Despite multiple problems with the jury pool and the prosecutor’s improper statements at the end of trial, the state’s Court of Appeals last month upheld a Prowers County woman’s convictions after concluding any errors did not undermine the fairness of her trial.

A jury convicted Carie Ann Hawkins in 2019 for conspiring to commit theft in the grocery store where she worked in the small town of Holly. Both the prosecution and defense on appeal acknowledged the realities of rural life made it difficult to seat a jury that knew nothing about the defendant, the witnesses or the crime itself.

“Ms. Hawkins recognizes that it would be unlikely for a small town to have a jury entirely unacquainted with one another. It is for this reason, however, that the trial court must be particularly diligent in ensuring a fair trial,” wrote Krista A. Schelhaas on behalf of Hawkins. “And the circumstances in this case are so egregious that a new trial is required.”

Hawkins stood trial for helping her friend, Ethan Mason, carry out the robbery of Reyman’s Grocery in September 2018. Mason entered the store wearing a mask and demanded money from Hawkins. He stole more than $18,000 in cash, but authorities became suspicious that Hawkins was not simply a victim in the case. Mason ended up admitting he and Hawkins conspired to rob the business, although he later recanted that statement on the witness stand.

The jury pool for Hawkins’ trial was 70 people, equivalent to 9% of the town’s population. Thirteen people reported they had read about or heard about the case, and four of them ended up serving on the jury. In addition, multiple members of the jury had connections to people involved in the case: one was Mason’s former teacher. Another had known Mason since they were children. Yet another knew the grocery store owners and called them “trustworthy.”

Although District Court Judge Stanley A. Brinkley warned jurors not to talk about the case with each other, the judge learned during a break in jury selection that one potential juror had talked with three other people, claiming he was at the grocery store before the robbery. He said Hawkins “and her boyfriend robbed the store.”

Brinkley dismissed the four men involved in the conversation and warned the remaining jury pool to abide by his directive.

“If this continues, and I don’t think it will — then we are going to … have wasted a lot of good time. Because it starts to impact people’s rights,” the judge said. “This is serious business, man.”

However, on the second day of trial Brinkley learned of another juror incident. Mason had hugged a juror in the hallway who he had known since he was younger. He told the juror he had not seen her for a long time.

Brinkley dismissed the juror, replaced her with an alternate, and questioned the remaining jurors privately to ask if they had seen the hug or if the hug would influence them. He also explained why he dismissed the juror and asked whether that would affect anyone’s thinking. The remaining jurors all answered in the negative.

Hawkins’ attorney moved repeatedly for a mistrial after each incident, claiming the jury pool was tainted. Brinkley denied all of the requests. On appeal, Hawkins argued such “irregularities” would have supported a decision to move the trial out of Prowers County.

The government disputed that claim, saying no law requires jurors be complete strangers to each other or to the participants in a case.

“Indeed, under defendant’s argument, every criminal trial in small jurisdictions would require a change of venue and would deprive defendants in rural jurisdictions of a jury composed of their peers,” wrote Senior Assistant Attorney General Carmen Moraleda.

A three-judge panel for the Court of Appeals concluded Brinkley had properly handled the juror incidents and ensured the jury remained impartial. However, it acknowledged the jury did wind up hearing improper statements from the prosecutor during closing arguments.

In response to Mason’s changing testimony — that he now said he acted alone in the robbery, whereas he previously implicated Hawkins — the prosecutor told jurors Mason’s prior statements were “the truth.”

“That is the truth,” the unnamed prosecutor said repeatedly. “He wrote that statement because it’s the truth.”

“These comments were improper,” wrote Judge W. Eric Kuhn in the appellate panel’s June 30 opinion. Kuhn cited the principle that prosecutors cannot opine about the truthfulness of a witness’s testimony.

However, because the defense did not object at the time, there was a higher threshold on appeal for labeling the comments plainly erroneous. The panel believed the prosecutor’s statements did not reach that level.

“Overall, given the quantity and strength of this evidence, we cannot say that the prosecutor’s statements so undermined the fundamental fairness of the proceedings as to cast doubt on the judgment of conviction,” Kuhn wrote.

The case is People v. Hawkins.