People v. Brian Paul Vergari ( 2022 )

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
August 25, 2022
2022COA95No. 19CA1317, People v. Vergari — Juries — Challenges for
Cause — Peremptory Challenges
As a matter of first impression, a division of the court of
appeals holds that a defendant waives a claim of error arising from
the denial of a challenge for cause to a juror when the defendant
declines to excuse that juror with a peremptory challenge and does
not exhaust their peremptory challenges.
COLORADO COURT OF APPEALS 2022COA95Court of Appeals No. 19CA1317
Jefferson County District Court No. 18CR3024
Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Paul Vergari,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur
Announced August 25, 2022
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Brian Paul Vergari appeals the judgment of conviction entered
on a jury verdict finding him guilty of second degree assault. This
appeal requires us to answer the following question left open by the
Colorado Supreme Court in People v. Abu-Nantambu-El, 2019 CO
106: Does a defendant waive a claim of error arising from the denial
of a challenge for cause to a juror when the defendant declines to
excuse that juror with a peremptory challenge and does not exhaust
their peremptory challenges? See id. at ¶ 38 n.7. Because we
answer that question in the affirmative, we decline to address
Vergari’s challenge to the makeup of the jury. And because we
reject Vergari’s other contentions, we affirm the judgment.
I. Background
¶2 The following evidence was presented at trial.
¶3 Vergari was involved in a road rage incident with Ruben
Miscles. Miscles pulled into a Home Depot parking lot, and Vergari
followed. Miscles stopped his truck in the middle of an aisle in the
lot, and both men got out of their vehicles and began yelling at each
other. When Miscles turned around to get back into his truck,
Vergari lunged at him and hit him in the head with a wrench.
Home Depot’s video surveillance captured the incident.
1
¶4 When interviewed by the police afterward, Vergari claimed that
Miscles had pushed him, and then he “blacked out.” According to
the officer,
[Vergari] said that after that, the other driver
was walking away from him heading back to
his truck, and . . . that he was not moving fast
enough for him, so Mr. Vergari pushed him
from behind, and he realized that he had hit
him in the back of the head with a wrench.
¶5 Vergari was charged with second degree assault as a crime of
violence. He was convicted of the charge following a jury trial.
II. Denial of Challenge for Cause
¶6 Vergari contends that the trial court erred by denying his
challenge for cause to a juror. We conclude that Vergari waived this
contention.
¶7 During defense counsel’s voir dire, Juror F.M. expressed
hesitation with affording Vergari the presumption of innocence.
Specifically, he said that he had not “heard enough of the case to
decide” if Vergari was presumed innocent, and that “at this point”
in the case, he could not presume Vergari was innocent. Based on
these statements, defense counsel challenged Juror F.M. for cause.
The trial court then spoke further with Juror F.M., explaining that
2
the burden of proof rested entirely on the prosecution, and that if
that burden was not met, Vergari “must be found not guilty.” Juror
F.M. eventually agreed that if the prosecution failed to meet its
burden, then he would find Vergari not guilty. The trial court then
denied defense counsel’s challenge for cause.
¶8 The trial court explained that “each side has the right to
excuse up to five of the jurors without stating a reason.” The
prosecutor chose not to exercise any peremptory challenges.
Defense counsel excused Juror I.G. The following exchange then
occurred:
[TRIAL] COURT: [Counsel], do you have a
second peremptory challenge as to jurors one
through thirteen?
[DEFENSE COUNSEL]: I apologize. One
moment, Your Honor. Your Honor, I will
accept the jury as seated.
[TRIAL] COURT: All right. So, does the defense
then waive any further peremptory challenges
as to jurors one through thirteen?
[DEFENSE COUNSEL]: Yes.
Notably, defense counsel did not use any of the remaining
peremptory challenges to remove Juror F.M. from the jury.
3
¶9 Vergari argues that the trial court abused its discretion by
failing to grant his challenge for cause to Juror F.M. The People
respond that, because Vergari chose not to exercise his available
peremptory challenges to excuse Juror F.M., he waived his claim
that his right to a fair and impartial jury was violated. As noted,
this raises the question our supreme court previously left
unresolved. Abu-Nantambu-El, ¶ 38 n.7.1
¶ 10 Waiver is the intentional relinquishment of a known right or
privilege. People v. Rediger, 2018 CO 32, ¶ 39. Waiver may be
either express or implied. People v. Carter, 2021 COA 29, ¶ 27. A
waived claim of error presents nothing for an appellate court to
review. Id. at ¶ 40.
