v. People , 2019 CO 105 ( 2019 )

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ADVANCE SHEET HEADNOTE
December 16, 2019
2019 CO 105
No. 15SC770, Vigil v. People—Criminal Law—Jury—Evidence—Witnesses.
Vigil sought review of the court of appeals’ judgment affirming his
convictions of second degree burglary and second degree aggravated motor
vehicle theft. As pertinent to the issues on review in the supreme court, the trial
court denied Vigil’s for-cause challenge to Juror C.A. but granted the prosecution’s
challenge to Juror D.K. At trial, and over defense counsel’s objection, an officer
was permitted to opine without qualification as an expert that Vigil’s shoes
visually matched shoeprints he photographed at the crime scene. With regard to
Vigil’s assignments of error concerning these rulings, the court of appeals
concluded that the trial court had not abused its discretion by denying Vigil’s
challenge to Juror C.A.; that any error committed in granting the prosecution’s
challenge to prospective Juror D.K. would in any event have been harmless; and
that the trial court did not abuse its discretion in allowing the officer to offer a lay
opinion concerning the shoeprint comparison in question.
The supreme court affirmed, ruling that the trial court did not abuse its
discretion in denying Vigil’s challenge to Juror C.A.; granting the prosecution’s
challenge to prospective Juror D.K., even if it amounted to an abuse of discretion,
did not result in any violation of Vigil’s rights; and the trial court did not abuse its
discretion in admitting the officer’s testimony as lay opinion.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 105
Supreme Court Case No. 15SC770
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA15
Petitioner:
Nathan Richard Vigil,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
December 16, 2019
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Brian Cox, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Carmen Moraleda, Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special
concurrence.
JUSTICE GABRIEL dissents.
¶1 Vigil sought review of the court of appeals’ judgment affirming his
convictions of second degree burglary and second degree aggravated motor
vehicle theft. As pertinent to the issues on review in the supreme court, the trial
court denied Vigil’s for-cause challenge to Juror C.A. but granted the prosecution’s
challenge to Juror D.K. At trial, and over defense counsel’s objection, an officer
was permitted to opine without qualification as an expert that Vigil’s shoes
visually matched shoeprints he photographed at the crime scene. With regard to
Vigil’s assignments of error concerning these rulings, the court of appeals
concluded that the trial court had not abused its discretion by denying Vigil’s
challenge to Juror C.A.; that any error committed in granting the prosecution’s
challenge to prospective Juror D.K. would in any event have been harmless; and
that the trial court did not abuse its discretion in allowing the officer to offer a lay
opinion concerning the shoeprint comparison in question.
¶2 Because the trial court did not abuse its discretion in denying Vigil’s
challenge to Juror C.A.; because granting the prosecution’s challenge to
prospective Juror D.K., even if it amounted to an abuse of discretion, did not result
in any violation of Vigil’s rights; and because the trial court did not abuse its
discretion in admitting the officer’s testimony as lay opinion, the judgment of the
court of appeals is affirmed.
2
I.
¶3 Nathan Richard Vigil was charged with first degree aggravated motor
vehicle theft, second degree burglary, theft, and attempt to commit second degree
burglary in connection with the disappearance of a truck, motorcycle, and various
other items of personal property from a farm in Conejos County. Although the
attempted burglary count was dismissed and the defendant was acquitted of theft,
he was convicted of second degree burglary and a lesser included offense of
second degree aggravated motor vehicle theft. He was sentenced to concurrent
terms of six years and eighteen months in the custody of the Department of
Corrections.
¶4 Evidence was presented at trial from which the jury could find that in
November 2010, the victim discovered that his truck, motorcycle, and other
personal property were missing from his farm. An officer of the Conejos County
Sheriff’s Department responded to the farm and photographed shoeprints near
the area where the truck had been parked. Witnesses informed the officer that the
defendant had asked them to tow a truck to a trading post in the area but that they
had not realized at the time that the truck belonged to the victim. While the
defendant was being held for a different crime at the Alamosa County Sheriff’s
Office, the officer examined his shoes and determined that they “visually
matched” shoeprints on the victim’s farm.
3
¶5 During voir dire, Juror C.A. indicated that he knew the victim’s family and
that he might work on the father’s farm equipment sometime in the future, and he
appeared equivocal as to whether he could render an impartial verdict for these
reasons. The court denied defense counsel’s challenge for cause after directly
asking C.A. if he could evaluate the victim’s testimony “just like all the other
witnesses who will testify,” and after receiving C.A.’s answer, “I think I could.”
The court subsequently granted a prosecution challenge to prospective Juror D.K.
on the ground that he was biased against the police and prosecution. Ultimately,
both the prosecution and defense exhausted their allotted number of peremptory
challenges, and neither used a peremptory challenge to strike Juror C.A. nor
requested any additional challenge.
¶6 Without qualification as an expert and over defense objection at trial, the
investigating officer in question was permitted to opine, on the basis of his
observation of what he considered to be identical “Skechers” emblems and similar
size, that the soles of the shoes he examined at the Sheriff’s Office “visually
matched the prints that were out on the scene.”
¶7 On appeal, the intermediate appellate court affirmed the defendant’s
convictions. With regard to the defendant’s assignments of error concerning these
three rulings of the trial court, the appellate court found that the ruling concerning
Juror C.A. fell within the broad discretion permitted trial courts when ruling on
4
challenges of juror bias; that any error, had one occurred, in granting the
prosecution’s challenge to prospective Juror D.K. was necessarily harmless; and
that the trial court did not abuse its discretion in admitting lay opinion of shoeprint
comparison.
¶8 The defendant petitioned this court for a writ of certiorari.
II.
A.
¶9 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. Within constitutional limitations, the
legislature determines the qualifications for jury service. People v. White, 242 P.3d
1121, 1124 (Colo. 2010).
¶10 Section 105 of the Uniform Jury Selection and Service Act, §§ 13-71-101 to
-145, C.R.S. (2019), 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. § 13-71-105(1), (2), C.R.S. (2019). Although
a prospective juror may therefore be qualified in terms of citizenship and vicinage,
he nevertheless “shall be disqualified” for failing to meet any of a number of other
5
conditions related to such things as his age, facility with the English language,
physical or mental capabilities, familial obligations, and prior jury service. Id.
