     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                           November 1, 2018

                               2018COA152

No. 16CA0644, People v. Bohl — Criminal Procedure — Trial
Jurors; Juries — Jury Misconduct

     A division of the court of appeals considers whether it is

reversible error for a judge to deny a defendant access to juror

contact information post-verdict to investigate alleged jury

misconduct.

     The division first holds that a trial court’s denial of a party’s

request for juror contact information is reviewed for an abuse of

discretion. The division then concludes that because no evidence of

jury misconduct was revealed during the post-trial hearing, the

defendant’s request for juror contact information is speculative and

the trial court did not abuse its discretion in declining to release

juror contact information to the defendant.

     Accordingly, the division affirms the judgment.
COLORADO COURT OF APPEALS                                       2018COA152


Court of Appeals No. 16CA0644
Adams County District Court No. 14CR3620
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Thomas Bohl,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division I
                          Opinion by JUDGE FOX
                       Taubman and Terry, JJ., concur

                         Announced November 1, 2018


Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Joshua Thomas Bohl, appeals the trial court’s

 decision denying him access to juror contact information. We

 affirm. Because the record lacks evidence of jury misconduct, the

 trial court did not abuse its discretion in declining to release juror

 contact information.

                             I.      Background

¶2    A jury convicted Bohl of one count of first degree murder for

 killing his girlfriend, Jayme Hosier.

                             A.      Bohl’s Trial

¶3    During a four-day trial, the prosecution presented evidence

 that Bohl killed Hosier in a Commerce City apartment. Bohl

 initially told police that Hosier died when a television accidentally

 fell on her head, but the forensic pathologist determined that Hosier

 died from asphyxiation due to blunt force trauma to the neck. The

 key dispute at trial was whether Bohl had the requisite intent to

 commit first degree murder. The prosecution’s pathologist said that

 pressure to Hosier’s neck would have had to continue for three to

 five minutes before she died, but the defense expert testified that

 Hosier could have died sooner, helping to negate intent.

                        B.        Post-Trial Hearings


                                        1
¶4    The day after the verdict, a deputy district attorney who was

 not involved in prosecuting the case sent a text message to Shelley

 Hillesheim, the wife of jury foreman Mark Hillesheim. Mrs.

 Hillesheim and the deputy district attorney knew each other, and

 the deputy district attorney asked if Mr. Hillesheim would provide

 feedback on the trial and the prosecutors’ performance during the

 case. Mrs. Hillesheim replied as follows:

           The minute Mark got selected to sit on the
           case, I knew he would be the foreman too. I
           told him I was calling it. He took it very
           seriously too. It kind of amused me. He would
           come up and look up and research various
           scientific items that were presented, etc. He
           said he even mapped out his own timeline of
           events so he could try to put it together in his
           mind. He said he’d be more than happy to
           share his feedback. He took lots of notes and
           still is frustrated by certain things.

¶5    Following this communication, the People filed a “Notice of

 Juror Contact” with the trial court. In response, Bohl’s counsel

 quickly filed a motion for a new trial. In addition to requesting a




                                   2
 new trial, Bohl requested alternatively that the court hold a hearing

 on the incident and release the jurors’ contact information.1

¶6    At a hearing on Bohl’s motion, the court directed the People to

 subpoena the Hillesheims to a January 7, 2016, hearing. The court

 declined to provide juror contact information to Bohl’s counsel at

 that time, explaining, “I’m not planning on doing that right now. If

 we need to, we will. But I think right now . . . we need to summon

 the juror and his wife into court.”

¶7    At the January 7 hearing, the court informed the Hillesheims

 that they had been subpoenaed because it appeared that Mr.

 Hillesheim might have violated the court’s order not to engage in

 outside investigation. The court proceeded to advise the

 Hillesheims

            that if it’s shown by either side that you
            violated an order of this Court, technically
            speaking, you could be found in contempt of
            this Court; and this Court could impose a


 1Bohl  does not appeal his conviction, nor the trial court’s denial of
 his motion for a new trial. Rather, Bohl limits his appeal to the
 issue of whether the trial court abused its discretion in denying him
 access to juror contact information. We have jurisdiction over his
 appeal as the court’s denial of access to juror contact information
 was part of the “final judgment” denying Bohl’s motion for a new
 trial. See People v. Cochran, 490 P.2d 684, 685 (Colo. 1971).

                                       3
             sentence up to six months in the Adams
             County Jail or a fine or require that you pay
             restitution if in fact a mistrial is declared.

¶8     While the court intimated that it was not focused on pursuing

  contempt proceedings, it nonetheless advised the Hillesheims that

  “theoretically, that may occur; and so I think you may need to

  consult with an attorney to see what liability you may have in this

  matter before I proceed to a hearing.”

