Peo v. Martinez

22CA1065 Peo v Martinez 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1065

Boulder County District Court No. 20CR925

Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Richard Lawrence Martinez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

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

Announced August 15, 2024

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Richard Lawrence Martinez, appeals the judgment

of conviction entered after a jury found him guilty of multiple

counts of murder. We affirm.

I. Background

¶ 2 The jury heard evidence from which it could reasonably find

the following facts.

¶ 3 Martinez’s long-term partner was at a friend’s house with two

others when Seth Eberly arrived and, wielding a shotgun,

confronted the group about an apparent rumor that Eberly had

stolen a car. Later that night, after Martinez learned of this

confrontation, Martinez’s cousin drove Martinez and Martinez’s

partner around in a pickup truck. During their drive, the group

stopped by the home of Martinez’s friend, where Martinez borrowed

a gun.

¶ 4 During the early morning hours of the following day, Eberly

drove Matthew Bond to retrieve money from Bond’s brother. As

Eberly and Bond sat in the car in Bond’s brother’s driveway,

Martinez and his cousin drove by and recognized their car.

Martinez’s cousin parked the truck and Martinez got out,

approaching the car in which Eberly and Bond sat. Eberly began to

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drive the car (the testimony at trial was conflicting as to whether he

was trying to drive away or at Martinez or the truck). Martinez fired

several gunshots at the moving car, striking and killing Bond as he

huddled in the passenger seat.

¶ 5 Martinez was charged with several offenses, including two

counts of first degree murder for the death of Bond (one count of

murder after deliberation and one count of extreme indifference

murder) and two counts of attempted first degree murder of Eberly

(similarly, one count of attempted murder after deliberation and one

count of attempted extreme indifference murder).

¶ 6 At trial, Martinez claimed that he shot at Eberly’s car in self-

defense and that he accidentally shot Bond because he was

unaware that Bond was in the car. The jury deadlocked on the

attempted first degree murder after deliberation charge (which the

prosecution subsequently dismissed), but it found Martinez guilty of

first degree murder (extreme indifference), the lesser included

offense of second degree murder, attempted first degree murder

(extreme indifference), and two crime-of-violence counts. This

appeal followed.

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II. Jury’s Use of a Calculator During Deliberations

¶ 7 Martinez’s sole contention on appeal is that the district court

violated his constitutional rights when, without consulting Martinez

or defense counsel, it permitted the jury to use a calculator that the

court provided during deliberations. We discern no basis for

reversal.

A. Standard of Review and Applicable Law

¶ 8 We review de novo whether a defendant was denied the right

to be present or to be represented by counsel at a critical stage of

the proceedings. People v. Guzman-Rincon, 2015 COA 166M, ¶¶ 15,

29. If we conclude that such an error occurred, we determine

whether reversal is required under the constitutional harmless error

standard. Key v. People, 865 P.2d 822, 827 (Colo. 1994). A

constitutional error is harmless when there is no reasonable

possibility that the error contributed to the defendant’s conviction.

People v. Payne, 2014 COA 81, ¶ 7.

¶ 9 A criminal defendant has the right to be present and

represented by counsel at all critical stages of a proceeding. U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16. But not every

communication between the judge and jury constitutes a critical

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stage of the proceeding; a stage is “critical” if “there exists more

than a ‘minimal risk’” that the absence of the defendant or his

counsel might “impair the defendant’s right to a fair trial.” Key, 865

P.2d at 825 (quoting Gilbert v. California, 388 U.S. 263, 267 (1967)).

¶ 10 As a general matter, a defendant’s rights to be present and to

be represented by counsel are triggered “when the judge gives

instructions to the jury or responds to questions from the jury.”

Leonardo v. People, 728 P.2d 1252, 1257 (Colo. 1986). A trial court

therefore commits constitutional error when it responds to a jury’s

inquiry without first making reasonable efforts to obtain the

presence of defense counsel. Id. Neither the jury’s questions nor

the court’s responses need be directly related to legal or factual

issues in the case if the nature of the communication creates more

than a minimal risk that the defendant’s right to a fair trial may be

compromised. Key, 865 P.2d at 825. However, “[i]f a court properly

responds to a jury’s question during deliberations, its failure to

have previously secured the presence of defense counsel is

harmless beyond a reasonable doubt.” People v. Isom, 140 P.3d

100, 104 (Colo. App. 2005).