¶ 11 Several other jurisdictions have concluded that a party waives
their claim of error when they fail to use peremptory challenges to
correct a denial of a challenge for cause. See, e.g., State v.
Patriarca, 308 A.2d 300, 309 (R.I. 1973) (“While we find no error in
the refusal to disqualify the challenged jurors, any objection is
1 In People v. Abu-Nantambu-El, 2019 CO 106, ¶ 36, the Colorado
Supreme Court held that the erroneous denial of a challenge for
cause requires reversal if the challenged juror sits on a defendant’s
jury.
4
deemed waived where defendant’s peremptory challenges remain
unexhausted.”); Hammond v. Peden, 278 S.W.2d 96, 98 (Ark. 1955)
(“[I]f a litigant fails to exhaust his peremptory challenges he waives
any error committe[d] by the court in failing to excuse a challenged
juror.”); cf. Jordan v. United States, 295 F.2d 355, 356 (10th Cir.
1961) (“By his failure to exercise any challenge for cause and by his
use of only half of his peremptory challenges, the defendant has
waived the right to complain that he was not tried by an impartial
jury.”); Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d
1232, 1235 (Ind. 2002) (concluding that, in a case where the
defendant exhausted her peremptory challenges, “a claim of error
arising from denial of a challenge for cause is waived unless the
appellant used any remaining peremptory challenges to remove the
challenged juror or jurors”).
¶ 12 Notably, the supreme court in Abu-Nantambu-El did not
consider whether the error was waived or invited, apparently
because the People did not pursue either theory. 2019 CO 106,
¶ 38 n.7. In his dissent, however, Justice Samour opined that
when a defendant unsuccessfully challenges a juror for cause, and
then chooses not to excuse that juror with a peremptory challenge,
5
“a classic example of waiver or invited error” arises. Id. at ¶¶ 40, 44
(Samour, J., dissenting). Justice Samour said that
Abu-Nantambu-El should have been “precluded from obtaining
relief on appeal” when he “argu[ed] that [a juror] was biased and
should not be allowed to serve,” and then “turned around and
elected not to excuse her with one of his twelve peremptory
challenges.” Id. at ¶¶ 44, 50.
¶ 13 Here, the People argue that Vergari waived his claim. We find
the above authorities, along with Justice Samour’s analysis,
persuasive. Vergari unsuccessfully challenged Juror F.M. for
cause. But despite having five peremptory challenges, he exercised
only one and chose to leave Juror F.M. on the jury. Vergari now
complains that he was deprived of his right to a fair and impartial
jury because Juror F.M., who was allegedly biased against him,
served on his jury. But Vergari and his counsel undeniably knew
that Juror F.M. — who they believed was biased — was in a
position to serve on the jury. Yet, despite having five chances to
remove Juror F.M., they made the strategic decision to not exercise
four of those challenges and, instead, allowed Juror F.M. to serve.
We conclude that to have these opportunities and to strategically
6
decide not to exercise them constitutes a “classic example” of an
intentional relinquishment of a known right. See id.; see also
Rediger, ¶ 39. Thus, we hold that by failing to remove Juror F.M.
while not exhausting his peremptory challenges, Vergari waived his
claim that the trial court erred by denying his challenge for cause.2
We therefore decline to review it.
III. Witness’s Narration of Videos
¶ 14 Vergari next argues that the trial court reversibly erred by
permitting a witness to narrate two video exhibits. We discern no
basis for reversal.
¶ 15 At trial, the People called Craig Janson, a video forensics
technician, to testify as an expert in forensic imaging. Before
testifying, Janson cropped and enlarged a section of the Home
Depot surveillance video to create two videos focusing on the
altercation between Vergari and Miscles. The videos were admitted
2 We note that our holding is limited to the factual situation before
us: where Vergari did not exhaust his peremptory challenges. We
do not address whether a defendant waives a claim that they did
not receive a fair and impartial jury when they do exhaust all their
peremptory challenges but choose not to exercise one to excuse the
challenged juror (to the extent such an argument — if raised by the
facts and presented by the People — might survive
Abu-Nantambu-El).
