Peo v. Debusk

19CA1135 Peo v Debusk 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1135

El Paso County District Court No. 16CR6546

Honorable Michael P. McHenry, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Wayne Debusk,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE FOX

Freyre and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney

General, Holly M. Barrett, Assistant Attorney General, Denver, Colorado, for

Plaintiff-Appellee

The Law Firm of Tanja Heggins, P.C., Tanja Heggins, Denver, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Christopher Wayne Debusk, appeals his conviction

entered on a jury verdict finding him guilty of five counts of sexual

assault on a child (position of trust) and five counts of aggravated

incest. Debusk claims that a prospective juror’s statements during

voir dire required the trial court to strike the entire panel and

declare a mistrial. We reject Debusk’s claim and affirm.

I. Background

¶ 2 Debusk’s biological daughter accused him of sexually abusing

her when she was ten years old. She and others involved in

investigating her allegations testified against Debusk at trial.

¶ 3 Before jury selection, a prospective juror saw Debusk acting

irate and overheard him utter angry statements about the district

attorney. The matter was brought to the court’s attention during

voir dire, and Debusk’s counsel asked for a mistrial and a new jury

panel. After a colloquy with counsel, the court denied the request.

¶ 4 The jury found Debusk guilty of the mentioned counts but

acquitted him of one count of sexual assault on a child (position of

trust, victim less than fifteen years old, and as part of a pattern of

abuse) and one count of aggravated incest. The court sentenced

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Debusk to forty-eight years to life in the custody of the Department

of Corrections.

II. Legal Framework

A. Standard of Review

¶ 5 A trial court’s decision to grant or deny a new trial is a matter

entrusted to the court’s discretion and will not be disturbed on

review absent an abuse of that discretion. People v. Wadle, 97 P.3d

932, 936 (Colo. 2004); People v. Newman, 2020 COA 108, ¶ 9. A

trial court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, People v. Clark, 2015 COA 44, ¶

215, and it “necessarily abuse[s] its discretion if it base[s] its ruling

on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Wadle, 97 P.3d at 936 (citation

omitted).

¶ 6 Whether extraneous prejudicial information was before the

jury presents a mixed question of law and fact. Kendrick v. Pippin,

252 P.3d 1052, 1064 (Colo. 2011), abrogated on other grounds by

Bedor v. Johnson, 2013 CO 4; People v. Holt, 266 P.3d 442, 444

(Colo. App. 2011). We review de novo the trial court’s conclusions

of law, but we defer to the court’s findings of fact if they are

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supported by competent evidence in the record. People v. Harlan,

109 P.3d 616, 624 (Colo. 2005).

B. Applicable Law

¶ 7 Because a mistrial is the most drastic of remedies, one is “only

warranted where the prejudice to the accused is too substantial to

be remedied by other means.” People v. Collins, 730 P.2d 293, 303

(Colo. 1986); People v. Van Meter, 2018 COA 13, ¶ 11 (quoting

Collins, 730 P.2d at 303). A defendant’s due process right to a fair

trial may be implicated when a jury is exposed to information

outside of properly admitted evidence. Van Meter, ¶ 12. In

determining whether a jury’s exposure to such extraneous

information violated a defendant’s right to a fair trial, we ask first

whether the information was improperly before the jury and second

“whether there is a reasonable possibility that the extraneous

information influenced the verdict” to the defendant’s detriment. Id.

(quoting People v. Marko, 2015 COA 139, ¶ 31); see also Wiser v.

People, 732 P.2d 1139, 1143 (Colo. 1987) (to set aside a verdict on

the ground of extraneous influence upon the jury, one must not

only establish the fact of improper communication, but also

prejudice); Harlan, 109 P.3d at 624 (applying an objective test of

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whether there is a “reasonable possibility” that juror misconduct or

improper influences affected the verdict).

