v. Richardson

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 23, 2018
2018COA120
No. 15CA0526, People v. Richardson — Criminal Law —
Structural Error Doctrine — Juries — Challenge of Jurors for
Cause; Criminal Procedure — Substitution of Judges; Judges —
Code of Judicial Conduct — Promoting Confidence in the
Judiciary
A division of the court of appeals considers whether it is error
warranting reversal for a judge to preside over a case in which his
spouse is a juror and to allow his spouse to remain on the jury
when no objection was raised to the spouse’s jury service at trial.
The majority concludes that, even if there was error here, the
defendant at least forfeited the right to a jury free of the presiding
judge’s spouse by failing to object at trial, and the division reaches
the merits of the defendant’s argument because plain errors can be
reviewed on appeal.
In Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899,
1908 (2017), the Supreme Court identified three broad rationales
for recognizing structural error: (1) the right “is not designed to
protect the defendant from erroneous conviction but instead
protects some other interest”; (2) the error’s effects are too hard to
measure; and (3) “the error always results in fundamental
unfairness.” On the record before it, the majority cannot conclude
that these rationales are implicated here. Even so, the division
concludes that the spouse’s presence on the jury did not amount to
plain error because the defendant cannot point to any concrete
record evidence that the spouse’s service created undue prejudice to
the defendant.
Finally, the majority concludes that the plain language of
section 16-10-103, C.R.S. 2017, Crim. P. 24(b)(1), and C.J.C. 1.2
did not require the judge to sua sponte recuse himself from this
case.
Accordingly, the majority affirms the judgment of conviction.
The partial dissent asserts that it was structural error for the
judge to be in a spousal relationship with an empaneled juror and
would reverse the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA120
Court of Appeals No. 15CA0526
Adams County District Court No. 13CR3497
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gary Val Richardson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE FOX
Carparelli*, J., specially concurs
Furman, J., concurs in part and dissents in part
Announced August 23, 2018
Cynthia H. Coffman, Attorney General, Paul E. Koehler, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Gary Val Richardson appeals the judgment of conviction
entered on jury verdicts finding him guilty of possession of a
controlled substance, violation of bail bond conditions, attempted
second degree assault, and attempted third degree assault.
Richardson’s appeal presents this novel question in Colorado: Is it
reversible error for a judge to preside over a case in which his
spouse is in the venire and to allow his spouse to remain on the
jury? While we cannot endorse the judge’s decision here, even
assuming error we affirm because Richardson can show no
prejudice resulting from this juror’s presence.
I. Background
¶2 An attempt by three Adams County sheriff’s deputies to serve
Richardson with an arrest warrant led to a police standoff. The
standoff ended when officers deployed tear gas into the basement
crawl space where Richardson was hiding and Richardson fired a
gun at the police.
¶3 After Richardson was extracted from the crawl space, he was
arrested and taken to jail. While he was changing into jail clothing,
a vial containing a white, crystalline substance — later confirmed to
be methamphetamine — fell to the floor at Richardson’s feet.
1
¶4 Richardson was ultimately charged, as a habitual criminal,
with possession of a controlled substance, violation of bail bond
conditions, five counts of attempted second degree assault or
attempted third degree assault, and possession of a weapon by a
previous offender. The jury found him guilty of most of the charges
(including two counts of attempted second degree assault and three
counts of attempted third degree assault), but acquitted him of
possession of a weapon by a previous offender. Richardson was
then sentenced to an effective term of sixteen years in the
Department of Corrections’ custody.
¶5 Richardson raises five arguments on appeal: (1) there was
insufficient evidence to convict him of attempted second degree
assault or attempted third degree assault; (2) the presiding judge
erred by allowing his spouse to sit on the jury; (3) the court violated
his equal protection rights in denying a Batson v. Kentucky, 476
U.S. 79 (1986), challenge (to different prospective jurors) as
untimely; (4) the court erred by admitting hand-drawn diagrams of
the alleged crime scene; and (5) the court erred by allowing a
witness to testify as an expert without being qualified as such,
2
despite the court’s earlier ruling that the witness must be qualified
as an expert to testify. We address these arguments in turn.
II. Sufficiency of the Evidence
¶6 Richardson argues that there was insufficient evidence to
support his convictions for attempted second degree assault and
attempted third degree assault. We disagree.
A. Additional Background
¶7 Adams County sheriff’s deputies and a K-9 dog arrived at
Richardson and his daughter’s residence. With the daughter’s
permission, three officers entered the house and — following three
announcements of their presence by one officer — sent the K-9 to
search the basement. The K-9 did not indicate that there was a
person at the bottom of the stairs, so the officers descended into the
east side of the basement.
¶8 From the bottom of the stairs, the officers observed a water
heater and furnace to their left. A sheet hung behind the furnace.
