The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 1, 2018

No. 16CA0644, People v. Bohl — Criminal Procedure — Trial Jurors; Juries — Jury Misconduct

A division of the court of appeals considers whether it is

reversible error for a judge to deny a defendant access to juror

contact information post-verdict to investigate alleged jury

misconduct.

The division first holds that a trial court’s denial of a party’s

request for juror contact information is reviewed for an abuse of

discretion. The division then concludes that because no evidence of

jury misconduct was revealed during the post-trial hearing, the

defendant’s request for juror contact information is speculative and

the trial court did not abuse its discretion in declining to release

juror contact information to the defendant.

Accordingly, the division affirms the judgment. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA0644 Adams County District Court No. 14CR3620 Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Thomas Bohl,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE FOX Taubman and Terry, JJ., concur

Announced November 1, 2018

Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Joshua Thomas Bohl, appeals the trial court’s

decision denying him access to juror contact information. We

affirm. Because the record lacks evidence of jury misconduct, the

trial court did not abuse its discretion in declining to release juror

contact information.

I. Background

¶2 A jury convicted Bohl of one count of first degree murder for

killing his girlfriend, Jayme Hosier.

A. Bohl’s Trial

¶3 During a four-day trial, the prosecution presented evidence

that Bohl killed Hosier in a Commerce City apartment. Bohl

initially told police that Hosier died when a television accidentally

fell on her head, but the forensic pathologist determined that Hosier

died from asphyxiation due to blunt force trauma to the neck. The

key dispute at trial was whether Bohl had the requisite intent to

commit first degree murder. The prosecution’s pathologist said that

pressure to Hosier’s neck would have had to continue for three to

five minutes before she died, but the defense expert testified that

Hosier could have died sooner, helping to negate intent.

B. Post-Trial Hearings

1 ¶4 The day after the verdict, a deputy district attorney who was

not involved in prosecuting the case sent a text message to Shelley

Hillesheim, the wife of jury foreman Mark Hillesheim. Mrs.

Hillesheim and the deputy district attorney knew each other, and

the deputy district attorney asked if Mr. Hillesheim would provide

feedback on the trial and the prosecutors’ performance during the

case. Mrs. Hillesheim replied as follows:

The minute Mark got selected to sit on the case, I knew he would be the foreman too. I told him I was calling it. He took it very seriously too. It kind of amused me. He would come up and look up and research various scientific items that were presented, etc. He said he even mapped out his own timeline of events so he could try to put it together in his mind. He said he’d be more than happy to share his feedback. He took lots of notes and still is frustrated by certain things.

¶5 Following this communication, the People filed a “Notice of

Juror Contact” with the trial court. In response, Bohl’s counsel

quickly filed a motion for a new trial. In addition to requesting a

2 new trial, Bohl requested alternatively that the court hold a hearing

on the incident and release the jurors’ contact information.1

¶6 At a hearing on Bohl’s motion, the court directed the People to

subpoena the Hillesheims to a January 7, 2016, hearing. The court

declined to provide juror contact information to Bohl’s counsel at

that time, explaining, “I’m not planning on doing that right now. If

we need to, we will. But I think right now . . . we need to summon

the juror and his wife into court.”

¶7 At the January 7 hearing, the court informed the Hillesheims

that they had been subpoenaed because it appeared that Mr.

Hillesheim might have violated the court’s order not to engage in

outside investigation. The court proceeded to advise the

Hillesheims

that if it’s shown by either side that you violated an order of this Court, technically speaking, you could be found in contempt of this Court; and this Court could impose a

1Bohl does not appeal his conviction, nor the trial court’s denial of his motion for a new trial. Rather, Bohl limits his appeal to the issue of whether the trial court abused its discretion in denying him access to juror contact information. We have jurisdiction over his appeal as the court’s denial of access to juror contact information was part of the “final judgment” denying Bohl’s motion for a new trial. See People v. Cochran,

(Colo. 1971).

3 sentence up to six months in the Adams County Jail or a fine or require that you pay restitution if in fact a mistrial is declared.

¶8 While the court intimated that it was not focused on pursuing

contempt proceedings, it nonetheless advised the Hillesheims that

“theoretically, that may occur; and so I think you may need to

consult with an attorney to see what liability you may have in this

matter before I proceed to a hearing.”