¶11 The absence of any qualification prescribed by statute to render a person
competent as a juror is itself designated cause for removal, on the basis of which a
challenge by one of the parties must be sustained. § 16-10-103(1)(a), C.R.S. (2019).
Beyond the actual absence of some statutory qualification, however, the legislature
has enumerated a number of other grounds that will also support a challenge for
cause in criminal cases, broadly involving circumstances implicating a prospective
juror’s ability to remain impartial. These circumstances include such things as the
prospective juror’s relationship with the defendant or counsel, any prior adverse
relationship with the defendant in a civil or criminal 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, and employment by either a law enforcement
agency or the public defender’s office. § 16-10-103(1)(a)–(k). The detection of
actual enmity or bias toward the defendant or the state is, of course, also expressly
designated cause for removal. § 16-10-103(1)(j).
¶12 In addition to permitting each party to challenge prospective jurors for
cause, the legislature has provided a specific number of challenges to each side,
varying with the nature of the charge and circumstances of the particular
prosecution, to be exercised peremptorily. § 16-10-104(1), C.R.S. (2019). As the
6
term implies, these challenges may, within constitutional limitations, be exercised
without regard for or specification of any reason whatsoever. The statute 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 the mechanics and timing for exercising
peremptory challenges but also permits the trial court to add peremptory
challenges to either side, or to both sides, for good cause shown.
¶13 Because challenges for cause, unlike peremptory challenges, are limited
only by statutory grounds for removal and not in number, a trial court may
entertain numerous challenges for cause from either or both sides during the
selection of a single jury. As the Supreme Court has noted, often such challenges
are “fast paced, made on the spot and under pressure,” and the court “must be
prepared to decide [them], often between shades of gray, ‘by the minute.’” United
States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (citation omitted). And while
some of the qualifications for jury service and other statutory grounds justifying a
challenge for cause are matters of law determinable with relative certainty, others
are not.
¶14 The question whether there exists a state of mind in any particular
prospective juror evincing enmity or bias toward the defendant or the state such
that he cannot judge the matter fairly and impartially is necessarily a matter
7
involving an exercise of discretion on the part of the trial court and therefore a
range of permissible judgments about the ability and willingness of that
prospective juror. See Carrillo v. People, 974 P.2d 478, 485–86 (Colo. 1999). We have
previously recognized “the trial court’s unique role and perspective,” and the
“preferred position” in which it finds itself, in evaluating a prospective juror’s
credibility, demeanor, and sincerity in explaining his state of mind. Id. at 486
(quoting in part People v. Macrander, 828 P.2d 234, 239 (Colo. 1992), overruled in part
by People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194, 1203). For these reasons,
among others, such assessments by a trial court are subject to a “very high
standard of review,” id. at 485–86, meriting a finding that the court has abused its
discretion only if its ultimate ruling is “manifestly arbitrary, unreasonable, or
unfair.” Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 899
(Colo. 2008). In determining whether a trial court has abused its discretion,
reviewing courts have therefore been admonished from considering merely
whether they would have reached the same conclusion and, instead, must affirm
as long as the trial court’s decision fell within a range of reasonable options.
Churchill v. Univ. of Colo. at Boulder, 2012 CO 54, ¶ 74, 285 P.3d 986, 1008 (quoting
E–470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230–31 (Colo. App. 2006)).
¶15 Even a ruling on a challenge for cause that clearly falls outside this
acceptable range and is therefore erroneous, however, will not necessarily result
8
in a violation of a criminal defendant’s right to an impartial jury. Should a
prospective juror be erroneously removed for cause, that action, in and of itself,
will not result in a biased juror sitting in judgment of the defendant. By the same
token, the defendant’s right to an impartial jury can be adversely affected by an
erroneous denial of his challenge for cause only if that juror is not otherwise
removed, as by a different challenge for cause or a challenge exercised
peremptorily.
¶16 In a series of cases decided over the last quarter-century, the United States
Supreme Court has retreated from its earlier pronouncements concerning the role
and importance of peremptory challenges in jury selection and has now made
clear that peremptory challenges have no basis in the federal constitution and are,
instead, purely a creature of legislation. Rivera v. Illinois, 556 U.S. 148, 157 (2009)
(“[T]here is no freestanding constitutional right to peremptory challenges.”).
Recounting the long history of legislative provision for peremptory challenges in
federal criminal trials, and construing the current provision approved by Congress
as Fed. R. Crim. P. 24, the Court has more recently emphasized the fact that a
principal reason for permitting peremptory challenges has always been to help
secure the constitutional guarantee of trial by an impartial jury, Martinez-Salazar,
528 U.S. at 314–16; that exercising the authorized number of peremptory
challenges is all that the parties are entitled to by the rule, id. at 315; that the
9
decision of a defendant to use one of his peremptory challenges to cure what turns
out to be an erroneous denial of a for-cause challenge therefore does not impair
his statutory right, id. at 317; and that the mistaken denial of a state-provided
peremptory challenge does not, without more, violate the federal constitution,
Rivera, 556 U.S. at 158.
¶17 In Novotny, we reconsidered a line of authority in this jurisdiction dictating
automatic reversal for any erroneous ruling on a challenge for cause adversely
impacting the defendant’s ability to shape the composition of the jury through the
use of peremptory challenges. ¶¶ 14–17, 320 P.3d at 1199–1200. Much as the
Supreme Court had done in disavowing its earlier pronouncements from Swain v.
Alabama, 380 U.S. 202, 219 (1965), and those cases on which it relied, see Rivera,
556 U.S. at 160; Martinez-Salazar, 528 U.S. at 317 n.4, we overturned this line of our
own precedents as having been substantially undermined by developments in the
harmless-error doctrine in general, and the structural error/trial error dichotomy
in particular, Novotny, ¶ 17, 320 P.3d at 1200. Because we were there faced with
the specific question whether automatic reversal was the proper remedy for such
an error in light of the subsequently developed structural error doctrine, we
reserved the question whether the use of a peremptory challenge to remove a
prospective juror for whom a challenge for cause was erroneously denied must be
disregarded as harmless in every case. Id. at ¶¶ 1–2, 320 P.3d at 1196. Instead we
10
remanded to the court of appeals for consideration of the appropriate remedy in
that particular case. Id. at ¶ 27, 320 P.3d at 1203. In the intervening five years, a
number of divisions of the intermediate appellate court have reasoned that in the
absence of bad faith or actual participation by a biased juror, the use of a
peremptory challenge to cure an erroneous ruling on a defendant’s challenge for
cause is necessarily harmless. People v. Marciano, 2014 COA 92M-2, ¶ 10, 411 P.3d
831, 835 (citing People v. Wise, 2014 COA 83, ¶¶ 28–29, 348 P.3d 482, 489); People v.
