Perez v. People

2013 CO 22, 302 P.3d 222, 2013 WL 1409721, 2013 Colo. LEXIS 277

• Court: Supreme Court of Colorado
• Decided: April 8, 2013
• Docket: Supreme Court Case No. 10SC616
• Status: Published

Opinions

JUSTICE EID

delivered the Opinion of the Court.

{1 We granted certiorari in this case, along with Rizo v. People, 2013 CO 23, 302 P.3d 232, and Robles v. People, 2013 CO 24, 302 P.3d 229, to determine whether a trial court may refer to prospective jurors by number, instead of by name, in open court as a matter of routine policy.¹

12 In this case, the trial court shared prospective jurors' names and other identifying information with the defendant and the prosecution, but referred to the jurors by number, rather than by name, in open court. The defendant, Rene Perez, argues that the trial court's practice created an "anonymous jury," and that such a jury should be assessed under the "anonymous jury" framework devised by the federal courts. He concludes that, because the trial court in this case failed to follow that framework-in particular, because it failed to demonstrate "good cause" for its practice-his right to a fair trial, including the presumption of innocence, was violated.

13 We disagree. Perez did not have an "anonymous jury" as that term has been defined by federal case law. Unlike in those cases, here the prospective jurors' identifying information was shared with the parties, including the defendant. We therefore find the anonymous jury framework inapplicable. Instead, we treat this case for what it is - a claim that the practice undermined the presumption of innocence because it implied that defendant was possibly guilty or dangerous.

T4 We hold that no such implication oc-eurred here. The prospective jurors' identifying information was shared with Perez, and the jurors were so informed. In addition, the trial court explained that referring to jurors by number, rather than by name, was a general practice that was adopted to protect jurors' privacy. Therefore, there was no reason for jurors to infer that the court's practice was anything other than a general policy adopted to protect jurors' privacy that had nothing to do with Perez, or his possible guilt or dangerousness. Finally, the jury was instructed on the presumption of innocence prior to deliberations. We 'thus conclude that the fairness of the trial, including the presumption of innocence, was not undermined by the trial court's practice, and affirm the court of appeals.

I.

1 5 The victim in this case called the police to report that her friend, Martha Rizo, and Rizo's boyfriend, Rene Perez, sexually assaulted her while the three were playing a drinking game. The Weld County District Attorney charged Perez with sexual assault, pursuant to section 18-3-402(1)(a), C.R.S. (2012), and alleged a sentence enhancer, pursuant to section 18-8-402(5)(a)(D), C.R.S. (2012), because another person (Rizo) physically aided or abetted him in the assault. Rizo was tried separately.²

T6 During pre-trial conference, the trial court alerted the parties to its practice of referring to jurors by number instead of name. The court asked the parties to refer to jurors by their assigned juror number when they were in the gallery and by their seat number when they were seated in the jury box. Defense counsel objected, arguing that the practice would imply Perez's guilt. The court overruled the objection, explaining that it had used the practice in its last twenty jury trials, had received consistently positive reports from jurors, and had no concern that the practice implied guilt.

T7 Before the trial court addressed any juror by number, it issued the following explanation of its practice to the jury: "[Ilt's my policy, in order to respect your privacy, to not refer to you by your name. My experience, talking to jurors, are [sic] that they appreciate the fact that we respect their privacy. With that said, we are going to be referring to you by your three-digit juror number." The potential jurors had already filled out a two-sided jury questionnaire that included their names and stated at the top, "This information will remain confidential and will be known only by the court and the parties to this case." Both parties received the completed jury questionnaires, which provided the jurors' names and other identifying information. The trial court instructed the jury on the presumption of innocence before allowing them to deliberate.³

T8 The jury convicted Perez of sexual assault and found that the sentence enhancer applied. The court sentenced Perez to twenty-four years to life in prison. The court of appeals affirmed his conviction and sentence in an unpublished opinion. People v. Peres, No. 08CA2296, 2010 WL 2956070 (Colo.App. July 29, 2010) (not selected for official publication).

19 Because we find that this was not an anonymous jury and that Perez's right to a fair trial, including the presumption of innocence, was not undermined, we affirm the judgment of the court of appeals.

IL.

1 10 Beginning in the 1970s, federal courts began using anonymous juries in organized crime cases in order to protect jurors. See, e.g., United States v. Barnes, 604 F.2d 121 (24d Cir.1979). To create anonymous juries, parties would select jurors "from a venire whose members' identifying information-such as names, occupations, addresses, exact places of employment, and other such facts hal[d] been withheld from the parties." United States v. Morales, 655 F.3d 608, 620 (7th Cir.2011). Federal statute allows federal district courts to keep the names of jurors "confidential in any case where the interests of justice so require." 28 U.S.C. § 1863(b)(7)..