¶9 At a later hearing, on February 16, 2016, defense counsel

renewed her request for contact information for the other jurors.

While the court did not completely foreclose that possibility, it

expressed concern that CRE 606(b) precluded inquiry into the jury’s

deliberative process.

¶ 10 On February 16, Mrs. Hillesheim testified that, during trial,

her husband had shown her that he was researching decomposition

on the internet. Mrs. Hillesheim said the webpage displayed a

picture of a pig with the title “decomposition.” She testified that it

was the only time she saw her husband researching decomposition

or any other scientific items during the trial. Mrs. Hillesheim also

testified that Mr. Hillesheim had created a timeline of events in the

case, but that she had not seen it.

4 ¶ 11 Mr. Hillesheim testified that he had “looked up decomposition

of animals, which was brought to my interest [by] terms used in the

case,” but stated that he did not remember what websites he

accessed. He said that he was motivated to look up decomposition

because “it was all new” and he was interested from a personal

standpoint because he was a hunter who grew up on a farm. He

said he told his wife he was researching decomposition because “it

was dealing with some sciences that are involved this week in the

case.”

¶ 12 Regarding the timeline, Mr. Hillesheim said he believed he had

made some notes before the last day of trial, like “chicken scratch,”

but he could not recall what he “did with [them, or] if [they were]

used for anything[.]” Ultimately, Mr. Hillesheim testified that his

research was “nothing specific to anything in the case” and that he

did not share the timeline or his decomposition research with the

other jurors.

¶ 13 At the conclusion of the hearing, the court did not address

Bohl’s request for juror contact information, but said that it would

not “subpoena the other 11 jurors” because “[w]e should only

[subpoena other jurors] if there, in fact, is a good-faith belief that

5 extraneous information may have been submitted to the jury[.]”

The court reasoned that, based on the evidence presented, Bohl

failed to show that extraneous evidence of decomposition had been

presented to the jury, and even if it had been, there was no

prejudice because decomposition was not an issue at trial. The

court also found that because the timeline was based on

“information that [Mr. Hillesheim] received at trial,” the timeline was

not extraneous information. Accordingly, the court denied Bohl’s

motion for a new trial and later sentenced Bohl to life in prison

without the possibility of parole.

II. Juror Contact Information

¶ 14 Bohl argues that the trial court abused its discretion in

denying his request for juror contact information because he was

deprived of the opportunity to investigate and gather evidence to

support his claim of juror misconduct. We disagree.

A. Preservation and Standard of Review

¶ 15 The parties agree that this issue was preserved.

¶ 16 Although there is no established standard of review in

Colorado for a trial court’s denial of a party’s request for juror

contact information, we conclude that we should review a court’s

6 denial of access to juror contact information for an abuse of

discretion. Cf. People v. Pifer,

(“We review

[defendant’s Crim. P. 24(b)(1)(X) challenge based on bias] for an

abuse of discretion[.]”); People v. Pena-Rodgriguez,

, ¶

69 (“Assuming, while not deciding, that the trial court erred or

abused its discretion in applying Crim. P. 24(a)(4) and Crim. P.

33(c), we find any error harmless.”), aff’d,

, rev’d on other

grounds,

,

(2017); People v. Garrison,

, ¶ 7 (reviewing the trial court’s decision under

Crim. P. 24(g) — allowing juror questions — for an abuse of

discretion). See generally King v. United States,

(2d Cir. 1978) (recognizing that although the trial judge has

discretion to disclose juror contact information, “[t]here is a judicial

reluctance” to allow post-verdict contact with jurors); Brewington v.

State,

(Ind. Ct. App. 2013) (concluding that

the trial court correctly balanced the needs of effective trial

administration against Brewington’s constitutional rights and did

not abuse its discretion in granting the State’s request for an

anonymous jury), aff’d in part and vacated in part,

(Ind. 2014); Golnick v. Callender,

, 195 (Neb. 2015)

7 (concluding that the trial court did not abuse its discretion in

denying Golnick’s request for juror contact information after the

jurors completed their service and applying a statutory “good cause”

standard to the disclosure of juror information). A trial court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misconstrues or misapplies the law.

People v. Relaford,

.