Wilson, 2014 COA 114, ¶ 23, 356 P.3d 956, 963 (quoting Wise, ¶ 28, 348 P.3d at 489);
Wise, ¶¶ 28–29, 28 n.6, 348 P.3d at 489 & n.6.
¶18 Although in Novotny we focused on the propriety of automatic reversal for
what we had previously considered to be the “forced” use of a defendant’s
peremptory challenge to cure an erroneous ruling on a challenge for cause, our
reliance not only on developments in the harmless error doctrine, but also on more
recent Supreme Court jurisprudence finding a lack of any constitutional
underpinning whatsoever for peremptory challenges, largely foreshadowed
today’s holding. Today we expressly answer the question left open in Novotny by
disavowing our prior understanding that the constitution, statute, rule, or some
combination of the three, grants a criminal defendant a right to shape the jury
through the use of peremptory challenges.
11
¶19 In both the context of erroneously denying a defense challenge for cause and
the context of erroneously granting a prosecution challenge for cause, we had
come to believe that a criminal defendant, quite apart from being denied his
constitutional right to an impartial jury, is harmed, or disadvantaged tactically, see
Blades v. DaFoe, 704 P.2d 317, 322 (Colo. 1985), overruled in part by Laura A. Newman,
LLC v. Roberts, 2016 CO 9, ¶ 2, 365 P.3d 972, 973, by being deprived of an equal
opportunity to change the composition of, or “shape,” the jury, see People v. Lefebre,
5 P.3d 295, 304 (Colo. 2000), overruled in part by Novotny, ¶ 27, 320 P.3d at 1203;
Macrander, 828 P.2d at 244. For this proposition, we relied in part on pre-harmless
error caselaw finding that violation of the peremptory challenge statute alone
amounted to harm requiring reversal, see, e.g., Macrander, 828 P.2d at 243 (relying
on Denver City Tramway Co. v. Kennedy, 117 P. 167 (Colo. 1911)), and in part on
now-rejected Supreme Court caselaw implicitly finding federal constitutional
underpinnings of peremptory challenges, see, e.g., Lefebre, 5 P.3d at 306
(understanding Ross v. Oklahoma, 487 U.S. 81 (1988), to hold that a federal due
process violation results if a trial court fails to provide a defendant his state law-
granted right to peremptory challenges, a proposition expressly rejected by the
Court in Rivera, 556 U.S. at 158). In our most recent consideration of this
proposition, and the only instance in which we actually relied on language from
the statute and rule themselves, we announced that “[t]he function of peremptory
12
challenges in a criminal proceeding is to allow both the prosecution and the
defense to secure a more fair and impartial jury by enabling them to remove jurors
whom they perceive as biased, even if the jurors are not subject to a challenge for
cause,” Lefebre, 5 P.3d at 303, and we inferred that the allowance by statute and
rule of the same number of peremptory challenges, in the absence of good cause
to add peremptory challenges to one or both sides, was intended to further this
end, id. at 303–04.
¶20 While providing the same number of peremptory challenges to both the
defense and prosecution in the absence of good reason to do otherwise clearly
evidences an intent to permit, at least initially, each side to exercise the same
number of peremptory strikes, on its face it implies virtually nothing about the
purpose for providing for peremptory, in addition to for-cause, challenges. Much
like the federal legislative authorization for peremptory strikes, our statute simply
provides a specified number of strikes, varying with the nature of the charges and
number of defendants, and our rule merely embellishes on that provision by
permitting additional strikes to the prosecution or defense for good cause. Our
prior cases fail to suggest support in the text or legislative history of either
provision for any underlying legislative intent to permit the parties to shape the
jury to their tactical advantage, as distinguished from merely to aid in the ultimate
acquisition of a constitutionally required fair and impartial jury.
13
¶21 In Martinez-Salazar, the Supreme Court expressly rejected the notion that a
criminal defendant who expends one of his peremptory challenges to cure an
erroneous ruling on his challenge for cause has effectively been “forced” to do so
in order to remove the objectionable veniremember and, therefore, has effectively
been deprived of one of the strikes allotted him by Rule 24. 528 U.S. at 314–15.
The Court reasoned that where the defendant has exercised the number of
peremptory challenges permitted by the rule, whatever the reason for his decision
to do so, he has received nothing less than that to which the rule entitled him. Id.
at 315. Following this same logic, where the court erroneously grants a challenge
for cause, the party making that challenge has not effectively received a
peremptory challenge beyond the number allotted him by statute, and therefore
unless the court acted in bad faith to assist him in some way other than acquiring
a fair and impartial jury, he has received no more than that to which the statute
entitled him.
¶22 We are not unmindful that retreating from the shape-the-jury rationale that
led to the now-overturned remedy of automatic reversal further implicates the
doctrine of stare decisis. For virtually the same reasons we found it important and
justified in Novotny to partially overturn this line of our own prior holdings, we
consider it similarly justified to now overturn them in full. To the extent that our
prior rationale was based on pre-harmless error holdings, the constitutional
14
significance of peremptory challenges, and even federal due process implications
of violating state peremptory challenge law, those premises have now all been
independently swept away by developments in the jurisprudence of the Supreme
Court which we have either already adopted or by which we are constitutionally
bound. As we indicated in Novotny, the venerable principle of stare decisis is not
an immutable law but rather ultimately a matter of discretion for a high court, and
when, as here, the bases for a prior holding, whether legal or factual, no longer
support that holding, and especially where retreating from that holding would not
unfairly upset settled expectations, overturning it is not only merited but is in fact
an obligation of the high court. Novotny, ¶¶ 24–26, 320 P.3d at 1202–03.
B.
