People v. Novotny , 320 P.3d 1194 ( 2014 )

JUSTICE COATS

delivered the Opinion of the Court.

1 1 The People petitioned for review of the court of appeals judgments reversing convie-tions in People v. Novotny, - P.3d -, - No. 06CA2204, 2010 WL 961657 (Colo.App. Mar. 18, 2010), and People v. Vigil, No. 08CA1748, 2011 WL 1849617 (Colo.App. May 12, 2011) (not published pursuant to C.A.R. 35(f)). In each case, the intermediate appellate court applied a rule requiring automatic reversal as the remedy for any erroneous ruling on a challenge for cause adversely impacting the defendant's ability to shape the jury through peremptory challenges. In the former case, the district court denied a defense challenge to an assistant attorney general, on grounds that he was employed by a law enforcement agency, in response to which the defendant removed the prospective juror with a peremptory challenge and ultimately exercised all of his peremptory challenges. In the latter case, the district court granted a prosecution challenge for cause on grounds of bias, with the effect that the prosecution was able to exercise all of its peremptory challenges on other prospective Jurors.

12 Today we overrule our prior holdings to the contrary and conclude in this consolidated opinion that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained; and further, that allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, does not, in and of itself, amount to structural error. The judgments of the court of appeals in these two cases are therefore reversed.

L.

13 Martin Novotny was convicted of first degree murder and first degree burglary in connection with the death of his ex-girlfriend, and he was sentenced to life imprisonment without parole. He appealed his convictions to the court of appeals, contending among other things, that the district court had erroneously denied his challenge for cause to an assistant attorney general, thereby forcing him to expend one of his peremptory challenges to prevent that individual from sitting on the jury.

T4 Edward Arthur Vigil was convicted of sexual assault on a child by one in a position of trust, as well as a separate offense of sexual assault on a child by one in a position of trust committed as part of a pattern of abuse, for abusing a teenage girl while she was a resident at the treatment facility where he worked. He was sentenced to concurrent, indeterminate terms of imprisonment of 15 years to life and 10 years to life. Vigil appealed his convictions to the court of appeals, contending that the district court erroneously granted two of the prosecution's challenges for cause, thereby effectively permitting the prosecution to exercise more peremptory challenges than authorized by statute and more than allowed of the defense.

5 In each case, the respective division of the court of appeals agreed with the defendant that the district court erred in ruling on a challenge for cause, and although the challenged prospective juror in neither case ultimately served on the jury, the defendant in each case was nevertheless disadvantaged by effectively receiving fewer peremptory challenges than authorized or than allowed of, and actually exercised by, the prosecution. In each case, the respective division applied binding precedent of this court, requiring reversal without consideration of the likely impact of the error on the particular verdiet at issue.

T6 In both cases, the attorney general petitioned this court on behalf of the People, asking that we revisit the question of remedy for erroneous rulings on challenges for cause and expressly overrule our prior precedents that dictate automatic reversal. In addition, the People sought review of the court of appeals determination that the challenged assistant attorney general in Novotny was a paid employee of a law enforcement agency and therefore should have been removed for cause.

II.

917 Criminal defendants in this jurisdiction are entitled to trial by an impartial jury of the county or district in which the offense was alleged to have been committed. Colo. Const. art. II, § 16. As we have noted elsewhere, "[the essential features of a jury trial lie in interposing between the accused and the accuser the common sense judgment of lay representatives of the community 'and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." City of Aurora v. Rhodes, 689 P.2d 603, 610 (Colo.1984) (quoting Wiliams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)). Within constitutional limitations, the legislature determines the qualifications for jury service. People v. White, 242 P.3d 1121, 1124 (Colo.2010).