B. Law and Analysis

¶ 17 Crim. P. 24(a)(4) says that although “[j]urors shall not be

required to disclose personal locating information . . . and such

information shall not be maintained in files open to the public[,]

[t]he trial judge shall assure that parties and counsel have access to

appropriate and necessary locating information.” While Crim. P.

24(a)(4) is more often raised in pre-evidentiary proceedings, such as

voir dire, Bohl relies on the rule post-trial, arguing that the trial

court abused its discretion by failing to provide the requested juror

contact information.

¶ 18 The United States Constitution does not guarantee a

defendant the right to question jurors post-verdict. Pena-Rodriguez,

¶ 68. And though CRE 606(b) limits the circumstances under

8 which a juror may testify post-trial, it provides an exception for

“extraneous prejudicial information . . . improperly brought to the

jurors’ attention.” CRE 606(b)(1). Bohl seeks juror contact

information to strengthen his motion for a new trial based on jury

misconduct via exposure to “extraneous prejudicial information.”

Invoking Crim. P. 24(a)(4), Bohl argues that access to juror contact

information is “appropriate and necessary” because the defense

cannot otherwise contact the jurors to investigate potential jury

misconduct. We disagree.

¶ 19 Following Bohl’s motion for a new trial, in which he requested

juror contact information, the trial court properly held a hearing to

determine the extent of any potential jury misconduct. See Wiser v.

People,

(Colo. 1987) (“In most cases involving

juror misconduct, the trial court should hold a hearing before

deciding whether there is a reasonable possibility that the

misconduct affected the jury’s verdict.”). At the hearing, Mr.

Hillesheim and his wife testified that Mr. Hillesheim’s out-of-court

research was limited to research on decomposition, and Mr.

Hillesheim denied sharing his out-of-court research with other

jurors. Mr. Hillesheim also explained that the timeline he created

9 was based on testimony and evidence presented at trial, and, thus,

he did not rely upon out-of-court research in creating the timeline.

¶ 20 At trial, the parties agreed that the victim’s body was

decomposed when the prosecution’s pathologist performed the

autopsy. The key issue was how long the victim had endured blunt

force trauma to the neck before she died, as the timing was used to

argue whether Bohl had the requisite intent for first degree murder.

Because decomposition was not an issue at trial, the trial court

found that Mr. Hillesheim’s research did not prejudice Bohl.

Further, because Mr. Hillesheim testified that he did not present

out-of-court research to other jurors, the court properly concluded

that no extraneous information could have influenced the verdict.

See

(stating that courts apply an objective test to

determine if there is a “reasonable possibility” that extraneous

information affected the verdict before concluding that a new trial is

required); People v. Holt,

(Colo. App. 2011)

(holding that the disclosure of extraneous information only requires

a new trial if the information was “improperly before the jury” and it

“posed the reasonable possibility of prejudice to the defendant”

(quoting Kendrick v. Pippin,

(Colo. 2011))); see

10 also United States v. Davila,

(5th Cir. 1983)

(concluding that where the defendants failed to make any

preliminary showing of misconduct in the jury’s deliberations in

hopes of uncovering an impropriety, the trial judge acted properly in

denying the defendants’ motion to interview jurors post-verdict).

¶ 21 We perceive no abuse of discretion in the trial court’s refusal

to subpoena the other jurors or to furnish their contact information

to the defense. Bohl argues that without the juror contact

information, the trial court precluded the defense from investigating

the truthfulness of Mr. Hillesheim’s claim that he did not present

outside research to other jurors. Bohl contends the Hillesheims’

testimony was inconsistent with Mrs. Hillesheim’s text message, as

Mrs. Hillesheim’s message referenced Mr. Hillesheim’s research on

“various scientific items,” and his research violated a court order

not to conduct outside research. Accordingly, Bohl reasons that

additional investigation is necessary to determine if there was jury

misconduct.

¶ 22 But the trial court found the Hillesheims’ testimony

persuasive, a determination we may not second-guess. See People

v. Harlan,

(Colo. 2005) (noting that the trial

11 court, in finding whether jurors relied upon extraneous prejudicial

information, “had to engage in difficult credibility determinations”

and stating on appeal, “we cannot second-guess determinations of

the trial court regarding witness credibility”). Because we defer to a

trial court’s factual and credibility determinations when supported

by the record, and given the speculative record evidence of jury

misconduct, we perceive no abuse of discretion in denying Bohl

access to juror contact information.

