Tibbels v. People

2022 CO 1

Ernest Joseph Tibbels, Petitioner/Cross-Respondent v. The People of the State of Colorado, Respondent/Cross-Petitioner

No. 20SC22

Supreme Court of Colorado, En banc

January 10, 2022

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA620

Attorneys for Petitioner/Cross-Respondent: Megan A. Ring Public Defender Meredith K. Rose, Deputy Public Defender Denver, Colorado

Attorneys for Respondent/Cross-Petitioner: Philip J. Weiser, Attorney General Jacob R. Lofgren, Assistant Attorney General Denver, Colorado

JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

OPINION

GABRIEL, JUSTICE

¶1 This case, a companion case to Pettigrew v. People, 2022 CO 2, __P.3d__, which we also decide today, requires us to consider again whether a trial court's comments to a jury venire attempting to explain the concept of reasonable doubt effectively lowered the prosecution's burden of proof. Although we granted certiorari to consider three questions, ^[1] these questions really present two issues for our determination. First, we must decide the proper test for determining whether a trial court's comments to prospective jurors lowered the prosecution's burden of proof. Second, we must consider whether the example that the trial court used here to explain the concept of reasonable doubt lowered the prosecution's burden of proof.

¶2 We now conclude that the proper test for determining whether a trial court's statements to the jury lowered the prosecution's burden of proof is a functional one. Specifically, an appellate court must ask whether there is a reasonable likelihood that the jury understood the court's statements, in the context of the instructions as a whole and the trial record, to allow a conviction based on a standard lower than beyond a reasonable doubt. In this way, statements made to the venire during voir dire can, in context, have the effect of instructing the jury on the law to be applied, whether or not such statements can be characterized as formal "instructions," and other facts and circumstances of the trial may well inform the question of how the jury would reasonably have understood such statements.

¶3 Applying the foregoing standard to the specific facts presented here, in which the court equated the concept of reasonable doubt to the doubt that a prospective homebuyer would have upon observing a structurally significant, floor-to-ceiling crack in the home's foundation, we further conclude that it is reasonably likely that the jury understood the court's statements to allow a conviction on a standard lower than beyond a reasonable doubt, which constitutes structural error.

¶4 Accordingly, we reverse the judgment of the division below.

I. Facts and Procedural History

¶5 On March 4, 2016, Ernest Tibbels called 911 while experiencing a mental health crisis. Commerce City police officers responded to the call and, rather than taking Tibbels to a hospital as he had requested, arrested him under the mistaken belief that he was violating the terms of a protection order.

¶6 The officers transported Tibbels to the Adams County Detention Facility, where he resisted the officers' attempts to complete the booking process. Because he was agitated and combative, the officers did not remove his handcuffs or take him through the body scanner, which would have required removing the handcuffs. Instead, they took him to the so-called "booking quiet room," where they could pat him down, remove his handcuffs, and let him sit and cool down.

¶7 Approximately one hour later, an officer walked by the quiet room and noticed that Tibbels had torn pieces from his shirt and placed the pieces around his neck. Tibbels threatened to kill himself and anyone else who entered the quiet room and then hit the window of that room with a sharpened metal spike. Officers called for lethal cover, locked down the jail, and repeatedly ordered Tibbels to set the spike down. Although Tibbels did not initially comply, he eventually dropped the spike and complied with requests to lie down with his hands behind his back, at which point officers entered the room, re-handcuffed him, placed him in a restraint chair, and confiscated the three-inch long spike.

¶8 The prosecution subsequently charged Tibbels with first degree introduction of contraband, felony menacing, and first degree possession of contraband, and the case proceeded to trial.

¶9 During voir dire of the prospective jurors, the trial court read a portion of the pattern instruction defining "reasonable doubt." The court, however, then immediately undermined that definition, stating, "Now, you're all sitting there saying what the hell does that mean. It's a lengthy definition, okay. And don't lose heart. I'll give you an example and see if we can put some teeth and make this concrete."