{11 The federal cireuit courts of appeals became concerned with this practice for two reasons. First, using an anonymous jury "potentially deprives defendants of information that could be used in making juror selections during voir dire." Morales, 655 F.3d at 620 (citing United States v. Mansoori, 304 F.3d 635, 650 (7th Cir.2002)). Second, "(aln anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence." United States v. Ross, 33 F.3d 1507, 1519 (11th Cir.1994).

112 Eventually, the courts of appeals developed a test that must be satisfied in order for a federal trial court to employ an anonymous jury. All the circuits to consider anonymous juries have adopted formulations of the following test: Courts may not impanel anonymous juries unless "(1) there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury's function will be compromised absent anonymity; and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed." United States v. Dinkins, 691 F.3d 358, 372 (4th Cir.2012).⁴ All the federal circuit courts that have considered the issue review a trial court's decision to use an anonymous jury for abuse of discretion. Id. at 371.

1 13 More recently, reviewing courts have seen variations on the typical anonymous jury. One development involves referring to jurors by number in open court but revealing all identifying information, including their names, to the parties. While the Fourth Cireuit in dicta wrote that the practice represents "[al lesser degree of anonymity," id., other courts that have considered this type of jury have not called it "anonymous." For instance, the Eighth Circuit, which appears to be the only federal court to hear a case on this type of jury, has ruled that courts do not abuse their discretion in employing this practice. United States v. Peoples, 250 F.3d 630, 635 (8th Cir.2001); see also United States v. Lee, 886 F.2d 998, 1001-02 (8th Cir.1989) (finding no prejudice when defense counsel had jurors' names). Similarly, some state courts have found that this practice does not amount to an anonymous jury and should not be analyzed as such. See, eg., People v. Goodwin, 59 Cal.App.4th 1084, 69 Cal.Rptr.2d 576, 579-80 (1997) People v. Williams, 241 Mich.App. 519, 616 N.W.2d 710, 718 (2000). However, one state court, while recognizing the practice as something different than an anonymous jury, has applied the federal anonymous jury test to "numbers only" juries, although the court ultimately decided that any error would be harmless. See State v. Tucker, 259 Wis.2d 484, 657 N.W.2d 374, 380 (2003); but see id. at 392 (Sykes, J., concurring) (finding anonymous jury framework inapplicable where names and identifying information were given to defendant)⁵ Perez argues that his jury should be treated as an anonymous jury, that the federal anonymous jury framework should be applied, and that the framework would not be satisfied in this case because there was no showing that safety or other concerns required the use of an anonymous jury.

114 We disagree with Perez's suggested approach. Perez did not have an anonymous jury. He received all identifying information, including the names, of the voir dire panel. Therefore, the framework for evaluating an anonymous jury is inapplicable. Indeed, it is inapplicable on its own terms, as it requires that the trial court make a finding that "disclosure of identifying information about the venire members may jeopardize their lives or safety." Dinkins, 691 F.3d at 377. Here, the identifying information was disclosed to the parties.

115 Rather than employing the anonymous jury framework, we assess Perez's claim for what it is-an assertion that the presumption of innocence was undermined by the court's use of numbers, instead of names, to refer to prospective jurors.⁶ See Williams, 616 N.W.2d at 713 (holding that, when the right to effective voir dire has not been compromised, a successful defendant must show "that the presumption of innocence has been compromised"). We conclude that the trial court's practice did not undermine the presumption of innocence.

{16 "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); see also People ex rel. Juhan v. Dist. Court, 165 Colo. 253, 257, 439 P.2d 741, 743-44 (1968) (considering the presumption of innocence to be one of the "fundamental principles of law applicable to erim-inal cases which have been so universally accepted and applied in this country as to have become component parts of our understanding of the term 'due process of law' "). Perez argues that the presumption of innocence was undermined in his case because referencing jurors in open court by number, instead of by name, implies that the jurors have to be protected from the defendant in some way, thereby suggesting possible guilt or dangerousness.

117 We conclude that no such inference could have been drawn in this case. The trial court told the juror panel the following: "[It's my policy, in order to respect your privacy, to not refer to you by your name. My experience, talking to jurors, are [sic] that they appreciate the fact that we respect their privacy. With that said, we are going to be referring to you by your three-digit juror number." The court thus presented the issue of referencing jurors by number as its general practice. Importantly, this general practice did not suggest anything in particular with regard to this defendant. See Williams, 616 N.W.2d at 524 (holding that because "[tlhere is no suggestion that jurors understood the use of numbers rather than names to be anything out of the ordinary," nor any suggestion "that defendant's trial was being handled in a special way," there was no "implication that he was generally dangerous or guilty as charged").