¶23 Vigil contends that the trial court erred by denying his challenge for cause
to Juror C.A. Though Juror C.A. initially appeared equivocal as to his ability to
remain impartial due to his acquaintance with the victim’s family and the
possibility that he might work on the father’s farm equipment sometime in the
future, the trial judge sought, and C.A. expressly gave, his assurance that he
thought he could evaluate the victim’s testimony “just like all the other witnesses
who will testify.” It was for the trial court not only to assess the juror’s credibility
but also to evaluate whether he would be able to render an impartial verdict.
15
¶24 Contrary to the assertion of the defendant, it was unnecessary for the trial
court to query the prospective juror in precise terms of bias and impartiality and
to receive his express assurance that he was not biased and both could and would
render an impartial verdict. While the ultimate aim of jury selection is to produce
an unbiased and impartial jury, Smith v. Dist. Court, 907 P.2d 611, 613 (Colo. 1995),
neither the United States Constitution nor the Colorado Constitution “dictate[s] a
catechism for voir dire.” People v. Harlan, 8 P.3d 448, 464 (Colo. 2000) (alterations
in original) (quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992)), overruled in part by
People v. Miller, 113 P.3d 743, 748 (Colo. 2005). Similarly, the statutory requirement
that a challenge for cause be sustained as to any juror having a state of mind
evincing enmity or bias toward the defendant or the state also makes clear that no
person shall be disqualified by reason of having formed an opinion as to guilt or
innocence if the court is satisfied from examination of the juror or from other
evidence that he will render a verdict according to the law and the evidence
submitted to the jury at the trial. § 16-10-103(1)(j). Where the source of concern
for C.A.’s impartiality arose from his prior relationship with the victim’s family, it
was within the trial court’s unique role in jury selection and discretion to conclude
from C.A.’s clarification that he could assess the victim’s testimony just as any
other witness and that he could render an impartial verdict.
16
¶25 With regard to the trial court’s ruling granting the prosecution’s for-cause
challenge of prospective Juror D.K., whether that ruling amounted to an abuse of
discretion or not, in the absence of bad faith, which has not been asserted here, see
Johnson v. Schonlaw, 2018 CO 73, ¶ 16, 426 P.3d 345, 350, it could not require
reversal. Because D.K. did not sit in judgment of the case, that ruling could not
have deprived the defendant of his constitutional right to a fair and impartial jury;
and because neither the prosecution nor the defendant is granted any right in this
jurisdiction, by constitution, statute, or rule, to shape the composition of the jury
through the use of peremptory challenges, the defendant could not have been
harmed by the deprivation of any such right.
III.
¶26 In Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875, this court recently
clarified the distinction between expert and lay opinion within the contemplation
of Rules 701 and 702 of the Colorado Rules of Evidence. If opinion testimony could
be based on an ordinary person’s experiences or knowledge, the testimony in
question may be admitted as a lay opinion. Id. at ¶ 2, 388 P.3d at 871. If, however,
a witness offers testimony in the nature of an opinion that could not be formed
without reliance on specialized experiences, knowledge, or training, for that
testimony to be admissible, the witness must be qualified as an expert. Id.
17
¶27 Vigil asserts that the officer’s opinion testimony constituted improper
expert testimony in the guise of lay testimony. At trial, the prosecution asked the
officer to compare the shoeprints he photographed at the victim’s farm with the
photos he took of Vigil’s shoes. The officer merely opined that the print of Vigil’s
shoes “visually matched the prints that were out on the scene.” He later explained
that he based his comparison of the shoeprint and the shoe itself on their identical
“Skechers” emblems and similar size measurements.
¶28 Because neither a comparison of a shoe and an imprint left in the dirt by a
shoe based on the size of each, nor a visual comparison of an emblem on the sole
of a shoe and an imprint in the dirt left by a shoe, is beyond the ken of an ordinary
person without specialized training or experience of any kind, id., an opinion that
the defendant’s shoe caused the imprint in the dirt observed by the officer was
admissible as a lay opinion. Although the officer in question made reference to
his experience and training with regard to evidence collection generally, that
testimony could not reasonably have been understood to suggest that the officer
had specialized training in the comparison of shoeprints or that his opinion was
entitled to any greater weight than the opinion of anyone capable of measuring
the size of the two and visually observing the emblem and imprint in the dirt. The
trial court therefore did not abuse its discretion by admitting the officer’s shoeprint
comparison testimony as lay testimony pursuant to CRE 701.
18
¶29 We also reject the defendant’s contention that the officer’s testimony was
unhelpful to the jury. Although he photographed the prints in question, his
measurements of the shoes themselves and the imprints at the scene were the first-
hand observations of the evidence in question.
IV.
¶30 Because the trial court did not abuse its discretion in denying Vigil’s
challenge to Juror C.A. for cause; because any error the trial court committed in
granting the prosecution’s challenge to prospective Juror D.K. for cause did not
result in a violation of Vigil’s constitutional, statutory, or rule-based rights, and
therefore does not require reversal; and because the trial court properly admitted
the officer’s testimony as lay opinion, the judgment of the court of appeals is
affirmed.
JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special
concurrence.
JUSTICE GABRIEL dissents.
19
JUSTICE HOOD, specially concurring.
¶31 For the reasons set forth below, I join the court’s judgment in all respects. I
write separately, however, to explain why I believe People v. Novotny, 2014 CO 18,
320 P.3d 1194, dictates today’s result as to prospective Juror D.K. and why I believe
the division majority’s “clear bias” rationale as to Juror C.A. was incorrect.
Therefore, I respectfully concur.
I. Prospective Juror D.K. and Prejudice Post-Novotny
¶32 The majority acknowledges that the court’s decision in Novotny “largely
foreshadowed today’s holding.” Maj. op. ¶ 18. The majority then explains that
“[t]oday we expressly answer the question left open in Novotny by disavowing our
prior understanding that the constitution, statute, rule, or some combination of the
three, grants a criminal defendant a right to shape the jury through the use of
peremptory challenges.” Id.; see also id. at ¶ 20 (“Our prior cases fail to suggest
support in the text or legislative history of either provision for any underlying
legislative intent to permit the parties to shape the jury to their tactical advantage,
as distinguished from merely to aid in the ultimate acquisition of a constitutionally
required fair and impartial jury.”).