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¶ 11 “A jury cannot properly consider information from an outside

source, not presented during the course of the trial.” People v.

Wilson, 2014 COA 114, ¶ 65 (quoting People v. Thompson, 121 P.3d

273, 277 (Colo. App. 2005)); see also Moore v. Mitchell, 708 F.3d

760, 805-06 (6th Cir. 2013) (“Under the Sixth and Fourteenth

Amendments, a criminal defendant has the right to a jury that

considers only the evidence presented at trial and the right to

confront the evidence against him.”). In scrutinizing the propriety

of a jury’s experiments or investigations, “[t]he relevant inquiry is

whether the experiment or investigation made by the jury can be

said to be within the scope or purview of the evidence introduced at

trial.” Wilson, ¶ 66 (quoting Thompson, 121 P.3d at 277). If within

that scope or purview, “the actions of the jurors are not improper.

It is only if their activity is the equivalent of the reception of

additional evidence that they may be said to have engaged in

misconduct.” Id. (quoting Thompson, 121 P.3d at 277).

B. Relevant Facts

¶ 12 At trial, both the prosecution and defense discussed to varying

degrees evidence of the trajectory of the bullets Martinez fired at

Eberly’s car and the distance between Martinez and that car. This

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evidence included pictures of bullet holes and “trajectory paths

being measured with rods and lasers,” as well as eyewitness

testimony regarding the distance between Martinez and the car.

¶ 13 On the third day of trial, a juror gave the bailiff a note with a

question for the court. The question asked whether the jury would

receive analyses of bullet trajectories or “dimensions and angles for

the bullet holes” in the car. The note continued: “I’m asking

because the distance of the shooter from car could be a deciding

factor. With the bullet hole information, it is a simple calculation to

estimate the distance between the car and the shooter.” In

response to this juror’s question, the district court informed the

jury only that it had not yet heard all of the evidence.

¶ 14 During deliberations, the jury requested and was provided a

calculator by the district court. The court did not consult the

parties before approving this request, instead informing them after

the fact and noting that “[i]t is unknown to the Court what use they

made of that instrument.” Defense counsel moved for a mistrial on

the bases that the court permitted the jury to use a calculator

without consulting the defense and the calculator injected

“extraneous outside information” into the jury’s deliberations.

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Alternatively, defense counsel requested that the court take

corrective action to cure the prejudice allegedly posed by the

calculator.

¶ 15 The district court denied the motion, writing in its order:

Jurors are permitted supplies during

deliberations, such as paper, writing

instruments, and a whiteboard. These can be

used for mathematical calculations. When

jurors inquired about being provided a

calculator, the Court regarded such request

much akin as a request for a marker or

another office supply to aid their organization

of the evidence and in their decision-making.

A battery-operated calculat[or] was provided.

¶ 16 The court also directed the parties to Kendrick v. Pippin, 252

P.3d 1052 (Colo. 2011), abrogated on other grounds by Bedor v.

Johnson, 2013 CO 4, explaining that the supreme court held in that

case that “an engineer juror appl[ying] her professional experience

to the evidence in the record to calculate the defendant’s speed,

distance and reaction in a personal injury case . . . did not

constitute juror misconduct and did not present extraneous

prejudicial information.”

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C. Analysis

¶ 17 Martinez contends that the jury’s request for a calculator was

a critical stage of the proceedings, and that his convictions must be

reversed because the court failed to secure both his and his

counsel’s presence before granting the request. According to

Martinez, it was also reversible error for the district court to permit

the jury to use a calculator and to take no corrective action

following his motion for a mistrial.