¶9     At a later hearing, on February 16, 2016, defense counsel

  renewed her request for contact information for the other jurors.

  While the court did not completely foreclose that possibility, it

  expressed concern that CRE 606(b) precluded inquiry into the jury’s

  deliberative process.

¶ 10   On February 16, Mrs. Hillesheim testified that, during trial,

  her husband had shown her that he was researching decomposition

  on the internet. Mrs. Hillesheim said the webpage displayed a

  picture of a pig with the title “decomposition.” She testified that it

  was the only time she saw her husband researching decomposition

  or any other scientific items during the trial. Mrs. Hillesheim also

  testified that Mr. Hillesheim had created a timeline of events in the

  case, but that she had not seen it.


                                     4
¶ 11       Mr. Hillesheim testified that he had “looked up decomposition

  of animals, which was brought to my interest [by] terms used in the

  case,” but stated that he did not remember what websites he

  accessed. He said that he was motivated to look up decomposition

  because “it was all new” and he was interested from a personal

  standpoint because he was a hunter who grew up on a farm. He

  said he told his wife he was researching decomposition because “it

  was dealing with some sciences that are involved this week in the

  case.”

¶ 12   Regarding the timeline, Mr. Hillesheim said he believed he had

  made some notes before the last day of trial, like “chicken scratch,”

  but he could not recall what he “did with [them, or] if [they were]

  used for anything[.]” Ultimately, Mr. Hillesheim testified that his

  research was “nothing specific to anything in the case” and that he

  did not share the timeline or his decomposition research with the

  other jurors.

¶ 13   At the conclusion of the hearing, the court did not address

  Bohl’s request for juror contact information, but said that it would

  not “subpoena the other 11 jurors” because “[w]e should only

  [subpoena other jurors] if there, in fact, is a good-faith belief that


                                      5
  extraneous information may have been submitted to the jury[.]”

  The court reasoned that, based on the evidence presented, Bohl

  failed to show that extraneous evidence of decomposition had been

  presented to the jury, and even if it had been, there was no

  prejudice because decomposition was not an issue at trial. The

  court also found that because the timeline was based on

  “information that [Mr. Hillesheim] received at trial,” the timeline was

  not extraneous information. Accordingly, the court denied Bohl’s

  motion for a new trial and later sentenced Bohl to life in prison

  without the possibility of parole.

                     II.   Juror Contact Information

¶ 14   Bohl argues that the trial court abused its discretion in

  denying his request for juror contact information because he was

  deprived of the opportunity to investigate and gather evidence to

  support his claim of juror misconduct. We disagree.

                A.   Preservation and Standard of Review

¶ 15   The parties agree that this issue was preserved.

¶ 16   Although there is no established standard of review in

  Colorado for a trial court’s denial of a party’s request for juror

  contact information, we conclude that we should review a court’s


                                       6
denial of access to juror contact information for an abuse of

discretion. Cf. People v. Pifer, 2014 COA 93, ¶ 19 (“We review

[defendant’s Crim. P. 24(b)(1)(X) challenge based on bias] for an

abuse of discretion[.]”); People v. Pena-Rodgriguez, 2012 COA 193, ¶

69 (“Assuming, while not deciding, that the trial court erred or

abused its discretion in applying Crim. P. 24(a)(4) and Crim. P.

33(c), we find any error harmless.”), aff’d, 2015 CO 3, rev’d on other

grounds, 580 U.S. ___, 137 S. Ct. 855 (2017); People v. Garrison,

2012 COA 132M, ¶ 7 (reviewing the trial court’s decision under

Crim. P. 24(g) — allowing juror questions — for an abuse of

discretion). See generally King v. United States, 576 F.2d 432, 438

(2d Cir. 1978) (recognizing that although the trial judge has

discretion to disclose juror contact information, “[t]here is a judicial

reluctance” to allow post-verdict contact with jurors); Brewington v.

State, 981 N.E.2d 585, 593-94 (Ind. Ct. App. 2013) (concluding that

the trial court correctly balanced the needs of effective trial

administration against Brewington’s constitutional rights and did

not abuse its discretion in granting the State’s request for an

anonymous jury), aff’d in part and vacated in part, 7 N.E.3d 946

(Ind. 2014); Golnick v. Callender, 860 N.W.2d 180, 195 (Neb. 2015)


                                   7
  (concluding that the trial court did not abuse its discretion in

  denying Golnick’s request for juror contact information after the

  jurors completed their service and applying a statutory “good cause”

  standard to the disclosure of juror information). A trial court

  abuses its discretion if its decision is manifestly arbitrary,

  unreasonable, or unfair, or if it misconstrues or misapplies the law.