{18 Moreover, the rationale given for the practice-that it was intended to protect the jurors' privacy-had nothing to do with defendant's possible guilt or dangerousness, or the need to protect their safety. Seq, eg., Peoples, 250 F.3d at 635 (noting that the trial court told jurors that they were being referred to by number "to reduce the possibility that the media or others interested in the issues of this case might try to contact them"). Indeed, the court indicated at a status conference that it had used the practice in its last twenty jury trials, and had received consistently positive reports from jurors. Thus neither the rationale for, nor the applicability of, the practice suggested anything about this particular defendant.

119 In addition, the juror questionnaire made it clear to jurors that the defendant would be receiving prospective jurors' names and identifying information, stating that the information would be kept confidential except that it would be available to "the court and the parties to this case." (Emphasis added). Because there was no suggestion that information was being kept from Perez, no inference could be drawn that there was any need to withhold jurors' information from him. Finally, the trial court instructed the jury on the presumption of innocence prior to deliberations.

120 In sum, there was no reason for jurors to infer that the court's practice was anything other than a general policy adopted to protect jurors' privacy that had nothing to do with Perez himself, or his possible guilt or dangerousness. Perez's right to a fair trial, including the presumption of innocence, was not undermined, and therefore the trial court committed no error by referring to the jurors by number.⁷ Although we find that the practice of referring to jurors by number, rather than by name, does not undermine the presumption of innocence, we note that the practice is subject to future rule or statutory development.

IIL.

1 21 Because we conclude that this was not an anonymous jury and that Perez's right to a fair trial, including the presumption of innocence, was not undermined, we affirm the judgment of the court of appeals.

CHIEF JUSTICE BENDER dissents.

1 . Specifically, we granted certiorari on the following issue:

Whether the trial court violated petitioner's fundamental rights to a fair and public trial, to the presumption of innocence, and to equal protection, and violated long-standing federal case law, by arbitrarily ruling that the lawyers had to refer to the jurors by number rather than name and by seating an anonymous jury without any justification other than the court's routine policy.

2 . Rizo's conviction is the subject of the appeal in the companion case we decide today. See Rizo v. People, 2013 CO 23, 302 P.3d 232.

3 . In part, Instruction No. 5 stated as follows: "Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt."

4 . See also United States v. Deluca, 137 F.3d 24, 31 (1st Cir.1998); United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir.1991); United States v. Scarfo, 850 F.2d 1015, 1023 (3d Cir.1988); United States v. Krout, 66 F.3d 1420, 1427 (5th Cir.1995); United States v. Lawson, 535 F.3d 434, 439 (6th Cir.2008); United States v. Morales, 655 F.3d 608, 620-21 (7th Cir.2011); United States v. Darden, 70 F.3d 1507, 1532 (8th Cir.1995); United States v. Shryock, 342 F.3d 948, 971 (9th Cir.2003); United States v. Ross, 33 F.3d 1507, 1520 (11th Cir.1994); United States v. Moore, 651 F.3d 30, 48 (D.C.Cir.2011).

5 . Tucker is the only case that has been cited to us that applied the federal anonymous jury test to an instance in which jurors were referred to by number during voir dire but where the defendant received the jurors' names and identifying information, although the court ultimately found any error to be harmless. 657 N.W.2d at 383. Various other state courts have applied the federal anonymous jury test in circumstances in which jurors' information was not shared with the defendant or when other uniquely prejudicial circumstances arose. See, eg., State v. Brown, 280 Kan. 65, 118 P.3d 1273, 1281-82 (2005) (applying the federal anonymous jury test when, after voir dire was conducted using juror names, the court informed the jury that because of safety concerns the court would begin to identify jurors by number); State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172, 194, 196 (2010) (applying the federal anonymous jury test when the court referred to jurors by number and ordered defense counsel not to reveal the names of potential jurors to defendant); State v. Rogers, 352 Or. 510, 288 P.3d 544, 558, 559-60 (2012) (applying the federal anonymous jury test when the court gave jurors the option of withholding their names and addresses, referred to prospective jurors by number, and informed most of the jurors that the attorneys, rather than the parties, would be given the jurors' names). As noted below, because such information was shared with the defendant in this case and the jurors were so informed, and because the trial court's conduct did not alert the jury that their safety was at issue, we find these three cases inapposite.

6 . Unlike in the anonymous jury context, Perez faced no danger of conducting an ineffective voir dire, as he possessed the prospective jurors' names and identifying information. Thus, the only remaining claim is whether the presumption of innocence was impaired.

7 . For similar reasons, we reject Perez's equal protection argument. "The threshold question in any equal protection challenge is whether the [policy] results in dissimilar treatment of similarly situated individuals." Duran v. Indus. Claim Appeals Office of Colo., 883 P.2d 477, 481 (Colo.1994). Because Perez received the same treatment as other defendants in terms of the trial court's policy of referring to jurors by number, instead of by name, there was no dissimilar treatment. We also reject Perez's public trial claim. Perez cites Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), for the proposition that the jury selection process must be open. However, there is nothing in Press-Enterprise to suggest that a defendant has a constitutional right to have prospective jurors' names read into the record.