¶33 The majority’s characterization of Novotny as simply foreshadowing today’s
holding is puzzling, however, given Novotny’s rationale. Of course, the opinion is
best known for overruling the automatic-reversal rule of People v. Macrander,
1
828 P.2d 234 (Colo. 1992). But in overruling Macrander, the court expressly
disavowed the notion that parties have a due process right to use peremptory
challenges to “shape” the jury. See, e.g., Novotny, ¶ 22, 320 P.3d at 1201 (“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.”).
¶34 Thus, from my perspective, Novotny did more than foreshadow today’s
holding. It foreordained it. Were this simply a case of foreshadowing—with a
genuine choice remaining—I might choose a different path. But, as it is, I feel
compelled to join the decision because we have done no more than arrive at the
end of the path on which Novotny placed us. Although I dissented in Novotny,
stare decisis compels my reluctant obedience to its dictates today. On that basis, I
concur as to the Juror D.K. portion of the court’s holding in the case at bar.
II. Juror C.A. and the Standard for Reviewing Bias
¶35 As to Juror C.A., I note that the majority correctly eschewed the division’s
articulation of a “clear bias” standard of review in evaluating whether Juror C.A.
should have been dismissed for cause. I write separately to spell out why I think
this was a wise choice.
2
¶36 The division concluded that “a trial court is not compelled to grant a
challenge for cause where a juror’s responses are equivocal and do not articulate
a clear expression of bias . . . .” People v. Vigil, 2015 COA 88M, ¶ 11, __ P.3d __; see
also id. at ¶ 15 (“We do not agree, however, that the juror’s answers taken as a
whole revealed any ‘clear bias’ that ‘would make his dismissal from the jury
compulsory.’” (quoting People v. Young, 16 P.3d 821, 826 (Colo. 2001))). Because
Juror C.A. “did not clearly evince bias,” the division held that “Juror C.A.’s
equivocal responses did not require the trial court to excuse him.” Id. at ¶¶ 11, 14.
¶37 In gleaning this “clear bias” standard, the division relied on references to
clear bias in several of our decisions, the most relevant being Carrillo v. People,
974 P.2d 478, 488 (Colo. 1999), and Young, 16 P.3d at 826. But I believe the
division’s reliance is misplaced.
¶38 True, in concluding in Carrillo that the trial court did not abuse its discretion
in denying a defendant’s challenge for cause, this court observed that a
prospective juror’s “answers to questions about his working relationship with [the
victim’s father] appear ambiguous and fail to articulate a clear expression of bias
requiring his dismissal.” 974 P.2d at 488. And, following a similar conclusion in
Young, we briefly noted in dicta that the record did “not reveal that [the challenged
juror] had any clear bias against [the defendant] which would make his dismissal
from the jury compulsory.” 16 P.3d at 826.
3
¶39 But while these observations may permit an appellate court to consider
whether a juror’s responses articulated a “clear expression of bias” when
reviewing the challenged voir dire as a whole, they do not announce a new legal
standard for determining whether a juror evinced enmity or bias, as the division
did here. Not only is such a standard absent from the challenge-for-cause statute’s
plain language, see § 16-10-103(1)(j), C.R.S. (2019), it also doesn’t make sense. After
all, if a trial court can never abuse its discretion in denying a challenge for cause if
a prospective juror’s responses are equivocal, appellate review of such decisions
could become a hollow exercise. Rare is the case in which a prospective juror
unyieldingly clings to a clear statement of bias. Unless the prospective juror is
intent on being excused, probing by counsel and the court typically leaves us with
a muddle of equivocal statements, not unlike what we see here as to Juror C.A. In
the absence of some evidence of rehabilitation demonstrating that the juror is
willing to render a verdict according to the law and evidence—and not based on
enmity or bias—equivocation alone can make it manifestly unreasonable or unfair
to deny a challenge for cause. Accordingly, the majority properly avoided
applying a “clear bias” standard of review.
¶40 Likewise, the majority is right to tacitly reject the defendant’s argument for
a “genuine doubt” standard. Pointing to our decision in People v. Russo, 713 P.2d
356, 362 (Colo. 1986), in which we stated in part that “[i]f the trial court has genuine
4
doubt about the juror’s ability to be impartial . . . , it should resolve the doubt by
sustaining the challenge,” Vigil argues that an expression of doubt as to
impartiality, minus rehabilitation expressly regarding impartiality, requires the
prospective juror’s dismissal for cause. But this “genuine doubt” language is also
nowhere to be found in the challenge-for-cause statute. See § 16-10-103(1)(j).
¶41 Instead, the majority correctly focuses on the statute’s plain language. Maj.
op. ¶ 11 (“The detection of actual enmity or bias toward the defendant or the state
is, of course, also expressly designated cause for removal.”); see also id. at ¶ 24
(“Similarly, the statutory requirement that a challenge for cause be sustained as to
any juror having a state of mind evincing enmity or bias toward the defendant or
the state also makes clear that no person shall be disqualified by reason of having
formed an opinion as to guilt or innocence if the court is satisfied from examination
of the juror or from other evidence that he will render a verdict according to the
law and the evidence submitted to the jury at the trial.”).
¶42 And here, there was at least some follow-up by the trial court. I therefore
agree with the majority that under the highly deferential standard of review,
premised on the trial court’s opportunity to see and interact with the juror, there
was no abuse of discretion.
¶43 In the end, the division put it well:
Juror C.A.’s statement that he would treat [the victim’s] testimony the
same as other witnesses’ testimony meant that he would treat [the
5
victim’s] testimony impartially (i.e., he would not be unduly partial
toward [the victim] when assessing his testimony). Juror C.A.’s
statement that he would treat [the victim’s] testimony impartially was
some evidence that he would render an impartial verdict (i.e., he
would not be unduly partial toward [the victim] when rendering the
verdict).
With the benefit of hindsight and time to parse the record, we could
conceive of more complete follow-up questions for Juror C.A.
However, simply because we could construct additional useful
questions for the juror does not necessarily give us license to overturn
the trial court’s decision. The restraint on our review of the trial
court’s ruling reflects the supreme court’s considered judgment of the
respective roles of the trial and appellate courts regarding challenges
for cause. Thus, we must resist the temptation to second-guess the
trial court’s decision based on a cold record.
Although the trial court’s questioning could have been more
comprehensive, it still elicited a response significant to the challenge
for cause, as explained above. Therefore, even if imperfect, the trial
court’s questioning of the juror weighs in favor of affirmance.