  People v. Relaford, 2016 COA 99, ¶ 25.

                          B.    Law and Analysis

¶ 17   Crim. P. 24(a)(4) says that although “[j]urors shall not be

  required to disclose personal locating information . . . and such

  information shall not be maintained in files open to the public[,]

  [t]he trial judge shall assure that parties and counsel have access to

  appropriate and necessary locating information.” While Crim. P.

  24(a)(4) is more often raised in pre-evidentiary proceedings, such as

  voir dire, Bohl relies on the rule post-trial, arguing that the trial

  court abused its discretion by failing to provide the requested juror

  contact information.

¶ 18   The United States Constitution does not guarantee a

  defendant the right to question jurors post-verdict. Pena-Rodriguez,

  ¶ 68. And though CRE 606(b) limits the circumstances under


                                      8
  which a juror may testify post-trial, it provides an exception for

  “extraneous prejudicial information . . . improperly brought to the

  jurors’ attention.” CRE 606(b)(1). Bohl seeks juror contact

  information to strengthen his motion for a new trial based on jury

  misconduct via exposure to “extraneous prejudicial information.”

  Invoking Crim. P. 24(a)(4), Bohl argues that access to juror contact

  information is “appropriate and necessary” because the defense

  cannot otherwise contact the jurors to investigate potential jury

  misconduct. We disagree.

¶ 19   Following Bohl’s motion for a new trial, in which he requested

  juror contact information, the trial court properly held a hearing to

  determine the extent of any potential jury misconduct. See Wiser v.

  People, 732 P.2d 1139, 1143 (Colo. 1987) (“In most cases involving

  juror misconduct, the trial court should hold a hearing before

  deciding whether there is a reasonable possibility that the

  misconduct affected the jury’s verdict.”). At the hearing, Mr.

  Hillesheim and his wife testified that Mr. Hillesheim’s out-of-court

  research was limited to research on decomposition, and Mr.

  Hillesheim denied sharing his out-of-court research with other

  jurors. Mr. Hillesheim also explained that the timeline he created


                                     9
  was based on testimony and evidence presented at trial, and, thus,

  he did not rely upon out-of-court research in creating the timeline.

¶ 20   At trial, the parties agreed that the victim’s body was

  decomposed when the prosecution’s pathologist performed the

  autopsy. The key issue was how long the victim had endured blunt

  force trauma to the neck before she died, as the timing was used to

  argue whether Bohl had the requisite intent for first degree murder.

  Because decomposition was not an issue at trial, the trial court

  found that Mr. Hillesheim’s research did not prejudice Bohl.

  Further, because Mr. Hillesheim testified that he did not present

  out-of-court research to other jurors, the court properly concluded

  that no extraneous information could have influenced the verdict.

  See id. at 1142 (stating that courts apply an objective test to

  determine if there is a “reasonable possibility” that extraneous

  information affected the verdict before concluding that a new trial is

  required); People v. Holt, 266 P.3d 442, 444 (Colo. App. 2011)

  (holding that the disclosure of extraneous information only requires

  a new trial if the information was “improperly before the jury” and it

  “posed the reasonable possibility of prejudice to the defendant”

  (quoting Kendrick v. Pippin, 252 P.3d 1052, 1063 (Colo. 2011))); see


                                    10
  also United States v. Davila, 704 F.2d 749, 754-55 (5th Cir. 1983)

  (concluding that where the defendants failed to make any

  preliminary showing of misconduct in the jury’s deliberations in

  hopes of uncovering an impropriety, the trial judge acted properly in

  denying the defendants’ motion to interview jurors post-verdict).

¶ 21   We perceive no abuse of discretion in the trial court’s refusal

  to subpoena the other jurors or to furnish their contact information

  to the defense. Bohl argues that without the juror contact

  information, the trial court precluded the defense from investigating

  the truthfulness of Mr. Hillesheim’s claim that he did not present

  outside research to other jurors. Bohl contends the Hillesheims’

  testimony was inconsistent with Mrs. Hillesheim’s text message, as

  Mrs. Hillesheim’s message referenced Mr. Hillesheim’s research on

  “various scientific items,” and his research violated a court order

  not to conduct outside research. Accordingly, Bohl reasons that

  additional investigation is necessary to determine if there was jury

  misconduct.

¶ 22   But the trial court found the Hillesheims’ testimony

  persuasive, a determination we may not second-guess. See People

  v. Harlan, 109 P.3d 616, 627-28 (Colo. 2005) (noting that the trial


                                    11
  court, in finding whether jurors relied upon extraneous prejudicial

  information, “had to engage in difficult credibility determinations”

  and stating on appeal, “we cannot second-guess determinations of

  the trial court regarding witness credibility”). Because we defer to a

  trial court’s factual and credibility determinations when supported

  by the record, and given the speculative record evidence of jury

  misconduct, we perceive no abuse of discretion in denying Bohl

  access to juror contact information.

