17CA1182 Peo v Owens 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 17CA1182

Arapahoe County District Court No. 05CR2945

Honorable Christopher J. Munch, Judge

v.

Sir Mario Owens,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Philip J. Weiser, Attorney General, Katharine J. Gillespie, Senior Assistant

Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver,

Colorado, for Plaintiff-Appellee

Blain Myhre, Alternate Defense Counsel, Englewood, Colorado; Jonathan D.

Reppucci, Alternate Defense Counsel, Denver, Colorado, for Defendant-

Appellant

III. Alleged Prosecutorial Misconduct . . . . . . 12-39

1

affirmed on direct appeal. People v. Owens, (Colo. App. No.

07CA0895, July 26, 2012) (not published pursuant to C.A.R. 35(f))

motion for postconviction relief. We affirm the postconviction

court’s order.

2004, at the end of a large event in Lowry Park, Owens shot and

killed Vann. Owens’s best friend, Robert Ray, subsequently shot

Marshall-Fields and Bell but they survived the shootings. The

prosecution presented evidence that Owens and Ray fled the scene

2

in Owens I. He sought review of his Dayton Street conviction via

the procedures prescribed for death penalty cases. See Crim. P.

32.2; §§ 16-12-201 to -210, C.R.S. 2020. He later moved for

postconviction relief in this case — the Lowry Park case — pursuant

postconviction court reversibly erred by departing from the

postconviction procedures required by Rule 35(c)(3)(V); (2) the

prosecution unlawfully suppressed materially favorable evidence;

assistance of counsel; (4) misconduct by deliberating Juror 75

deprived him of an impartial jury; and (5) his appellate counsel was

Governor Jared Polis has since commuted the death sentences to

life in prison.

3

underway in 2014, when Owens filed his Rule 35(c) motion for

postconviction relief in the Lowry Park case. At that time, Judge

Rule 35(c) proceedings.

disqualify himself in connection with the juror misconduct claim,

4

days for the Rule 35(c) evidentiary hearing, and, acknowledging

substantial witness testimony overlap between the Dayton Street

and Lowry Park proceedings,

he ordered counsel to designate Rule

32.2 transcripts and exhibits — from Judge Rafferty’s hearings —

for his consideration.

35(c) petition and response, the postconviction court ultimately

designated twenty-one witnesses for live testimony — twenty of

those witnesses were requested by Owens. The court would allow

additional rebuttal witnesses for good cause shown. It further

expressed a preference for testimony supplemental to that already

The facts of the Lowry Park shootings were presented as CRE

404(b) and res gestae evidence in the Dayton Street murder trial

and sentencing.

5

procedures. He argued that his presentation of evidence was

unduly limited; six days was insufficient time to call twenty

witnesses, and he should be permitted to call all of the witnesses on

his list. The court stated that it would reconsider receiving live

testimony from any undesignated witnesses whose sworn affidavits

witnesses (1) whose testimony did not involve a significant

credibility question, or (2) who were unlikely to be located and to

appear in court to give testimony for the first time after the many

intervening years.

it would consider a departure from these restrictions on a showing

Judge Munch reasoned that an affidavit from any witnesses who

had not previously testified would be adequate.

6

specific witness. Owens presented his evidence in just one full day

and two half days, due in part to reaching stipulations with the

prosecution as to the testimony to be considered from some of the

designated witnesses. Owens called only seven witnesses. The

proceedings for newly discovered evidence concerning Juror 75’s

relationship with Marshall-Fields’s uncles. The court heard

additional live testimony from Juror 75 and four new witnesses in a

one-day hearing.

evidentiary hearing procedures (1) departed from the procedural

13

Sailor (Ray’s wife), which might have been used to further impeach

their credibility; and (3) a note memorializing statements made by

Tetrick Brewer during a police interview. Owens alleges that Brewer

was an eyewitness to the Lowry Park shootings.

when they are unsupported by the record. Id.

request violates due process where the evidence is material either to

A Versadex report is a document generated by the Aurora Police

Department’s records management system. It contains every piece

of information compiled by the record-keeping staff or entered by

14

the prosecution has a duty to disclose material exculpatory

evidence even if the defense has not requested it. United States v.