1 8 Section 105 of the Uniform Jury Selec tion and Service Act, §§ 13-71-101 to -145, C.R.S. (2013) (UJSSA), initially defines qualification for jury service in terms of citizenship and either residency or habitation in a particular county, but it then provides a number of specific conditions that will nevertheless disqualify an otherwise qualified prospective juror. Although a prospective juror may therefore be qualified in terms of citizenship and vicinage, he nevertheless "shall be disqualified" for failing to meet a number of other conditions related to such things as his age, facility with the English language, physical or mental capabilities, familial obligations, and prior jury service. See § 18-7I-105(@)(a)-(g), CRS. (2018). Whether and, if so, precisely how and when disqualification on the basis of any of these conditions must be asserted to avoid waiver has not yet been the subject of express determination by this court. See White, 242 P.3d at 1126; but see § 13-71-140, C.R.S. (2018) ("The court shall not declare a mistrial or set aside a verdict based upon allegations of any irregularity in selecting, summoning, 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.").

T9 Whether or not it must be raised in a particular manner, however, the absence of any qualification prescribed by statute to render a person competent as a juror is clearly designated cause for removal, on the basis of which a challenge by one of the parties must be sustained. See § 16-10-108(1)(a), C.R.S. (2018). Beyond the actual absence of some statutory qualification, the legislature has designated a number of other grounds that will also support a challenge for cause, generally involving such things as the prospective juror's relationship with the defendant or counsel, any prior adverse relationship with the defendant in a civil or erim-inal matter, prior juror service or service as a witness in a related matter, the existence of a fiduciary relationship with the defendant or a victim, the existence of enmity or bias toward the defendant, and employment by either a law enforcement agency or the public defender's office. § 16-10-108(1)(a)-(k). Apart from imposing a duty upon jurors to inform the court concerning any ground supporting a challenge for cause of which they are aware, whether asked about it or not, § 16-10-108(2), the statute also provides for the introduction of evidence of the "incompetency, disqualification, or prejudice of any prospective juror" who might otherwise appear to be qualified, competent, and unprejudiced, § 16-10-103(8).

{10 In addition to challenges for cause, the legislature has also provided for a specif-ice number of challenges, varying with the nature of the charge and cireumstances of the particular prosecution, to be exercised peremptorily. § 16-10-104, CRS. (20183). As the term implies, these challenges may, within constitutional limitations, be exercised without regard to or specification of any reason whatsoever. The statute further directs that such peremptory challenges are to be exercised as provided by applicable rule of criminal procedure. § 16-10-104(2). Rule 24(d) of the Colorado Rules of Criminal Procedure not only provides for the mechanics and timing of exercising peremptory challenges but also purports to permit the trial court to add peremptory challenges to either side, or to both sides, for good cause shown.

A.

111 With regard to Novotny's challenge to the assistant attorney general in his case, a trial court is therefore statutorily required to sustain a proper challenge for cause to a prospective juror who is a compensated employee of a public law enforcement agency. See § 16-10-108(1)(k); see also Crim. P. 24(b)(1)(XII) (similar but omitting the word "compensated"). On a number of occasions, we have addressed what unit of organization constitutes an employing "agency" for purposes of the statute and rule and, more particularly, when that agency amounts to a "law enforcement" agency. See, e.g., People v. Speer, 255 P.3d 1115 (Colo.2011); Ma v. People, 121 P.3d 205 (Colo.2005). Although the assessment of a prospective juror's employing agency may become more complex if he works in a subunit with traditional law enforcement duties operating within a broader organization or department that would not constitute a law enforcement agency, see Speer, 255 P.3d at 1121, the analysis is relatively straightforward with regard to employment with an umbrella organization or department that is itself a law enforcement agency.

12 While we have relied, in part, on the nature and characteristics of those entities designated law enforcement agencies by statute to develop a set of factors to be considered in determining whether particular un-designated public employers may also qualify as law enforcement agencies within the contemplation of the statute, see Ma, 121 P.3d at 211-12, we have never suggested that an entity actually designated a law enforcement agency by statute must additionally be evaluated according to these factors. Quite the contrary, if it were not already obvious, we have made abundantly clear that whenever an employing agency is statutorily designated a law enforcement agency, a challenge to a prospective juror on the basis of his employment must be sustained. Speer, 255 P.3d at 1121 ("[Wle have interpreted the statutory designation to include not only those agencies specifically identified but also other agencies performing similar functions." (emphasis added)).