¶ 23   Bohl also argues that he needed to interview other jurors

  before determining the truthfulness of the Hillesheims’ testimony

  because their testimony was guarded given their fear of being held

  in contempt of a court order. But this is mere speculation. To

  follow Bohl’s argument, we would need to conclude that the

  Hillesheims were lying about the extent of Mr. Hillesheim’s out-of-

  court research and that Mr. Hillesheim also lied about not sharing

  out-of-court research with other jurors. Because we defer to the

  trial court’s credibility determinations and Bohl has not alleged

  specific extraneous prejudicial information to which the jury may

  have been exposed, we cannot conclude that Bohl was entitled to

  obtain juror contact information to further investigate jury


                                    12
  misconduct. See Stewart v. Rice, 47 P.3d 316, 322 (Colo. 2002)

  (recognizing that one of the “fundamental” purposes of CRE 606(b)

  is to “protect jurors from harassment and coercion”); see also

  United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976)

  (“Historically, interrogations of jurors have not been favored by

  federal courts except where there is some showing of illegal or

  prejudicial intrusion into the jury process.”) (emphasis added).

¶ 24   Bohl’s reliance on Harlan and Pena-Rodriguez, in arguing that

  we should compel the trial court to provide Bohl with the contact

  information to facilitate his investigation, is misplaced. In Pena-

  Rodriguez, ¶ 6, after entry of the verdict, two jurors contacted

  defense counsel to disclose racial animus present during jury

  deliberations. The defense did not need to request juror contact

  information because two jurors voluntarily disclosed another juror’s

  racial animus. And because there was direct evidence of jury

  misconduct, the defense’s questioning of other jurors was

  warranted and did not constitute a “fishing expedition.” Id. at ¶ 68

  (quoting Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th

  Cir. 1986)).




                                    13
¶ 25   In Harlan, defense counsel learned of jury misconduct after

  the jury’s death penalty verdict when defense counsel’s investigator

  contacted jurors months later to interview them, and the defense

  learned that some jurors had used the Bible to determine whether

  the death penalty was justified for murder. 109 P.3d at 622. It is

  not clear how defense counsel had obtained the jurors’ contact

  information, but defense counsel presented direct evidence of jury

  misconduct via the use of extraneous prejudicial information,

  similar to the evidence of jury misconduct in Pena-Rodriguez.

¶ 26   In this case, in contrast, an investigation has already been

  conducted and no evidence of jury misconduct was revealed.

  Following the People’s proper disclosure of the text message and

  Bohl’s motion for a new trial, Bohl had the opportunity to question

  the jury foreman and his wife. However, the trial court determined

  from the Hillesheims’ testimony that no jury misconduct had

  occurred, as no extraneous prejudicial information had been

  presented to other jurors. And any extraneous information that Mr.

  Hillesheim obtained was not relevant to a key issue at trial. See

  Wiser, 732 P.2d at 1143. Further, no other jurors reported jury

  misconduct to defense counsel or the judge. People v. Wadle, 97


                                   14
  P.3d 932, 934 (Colo. 2004) (“[T]wo jurors contacted the court and . .

  . expressed their concern that their review of the [i]nternet

  definition [of a drug relevant to the case] violated the court’s

  instructions.”); Wiser, 732 P.2d at 1140 (defense counsel learned of

  jury misconduct from an “informal meeting in the judge’s chambers

  with the members of the jury after the jury returned its verdicts”).

  Accordingly, given the lack of record evidence to support prejudice

  from jury misconduct, we defer to the trial court’s decision not to

  furnish juror contact information.

¶ 27   Given (1) that the trial court conducted a hearing on the jury’s

  potential exposure to extraneous prejudicial information; (2) the

  speculative nature of Bohl’s request for juror contact information;

  and (3) CRE 606(b)’s fundamental purpose of protecting jurors and

  their deliberations, the trial court’s decision not to release juror

  contact information to the defense was not manifestly

  unreasonable, arbitrary, or unfair, and it did not misapply or

  misinterpret the law. See Relaford, ¶ 25; Wiser, 732 P.2d at 1142

  (holding that the use of the objective test to determine whether

  extraneous information affected a verdict “is consistent with CRE




                                     15
  606(b)’s purpose of protecting the privacy of jurors”). Accordingly,

  we discern no abuse of discretion by the trial court.

                            III.   Conclusion

¶ 28   The order is affirmed.

       JUDGE TAUBMAN and JUDGE TERRY concur.




                                    16
