Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the Court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the Supreme Court reversed the Court of Appeals’ judgment and affirmed defendant’s conviction.

Criminal Law—Jury Prejudice—Jury Polling—Prejudicial News Reports.

Innovation Schools Act—Innovation Plans—Public Schools.

The Supreme Court considered whether the Innovation Schools Act of 2008, CRS §§ 22-32.5-101 to -111, precludes a local school board from approving an innovation plan submitted by a “new” innovation school, that is, a school that has not previously opened as a non-innovation school and has yet to hire teachers. The Court concluded that the Innovation Schools Act does not preclude approval of innovation plans from such “new” innovation schools. Accordingly, the judgment of the Court of Appeals was reversed.

Criminal Law—Evidence Suppression.

Statutory Construction—Local Tax Ordinances.

The City and County of Denver (Denver) petitioned for review of the Court of Appeals’ opinion reversing the judgment of the district court and remanding with directions to vacate the subject tax assessments against Expedia, Inc. and the other respondent online travel companies (OTCs). (See Expedia, Inc. v. City and County of Denver, 2014 COA 87.) The district court had largely upheld a Denver hearing officer’s denial of protests by Expedia and the other OTCs to Denver’s claim for unpaid taxes, interest, and penalties, apparently due according to Denver’s ordinance imposing a lodger’s tax. Unlike the hearing officer and district court, the Court of Appeals concluded that Denver’s lodger’s tax article was at least ambiguous with regard to both the purchase price paid or charged for lodging, upon which the tax is to be levied, and the status of the OTCs as vendors, upon which the ordinance imposes the responsibility to collect the tax and remit it to the city; and the intermediate appellate court considered itself obligated to resolve all ambiguities in the lodger’s tax article, being a tax statute, in favor of the OTCs.

The Supreme Court reversed the judgment of the Court of Appeals. The Court held that Denver’s lodger’s tax article imposes a duty on the OTCs to collect and remit the prescribed tax on the purchase price of any lodging they sell, to include not only the amount they have contracted with the hotel to charge and return but also the amount of their markup.

Vagueness—Medical Marijuana Licensing.

The Supreme Court reviewed the district court’s order declaring a provision of the City of Northglenn’s (City) medical marijuana licensing ordinance unconstitutionally vague and finding that the City’s denial of a medical marijuana center license to an applicant in reliance on that provision was arbitrary and capricious. The Court held that Northglenn City Code § 18-14-7(h), which allows the local licensing authority to consider the “number, type, and availability” of existing medical marijuana facilities near the proposed facility before approving or denying an application for a local license, is not unconstitutionally vague. The phrase “number, type, and availability” provides sufficient notice to applicants and reasonably constrains the exercise of the City’s discretion. The Court further held that the City’s decision to deny the license application in this case was supported by substantial evidence in the record, and therefore was not arbitrary and capricious.

Juries and Jury Selection—Peremptory Challenges—Batson Challenges.

The Supreme Court considered whether a trial court must make express findings about the credibility of a party’s reasons for exercising a peremptory challenge when the other party has challenged that strike under Batson v. Kentucky, 476 U.S. 79 (1986). The Court also considered when two or more jurors are similarly situated for comparison under Batson such that the dismissal of one but not the other indicates impermissible discrimination. The Court held that although express credibility findings significantly aid appellate review, they are not strictly necessary if the trial court’s ultimate Batson ruling is otherwise reviewable on the record. The Court also held that appellate courts may rely on comparative juror analyses in reviewing Batson rulings, but only where the record facilitates comparison of the jurors in all respects that reportedly motivated the peremptory strike. The Court concluded that the record here supports the trial court’s Batson ruling and that the trial court did not clearly err in denying defendant’s Batson challenges. The Court reversed the judgment of the Court of Appeals in its entirety.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Abuse of Discretion.

This case concerns the scope of a trial court’s discretion to permit, deny, or restrict the jury’s access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The Supreme Court concluded that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the Court of Appeals’ analysis in People v. DeBella, 219 P.3d 390, 396–97 (Colo.App. 2009), rev’d, 233 P.3d 664 (Colo. 2010). By relying on an analysis that the Supreme Court later rejected, the trial court misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case’s resolution left the Court with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, the Court could not deem the error harmless. The Court of Appeals’ judgment was affirmed. 

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Plain Error.

The Supreme Court reviewed for plain error a trial court’s decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in petitioner’s criminal trial. The Court concluded that even if the trial court erred in allowing the jury unfettered access to the victims’ statements, on the facts of this case, any such error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of petitioner’s convictions, and thus was not plain. Accordingly, the Court affirmed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with the opinion