Harper v. People

817 P.2d 77, 1991 Colo. LEXIS 608, 1991 WL 179968
CourtSupreme Court of Colorado
DecidedSeptember 16, 1991
Docket90SC204
StatusPublished
Cited by46 cases

This text of 817 P.2d 77 (Harper v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harper v. People, 817 P.2d 77, 1991 Colo. LEXIS 608, 1991 WL 179968 (Colo. 1991).

Opinions

Justice LOHR

delivered the Opinion of the Court.

In People v. Harper, 796 P.2d 4 (Colo. App.1989), the Colorado Court of Appeals [79]*79affirmed the conviction of the defendant, David Joe Harper, for sexual assault on a child. The court of appeals held that the trial court did not abuse its discretion when it denied Harper’s request to poll the jury after the mid-trial publication of a local newspaper article. We granted certiorari to decide whether the reasonable possibility of prejudice test announced in Wiser v. People, 732 P.2d 1139 (Colo.1987), required the trial court to poll the jury to determine whether any jurors had read the article. Although we conclude that the Wiser test is not the appropriate standard, we hold that the court abused its discretion in declining to poll the jury. We therefore reverse the judgment of the court of appeals.

I.

In February 1988, Harper was tried in the Mesa County District Court, in Grand Junction, on charges of sexual assault on a child, in violation of section 18-3-405, 8B C.R.S. (1983 Supp.). Harper had allegedly molested a neighbor’s eight-year-old daughter during November 1983. Harper had previously been convicted, in May 1987, of sexual assault on a child by one in a position of trust, § 18-3-405(2)(b) (current version at § 18-3-405.3, 8B C.R.S. (1990 Supp.)), stemming from an unrelated incident involving a five-year-old boy. The defense moved to exclude introduction of evidence of the May 1987 conviction in the February 1988 trial; the prosecution confessed that motion.1 After the jury had been empaneled and before presentation of opening statements, the court instructed the jurors not to engage in outside reading on the case. The court specifically admonished them, “[D]o not read about the case in the newspapers or listen to radio or television broadcasts about the trial. You must base your verdict solely on the evidence presented at the trial.”

On the second day of trial, The Daily Sentinel, a Grand Junction newspaper, printed a short article about the case. That article, located on page 4B, was in-eluded in a column entitled “News Shorts,” containing three brief articles under the subheading “Grand Junction.” The article in question read:

Trial begins in sexual assault case
Opening statements were to be made today in the Mesa County District Court trial of David Joe Harper on sexual assault charges involving a young girl.
Jury selection began Tuesday in the trial before Judge Charles Buss.
Harper, a 31-year-old New Mexico man, is seeking a new trial on his May 1987 conviction on sexual assault charges involving a 4-year-old boy [2] between Oct. 1 and Nov. 30, 1983.
In this trial, Harper is accused of assaulting the young girl during the same period of time.
The two offenses are not related, except that they occurred within the same time period.
Harper was convicted to six years in prison by Judge Jose D.L. Marquez after his May conviction. He filed an appeal in October alleging that actions by the Mesa County District Attorney’s Office had denied him a chance to defend himself against the charge.
According to Harper’s appeal, he was denied an effective defense because of the length of time in which the offense allegedly occurred. He couldn’t claim he wasn’t present at the time the child said she was assaulted because of the time span involved.
No action has been taken on Harper’s appeal of the conviction in the first case.

Daily Sentinel (Grand Junction), February 10, 1988, at 4B.

Harper’s counsel brought the article to the court’s attention the next morning outside the presence of the jury. After describing generally the contents of the article, Harper’s attorney asked the court to question the jury to determine whether any juror had read articles or learned extrane[80]*80ous information about Harper.3 The court received the article in evidence4 but declined to question the jury because the defense had not established that any juror had read the article. The court explained,

The jury found Harper guilty of the sexual assault charge.5 On appeal, the court of appeals noted that the trial court had admonished the jury not to read about the case in the newspapers. Relying on People v. Holmes, 191 Colo. 477, 553 P.2d 786 (1976), the court held that absent a showing to the contrary, the trial court’s admonition created a presumption that the jurors followed the court’s instructions to ignore newspaper articles concerning the trial. The court of appeals held that in absence of a showing that any of the jurors read the newspaper article or that Harper was prejudiced by the article, the trial court did not abuse its discretion by denying Harper’s request to poll the jury. The court therefore affirmed his conviction.

II.

Harper argues that the trial court abused its discretion by not polling the jury after Harper brought the newspaper article to the court’s attention. In support of this argument, Harper asserts that the article was highly prejudicial as it contained information about the excluded conviction; counsel had brought the article to the court's attention promptly; and the ethical prohibition against counsel contacting jurors during trial, see DR 7-108, created a serious obstacle to obtaining additional evidence about the jurors’ exposure to the article. Harper further asserts that polling would have indicated whether the jurors had been exposed to the article and if they had, the court then could have taken timely corrective measures to ensure him a fair trial.

Our earlier cases required that a defendant demonstrate that actual prejudice resulted from juror exposure to extraneous information or influences in order to be awarded a new trial. See, e.g., Niemand v. District Court, 684 P.2d 931, 934 (Colo.1984) (juror consulted Black’s Law Dictionary for definitions of words used in court’s instructions); People v. Hickman, 684 P.2d 228, 233 (Colo.1984) (reporter questioned jurors during noon recess); People v. Dunoyair, 660 P.2d 890, 895 (Colo.1983) (juror inadvertently failed to disclose acquaintance with prosecution witness); People v. Thatcher, 638 P.2d 760, 770 (Colo.1981) (jurors casually observed scene of the crime while returning home from court); People v. Mackey, 185 Colo. 24, 31, 521 P.2d 910, 914 (1974) (juror conversed with a police officer during sequestration concerning burglarizing of a room of one of jurors); Thistle v. People, 119 Colo.

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Bluebook (online)
817 P.2d 77, 1991 Colo. LEXIS 608, 1991 WL 179968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-people-colo-1991.