Vigil, ¶¶ 16–18 (internal citations omitted).
¶44 In concluding, I echo the sentiment expressed by the division majority. The
trial court’s follow-up questioning of Juror C.A. regarding his potential bias in
favor of the victim in this case was less than ideal. But this was a quintessential
game-time call. The trial judge was there; we weren’t. Moreover, I take comfort
in the fact that this court tends to see outliers. I place my faith in Colorado’s trial
judges to go beyond perfunctory questioning that superficially protects the record
but endangers a defendant’s (and, when at issue, the state’s) right to a truly fair
and impartial jury.
6
I am authorized to state that JUSTICE HART joins in this special
concurrence.
7
JUSTICE GABRIEL, dissenting.
¶45 I agree with the majority’s conclusion that the trial court did not abuse its
discretion in admitting a police officer’s lay opinion that Vigil’s shoes matched
shoeprints that the officer had photographed at the crime scene. Maj. op.
¶¶ 28–30. I disagree, however, with the majority’s conclusions that (1) the trial
court did not abuse its discretion in denying Vigil’s challenge for cause to Juror
C.A. and (2) any error that the trial court committed in granting the prosecution’s
challenge for cause as to Juror D.K. did not prejudice Vigil. Id. In particular, I
disagree with the majority’s apparent test for prejudice, which makes it virtually
impossible for a criminal defendant ever to prove prejudice in this context and
which I believe results in an unlevel playing field.
¶46 Accordingly, I respectfully dissent.
I. Factual Background
¶47 The majority does not quote much of the voir dire examinations of either
Juror C.A. or Juror D.K. Because those examinations are central to my analysis, I
discuss them at greater length.
¶48 During voir dire, Juror C.A. volunteered that he had “done quite a bit of
work” for the victim and his family and that he had “gotten along great with them
for years and years.” The following exchange then occurred with defense counsel:
1
[Defense Counsel]: . . . Due to these business relationships you’ve had
with the alleged victim in this case, do you feel it would be difficult
for you to render an impartial verdict?
[Juror C.A.]: I can’t say that. I really can’t. I’d like to say no. I’d like
to say no, but I don’t know.
[Defense Counsel]: So what are you saying? Are you saying, yes, you
can render an impartial [verdict] or no you can’t?
[Juror C.A.]: It’s something that sits there. I know the people. I really
do. I don’t know the defendant here.
[Defense Counsel]: Do you think you may be doing business with
them in the future?
[Juror C.A.]: Possibly with the dad. I work out in that area, out in
Questa. And I come through there, and I do stop and visit with [the
victim’s father] every once in a while. If he’s got something that’s out
of whack on his pivots, I go and take care of it for him. I don’t know.
[Defense Counsel]: Your Honor, I’m going to ask the same thing of
[Juror C.A.]. He stated he has a business relationship with the—[the
victim] and his family and may be having business in the future; and
in the back of his mind, that may make him where he’s not completely
unbiased or prejudiced in making an ultimate determination.
THE COURT: Sir, can you evaluate his testimony just the same as the
testimony of all the other witnesses?
[Juror C.A.]: His you’re talking about?
THE COURT: [The victim’s]. Can you evaluate his testimony just like
all the other witnesses who will testify in this case?
[Juror C.A.]: I think I could.
THE COURT: Challenge for cause is denied.
¶49 Ultimately, Juror C.A. served as the jury’s foreperson.
2
¶50 Also during voir dire, Juror D.K. noted that he was watching a law
enforcement officer friend’s farm for him. The prosecution then asked Juror D.K.
how on a scale of one to ten, with ten being the best, he would “rate” law
enforcement in Conejos County. D.K. responded, “I would have to split the
difference and say five because I take it on a case-by-case basis. So some they get
right; some they get wrong.” He explained this answer by noting that he had
heard allegations of “heavy-handedness and favoritism, racism,” and when the
prosecution asked if that would influence how he would look at this case, he
responded, “It depends on the evidence presented.”
¶51 Juror D.K. then observed, “My tendency is for my heart to be in favor of the
defendant,” and he said that he would “like to let [the defendant] off.” He added,
however, by way of explanation, “I would like to think the best of most people,”
including the police in Conejos County, many of whom he thought were “really
nice guys.” When the prosecution then asked whether his foregoing comments
meant that he was predisposed to acquit Vigil, he answered, “I’m predisposed to
let him or his mouthpiece have their say.” Having already exhausted its allotted
peremptory challenges, the prosecution challenged Juror D.K. for cause.
¶52 The court then allowed defense counsel to question Juror D.K., and counsel
asked him if he could reach a verdict based solely on the evidence presented and
the court’s instructions. Juror D.K. responded, “Yes, I believe so. I take this
3
seriously.” Although he then offered that he had had a negative experience with
the justice system elsewhere in the past, when defense counsel asked whether that
experience would affect how he thought today, he replied:
No. I wouldn’t think so. Again, I take this seriously. It’s a
responsibility. If a person has done something which society believes
merits retribution, then that person should be punished; but I don’t
want to just throw somebody to the dogs unless I’m sure that that
person deserves the punishment.
¶53 Defense counsel followed up by asking if Juror D.K. meant that it would be
unfair not to afford Vigil the presumption of innocence. D.K. responded, “This is
the United States. You are presumed innocent until you’re found guilty.” He
added, however, that although he is a forgiving person, some things should not
be forgiven, including “murder, rape, incest, thievery, assault, et cetera, et cetera.”
¶54 Based on this colloquy, defense counsel passed Juror D.K. for cause. The
court, however, granted the prosecution’s challenge.
II. Analysis
¶55 I begin by setting forth the law applicable to challenges for cause. I then
address the trial court’s rulings on the challenges for cause to Jurors C.A. and D.K.,
and I conclude that the court abused its discretion in denying Vigil’s challenge to
Juror C.A. and in granting the prosecution’s challenge to Juror D.K. I end by
addressing the issue of prejudice, and I conclude that (1) because Juror C.A. sat on
the jury, reversal is required and (2) the majority’s test for prejudice renders it all
4
but impossible for a defendant to prove prejudice in this context and results in
what I believe to be an unlevel playing field.