7
into evidence and played for the jury. As they played, the
prosecutor asked Janson — who was not present during the
altercation — to describe what was occurring in the videos. Defense
counsel objected, arguing that the jurors could determine for
themselves what the videos depicted. The trial court found that
Janson could describe what the videos showed as “it’s often
necessary that the witness make a record as to what the exhibit is
showing.”
¶ 16 We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Meils, 2019 COA 180, ¶ 11. A trial court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or based on a misapplication or
misunderstanding of the law. People v. Elmarr, 2015 CO 53, ¶ 20.
¶ 17 “[W]e review nonconstitutional trial errors that were preserved
by objection for harmless error.” Hagos v. People, 2012 CO 63,
¶ 12. “[W]e reverse if the error ‘substantially influenced the verdict
or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin
v. People, 715 P.2d 338, 342 (Colo. 1986)). “[A]n objected-to trial
error is harmless if there is no reasonable possibility that it
8
contributed to the defendant’s conviction.” Pernell v. People, 2018
CO 13, ¶ 22.
¶ 18 Under CRE 701, a lay witness may testify to opinions or
inferences if they are (a) rationally based on the witness’s
perception; (b) helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of CRE 702. Lay opinion testimony is permitted under Rule
701 because “it has the effect of describing something that the
jurors could not otherwise experience for themselves by drawing
upon the witness’s sensory and experiential observations that were
made as a firsthand witness to a particular event.” People v. McFee,
2016 COA 97, ¶ 76 (quoting United States v. Freeman, 730 F.3d
590, 595 (6th Cir. 2013)). “A witness, lay or expert, may not form
conclusions for jurors that they are competent to reach on their
own.” Id.¶ 19 In these circumstances, it was improper for Janson to opine
on the events shown in the recordings. He did not witness what
occurred in the videos firsthand, have any personal knowledge
about the video recordings or what they depicted, or provide a
9
unique or more informed perspective or understanding because of
his expertise in forensic imaging. He was simply asked to narrate
what the jurors themselves were contemporaneously viewing. In
other words, he was in the same position as the jurors when it
came to discerning what these videos depicted. He therefore should
not have been permitted to provide any opinion about what the
videos showed. See id. Instead, it was for the jurors to watch the
videos and reach their own conclusion about what the videos
depicted.3
¶ 20 Nevertheless, we conclude that any error was harmless. First,
although Vergari argues that Janson’s statements constituted
expert testimony as to whether Vergari acted in self-defense,
Janson’s testimony was limited to simple and brief descriptions of
what he observed in the videos. He provided no opinions about
Vergari’s actions or motivations during the altercation. Second, the
jury watched the videos during Janson’s testimony and had access
3 The trial court found that his narration was necessary to “make a
record” about what the videos showed. But this finding was
misplaced; the videos were admitted and thus they — and what
they showed — became part of the record. A narration simply for
the sake of making a record was unnecessary.
10
to them during deliberations. And third, the trial court explained
that the “[t]he jury can view [the videos] and draw their own
conclusions from [them].” Thus, even though it was improper for
Janson to narrate the videos as they played, the jury was free to
disregard this opinion and come to its own conclusions, as the trial
court explained. See id. at ¶¶ 78-79 (concluding that, although a
detective’s opinion testimony about recordings was improper, “the
jury had no reason to accept his opinion and could evaluate [the
evidence] for itself” because “[t]he jury listened to both recordings
and was instructed to come to its own conclusion” about what the
recordings contained); People v. Rodriguez, 2021 COA 38M, ¶ 12
(reversible error did not occur where an officer testified about what
he heard in a recording, but the jury “listened to each portion of the
recording as the officer testified to what he heard, meaning the
jurors could decide for themselves whether the officer’s
interpretation was accurate”).
IV. Preclusion of Impeachment on Cross-Examination
¶ 21 Vergari also contends that the trial court reversibly erred by
precluding cross-examination of a witness about Miscles’s
aggressive character traits. We disagree.