Agurs, 427 U.S. 97, 110-11 (1976), abrogated on other grounds by

United States v. Bagley, 473 U.S. 667, 682 (1985).

defendant must demonstrate that (1) the prosecution suppressed

¶ 29.

it has a tendency to decrease the likelihood of conviction or the

severity of the sentence. Id. at ¶ 31. Thus, evidence that suggests

a defendant is innocent or impeaches the credibility of adverse

witnesses must be disclosed if it is material. Bagley, 473 U.S. at

15

suppressed evidence must be assessed in light of its cumulative

effect on the trial, not according to the potential impact of each

piece of evidence individually. Kyles v. Whitley, 514 U.S. 419, 436-

37 (1995).

proceed with basic fairness. In Napue, the prosecution’s principal

witness testified that he had received no consideration in exchange

for his testimony. 360 U.S. at 265. The prosecutor knew this

testimony was false but failed to correct it. Id. at 266-67. The

Napue Court held that when the prosecution knowingly obtains a

goes only to the credibility of the witness, it violates the defendant’s

16

must show that (1) “the prosecution’s case included perjured

P.3d 42, 48 (Colo. App. 2010). False testimony is considered

material where there is “any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” Id.

testimony may differ from extrajudicial statements does not

constitute perjury.”); People v. Valera-Castillo, 2021 COA 91, ¶ 44.

17

a court should assess the impact of all suppressed evidence

collectively does not preclude a preliminary analysis of the impact of

each piece of evidence. As the Kyles Court acknowledged, it is

impossible to assess the collective impact of suppressed evidence

without first understanding the individual force and relevance of

by item; there is no other way”).

assertion that the postconviction court failed to analyze the

collective effect of all the suppressed evidence. In a section of its

order entitled “cumulative effect,” the postconviction court explicitly

discussed its view of the evidence as a whole and drew conclusions

18

were not disclosed by the prosecution and that this evidence was, to

varying degrees, favorable to Owens or exculpatory. To the extent

they disagree, we need not resolve these disagreements because

even if we assume that each piece of evidence at issue was

suppressed and was also favorable or exculpatory, Owens’s Brady

the proceeding would have been different.” Thus, the allegedly

suppressed evidence is insufficiently material to warrant a new

trial.

19

prosecution did not disclose (1) a police bulletin, created the night

of the shootings and distributed to patrol officers, that listed

preliminary descriptions of one or more Lowry Park suspects and a

description of the escape vehicle; and (2) a Versadex report that

purported to show, among other things, a list of initial suspect

separately identified five suspects exclusively by their physical

descriptions.

20

the bulletin, Officer Thomas Wilson, testified that it did not

accurately reflect the number of suspects, nor did it contain an

accurate description of any particular suspect. Rather, the

bulletin’s suspect descriptions were an amalgam of the average

heights and weights of several possible suspects based on

that the Versadex report reflected a jumbled mix of raw data

by the records staff. Thus, it did not necessarily provide accurate

descriptions of the number of suspects or the appearance of any

particular suspect.

myriad police reports containing a great variety of suspect

21

were unlikely to convince defense counsel to abandon their self-

defense strategy.

postconviction court erred by placing great reliance on Wilson’s

testimony about the purpose for which the evidence was created,

these documents cannot be accurately assessed by either party

apart from the context in which they were created. Given this

context, and in light of other available evidence, we conclude that

the bulletin and report are not material under Brady.

22

shot Vann; and (2) that the shooting was the result of an argument

that had spontaneously erupted at Lowry Park between Ray and

Owens on one side and the victims and their friends on the other.

Owens asserts that had the defense been aware of all of the

impeachment evidence known to the prosecution, they might have

statements and history of each witness is necessary.

a. Johnson

29

Evidence that the government was not as hard on a witness as it

might have been with respect to each and every potential charge

does not amount to proof that a witness had a tacit agreement to

testify in exchange for additional governmental leniency. Wisehart

v. Davis, 408 F.3d 321, 325-26 (7th Cir. 2005) (Criminal trials

the state not wanted [their] testimony and whether therefore [they]

feared retaliation if [they] stopped playing ball.”). Absent such an

agreement, this evidence lacks both probative force and materiality.

himself when he denied being a “member” of a gang during his

grand jury testimony and later admitted to being an “associate” of

different terms for his involvement with gangs, or lack thereof, in

30

that Johnson was “affiliated” with gangs but may not have been a

“blessed in member.” Because these statements are nuanced, they

are not patently false. As such, they do not trigger prosecutorial

obligations under Napue or Giglio. Gallegos, 116 Colo. at 132, 179

P.2d at 273-74.