III. Analysis

A. Additional Background

¶ 8 Before the jury was empaneled and during a break,

Prospective Juror B heard Debusk scream and swear while Debusk

was waiting for the elevator in the courthouse. She shared her

observations during voir dire:

[Prospective Juror B]: I have a really hard time

with it because when I was sitting out there at

lunch, he was screaming at people and saying

he didn’t care what anybody thought. So me

sitting out there and the 30 seconds that he

was waiting for the elevator totally turned me

off . . . . He was swearing at the DA.

Defense counsel then asked if any other juror had something

similar to share and Juror S, who did not see the tirade near the

elevator, spoke up, commenting that, regarding allegations of sexual

misconduct, “for kids [not to say] so and so did something to me [is]

spiteful.”

¶ 9 Counsel questioned other prospective jurors before returning

to Juror S, inquiring whether he would keep an open mind. Juror

S responded, “in the time that I’ve sat here, I’ve already started

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formulating my own opinion . . . the proof is in the pudding. And if

we start second guessing the way we were brought up, then it’s

going to be an issue.” When asked to elaborate, Juror S said, about

Debusk’s conduct in the courtroom, “I see how your client got upset

and rubbed his head. It’s like it doesn’t really matter that he’s here

today. Like it’s not a big deal. . . . I want to see the proof.” He then

admitted that he would assume Debusk was guilty if Debusk did

not mount a defense.

¶ 10 Defense counsel later asked to excuse Juror B based on her

observations of Debusk’s conduct near the elevator. The court

asked what Juror B witnessed, and defense counsel shared that

Debusk “lost his temper and was screaming that he didn’t care

what the DA thought or [what] the DA was thinking.” The

prosecutor volunteered that he may have been at fault for not

avoiding Debusk, as he did not realize Debusk was near the

elevator before Debusk created a scene.

¶ 11 While the prosecutor did not believe that Juror B was

necessarily disqualified based on her observations of Debusk, the

prosecutor agreed that her earlier statements during voir dire about

not being able to be fair in cases of rape and sex assault were

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sufficient cause to challenge her. The court agreed, excused Juror

B, and invited defense counsel to comment on Juror B having

shared her observations of Debusk with the venire. Only after the

court’s invitation did defense counsel move to strike the panel,

suggesting that other jurors may have discussed Juror B’s

observations. A prosecutor volunteered that Debusk’s behavior was

consistent with his behavior for six months and acknowledged that

the victim and the prospective jurors should not be penalized

because Debusk chose to scream and swear in a public location.

¶ 12 The court refused to excuse the entire panel based on

Debusk’s lack of “power to control himself,” noting that doing so

would allow Debusk to sabotage the trial. As for Debusk’s

comments, the court observed that “a lot of innocent defendants . . .

can still be angry at the Prosecution and in the elevator in the

courthouse express that frustration.”

¶ 13 After Juror B was excused, defense counsel asked to excuse

Juror S, the second juror to comment on Debusk’s behavior. The

prosecution did not object and the court granted the challenge.

Jury selection resumed with no further reference to Debusk’s

misbehavior.

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B. Application of the Law to the Facts

¶ 14 Nothing in the record persuades us that any prospective juror

engaged in misconduct. Debusk, however, suggests that Juror B’s

exposure to his conduct outside the courtroom infected the rest of

the jury.

¶ 15 Even assuming that Juror B’s observations constitute

“extraneous information,” that does not end the inquiry. Harlan,

109 P.3d at 624. But see Morgan v. Woessner, 997 F.2d 1244, 1261

(9th Cir. 1993) (declining to grant a new trial because “juror’s

observations about sending messages to City Hall and speculation

as to the amount of Morgan’s attorney’s fees simply do not

constitute the sort of ‘extraneous prejudicial information’ that falls

within the scope of Fed. R. Evid. Rule 606(b)”). We next analyze,

based upon an “objective ‘typical juror’ standard . . . whether use of

that extraneous information posed the reasonable possibility of

prejudice to the defendant.” Harlan, 109 P.3d at 624; accord

Newman, ¶ 41. Debusk does not clear this hurdle.

