, 341 F.3d at 1215, such an example
overstated the degree of doubt and uncertainty required for
an acquittal. Indeed, in our view, like the skiing example in
Stoltie, 501 F.Supp.2d at 1264, the court's
instruction here suggested to the jurors that they could
acquit Tibbels only if the evidence established an extreme
doubt-i.e., one akin to going forward with a home purchase
notwithstanding a floor-to-ceiling crack in the home's
foundation. This, in turn, unconstitutionally lowered the
prosecution's burden of proof. ¶52 Third, the trial
court's illustration arguably suggested to the jurors
that
Tibbels
had some obligation to present evidence to create a
reasonable doubt in the jurors' minds. Specifically,
after providing the crack-in-the-foundation example, the
court commented, "You've got a reason. And it's
this crack that is
structurally significant. . . . This is my example of
reasonable doubt." This example, however, appears to
have turned the presumption of innocence on its head,
improperly suggesting to the prospective jurors that they
were to start with a presumption of guilt and then look for
evidence to create in their minds a reasonable doubt, i.e.,
"a reason" to acquit. For this reason as well, the
example that the court gave violated Tibbels's
constitutional rights.
¶53
For all of these reasons, we conclude that, considering the
trial court's statements in the context of the
instructions and the record as a whole, it is reasonably
likely that the jury understood the court's statements to
allow a conviction based on a standard lower than beyond a
reasonable doubt and that such an instructional error was
structural, thereby requiring reversal.
¶54
In so concluding, we are not persuaded by the People's
reliance on our prior opinions in Johnson, ¶
15, 436 P.3d at 533, and Deleon v. People, 2019 CO
85, 449 P.3d 1135.
¶55
In Johnson, ¶ 15, 436 P.3d at 533, we perceived
no reversible error in a trial court's statements during
voir dire regarding the meaning of "reasonable
doubt" because we concluded that the challenged
instruction was too nonsensical to be understood by the jury
and that the jury would therefore have relied on the correct
reasonable doubt instruction that the court gave. Here, in
contrast, the crack-in-the-foundation example was a clear,
real-world scenario that we believe
the jurors would readily have understood and relied on,
particularly given that the court gave the example
immediately after undermining the pattern reasonable doubt
instruction.
¶56
In Deleon, ¶ 1, 449 P.3d at 1136, the question
before us was whether the trial court had reversibly erred in
not instructing the jury regarding the defendant's right
to remain silent (and the impropriety of the jurors'
drawing any adverse inference against the defendant from his
decision not to testify), notwithstanding the fact that the
court had commented on this topic during voir dire. We
concluded that the trial court had, in fact, reversibly
erred. Id. In so concluding, we relied on the facts
that (1) the court's comments during voir dire were made
in the context of determining whether the potential jurors
could act impartially and apply the law (and not in the
context of instructing the jurors regarding the law); (2)
prior to the parties' opening statements, the court told
the jurors that the law that they were to follow "will
be" presented to them and that the court's
instructions should be the only basis for their verdict; and
(3) when the court read its final instructions to the jurors,
it told them that the instructions comprised the law the
jurors were to follow, and the court gave no instruction on
the defendant's right to remain silent. Id. at
¶¶ 15, 26-27, 449 P.3d at 1137-38, 1140.
¶57
Notwithstanding the People's suggestion to the contrary,
we did not say in Deleon that a trial court's
statements in voir dire can never rise to the level of an
instruction on the applicable law (or, conversely, that they
always do). Rather, just as we do here, we considered the
court's statements in the context of the instructions as
a whole and the entire record to determine whether the trial
court had properly instructed the jury on the law to be
applied. In Deleon, we concluded that the trial
court had not done so, and we reach an analogous conclusion
here. To be sure, the instructional issues in Deleon
and the present case arose in very different settings.
Nonetheless, the analytical framework that we employed in
Deleon to assess the claimed error is consistent
with the framework that we apply here.
¶58
Finally, as to the People's reliance on the
division's opinion in People v. Avila, 2019 COA
145, ¶¶ 40-48, 457 P.3d 771, 779-81, to defend the
trial court's statements here, although that case is
arguably distinguishable on its facts, to the extent that its
holding is inconsistent with the conclusion that we reach
today, we overrule that opinion.
III.
Conclusion
¶59
For the forgoing reasons, we adopt a functional test for
deciding whether a trial court's statements to the jury
regarding the law to be applied lowered the prosecution's
burden of proof. Specifically, we ask whether there is a
reasonable likelihood that the jury understood the
court's statements, in the context of the instructions as
a whole and the trial record, to allow a conviction based on
a
standard lower than beyond a reasonable doubt. Applying that
test to the specific facts presented here, in which the court
equated the concept of reasonable doubt to the doubt that a
prospective homebuyer would have upon observing a
structurally significant, floor-to-ceiling crack in a
home's foundation, we conclude that it is reasonably
likely that the jury understood the court's statements to
allow a conviction on a standard lower than beyond a
reasonable doubt.
¶60
Because this constitutes structural error, we reverse the
judgment of the division below.
---------
Notes:
[1] We granted certiorari to review the
following issues:
1. Whether the trial court's example of reasonable
doubt lowered the prosecution's burden of proof in
violation of the defendant's constitutional rights to due
process and a jury trial.
2. Whether other factors occurring in the course of a
trial mitigate the harm of an instruction that lowers the
prosecution's burden of proof.
3. Whether a trial court's comments during voir
dire should be reviewed as "instructions" such that
any improper comment could constitute structural error
requiring automatic reversal.