angry and drunk. She feared Ray might get into a fight, so she

called Owens and asked him to come get Ray. Owens arrived at the

park a short time later. Sailor testified that as she was leaving the

31

that her attorney had worked out a plea bargain with prosecutors in

exchange for her cooperation, that prosecutors dismissed her drug

and weapons charges as a result, and that she was given a deferred

judgment on the accessory charge. She further conceded that her

deal required her to testify and that she had testified five times.

main suspect.”

suppressed several material items:

32

33

proffer negotiations as “coming forward.” Thus, she did not give

false or perjured testimony. In fact, in a follow-up question, the

lead prosecutor clarified what Sailor’s statement meant:

34

insufficiently material to support reversal of Owens’s conviction. As

the postconviction court noted, during the Lowry Park trial, Sailor

did not testify that she failed to come forward because she was

afraid of Owens, thereby implying that he was capable of harming a

witness. Rather, without explicitly offering a motive, she described

incriminate Owens or explain Sailor’s motives. Accordingly,

controverting this testimony would not have “affected the judgment

of the jury.” Medina, 260 P.3d at 48.

assured Sailor they would prevent social services from becoming

reunited with her son. Her attorney told prosecutors that she

35

to a secret promise to prohibit social services’ involvement.

Further, the defense knew Sailor had been moved out of state with

the witness protection program, the very thing prosecutors

promised her. Because the allegedly suppressed evidence does not

Michigan detectives set up an interview with Sailor is also

have been “another link in a chain of threats, intimidation, and

promises that secured Sailor’s cooperation.” However, the record

shows that neither the detective in this case nor the Michigan

benefits, implicit or otherwise, in exchange for the interview. There

36

incremental in light of the much more forceful evidence that she

was motivated to testify by her plea deal. Douglas, 560 F.3d at

1174.

that prosecutors attempted to intimidate Sailor by setting up a

be located because she was in the witness protection program due

to the Dayton Street murders and her status as a witness in this

case. Given this risk, it is unlikely that defense counsel would have

elicited evidence on this topic or that if the defense had done so, it

would have changed the outcome.

37

There was a fight. The dude got into the fight and lost and went to

the car [sic] get a gun [sic] came back and shot . . . . Just heard

that there was one shooter.”

detective testified that what Brewer told her was “all secondhand

stuff that he had heard from Candace Parker.” The defense

According to Owens, Brewer’s statements suggest that “Ray, not

made no such argument in his Crim. P. 35(c) motion. In fact,

postconviction counsel argued the opposite, asserting that trial

counsel rendered ineffective assistance because they failed to object

to the admission of any and all gang-related evidence. With respect

to that issue, counsel asserted, “There is no evidence that the Lowry

Park shooting was gang related in any fashion.” Because Owens

did not preserve this argument, we do not address it. People v.

Huggins, 2019 COA 116, ¶ 17.

38

turn, convinced a jury that Johnson’s and Sailor’s testimony was

false. We disagree.

showed that Vann and Bell were shot with guns of different

calibers, making it unlikely that defense counsel would have

counsel’s strategy.

statements were apparently disclosed to the defense described a

single shooter that matched Ray’s description. Even assuming that

Brewer was an eyewitness, we are not persuaded that his

45

Park trial in October 2006 to “get up to speed on the big picture

issues in the case” and continued to review discovery as she worked

on the investigation. Given this evidence, the postconviction court’s

finding that trial counsel’s review of the unusually voluminous

discovery materials was adequate was not clearly erroneous.

arises from their failure to interview multiple eyewitnesses whose

descriptions of the shooter purportedly aligned more closely with

46

and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” 466 U.S. at

investigation was incomplete at the time of trial. The motion to

judgment regarding which avenues of investigation to pursue given

their investigation fell below a standard of professional

reasonableness. Harrington v. Richter, 562 U.S. 86, 105, 109 (2011)

(noting that the Strickland standard measures whether counsel was

incompetent under objective professional norms, not whether they

followed best practices or common custom according to their own

subjective assessments). In any case, in Owens I, another division

of this court previously denied Owens’s challenge to the trial court’s

denial of a continuance and that issue has been fully resolved.