A. Law Regarding Challenges for Cause
¶56 A fair trial is a basic requirement of due process, and the right to challenge
a juror for cause is an integral part of a fair trial. People v. Macrander, 828 P.2d 234,
238 (Colo. 1992), overruled on other grounds by People v. Novotny, 2014 CO 18, ¶ 27,
320 P.3d 1194, 1203. To ensure a defendant’s right to a fair trial with an impartial
jury, a trial court must excuse biased or prejudiced persons from the jury.
Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). This requirement is codified in
section 16-10-103(1)(j), C.R.S. (2019), which requires a court to sustain a challenge
for cause when “[t]he existence of a state of mind in the juror evinc[es] enmity or
bias toward the defendant or the state.” Accord Crim. P. 24(b)(1)(X).
¶57 Specifically, a trial court must grant a challenge for cause if, among other
things, a prospective juror is unwilling or unable to accept the basic principles of
criminal law and render a fair and impartial verdict based on the evidence
admitted at trial and the court’s instructions. Morrison, 19 P.3d at 672. Similarly,
if the trial court has genuine doubt about the prospective juror’s ability to be
impartial, it should ordinarily resolve the doubt by sustaining the challenge.
People v. Russo, 713 P.2d 356, 362 (Colo. 1986).
¶58 Conversely,
5
no person summoned as a juror shall be disqualified by reason of a
previously formed or expressed opinion with reference to the guilt or
innocence of the accused, if the court is satisfied, from the
examination of the juror or from other evidence, that he will render
an impartial verdict according to the law and the evidence submitted
to the jury at the trial.
§ 16-10-103(1)(j); accord Crim. P. 24(b)(1)(X).
¶59 When reviewing a trial court’s denial of a challenge for cause, we review the
entire voir dire at issue to place the prospective juror’s statements in context, and
we review the trial court’s ruling on a challenge for cause for an abuse of
discretion. People v. Young, 16 P.3d 821, 824 (Colo. 2001). The abuse of discretion
standard gives deference to the trial court’s credibility assessment of a prospective
juror’s responses, recognizes the trial court’s unique role and perspective in
evaluating the demeanor and body language of live witnesses, and serves to
discourage an appellate court from “second-guessing those judgments based on a
cold record.” Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999). Despite the wide
discretion afforded trial courts, however, appellate courts must not “abdicate their
responsibility to ensure that the requirements of fairness are fulfilled.” Morgan v.
People, 624 P.2d 1331, 1332 (Colo. 1981).
¶60 Applying these principles, appellate courts in this state have concluded that
reversible error occurs when a trial court denies a challenge for cause to a
prospective juror who expresses doubt as to his or her ability to be impartial and
6
neither the prosecution nor the trial court then rehabilitates that juror. See, e.g.,
People v. Luman, 994 P.2d 432, 436 (Colo. App. 1999); see also People v. Gurule,
628 P.2d 99, 103 (Colo. 1981) (concluding that reversal was required when a
prospective juror had formed a firm opinion as to the defendant’s guilt and her
voir dire responses did not sufficiently call that opinion into question so as to raise
a credibility issue for the court’s determination in ruling on the defendant’s
challenge for cause); Morgan, 624 P.2d at 1332 (concluding that the trial court had
abused its discretion in failing to excuse a prospective juror for cause when the
juror repeatedly indicated that he would have difficulty applying the principle
that the burden of proof rested on the prosecution, notwithstanding the fact that
the juror at one point also said that he could “go along” with the presumption of
innocence and the defendant’s right to remain silent).
B. Juror C.A.
¶61 In light of the foregoing principles, I would conclude that the trial court
abused its discretion in denying Vigil’s challenge for cause as to Juror C.A.
¶62 As noted above, Juror C.A. consistently expressed doubt as to his ability to
render an impartial verdict, given his long (“years and years”) and “great”
relationship with the victim’s family. Specifically, when asked directly whether it
would be difficult for him to render an impartial verdict, he responded, “I’d like
to say no, but I don’t know.” He added, “It’s something that sits there. I know the
7
people. I really do. I don’t know the defendant here.” And he indicated that he
anticipated possibly doing business with the victim’s family in the future.
¶63 Neither the trial court nor the prosecution asked Juror C.A. directly
whether, despite his relationship with the victim’s family, he could render an
impartial verdict and follow the court’s instructions. The court merely asked,
generally and without reference to Juror C.A.’s expression of doubt as to whether
he could be fair, whether Juror C.A. could evaluate the victim’s testimony just like
all of the other witnesses. Although Juror C.A. responded, “I think I could,” this
response did not resolve his consistent expressions of doubt as to whether he could
render an impartial verdict, and he never expressed a belief that he could—or that
he would try to—do so. To the contrary, his statement that he did not know
whether he could render an impartial verdict stood unrebutted, even after he
responded to the court’s single question to him.
¶64 In these circumstances, I would conclude that the trial court abused its
discretion in denying Vigil’s challenge for cause as to Juror C.A. See Gurule,
628 P.2d at 103; Morgan, 624 P.2d at 1332; Luman, 994 P.2d at 436. Although I
recognize and respect trial courts’ broad discretion regarding challenges for cause,
I am also mindful of our obligation as appellate judges not to abdicate our
responsibility to ensure that the requirements of fairness are fulfilled. Morgan,
624 P.2d at 1332. I believe that this case requires our intervention.
8
C. Juror D.K.
¶65 Applying the above-described legal principles, I would further conclude
that the trial court abused its discretion in granting the prosecution’s challenge for
cause as to Juror D.K.
¶66 In contrast to Juror C.A., Juror D.K. repeatedly and consistently provided
assurances that he took his obligations as a juror seriously, that he could reach a
verdict solely based on the evidence and the court’s instructions, and that he
understood the presumption of innocence. He even stated that he believed that
crimes like “thievery,” which was the type of charge that Vigil was facing, should
not be forgiven.
¶67 Nor do I perceive anything in Juror D.K.’s responses indicating a bias
against either the prosecution or law enforcement. Juror D.K. did no more than
recognize that police officers, like all other witnesses, are sometimes right and
sometimes wrong, and he committed to assess their credibility based on the
evidence. I perceive little difference between these statements and Juror C.A.’s
statement that he thought he could evaluate the victim’s testimony like that of all
of the other witnesses, which statement precipitated the trial court’s decision to
deny Vigil’s challenge for cause as to Juror C.A.
