People v. Sloan

554 P.3d 527

2024 COA 52M

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Jeffrey SLOAN, Defendant-Appellant.

Court of Appeals No. 20CA1987

Colorado Court of Appeals, Div. VI.

Announced May 16, 2024

As Modified on Rehearing June 13, 2024

City and County of Denver District Court No. 19CR4299, Honorable John W. Madden IV, Judge

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne R. Teodorovic, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 During the COVID-19 pandemic, courts throughout the country employed videoconferencing technology, such as Webex, to honor defendants’ right to a public trial while protecting the participants and the public from infection in the courtroom. See People v. Roper, 2024 COA 9, ¶ 1, 547 P.3d 1154, 1156. As the pandemic raged, some courts excluded all members of the public from their courtrooms, while others conducted hybrid proceedings, in which a limited number of members of the public were permitted to sit in the courtroom while others had the option of watching a video feed. Despite acknowledging the challenges trial courts faced during the pandemic, the supreme court held that the public health crisis did not alter the principle that "the exclusion of even a single individual from the courtroom, regardless of the reason for the exclusion, constitutes a partial closure that implicates the Sixth Amendment." People v. Turner, 2022 CO 50, ¶ 23, 519 P.3d 353, 359.

¶ 2 The judicial branch’s livestreaming technology did not always function perfectly. In this case, the court set aside seats for the public in the courtroom and provided for remote viewing of the trial through Webex. But during the early phases of the trial, problems with the Webex feed limited what remote viewers could hear and see.

¶ 3 As a matter of first impression in Colorado, we hold that a courtroom is not closed, despite problems with the livestreaming technology that preclude remote observers from hearing and seeing the entire trial, so long as the court makes seats in the courtroom available for members of the public and no member of the public who wishes to watch the trial is turned away.

¶ 4 Jeffrey Sloan appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of first degree assault, two counts of vehicular homicide, failure to fulfill duties after involvement in an accident involving death, and vehicular eluding resulting in death.

¶ 5 We reverse Sloan’s conviction for class 3 felony vehicular eluding resulting in death due to an instructional error and affirm his other convictions. We remand for further proceedings consistent with this opinion and for correction of the mittimus to remove the reference to the counts dismissed before trial.

I. Background Facts and Procedural History

¶ 6 The jury could reasonably have found the following facts.

¶ 7 In June 2019, a Jeep ran a red light and broadsided a sedan at the intersection of Colorado Boulevard and Colfax Avenue in Denver. The accident resulted in the deaths of the sedan driver and his passenger. The driver of the Jeep fled on foot.

¶ 8 Police officers subsequently identified the Jeep as the vehicle they had been pursuing only minutes before the accident. The officers had abandoned their pursuit for safety reasons, consistent with Denver Police Department policy, after the Jeep accelerated away from them and ran a stop sign. To signal that they had abandoned the pursuit, the officers turned off their vehicle’s overhead lights and pulled off into a parking lot.

¶ 9 Sloan was charged with two counts of first degree assault, two counts of vehicular homicide, failure to fulfill duties after involvement in an accident involving death, vehicular eluding resulting in death, failure to fulfill duties after involvement in an accident resulting in serious bodily injury, and vehicular eluding resulting in serious bodily injury. At the prosecution’s request, the trial court dismissed two of the counts — failure to fulfill duties after involvement in an accident resulting in serious bodily injury and vehicular eluding resulting in serious bodily injury — before trial. At trial, Sloan solely pursued a mistaken identity theory of defense; he argued that the prosecutors had not proved beyond a reasonable doubt that he was the driver of the Jeep.

¶ 10 A jury found Sloan guilty on all remaining counts. The trial court sentenced Sloan to seventy-two years in the custody of the Department of Corrections. The sentence on the vehicular eluding resulting in death count was ten years, to run consecutively to the sentences on the other counts.

II. Analysis

¶ 11 Sloan contends that the trial court reversibly erred by (1) failing to fix technical problems with Webex during his trial; (2) incorrectly instructing the jury on the vehicular eluding resulting in death sentence enhancer; and (3) including on the mittimus convictions on the two counts that the court had dismissed.