47

affirmative because, while counsel may have preferred to interview

additional witnesses before trial, their investigation was not so

incomplete that it failed to meet a standard of professional

conduct in light of the surrounding circumstances. Id. Here, in

evaluating counsel’s conduct, we are cognizant that Owens’s case

was unusually burdensome for the lawyers. At the time of these

investigations, Owens’s counsel was simultaneously representing

Owens in the Dayton Street murders and the Lowry Park shootings.

Thus, although counsel did not “choose” to stop pursuing certain

strategy decision would have to be made. Harrington v. Richter, 562

48

in a crowded park, and the number of eyewitnesses was therefore

unusually large, there was a risk that some eyewitnesses might not

be interviewed or subpoenaed before trial. Counsel need not

interview every potential witness in a case to provide effective

assistance. People v. Benney, 757 P.2d 1078, 1080 (Colo. App.

Payne, 352 F.3d 1313, 1318 (9th Cir. 2003) (noting that counsel

does not perform deficiently simply because some witnesses were

not interviewed). They need only conduct an investigation sufficient

to reveal potential defenses as well as weaknesses in the

prosecution’s case. People v. Dillard, 680 P.2d 243, 245 (Colo. App.

1984).

protection program based on the risk that Ray or Owens would

49

faced informal barriers as well. As discussed more fully below,

many witnesses were hiding from the defense or were disinclined to

grant interviews. Where witnesses decline to have contact with the

defense, counsel’s ability to investigate is hampered and a limited

investigation is more likely to be deemed adequate. Walls v.

uniformly declined to speak to the defense).

counsel actually interviewed or attempted to interview nearly all the

eyewitnesses before trial, and that they made significant efforts to

investigate nearly all the adverse witnesses. For those they did not

interview, we conclude that reasonable counsel might not have

his investigator traveled to Louisiana to interview Owens’s family.

50

they flew to Michigan to investigate Sailor. Some of her family lived

there and she had a potential criminal history in Michigan.

Counsel also interviewed Sailor’s family in Colorado.

who was implicated in a scheme to hide the escape vehicle. Defense

interviews with eyewitnesses Cashmeir Jones and Askari Martin,

both of whom were in witness protection. Martin said he “never

saw” Owens but told the defense, “I don’t want to talk to you guys.”

The grand jury transcripts, which were disclosed to the defense,

revealed that Martin testified he never saw Owens at Lowry but he

Sailor and was knowledgeable about the Lowry Park shootings, in

51

Dickey. Discovery materials showed that Dickey may have seen

Ray shoot Vann. However, attempts to interview Dickey were

unsuccessful. In response to counsel’s second attempt to secure an

interview, Dickey stated, “good luck trying to find me.” In any case,

Kepros testified she had concerns about presenting evidence that

interview victim Bell and eyewitness Green. They were unable to

reach Bell, and Green refused to speak to the defense; when they

stopped him at the courthouse, Green said that he was

uncomfortable talking there.

52

eyewitness available, Owens asserts that the investigation was

inadequate because counsel did not interview alternative suspects

Johnson or Jon Martin. However, it is unlikely that Johnson or

Martin would have submitted to an interview with the defense,

knowing that they might be suspects and that their testimony was,

exculpatory testimony beyond that already provided by Johnson or

other eyewitnesses — that Owens did not shoot until Vann punched

him and that Vann’s shooter might not have resembled Owens.

some cases, where counsel has initial information about what a

witness might say, the information dictates that counsel investigate

shooter and he had dark skin, a bald “fade” hairstyle, and gold

teeth. However, he did not know who it was. Martin is one of

multiple witnesses whose description of the shooter did not match

Owens.

53

further investigation). Here, because these witnesses were highly

unlikely to make themselves available or provide important

exculpatory testimony, it was reasonable not to prioritize these

interviews.

Fields. Neither of these witnesses knew whether Owens was at the

park that night. While this testimony places the blame squarely on

Ray, as Kepros noted in her testimony, in light of the strong

evidence that Owens came to Lowry Park to help Ray, inculpating

Ray did not necessarily exculpate Owens. Owens was likely to be

54

strategy, and an identity defense was problematic, the

postconviction court concluded that “defense of Ray, self-defense

was not only a reasonable strategy, but the more reasonable

review de novo, we agree with the postconviction court.

shot Vann, there was overwhelming evidence that Owens was at the

park that night and that he shot Vann in an effort to fend off a

61

The postconviction court found on conflicting evidence that this

occurred on or after January 23, 2007, when Judge Spear brought

Juror 75’s connection with White to the attorneys’ attention.