¶ 23 Bohl also argues that he needed to interview other jurors

before determining the truthfulness of the Hillesheims’ testimony

because their testimony was guarded given their fear of being held

in contempt of a court order. But this is mere speculation. To

follow Bohl’s argument, we would need to conclude that the

Hillesheims were lying about the extent of Mr. Hillesheim’s out-of-

court research and that Mr. Hillesheim also lied about not sharing

out-of-court research with other jurors. Because we defer to the

trial court’s credibility determinations and Bohl has not alleged

specific extraneous prejudicial information to which the jury may

have been exposed, we cannot conclude that Bohl was entitled to

obtain juror contact information to further investigate jury

12 misconduct. See Stewart v. Rice,

(Colo. 2002)

(recognizing that one of the “fundamental” purposes of CRE 606(b)

is to “protect jurors from harassment and coercion”); see also

United States v. Riley,

(5th Cir. 1976)

(“Historically, interrogations of jurors have not been favored by

federal courts except where there is some showing of illegal or

prejudicial intrusion into the jury process.”) (emphasis added).

¶ 24 Bohl’s reliance on Harlan and Pena-Rodriguez, in arguing that

we should compel the trial court to provide Bohl with the contact

information to facilitate his investigation, is misplaced. In Pena-

Rodriguez, ¶ 6, after entry of the verdict, two jurors contacted

defense counsel to disclose racial animus present during jury

deliberations. The defense did not need to request juror contact

information because two jurors voluntarily disclosed another juror’s

racial animus. And because there was direct evidence of jury

misconduct, the defense’s questioning of other jurors was

warranted and did not constitute a “fishing expedition.”

at ¶ 68

(quoting Journal Publ’g Co. v. Mechem,

, 1236 (10th

Cir. 1986)).

13 ¶ 25 In Harlan, defense counsel learned of jury misconduct after

the jury’s death penalty verdict when defense counsel’s investigator

contacted jurors months later to interview them, and the defense

learned that some jurors had used the Bible to determine whether

the death penalty was justified for murder.

. It is

not clear how defense counsel had obtained the jurors’ contact

information, but defense counsel presented direct evidence of jury

misconduct via the use of extraneous prejudicial information,

similar to the evidence of jury misconduct in Pena-Rodriguez.

¶ 26 In this case, in contrast, an investigation has already been

conducted and no evidence of jury misconduct was revealed.

Following the People’s proper disclosure of the text message and

Bohl’s motion for a new trial, Bohl had the opportunity to question

the jury foreman and his wife. However, the trial court determined

from the Hillesheims’ testimony that no jury misconduct had

occurred, as no extraneous prejudicial information had been

presented to other jurors. And any extraneous information that Mr.

Hillesheim obtained was not relevant to a key issue at trial. See

Wiser,

. Further, no other jurors reported jury

misconduct to defense counsel or the judge. People v. Wadle, 97

, 934 (Colo. 2004) (“[T]wo jurors contacted the court and . .

. expressed their concern that their review of the [i]nternet

definition [of a drug relevant to the case] violated the court’s

instructions.”); Wiser,

(defense counsel learned of

jury misconduct from an “informal meeting in the judge’s chambers

with the members of the jury after the jury returned its verdicts”).

Accordingly, given the lack of record evidence to support prejudice

from jury misconduct, we defer to the trial court’s decision not to

furnish juror contact information.

¶ 27 Given (1) that the trial court conducted a hearing on the jury’s

potential exposure to extraneous prejudicial information; (2) the

speculative nature of Bohl’s request for juror contact information;

and (3) CRE 606(b)’s fundamental purpose of protecting jurors and

their deliberations, the trial court’s decision not to release juror

contact information to the defense was not manifestly

unreasonable, arbitrary, or unfair, and it did not misapply or

misinterpret the law. See Relaford, ¶ 25; Wiser,

(holding that the use of the objective test to determine whether

extraneous information affected a verdict “is consistent with CRE

15 606(b)’s purpose of protecting the privacy of jurors”). Accordingly,

we discern no abuse of discretion by the trial court.

III. Conclusion

¶ 28 The order is affirmed.

JUDGE TAUBMAN and JUDGE TERRY concur.

16