¶ 16 The following circumstances persuade us that Debusk cannot

show a reasonable possibility of prejudice, Harlan, 109 P.3d at 624:

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• The court granted the for-cause challenges to Jurors B

and S.

• Nothing in the record suggests that Debusk’s behavior

prejudiced the rest of the jury venire. The record shows

that Debusk’s behavior was only discussed in open court

and nothing suggested that any member of the venire

other than Juror B witnessed his behavior. See Newman,

¶ 9 (applying an abuse of discretion standard).

• Besides challenging Jurors B and S, defense counsel

made no record of whether, and how, these two jurors’

observations or assessments affected any other

prospective juror. See Richardson v. People, 2020 CO 46,

¶ 25 (defendant must assert a challenge for cause to

preserve issue for appeal). Absent evidence that other

members of the venire said that their ability to be fair

was affected, there are no grounds for the court to have

granted a mistrial. See People v. Snider, 2021 COA 19, ¶

34 (speculative prejudice is not substantial enough to

warrant a mistrial); People v. Ned, 923 P.2d 271, 275

(Colo. App. 1996) (speculation of prejudice is insufficient

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to warrant reversal of a trial court’s denial of a motion for

mistrial).

• The court was willing to conduct additional inquiry of

Juror B — in or out of the presence of the jury pool —

but counsel apparently did not deem it worthwhile to

inquire further. As such, we cannot fault the trial court’s

decision. See People v. Vigil, 2015 COA 88M, ¶ 10 (Under

an abuse of discretion standard, the operative question is

“whether the record compelled the trial court to grant the

challenge.”), aff’d, 2019 CO 105; see also People v.

Gardenhire, 903 P.2d 1165, 1170-71 (Colo. App. 1995)

(trial court’s decision not to poll jurors individually was

not abuse of its discretion where media reports in

question were not inherently prejudicial).

• Since Jurors B and S were stricken and because no

further inquiry was conducted of the remaining jurors, it

is speculative to assume that the entire pool was tainted.

See also § 13-71-140, C.R.S. 2021 (“The court shall not

declare a mistrial or set aside a verdict based upon

allegations of any irregularity in selecting, summoning,

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and managing jurors, . . . or based upon any other defect

in any procedure performed under this article unless the

moving party objects to such irregularity or defect as

soon as possible after its discovery and demonstrates

specific injury or prejudice.”).

• While the prosecution may not comment on a defendant’s

silence, there is no prohibition on the jury observing, and

evaluating, the demeanor of any witness, including the

accused. See People v. Constant, 645 P.2d 843, 846

(Colo. 1982) (The jury may “consider the demeanor of

witnesses for credibility purposes.”); People v. Thames,

2019 COA 124, ¶ 33 (prosecution may comment on

defendant’s demeanor while answering questions during

a recorded interrogation introduced during trial); see also

United States v. Velarde-Gomez, 269 F.3d 1023, 1030

(9th Cir. 2001) (while the government may not comment

on silence, it may comment on pretrial demeanor).

• Debusk’s conduct was self-generated; there is no

indication that he was incited to engage in the outburst.

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• While distasteful, Debusk’s conduct had no bearing on

the charges against him.

• The trial court instructed the jury that only evidence

presented at trial should be considered, and we must

presume the jury understood and followed that

instruction. See People v. Stellabotte, 2016 COA 106, ¶

30, aff’d, 2018 CO 66.

• While controverted, the evidence strongly supported the

jury’s verdict. In addition to the child victim’s testimony,

the prosecution introduced evidence of a pretext call with

Debusk, where he admitted to the sexual conduct, and

the jury acquitted him of two other charges.

¶ 17 Debusk thus cannot show that the court abused its discretion

by declining to grant a mistrial. Wadle, 97 P.3d at 936; Newman, ¶

9.

IV. Conclusion

¶ 18 The judgment is affirmed.

JUDGE FREYRE and JUDGE LIPINSKY concur.