However, Juror 75 testified that Dickey said, “I saw you in court

today,” and Dickey testified on January 19, 2007.

62

63

to a fair trial. Morrison, 19 P.3d at 672.

selection arises from actual bias, a defendant may be entitled to a

new trial. Where, for example, a juror deliberately misrepresents

important biographical information relevant to a challenge for cause

itself evidence that the juror was likely incapable of rendering a fair

and impartial verdict in the matter. Id.

recognized that a juror’s failure to disclose information may indicate

actual bias. McDonough Power Equip., Inc. v. Greenwood, 464 U.S.

64

correct response would have provided a valid basis for a challenge

for cause. Id. at 556. But the Court clarified that a juror’s

“mistaken, though honest response to a question” is not a basis for

a new trial, because

McDonough, being a civil case, did not turn on the constitutional

right to a jury trial in a criminal proceeding. Thus, we are not

convinced it governs in Owens’s case. Nonetheless, because the

postconviction court addressed it, and both sides on appeal argue

the application of McDonough, we will address it.

65

that the juror lacked the capacity and the will to decide the case

based on the evidence.” Id. at 165-66. This is evidence of “actual

bias.”

in determining whether a juror has both the capacity and the will to

similarity between the juror’s experiences and important facts

presented at trial, the scope and severity of the juror’s dishonesty,

and the juror’s motive for lying. Although any one of these factors,

taken in isolation, may not provide sufficient support for a

challenge for cause, their cumulative effect must nonetheless be

considered. Id. at 166.

(Colo. 1995), after jury selection and opening statements, one of the

66

showing that a juror’s prior acquaintance with a witness created an

actual bias, ‘we will assume that the juror followed the instructions

of the court and decided the case solely on the basis of the evidence

and the law.’” Christopher, 896 P.2d at 879.

to consider in

the nondisclosure was deliberate; (4) any prejudicial effect the

nondisclosed information would have had on either party, including

the defendant’s right to exercise peremptory challenges; and (5) the

practical remedies available when the nondisclosure is revealed. Id.

In Christopher, the juror disclosed her familiarity with a witness

during trial, the defense requested she be replaced with the

alternate juror, and the court had the opportunity to consider

whether replacement was required. In Owens’s case, the full extent

of Juror 75’s acquaintance with witnesses was not known until the

Rule 35 proceeding, but to the extent we can apply these factors at

this stage, we conclude that the test still applies.

67

due to statutorily defined connections to the crime or to trial

challenges must be based on the plain language of the statute or

rule, not judicial attempts to discern the spirit of the rule or intent

of the legislature. People v. Bonvicini, 2016 CO 11, ¶ 17 (noting that

courts, is “common law implied bias.”

Federal common law may

provide grounds, albeit in extremely rare circumstances, for finding

implied bias not involving deliberate juror dishonesty and not

expressly covered by a statute or rule. A determination of common

In Dennis v. United States, 339 U.S. 162, 171 (1950), the

Supreme Court declined to recognize implied juror bias as a basis

for reversal of a conviction. The parties have not referenced, nor

have we found, a Colorado supreme court case recognizing the

doctrine of implied bias.

68

involves a determination of “whether an average person in the

position of the juror in controversy would be prejudiced.” United

States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000)). Thus, a

finding of common law implied bias “is appropriate where the juror,

although she believes that she can be impartial, is so closely

law implied bias is rare,

and it is unclear whether Colorado even

recognizes implied bias outside those categories specified in section

In Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996), the

Tenth Circuit stated that the common law implied bias doctrine

should not be invoked lightly. See also Person v. Miller, 854 F.2d

656, 664 (4th Cir. 1988) (characterizing the extreme situations for

which the doctrine is reserved as those where “the relationship

between a prospective juror and some aspect of the litigation is

such that it is highly unlikely that the average person could remain

impartial in his deliberations under the circumstances”).

69

conviction and the defendant bears the burden of proving his claims

by a preponderance of the evidence.” Dunlap, 173 P.3d at 1061.

the postconviction court’s findings. See People v. Garcia, 2018 COA

180, ¶ 16 (applying an abuse of discretion standard on direct

matter of law, and we review these findings de novo. Powell, 226

F.3d at 1188 (“Findings as to implied bias are reviewed de novo.”);

cf. People v. Novotny, 2014 CO 18, ¶ 53 (de novo review applies to

statutory implied bias).