¶ 18 We need not decide whether the jury’s request for a calculator

was a critical stage of the proceedings because, even if it was, any

error was harmless beyond a reasonable doubt. In short, the jury’s

use of a calculator to examine the evidence was “within the scope or

purview of the evidence introduced at trial,” Wilson, ¶ 66 (quoting

Thompson, 121 P.3d at 277), and thus was not improper.

¶ 19 The jury’s use of a “battery-operated calculat[or]” merely

facilitated the jury’s examination of the evidence rather than

permitted the creation of any evidence outside the record. See State

v. Lihosit, 38 P.3d 194, 195-98 (N.M. Ct. App. 2002) (trial court did

not abuse its discretion by granting jury’s request, during

deliberations, for a calculator in a complicated embezzlement case

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involving multiple pieces of evidence; the jury “did not create any

additional evidence for consideration, but simply organized and

tested the evidence that had been presented by the State”); see also

Poppe v. Siefker, 735 N.W.2d 784, 791 (Neb. 2007) (personal

financial slide calculator was neither evidence nor a creator of

evidence; it merely “perform[ed] a mathematical calculation that

could have been done with a pencil and paper, except that the slide

calculator potentially made the calculation easier and the result

more accurate”); Solana v. Hill, 348 S.W.2d 481, 483-84 (Tex. Civ.

App. 1961) (concluding that juror misconduct was not established

in automobile accident case by juror’s use of slide rule to analyze

evidence of speed, distances, and time intervals to test the

credibility of witness testimony).

¶ 20 In arguing that the jury should not have been permitted to use

a calculator, Martinez emphasizes that “[i]n modern times,

calculators (which are a specialized device) typically contain

functions capable of conducting not only basic arithmetic but also

complex mathematics and equations.” This argument fails for two

reasons: (1) nothing in the record suggests that the calculator the

court provided was in fact capable of “complex mathematics and

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equations”; and (2) even if the calculator were more than a basic

arithmetical aid, Martinez fails to explain why the ability to perform

more advanced calculations would make its use by the jury

improper.

¶ 21 We are likewise unpersuaded by Martinez’s argument that,

given the jurors’ educational backgrounds, it is likely that they used

the calculator in a manner that exceeded the capability of a pen and

paper or other standard office supply. Martinez cites no authority,

and we are aware of none, supporting the notion that the

permissibility of providing jurors with tools to assist with their

deliberations depends upon their levels of education.

¶ 22 Martinez’s attempt to distinguish Kendrick, 252 P.3d at

1065 — in which the supreme court held that jurors may “rely on

their professional and educational expertise to inform their

deliberations so long as they do not bring in legal content or specific

factual information learned from outside the record,” id. — from the

events here amounts only to a list of distinctions without

differences. We agree with the district court’s analysis of Kendrick’s

applicability. And Martinez’s effort to analogize the jury’s use of a

calculator during deliberations to other cases in which jurors

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brought specific extraneous information into deliberations likewise

does not pass muster. See, e.g., People v. Harlan, 109 P.3d 616,

634 (Colo. 2005) (jury’s use of Bible during deliberations meant

death penalty was influenced by extraneous information);

Destination Travel, Inc. v. McElhanon, 799 P.2d 454, 455-57 (Colo.

App. 1990) (figures used to determine employees’ salaries “did not

come from general knowledge or evidence produced at trial, but

rather resulted from specific factual information from outside the

record” — estimates “based on prior business knowledge and

experience”); People v. Clark, 2015 COA 44, ¶ 213 (jurors discussed

case extensively outside of deliberations and visited scene of the

crime to see for themselves the visibility of passing cars).

¶ 23 Because we conclude that the jury’s use of a calculator during

deliberations was within the scope or purview of the evidence at

trial, we necessarily reject Martinez’s argument that the district

court reversibly erred when it took no action to remedy the jury’s

use of the calculator. Moreover, any error in not consulting the

defense before responding to the jury’s request for the calculator

was harmless beyond a reasonable doubt.

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III. Disposition

¶ 24 We affirm the judgment of conviction.

JUDGE FOX and JUDGE SULLIVAN concur.