11
¶ 22 Miscles’s wife, Rhonda John (who was a passenger in his truck
during the altercation), testified at trial. During direct examination,
the following exchange occurred:
PROSECUTOR: Looking at your husband’s
actions, was there anything that he did that
would cause the other driver, from your
perspective, to be concerned for their safety?
JOHN: No.
PROSECUTOR: Why not?
JOHN: I mean, just knowing [Miscles] is not an
aggressive person.
PROSECUTOR: Okay. But from what you saw,
let’s say you didn’t know [Miscles]. What you
saw between the two men, did [Miscles] do
anything physically or verbally that would
have put the other driver in fear of his safety?
JOHN: No. I mean, I don’t believe so. I mean,
he didn’t have anything in his hand. He
wasn’t balling up his fist or coming at him
aggressively. He was — he didn’t charge at the
other driver.
¶ 23 Based on John’s statement that Miscles “is not an aggressive
person,” Vergari’s defense counsel told the trial court that she
wished to cross-examine John about the fact that a coworker had
allegedly accused Miscles of sexual and physical assault. The trial
court precluded this inquiry, finding that the prosecutor’s question
12
“did not elicit that kind of response,” and “under [CRE] 403, going
into any other acts of violence committed by the victim here is of
virtually no probative value, and the danger of unfair prejudice . . .
would be great.”
¶ 24 “[W]e will not disturb a trial court’s ruling on the scope and
limits of cross-examination absent an abuse of discretion.” People
v. Margerum, 2018 COA 52, ¶ 30, aff’d on other grounds, 2019 CO
100. But even assuming, without deciding, that the trial court
abused its discretion by precluding the inquiry, we conclude that
any error was harmless.4
¶ 25 After John’s brief comment, the prosecutor immediately
redirected her testimony to focus on what John witnessed in the
altercation between Vergari and Miscles. And at no point
throughout the trial did the prosecutor argue that Miscles did not
have an aggressive character.5 Furthermore, during the trial, the
4 Vergari does not argue that this minimal restriction on the scope
of his cross-examination of John interfered with his right to
confront witnesses or would otherwise be subject to a constitutional
harmlessness review.
5 In both the opening and reply briefs, Vergari’s appellate counsel
claims that “the prosecution argued that Mr. Miscles was not
aggressive.” This is a misstatement of the record. Instead, the
13
prosecution presented overwhelming evidence of Vergari’s guilt
including Miscles’s and John’s testimony, Vergari’s statements to
police, and the surveillance videos depicting the altercation. We
therefore conclude that any error the trial court may have
committed by precluding defense counsel from rebutting John’s
statement that Miscles “is not an aggressive person” did not
substantially influence the verdict or affect the fairness of the trial
proceedings. See Hagos, ¶ 12.
V. Prosecutorial Misconduct
¶ 26 Finally, Vergari argues that the prosecutor committed
reversible misconduct during closing argument. While we agree
that some of the prosecutor’s arguments were improper, we
conclude that they do not warrant reversal.
¶ 27 During closing argument, the prosecutor made the following
comments:
 “[Mr. Miscles] is over this. But of course Mr. Vergari is
not, because . . . he is the unreasonable person that we
prosecutor permissibly argued, in direct response to Vergari’s
affirmative defense of self-defense, that Miscles “was not the initial
aggressor.”
14
talked about in jury selection. He’s angry. He wants to
prove his point. If we asked the question, is it more
important in life to be kind or right, Mr. Vergari would
say right.”
 “Mr. Vergari has to be right. He is that unreasonable
person who has to be right and show [Mr.] Miscles that
he is the one who is going to make — who is going to do
what he’s going to do, regardless. He wants to be right.”
¶ 28 After the first comment, Vergari’s counsel objected, arguing
that “[t]here is no evidence of that, and that’s an unfair inference to
speculate what my client would say.” The trial court neither
expressly sustained nor overruled the objection but reminded the
jury that “this is argument.” Trial counsel did not object to the
second comment.
¶ 29 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the conduct was
improper based on the totality of the circumstances. Id. In doing
so, we evaluate claims of improper argument in the context of the
argument as a whole and in light of the evidence before the jury.