¶68 On these facts, although the prosecution may well have wished to exercise
a peremptory challenge had it had any remaining, I perceive no legitimate basis
9
for a challenge for cause as to Juror D.K. Accordingly, I would conclude that the
trial court abused its discretion in granting that challenge.
D. Prejudice
¶69 Having thus concluded that the trial court abused its discretion in denying
Vigil’s challenge for cause as to Juror C.A. and in granting the prosecution’s
challenge for cause as to Juror D.K., the question remains whether either of these
errors prejudiced Vigil so as to require a new trial.
¶70 As to Juror C.A., the majority does not address the question of prejudice
because it perceived no abuse of discretion in the denial of the challenge for cause.
For the reasons set forth above, I believe that the trial court did abuse its discretion,
and the prejudice here is manifest. Not only did a biased juror (i.e., Juror C.A.) sit,
despite Vigil’s well-founded effort to strike him for cause, but also he served as
the jury foreperson. Accordingly, I believe that Vigil is entitled to a new trial.
¶71 Although the foregoing is sufficient to end my analysis, I feel compelled to
address the majority’s recitation of the test for prejudice regarding the erroneous
grant of the prosecution’s challenge for cause as to Juror D.K.
¶72 With respect to Juror D.K., the majority concludes that whether the trial
court’s ruling amounted to an abuse of discretion or not, Vigil suffered no
prejudice because (1) Juror D.K. did not sit in judgment of the case and therefore
the court’s ruling could not have deprived Vigil of a fair and impartial jury and
10
(2) neither the prosecution nor Vigil had any right to shape the composition of the
jury through the use of peremptory challenges and therefore Vigil could not have
been harmed by the deprivation of any such right. Maj. op. ¶ 25. I respectfully
disagree with this articulation of a test for prejudice because in my view it (1) is
inconsistent with the framework set forth in Hagos v. People, 2012 CO 63, ¶¶ 8–14,
288 P.3d 116, 118–20, for assessing whether an error in criminal proceedings
requires reversal; (2) essentially eliminates any inquiry into prejudice in this
context; and (3) results in an unlevel playing field.
¶73 After the court’s decision today, when a defendant’s challenge for cause is
improperly denied, he or she must exercise a peremptory challenge to excuse the
biased juror (or risk an appellate court’s finding that he or she waived or invited
error in allowing the biased juror to sit), and once this is done, the defendant
apparently can establish prejudice only by showing that a second, independent
error, namely, the seating of a different biased juror, also occurred. I perceive no
basis for conflating the prejudice resulting from one error with the merits of a
second, independent error. Indeed, as Vigil points out, if that were the test, then
the initial error would become a moot point because a new trial would be required
based on the second, independent error. I am aware of no other area of law in
which prejudice is assessed in this manner.
11
¶74 Moreover, such an analysis seems contrary to the framework set forth in
Hagos, ¶¶ 8–14, 288 P.3d at 118–20, for determining whether an error in criminal
proceedings requires reversal. As pertinent here, in Hagos, we observed that we
review preserved trial errors of constitutional dimension for constitutional
harmless error, which requires reversal if there is a reasonable possibility that the
error might have contributed to the conviction. Id. at ¶ 11, 288 P.3d at 119. We
further stated that we review preserved, non-constitutional trial errors for
harmless error, which requires reversal if the error substantially influenced the
verdict or affected the fairness of the trial proceedings. Id. at ¶ 12, 288 P.3d at 119.
¶75 In both cases, we determine first whether an error occurred. If it did, then
we must determine, pursuant to a case-specific analysis, whether, applying the
proper standard, the error impacted the proceedings. We do not, however, assess
prejudice by reference to a different and independent error.
¶76 In contrast to the foregoing circumstance in which a defendant’s challenge
for cause is erroneously denied (and in which proof of prejudice is nearly
impossible), under the majority’s reasoning, when a prosecutor’s challenge for
cause is improperly granted, then a defendant literally can never prove prejudice
(absent, perhaps, evidence of bad faith). This is because, by definition, the
improperly removed juror would never have sat in judgment of the case and
therefore the trial court’s erroneous ruling could not have deprived the defendant
12
of a fair and impartial jury. Maj. op. ¶ 25. Accordingly, contrary to the framework
set forth in Hagos, we would never reach the question of whether such a trial error
required reversal in a given case because, as a matter of law, it never would.
¶77 In light of the foregoing, the analytical regime for prejudice that the majority
establishes in this case seems to result in a “heads I win, tails you lose” framework
in favor of the prosecution. Under this framework, a defendant essentially can
never establish prejudice, either from the erroneous denial of a defense challenge
for cause or the erroneous grant of a prosecution challenge for cause.
¶78 Moreover, such a regime incentivizes prosecutors to challenge every
debatable juror for cause because such challenges have no downside, given that
erroneously granted challenges for cause have no consequences (and only a
potential benefit) to the prosecution. This, in turn, effectively affords prosecutors
a substantial voice in deciding the composition of a jury, while, at the same time,
the majority’s opinion makes clear that criminal defendants have no right to such
a voice.
¶79 In my view, such a result creates an unlevel playing field. In addition, the
majority’s framework confirms Justice’s Hood’s observation in his partial
dissenting opinion in People v. Novotny, 2014 CO 18, ¶ 31, 320 P.3d 1194, 1204
(Hood, J., concurring in part and dissenting in part), that Novotny has moved us
from a regime of automatic reversal in cases involving erroneously denied
13
challenges for cause to a regime of automatic affirmance in favor of the
prosecution. With respect, I cannot subscribe to such a regime, and I would hope
that, in an appropriate case, we will revisit the issue of prejudice and adopt a test
that will give defendants in cases like this a full and fair opportunity to seek to
establish prejudice in accordance with the case-specific, error/prejudice
framework set forth in Hagos.
III. Conclusion
¶80 For the foregoing reasons, I would conclude that the trial court abused its
discretion in denying Vigil’s challenge for cause as to Juror C.A. and in granting
the prosecution’s challenge for cause as to Juror D.K. Because Juror C.A. then sat
on the jury, I would conclude that Vigil is entitled to a new trial.
¶81 Accordingly, I would reverse the judgment of the division below, and
therefore, I respectfully dissent.
14