113 The office of the state attorney general has been specifically included in a number of different statutory provisions defining the term "law enforcement agency." See, eg, § 8-47-208.8(2), CRS. (2013) (" 'Law enforcement ageney' includes ... the office of the state attorney general ...."); § 8-72-111(2), C.R.S. (2013) (same); § 24-50-127(2)(b), C.R.S. (2018) (same); § 26-1-114(8)(a)(III)(B), C.R.S. (2013) (same). Not only have we never implied that the statutory identification to which we referred should be limited to those entities designated as public law enforcement agencies specifically for purposes of section 16-10-108(1)(k), but we have in fact treated the office of the state attorney general as an archetype of a "law enforcement agency" in express reliance on the aforementioned statutory references. See Speer, 255 P.3d at 1121. Where the prospective juror's employer in this case had been both expressly identified as a law enforcement agency by statute and had been expressly acknowledged by this court in published opinions as a law enforcement agency, the defendant clearly had no obligation to produce additional evidence in support of his challenge. Id. ("Finally, unless a public agency has already been identified as a pub-lie law enforcement agency by statute or the published case law of the jurisdiction, a trial court cannot be expected to divine its nature as a law enforcement ageney without having its primary function or purpose brought to the attention of the court." (emphasis added)).

B.

€14 With regard to remedy, the intermediate appellate court divisions in both Novotny and Vigil relied on a line of precedents of this court dictating reversal for any erroneous ruling on a challenge for cause adversely impacting the defendant's ability to shape the jury through peremptory challenges. In 1992, after what could only be described as less than consistent treatment in this jurisdiction of erroneous challenge-for-cause rulings, we looked back to the conceptual framework articulated in a civil case more than three-quarters of a century earlier, see Denver City Tramway Co. v. Kennedy, 50 Colo. 418, 117 P. 167 (1911), to assist us in formulating a firm rule requiring the reversal of any criminal conviction in which the defendant expends a peremptory challenge to remove a prospective juror, following an erroneous denial of his challenge for cause, and ultimately exhausts all the peremptory challenges available to him. People v. Macrander, 828 P.2d 234, 243 (Colo.1992). We reasoned, much as the Kennedy court had done some 80 years earlier, that in such a situation, the defendant has been forced to utilize one of his peremptory challenges to correct the trial court's error and as a result has fewer peremptory challenges available to exercise as he chooses. Id. We concluded that for this reason alone, he is impaired in his ability to change the ultimate composition of the jury. Id. at 244. Further finding that such a sequence of events affects a substantial right of the defendant, we held that it cannot be deemed harmless and therefore always merits reversal of an ensuing conviction. Id.

115 Eight years later, in the immediate wake of a contrary view taken by the United States Supreme Court, see United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), we extended our finding of "inherent prejudice" beyond the erroncous denial of defense challenges, to also include the erroneous grant of prosecution challenges, reasoning that such error gives the prosecution an unfair tactical advantage. See People v. Lefebre, 5 P.3d 295, 308 (Colo.2000). In Lefebre, we distinguished Martines-Salazar on the grounds that enlarging the prosecution's capacity to shape the composition of the jury by effectively giving it more peremptory challenges presented an issue logically distinct from that addressed in both Macrander and Martinez Salazar, as to which we found the latter Supreme Court opinion of little guidance. Id. We relied instead on an older judgment of this court as the model for resolving this logically distinct issue, see Bustamante v. People, 133 Colo. 497, 500, 297 P.2d 538, 540 (1956), in which we found inherent prejudice requiring reversal. More specifically, in Bustamante, we reasoned that affording the prosecution an additional peremptory challenge in this way, much as we would later reason in Macrander, "affected or could have affected the substantial rights of the defendant." Id.

