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
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
3
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
¶ 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
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
9
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.