A. The Webex Problems at Sloan’s Trial

1. Additional Facts

¶ 12 Sloan’s trial occurred in August 2020, during the COVID-19 pandemic. To protect the health of all participants and the court staff, the court conducted the in-person trial with social distancing in the courtroom. The court made a limited number of seats available for members of the public who wished to attend the proceedings in person, and it livestreamed the trial on Webex.

¶ 13 The Webex feed had technical problems during jury selection, however. Persons observing the trial remotely through Webex could not hear the potential jurors or counsel. Moreover, the live feed only showed the judge and not the entire courtroom.

¶ 14 Defense counsel brought these issues to the court’s attention through numerous objections. The court acknowledged and explained the ongoing technological issues, noting, for example, that "the only microphone transmitting the jury selection process over Webex was the microphone on the Court’s computer." Sloan argues that "the trial court violated [his] right to a public trial when it failed to ensure the [Webex] feed was functioning properly to allow observers to hear and see the jury selection proceedings."

2. Standard of Review

[1, 2] ¶ 15 "We review a trial court’s decision to close the courtroom as a mixed question of law and fact." People v. Jones, 2020 CO 45, ¶ 14, 464 P.3d 735, 739 (citing People v. Hassen, 2015 CO 49, ¶ 5, 351 P.3d 418, 420). Accordingly, "we accept the trial court’s findings of fact absent an abuse of discretion, but we review the court’s legal conclusions de novo." Id. (quoting Hassen, ¶ 5, 351 P.3d at 420).

[3] ¶ 16 The erroneous denial of a public trial constitutes structural error. Hasten, ¶ 7, 351 P.3d at 420 (citing Hagos v. People, 2012 CO 63, ¶ 10, 288 P.3d 116,119).

3. Relevant Law

[4] ¶ 17 "Both the United States and the Colorado Constitutions guarantee criminal defendants the right to a public trial." Id; see U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. The right to a public trial extends to the jury selection process. Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam). This right "is for the benefit of the accused"; it encourages public participation, which in turn "keep[s] … triers keenly alive to a sense of their responsibility and to the importance of their functions" and "safeguards the integrity of the factfinding process." Jones, ¶¶ 16-17, 464 P.3d at 739-40 (first quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and then quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)).

4. The Problems with Webex Did Not Deny Sloan the Right to a Public Trial

[5] ¶ 18 We hold that no closure of the courtroom occurred because, despite the problems with the livestreaming of the proceedings, any member of the public who wished to attend the trial in person was able to do so. As stated above, the record reflects that the court made a limited number of seats available for members of the public at all phases of Sloan’s trial and no member of the public who wished to watch the trial was turned away from the courtroom. (Sloan does not challenge the court’s decision to limit seating in the courtroom to achieve social distancing.)

¶ 19 In a case predating the Webex era, a division of this court held that "[t]he public trial right is concerned with the public’s presence during (or access to) the trial. So where no one is excluded from the courtroom, it simply isn’t implicated." People v. Robles-Sierra, 2018 COA 28, ¶ 18, 488 P.3d 337, 341. This principle has been applied to trials conducted during the COVID-19 pandemic. See People v. Kocontes, 86 Cal. App.5th 787, 302 Cal. Rptr. 3d 664, 740 (2022) (holding that no courtroom closure occurred during a trial where "the number of seats available to the public was decreased to comply with [the Centers for Disease Control and Prevention’s] social distancing guidelines [and] [t]he record includes no evidence that … any member of the public was prevented from entering the courtroom").

[6] ¶ 20 The principle articulated in Robles-Sierra applies when the court opens the trial to the public and attempts, with limited success, to allow members of the public to observe all phases of the trial remotely. Cf. Roper, ¶ 10, 547 P.3d at 1158 (holding that the "exclusion of all members of the public from the courtroom, despite their being able to view the trial in a separate courtroom via a live audio and video stream," constituted a partial closure). No Colorado case holds that an otherwise open courtroom closes if the livestreaming of the proceedings does not function properly. See People v. Gonzalez-Quezada, 2023 COA 124M, ¶ 66, 546 P.3d 142, 155 ("[I]f a courtroom remains open during the subject legal proceedings, the partial cessation of virtual...