1 16 In Lefebre, however, we also took the opportunity to distinguish Martines-Salazar even from our treatment of the erroneous denial of defense challenges in cases like Macrander, and to offer an even firmer rationale for our automatic reversal rule, in terms of recent Supreme Court jurisprudence and the federal constitution. See Lefe-bre, 5 P.3d at 805. In addition to noting differences in the applicable federal and state rules of criminal procedure, we characterized Martinez-Salazar as setting forth a "narrow holding[ ]," standing for the proposition that the Fifth and Sixth Amendments are not violated when a defendant bears the burden of removing a juror whom the court should have removed for cause, through the exercise of a peremptory challenge. Id. at 307. We made clear, however, our understanding that, as the appellate review of a federal conviction, Martinez-Salazar left untouched the Court's earlier suggestion in Ross v. Oklohoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), to the effect that "a defendant does suffer a Fourteenth Amendment due process violation if the trial court's actions deprive him of that to which he is entitled by state law regarding use of peremptory challenges." See Lefebre, 5 P.3d at 307 & n. 10 (emphasis added). Although we nowhere used the term "structural error," we clearly concluded that improperly impairing a defendant's capacity to use peremptory challenges to shape the ultimate composition of the jury, guaranteed by state law, amounts to a violation of due process, as guaranteed by the federal constitution. See id.

17 Regardless of the merits of our reasoning in Macrander and Lefebre at the time, both federal and state law governing harmless error review in general, and the constitutional significance of peremptory challenges in particular, have developed so as to substantially erode the premises upon which those decisions rest, making their continued viability untenable. With regard to harmless error review, the jurisprudence of both this court and the United States Supreme Court distinguishing trial from structural error and defining "substantial rights" has evolved to the point of sanctioning reversal for trial error only when that remedy is dictated by an appropriate outcome-specific analysis. With regard to the constitutional implications of depriving a criminal defendant of state-granted rights to shape the jury through peremptory challenges, the United States Supreme Court has now expressly rejected the understanding we, and a substantial number of other jurisdictions, had of the federal due process implications of Ross. See Rivers v. Illinois, 556 U.S. 148, 157, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) ("If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern.").

{18 The evolving decision to treat some kinds of error as harmless has been termed "'the most far-reaching doctrinal change in American procedural jurisprudence since its inception.'" Wayne R. LaFave et al., Criminal Procedure § 27.6(a) (8d ed. 2013) (quoting Childress & Davis, Federal Standards of Review § 7.01 (2d ed. 1986)). Dominated at least as much by policy concerns as any consistent legal theory, the application of a harmless error rule has undergone substantial alternations, or refinements, in the jurisprudence of both this court and the United States Supreme Court. See generally id. § 27.6(b) ("Few areas of doctrinal development have been marked by greater twisting and turning than the development of standards for applying the harmless error rule. Its history has been described as one 'of innovation and regression, of instability and uncertainty, that cannot be explained in terms of any 'evolving progression of jurisprudential theories" (quoting Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va,. L. Rev. 988, 998 (1973))). By the time of our finding of "inherent prejudice" in Ma-crander, the mandate of Crim. P. 52(a) and C.A.R. 35(e) to disregard any error or defect not affecting substantial rights was already well-accepted, but the more precise distinction between trial error, which can be harmless, and structural error, which cannot, was yet in its infancy. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (trial errors are compatible with harmless error analysis; structural errors are not); see also Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (some constitutional errors may be deemed harmless).

119 For quite some time, the Supreme Court has characterized the federal harmless-error standard, grounded in both statute, 28 U.S.C. § 2111, and rule, Fed. R.Crim.P. 52(a), as requiring reversal only if the error had a substantial and injurious effect or influence in determining the jury's verdict. See Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (considering whether "the error had substantial and injurious effect or influence in determining the jury's verdict") Although we have long cited Kotteakos with favor and interpreted the harmless-error standard of Crim. P. 52(a) similarly to the almost identical harmless-error standard of Fed.R.Crim.P. 52(a), we have, in the past, sometimes applied an outcome-determinative approach to the question whether an error affected the defendant's substantial rights, see, eg., People v. Quintana, 665 P.2d 605, 612 (Colo.1983) (" [TJhe appropriate question is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings."), and sometimes merely categorized the affected right as "substantial" based on the significance of the right itself, see, eg., Macrander, 828 P.2d at 244; Lefebre, 5 P.3d at 304-05. And while intervening Supreme Court jurisprudence concerning nonconstitutional error appeared to reject such "bright-line per se rules whether to conduct harmless-error analysis," see United States v. Lane, 474 U.S. 438, 448 n. 11, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (* [O]n its face, Rule 52(a) admits of no broad exceptions to its applicability. Any assumption that onee a 'substantial right' is implicated it is inherently 'affected' by any error begs the question raised by Rule 52(a)."); id. at 474, 106 S.Ct. 725 (Stevens, J., dissenting) (reasoning, much as we would do in Macran-der and Lefebre, that such bright-line rules should be retained where the impact of an error cannot be measured with precision), our case law failed to immediately appreciate or embrace this development.