15
People v. Conyac, 2014 COA 8M, ¶ 132. Next, we consider whether
such actions warrant reversal under the applicable standard of
review. Wend, 235 P.3d at 1096.
¶ 30 If the misconduct was objected to, but does not reach
constitutional magnitude, we review for harmless error. Id. at
1097. We reverse “only if we conclude that error occurred and that
there is a reasonable probability that the error contributed to the
guilty verdict.” People v. Gonzales, 2017 COA 62, ¶ 26.
¶ 31 If a defendant failed to object at trial, we review for plain error.
Wend, 235 P.3d at 1097. Plain error is error that is obvious and
that so undermined the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the judgment of conviction.
Hagos, ¶ 14. “Only prosecutorial misconduct which is ‘flagrantly,
glaringly, or tremendously improper’ warrants reversal” under the
plain error standard. Domingo-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo.
App. 1997)).
¶ 32 In closing arguments, “[p]rosecutors may comment on the
evidence admitted at trial and the reasonable inferences that can be
drawn therefrom.” People v. Samson, 2012 COA 167, ¶ 31. But
16
prosecutors may not refer to facts not in evidence. People v.
Denhartog, 2019 COA 23, ¶ 58. And “[w]hile a prosecutor may
employ rhetorical devices and engage in oratorical embellishment
and metaphorical nuance, [she] may not thereby induce the jury to
determine guilt on the basis of passion or prejudice, attempt to
inject irrelevant issues into the case, or accomplish some other
improper purpose.” Id. at ¶ 61.
¶ 33 Vergari argues that the prosecutor’s comments were not based
on facts in evidence and referred to improper character evidence.
We agree that the repeated references to Vergari’s tendency to be
unreasonable or desire to be “right” were improper. While oratorical
embellishments are permissible, they still must be rooted in the
evidence that was presented at trial. These references were not
supported by such evidence. Nevertheless, the comments do not
warrant reversal.
¶ 34 To the extent that Vergari’s argument on appeal is that the
trial court impermissibly allowed the prosecutor to comment on
facts not in evidence, that contention was at least arguably
17
preserved as to the first comment.6 We thus review for harmless
error. Here, there is no probability that the first statement
contributed to the guilty verdict. The comment was brief and not
overly inflammatory. After Vergari’s counsel objected, the trial
court reminded the jury that this was only argument. And given
the overwhelming evidence of guilt, it was unlikely to have had a
material role in Vergari’s conviction. See People v. Hogan, 114 P.3d
42, 55 (Colo. App. 2004) (Determining whether misconduct is
harmless requires a court to evaluate “the severity and frequency of
misconduct, any curative measures taken by the trial court to
alleviate the misconduct, and the likelihood that the misconduct
6 Though the People contend that Vergari failed to preserve his
claim that the prosecutor improperly urged the jury to convict
Vergari based on his bad character, they do not address whether
Vergari preserved his claim that the prosecutor improperly argued
facts not in evidence. It is not entirely clear that Vergari did
preserve this issue, as he objected but did not actually press for a
definitive ruling from the trial court. See People v. Douglas, 2015
COA 155, ¶ 40 (noting that the defendant’s counsel “declined to
request a ruling on her objection, which amounts either to no
objection at all, or, worse still, to an abandonment of the objection
and a waiver of any right to assert error on appeal”). Nevertheless,
because the People do not argue that Vergari waived or otherwise
failed to preserve this claim, we treat it as preserved.
18
constituted a material factor leading to the defendant’s
conviction.”).
¶ 35 Vergari’s remaining contentions — that, in the second
statement, the prosecutor argued facts not in evidence and that
both statements were an improper commentary on Vergari’s bad
character — were not preserved and are thus reviewed for plain
error. The statements, while improper, were not “flagrantly,
glaringly, or tremendously” so. Avila, 944 P.2d at 676 (quoting
People v. Vialpando, 804 P.2d 219, 224 (Colo. App. 1990)). Nor do
they “cast serious doubt on the reliability of the jury’s verdict.” See
Domingo-Gomez, 125 P.3d at 1053 (citing Miller, 113 P.3d at 750).
Therefore, we discern no reversible error.
VI. Disposition
¶ 36 The judgment is affirmed.
JUDGE DAILEY and JUDGE BERGER concur.
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