¶10 The trial court then offered the following as an illustration of reasonable doubt:

All right. So you and your spouse and your children are in a market to by [sic] a house, okay. And you're looking for a ranch, 2, 000 square foot, full basement, and you want to be on an acre of land. You know, the school-you want to be in the 27-J School District.

You-so you get yourself a realtor, you and your husband and your kids, you start go looking for a house [sic]. Let's just say in the Brighton area, for example. And you're looking for that ranch and that size property. And you come upon that ranch and it's just like the dream come true, okay. The price is right. Interest rates are still good. It's in the location that you want. The schools are good. The neighborhood is wonderful, it's perfect.

So one Saturday morning you go out to the property with the realtor and your family and you fall in love with it, it's just wonderful. So you're walking around the exterior. You're walking inside, it looks great. And you descend the flight of stairs down to the basement and as you get to the bottom of the basement steps you look around and to the far concrete wall you look and you see a crack in the foundation from the floor to the ceiling. And it's not that superficial cracking that concrete will do. And structurally it's significant. Are you going to buy that house?

¶11 A prospective juror answered that she would not buy the house because she would not want a house with a bad foundation.

¶12 The trial court continued:

Okay. You've got a reason. And it's this crack that is structurally significant. And that's causing you to hesitate, causing you to pause with going forward with a home purchase. This is my example of reasonable doubt.

Now the lawyers usually do a better job, all right. But does that kind of put some-you can kind of touch and feel what reasonable doubt is. It's not-it's not aliens coming down and telling you don't buy the house, okay. It's something that you can kind of touch or feel or an inference that you may be able to draw.

¶13 The trial court returned to this example later during voir dire, telling the prospective jurors that the prosecution's burden is "proof beyond a reasonable doubt. And it's that example that I gave you, what a reasonable doubt is. So that's the burden that the government has to surmount to prove this case beyond a reasonable doubt."

¶14 Defense counsel did not object to the court's example. Nor did the trial court ever withdraw its example or instruct the jury to disregard it.

¶15 At the conclusion of the evidence the court instructed the jury on the applicable law and gave the pattern jury instruction on reasonable doubt. The jury ultimately found Tibbels guilty of possession of contraband but acquitted him of the other two charges.

¶16 Tibbels appealed, arguing that the trial court's example lowered the prosecution's burden of proof by setting too high a standard for what qualifies as reasonable doubt and that this was structural error requiring reversal. In a split, published opinion, a division of the court of appeals affirmed Tibbels's conviction. People v. Tibbels, 2019 COA 175, 490 P.3d 517.

¶17 As pertinent here, the majority concluded that the trial court's reasonable doubt illustration did not unconstitutionally lower the prosecution's burden of proof. Id. at ¶ 35, 490 P.3d at 525. The majority reached this conclusion for five reasons: (1) the trial court had characterized its illustration as an "example" and said that the attorneys would do a better job of explaining reasonable doubt; (2) the illustration was given only during the jury selection portion of the trial; (3) the court told the prospective jurors that, at the conclusion of the evidence, it would tell the jurors the rules of law that they were to use in reaching their verdict and would provide copies of those rules to the jury, and the court never provided its illustration in writing; (4) before giving its illustration and again at the close of the evidence, the court properly instructed the jury on the meaning of reasonable doubt; and (5) the jury never indicated any confusion about reasonable doubt, and the majority therefore presumed that the jury understood and followed the trial court's instructions. Id. at ¶¶ 35-39, 490 P.3d at 525.

¶18 The majority nonetheless "strongly discourage[d]" trial courts from using "everyday illustrations" to explain the concept of reasonable doubt, id. at ¶ 40, 490 P.3d at 525, because such illustrations "run the risk of confusing jurors, lowering the prosecution's burden of proof, and diminishing the presumption of innocence," id. at ¶ 23 490 P.3d at 523. Indeed, the majority noted that divisions of the court of appeals had repeatedly discouraged trial courts from using such illustrations to explain reasonable doubt, the presumption of innocence, and other legal...