120 Because the concept of structural error developed in the context of constitutional error, as a means of distinguishing those constitutional errors that could possibly be harmless from those that could not, see Chapman, 386 U.S. at 23, 87 S.Ct. 824, it was also not readily apparent that the structural error/trial error dichotomy was intended to apply to all trial error, whether of constitutional magnitude or not. If not before, at least by the Supreme Court's decision in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), however, it had become clear that only this limited class of fundamental constitutional error, designated structural error, could "'defy analysis by "harmless error" standards." Id. at 7, 119 S.Ct. 1827 (quoting Pulminante, 499 U.S. at 309, 111 S.Ct. 1246). Less than a year after deciding Lefebre, we partially came to grips with the effect of Neder, overturning our rule of automatic reversal for instructional mens rea omissions and instead analyzing them according to the outcome-determinative constitutional harmless error standard. (Griego v. People, 19 P.3d 1, 8 (Colo.2001). Since that time we have regularly held, without fanfare, that only error rising to the level of structural error necessarily requires reversal. See, e.g., Crider v. People, 186 P.3d 39, 42 (Colo.2008); Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo.2007). Similarly, since that time we have expressly recognized that the harmless-error standard of Crim. P. 52(a), which mandates that error be disregarded unless it affects substantial rights, requires some outcome-determinative analysis, evaluating the likelihood that the outcome of the proceedings in question were affected by the error. Krutsinger v. People, 219 P.3d 1054, 1063 (Colo.2009).

121 By current standards, the bright-line automatic reversal rules of Macrander and Lefebre could therefore survive only if the erroneous impairment of a defendant's ability to shape the jury through peremptory challenges were to fall within that limited class of error now designated structural error. Were the change in standards nothing more than a matter of nomenelature, we could simply recast those bright-line rules in modern terminology. But, in fact, the structural error/trial error dichotomy, to which we now firmly adhere, has greatly narrowed the class of error to which bright-line rules of reversal, which necessarily by-pass any outcome-determinative harmless error analysis, can apply. As we have often acknowledged, this limited class of error now comprehends only those defects affecting the framework within which the trial proceeds-errors that infect the entire trial process and necessarily render a trial fundamentally unfair-rather than simply errors in the trial process itself. See id. at 1058 & n. 1.

122 Whether or not the Fourteenth Amendment due process violation we mistakenly identified in Lefebre could have itself catapulted impairment of a defendant's ability to shape the jury into this limited class of fundamental constitutional errors, the Supreme Court has since made abundantly clear that no such due process protection exists for state-granted peremptory challenges. The Supreme Court has clearly retreated from various implications of earlier opinions, see, eg., Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894) (peremptory challenges characterized as "one of the most important of the rights secured to the accused"), and has now expressly rejected the notion that peremptory challenges have any constitutional dimension or purpose, other than as a means to achieve the end of an impartial jury, Ross, 487 U.S. at 88, 108 S.Ct. 22783 ("[Pleremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury." (internal citations omitted)); Martinez-Salazar, 528 U.S. at 311, 120 S.Ct. 774 (characterizing peremptory challenges as "auxiliary"); Rivera, 556 U.S. at 160, 129 S.Ct. 1446 (disavowing suggestion in Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), that denial or impairment of right to peremptory challenges was reversible error without specific showing of prejudice and emphasizing "'that the oft-quoted language in Swain ... was founded on a series of our early cases decided long before the adoption of harmless-error review." (quoting Martinez-Salazar, 528 U.S. at 317 n. 4, 120 S.Ct. 774)).

