Perez v. People

302 P.3d 222

Rene PEREZ, Petitioner:

v.The PEOPLE of the State of Colorado, Respondent

Supreme Court Case No. 10SC616

Supreme Court of Colorado.

April 8, 2013

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 08CA2296.

Attorney for Petitioner: Thomas K. Carberry, Denver, Colorado.

Attorneys for Respondent:John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado.

En Banc

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

¶ 2 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.

¶ 3 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.

¶ 4 We hold that no such implication occurred 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.

¶ 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 18–3–402(5)(a)(I), C.R.S. (2012), because another person (Rizo) physically aided or abetted him in the assault. Rizo was tried separately.²

¶ 6 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.

¶ 7 Before the trial court addressed any juror by number, it issued the following explanation of its practice to the jury: “[I]t'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

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 The court of appeals affirmed his conviction and sentence in an unpublished opinion.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

¶ 9 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.

II.

¶ 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 (2d 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–ha[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 circuit 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, “[a]n 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).

¶ 12 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.

¶ 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 Circuit in dicta wrote that the practice represents “[a] 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 alsoUnited 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, e.g.,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, 713 (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. SeeState v. Tucker, 259 Wis.2d 484, 657 N.W.2d 374, 380 (2003); but seeid. 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.

¶ 14 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.

¶ 15 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.⁶SeeWilliams, 616...