D. Discussion

areas of misconduct by Juror 75 warrants a new trial. We then

consider the cumulative effect of the alleged misconduct.

uncles of Marshall-Fields at the time of trial, which indicates a

70

because Juror 75’s alleged significant other at the time of trial,

Manuel, knew the uncles before the trial; her sons were friends with

the uncles’ sons; and the postconviction court refused to reopen the

postconviction hearing, denying Owens the chance to fully develop

relationship with Manuel that predated the trial and that Manuel

had a relationship with the uncles. However, even if the offers of

proof submitted to the postconviction court are treated as evidence,

they do not show that Juror 75 knew the uncles or their

relationship to the victim at the time of trial.

The record disproves this last contention. The court took a full

day of additional testimony and heard from five witnesses, including

both uncles.

77

members had prior convictions, or that her son had a juvenile

delinquency proceeding, further questioning would have followed

and a challenge for cause would have been granted.

recognized bases for challenges for cause, so excusal based on

based on the evidence.” Sampson, 724 F.3d at 165-66. We agree

with the postconviction court that Owens failed to prove this by a

preponderance of the evidence.

encounters with the justice system may evince enmity toward the

State, such enmity would not prejudice Owens. See

§ 16-10-103(1)(j).

78

alleged nondisclosures by Juror 75 that he argues shows

dishonesty and actual or common law implied bias justifying a new

trial. The postconviction court meticulously reviewed each of these

allegations and concluded that Juror 75 was “not deliberately

dishonest,” and under the totality of the circumstances, Owens did

shown he was prejudiced.

finding as to Juror 75’s honesty is clearly erroneous. Alternatively,

In reaching these conclusions, the postconviction court applied

the “compendium” of five factors listed in Sampson v. United States,

724 F.3d 150, 166 (1st Cir. 2013).

79

special concurrence that this doctrine may not apply in Colorado.

See Bonvicini, ¶ 17. Colorado recognizes implied bias for specific

categories defined in section 16-10-103, but Juror 75’s alleged

relationships do not fall into any of those categories. Nevertheless,

we analyze Owens’s arguments with respect to this doctrine in the

our review by providing specific findings that summarize the

allegations of conduct that could amount to implied bias.

We

agree with the postconviction court that unlike the situation in

Dunoyair, Christopher, McDonough, or Sampson, where the alleged

failure to disclose involved a “single experience or relationship,” this

case involves numerous apparent nondisclosures. Owens asserts

In his appellate brief, Owens recites these findings and we

assume he agrees with at least these findings.

80

without bias.

referenced in the postconviction court’s footnote 36, as well as other

events alleged by Owens. Like the postconviction court, we see this

hindsight we have to decide how to address Owens’s claims. In

reaching this answer we are mindful, as was the postconviction

court, that “[a] defendant is entitled to a fair trial, but not a perfect

trial.” People v. Rodriguez, 794 P.2d 965, 971 (Colo. 1990). When a

defendant has received a fair, albeit imperfect, trial, the law strongly

Indeed, the trial judge so stated in his affidavit filed with the

postconviction court.

81

1164 (Colo. App. 2008) (noting that Crim. P. 35 had been amended

to favor finality); see also, e.g., West v. People, 2015 CO 5, ¶¶ 13,

53, 55 (noting public interest in finality of verdicts).

not deliberately withhold pertinent information either in her

of analysis, that for some period of time Juror 75 may have been

withholding information that should have been disclosed,

particularly the points listed by the postconviction court in footnote

We are also mindful of the statement by the United States

Supreme Court in Smith v. Phillips, 455 U.S. 209, 217 (1982): “[D]ue

process does not require a new trial every time a juror has been

placed in a potentially compromising situation. Were that the rule,

few trials would be constitutionally acceptable. . . . [I]t is virtually

impossible to shield jurors from every contact or influence that

might theoretically affect their vote.”

82

the courtroom, she approached the courtroom bailiff and disclosed

that she recognized “faces.” This is important evidence that Juror

75 was not deliberately concealing information. Had the full extent

of her recognition been made known, the problem could have been

addressed at that time.