123 In Rivers the Court also expressly addressed the situation left open by Ross, whether a defendant who is deprived of what state law provides by virtue of a court's good-faith error suffers a Fourteenth Amendment Due Process violation. Rivera, 556 U.S. at 159-60, 129 S.Ct. 1446. Answering that question in the negative, the Court explained that it was not of constitutional significance that the defendant suffered a deprivation of his right under state law: "[Ejrrors of state law do not automatically become violations of due process." Id. at 160, 129 S.Ct. 1446; see also id. at 158, 129 S.Ct. 1446 ("The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural preserip-tions, but 'the fundamental elements of fairness in a criminal trial." " (quoting Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967))). While we do not imply today that every violation of our statutes and rules prescribing the use of peremptory challenges must be disregarded as harmless, we are nevertheless unwilling to conclude that such violations of state law, as distinguished from an actual Sixth Amendment violation or those committed in other than good faith, see id. at 160, 129 S.Ct. 1446; see also Martinez, Salazar, 528 U.S. at 316-17, 120 S.Ct. 774, rise to the level of structural error.¹

124 We are not unmindful that our holding today expressly overturns a bright-line rule initially imposed more than two decades ago; however, stare decisis, the common-law principle requiring adherence by courts to decided cases, has never been an immutable law or inexorable command. See People v. Blehm, 983 P.2d 779, 788-89 (Colo.1999); Creacy v. Indus, Comm'n, 148 Colo. 429, 433, 366 P.2d 384, 386 (1961). While it is a principle to be held in the highest respect, we have long made clear that we are not without the power to depart from our prior decisions when sound reasons exist for doing so. Cregcy, 148 Colo. at 433, 366 P.2d at 386. Whether the highest court of any jurisdiction will choose to follow or depart from its own prior decisions must ultimately remain a matter of discretion. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).

1 25 Among the kinds of considerations we and the United States Supreme Court have identified as impacting a decision to depart from prior precedent are the practical workability of that decision; the extent to which a departure would work a hardship or inequity on those who have relied on and ordered their behavior around the prior ruling; and, importantly, whether the principles upon which the ultimate holding is premised, or related legal principles, have themselves developed in such a way as to leave the prior ruling without support. See, eg., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-55, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). As a remedy for error rather than a rule involving duties or defenses, or defining error itself, the automatic reversal rule at issue here can be abandoned with little concern that by doing so we will unfairly upset settled expectations around which the behavior of defendants has been justifiably ordered. With regard to workability, for many of the same reasons that have led to the evolution of harmless error analysis generally, it can at least be said that this rule of automatic reversal has existed at a high cost, affording defendants, as it does, the opportunity to remove an objectionable juror by other means while simultaneously entitling them to reversal, should the trial court's failure to remove for cause prove wrong, whether that lapse ultimately affects the verdict or not. Because the rule of automatic reversal applies with just as much force when the trial court erroneously removes a questionable juror at the prosecution's request and that action has the effect of upsetting the balance of peremptory challenges between the parties, the rule also tends to discourage courts from interpreting section 16-10-1081) in favor of prosecution challenges for cause, knowing that any error in doing so will result in a reversal.

126 Most importantly, the evolution of legal principles in this area has not only left the doctrinal footings of this automatic reversal rule weaker; it has completely undercut them, leaving the rule itself without any theoretical support whatsoever. With the exception of express legislative mandate, see, e.g., Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006); see also § 18-1-405, C.R.S. (2013), we have already made clear that reversal for trial error, based solely on the significance, or substantiality, of the affected right, can no longer be sustained. Because we alone can overrule our prior precedents concerning matters of state law, it is not merely within our discretion but in fact our obligation, when given the opportunity, to expressly overrule any of our prior holdings the necessary premises for which are no longer good law. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").

IIL.

127 For these reasons, we overrule our prior holdings to the contrary and conclude that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained; and further, that allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, does not, in and of itself, amount to structural error. The judgments of the court of appeals in these two cases are therefore reversed and the cases remanded to consider whether the error in each case was harmless under the proper outcome-determinative test.

JUSTICE HOOD concurs in part and dissents in part, and JUSTICE HOBBS joins in the concurrence in part and the dissent in part.

1 . Nothing in our conclusion on the question of remedy jettisons the distinctions we have made in our case law between the right to exercise peremptory challenges and the Sixth Amendment right to a fair and impartial jury.