2015 testimony, Juror 75 recognized White in the courtroom gallery

Juror 75 had reported recognizing multiple people at trial raises a

parte communication between the court and the juror through the

court’s bailiff. We do not agree that Judge Munch found that there

were undisclosed ex parte communications, and we decline to make

that factual finding on appeal. Moreover, we perceive the court’s

communications to be sufficient to alert the parties that further

inquiry was necessary, such that Owens was not denied due

process or fundamental fairness. Owens did not request the

opportunity to question Juror 75, even though the prosecution did.

83

postconviction court’s order, but rather than restating, we refer to

the postconviction court’s findings:

84

excusing Juror 75, but as the postconviction court recognized, the

issue on appeal is not whether Juror 75 should have been, or would

have been, excused. The issue is whether Juror 75’s service

deprived Owens of a trial by an impartial jury.

Even if we assume misconduct on the part of the court bailiff, or

the trial judge, Owens still must establish that he was prejudiced by

this misconduct. People v. Hernandez, 695 P.2d 308, 310 (Colo.

App. 1984).

85

due to her concern for her son’s safety and her own.” We find

support in the record for the court’s finding.

5. Cumulative Effect

law that we must consider de novo. But we must defer to historical

that Owens’s conviction was based on the evidence presented, and

not on extraneous information.

made the factual findings listed in footnote 35 of its order, and

though ultimately incomplete as conveyed to counsel, demonstrates

86

Moreover, these connections did not constitute implied bias under

section 16-10-103.

common law bias, we would conclude that the circumstances here

are not the sort of extreme circumstances to which the doctrine

serious question whether the trial court . . . subjected the

defendant to manifestly unjust procedures resulting in a

miscarriage of justice.” (quoting Smith v. Phillips, 455 U.S. 209, 222

(1982) (O’Connor, J., concurring))). Juror 75 did not have an

existing relationship with any witness or a close connection to the

crime. See Smith, 455 U.S. at 222 (O’Connor, J., concurring)

(suggesting that extreme situations that would support a finding of

employee of the prosecuting agency, that the juror is a close relative

93

JUDGE WELLING concurs.

JUDGE BERGER specially concurs.

94

claim that he was deprived of a fair trial by Juror 75’s participation

in the trial.

relief based on allegations that a deliberating juror should not have

served, a defendant must establish that either the juror was

are applicable here. See id. That leaves only actual bias. See

§ 16-10-103(1)(j). Actual bias is a question of fact, and appellate

courts “defer to the trial court’s findings of fact unless they are so

clearly erroneous as to find no support in the record.” Sanchez-

Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011). “Such

deference to the fact finding authority of trial courts reflects our

the credibility of witnesses and to weigh conflicting evidence in

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witnesses or other people involved in the case, a postconviction

court could not find actual bias. Indeed, such contacts and

reasonable inferences drawn therefrom are highly relevant and may

support a finding of actual bias. But here, after considering

extensive evidence and testimony, including testimony by Juror 75

Martinez, 250 P.3d at 1254.

are present here, and the postconviction court found no actual bias.

Therefore, Owens has not met his burden to obtain postconviction

relief based on Juror 75’s participation in his trial.

postconviction relief for defendants claiming that a deliberating

Powell, 226 F.3d 1181, 1188 (10th Cir. 2000); Gonzales v. Thomas,

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Supreme Court nor the Colorado Supreme Court has ever approved

precluding our application of this doctrine. The court has made

plain that “[i]mplied biases ‘apart from the statutory scheme’ do not

common law implied bias doctrine. In my view, the doctrine — as

articulated by the United States Court of Appeals for the Tenth

common law implied bias, Justice O’Conner observed in a

concurrence that “[d]etermining whether a juror is biased or has

prejudged a case is difficult, partly because the juror may have an

interest in concealing his own bias and partly because the juror

may be unaware of it.” Smith v. Phillips, 455 U.S. 209, 221-22

(1982) (O’Connor, J., concurring).

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those ‘extreme’ and ‘exceptional’ circumstances that ‘leav[e] serious

question whether the trial court . . . subjected the defendant to

manifestly unjust procedures resulting in a miscarriage of justice.’”

Gonzales, 99 F.3d at 987 (quoting Smith v. Phillips, 455 U.S. 209,

222 (1982) (O’Connor, J., concurring)).

circumstances? When is there a “serious question” as to whether

the trial court’s actions resulted in a “miscarriage of justice”?

Without meaningful answers to these questions, Colorado courts

should not adopt this doctrine.

v. Crouse, 2017 CO 5, ¶ 13 (citing U.S. Const. art. VI, cl. 2). Even if

98