Through an opening in the sheet, they saw a bed in the northwest
corner of the basement (to their right). The K-9 was directed to
search again. As the K-9 approached the opening in the sheet, the
officers heard a sound they identified as a loud gunshot. The officer
3
handling the K-9 noted that the K-9 responded to the sound the
same way he did to gunshots at the gun range — he hunkered
down with his ears down. A male voice from behind the sheet then
said, “Fuck you. Send that dog in here and I’ll kill it and you’re
going to kill me.”
¶9 The officers called for backup, and members of the Commerce
City Special Weapons and Tactical (SWAT) team arrived to extract
Richardson from the basement. Richardson proceeded to engage
five members of the SWAT team in a five-to-six-hour standoff.
¶ 10 Over the course of the standoff, the SWAT team fired multiple
rounds of tear gas into the crawl space (at the southwest corner of
the basement) where Richardson had barricaded himself. After
firing the initial rounds of tear gas, the SWAT team members heard
a sound they believed to be a muffled gunshot. Richardson still
refused to leave the crawl space — allegedly making comments such
as “[w]hy don’t you mother fuckers come in and get me,” “I’m
coming out,” “[g]ive me some cigarettes,” and “I want my phone.”
Several more rounds of tear gas were deployed into the crawl space
before Richardson surrendered.
4
B. Preservation and Standard of Review
¶ 11 Defense counsel moved for a judgment of acquittal on the
attempted assault charges. The court granted the motion on the
charges concerning the first three alleged victims — the Adams
County sheriff’s deputies — but denied the motion for the
remaining five alleged victims — the SWAT team members.
¶ 12 Although the People suggest that the trial court erred when it
granted the motion of acquittal as to the first three officers, they
have not cross-appealed and that ruling is not before us. However,
Richardson contends that given the acquittal on those charges, he
should have been acquitted on the remaining charges. We are not
convinced.
¶ 13 “We review de novo whether the evidence is sufficient to
support a conviction.” People v. Randell, 2012 COA 108, ¶ 29. In
evaluating the sufficiency of the evidence, we must determine
whether a rational fact finder might accept the evidence, taken as a
whole and in the light most favorable to the prosecution, as
sufficient to support a finding of the defendant’s guilt beyond a
reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.
1999); Randell, ¶ 31. Our inquiry is guided by five well-established
5
principles: (1) we give the prosecution the benefit of every
reasonable inference that might fairly be drawn from the evidence;
(2) the credibility of witnesses is solely within the jury’s province; (3)
we may not serve as a thirteenth juror to determine the weight of
the evidence; (4) a modicum of relevant evidence will not rationally
support a conviction beyond a reasonable doubt; and (5) verdicts in
criminal cases may not be based on guessing, speculation, or
conjecture. Sprouse, 983 P.2d at 778; Randell, ¶ 31.
C. Analysis
¶ 14 The record evidence was sufficient for the jury to conclude that
Richardson attempted second and third degree assault against the
SWAT team members.
¶ 15 A person commits attempted second degree assault if, with
intent to cause bodily injury to another person, he attempts to
cause such injury to any person by means of a deadly weapon.
§ 18-2-101(1), C.R.S. 2017; § 18-3-203(1)(b), C.R.S. 2017.
¶ 16 A person commits attempted third degree assault if, with
criminal negligence, he attempts to cause bodily injury to another
person by means of a deadly weapon. § 18-2-101(1); § 18-3-
204(1)(a), C.R.S. 2017.
6
¶ 17 The following evidence was presented to the jury:
 The SWAT team members were familiar with the sound of
gunshots — several had experience as firearms
instructors or snipers, and they spent significant time
training at gun ranges.
 The SWAT team members testified that the tear gas
launcher discharging does not sound like a handgun
discharging.
 After the initial rounds of tear gas were deployed into the
crawl space, several of the officers heard a sound that
they identified as “a gunshot from the crawl space,” “a
muffled gunshot,” “a muffled pop which I believed to be a
partial gunshot,” “what I believe was a gunshot,” and
“what I thought was a muffled gunshot. It’s a very
distinct sound[.]”
 One officer saw the insulation around the crawl space
move just after he heard the alleged gunshot.
 One officer testified he heard a team member yell, “That
was a shot.”
7
 The officers initially wondered if Richardson had
self-inflicted a gunshot wound until they heard him
coughing.
 An officer — located across from the crawl space behind
the bed in the basement — heard what he identified as a
bullet impact the wall to the left of him after he heard the
alleged gunshot.
 The same officer heard Richardson yell something to the
effect of “I shot at you” or “The shot came out towards
you.”
 The SWAT team members checked with each other to
confirm a bullet had not ricocheted or hit someone.
 After Richardson was arrested, one of the officers
searched the crawl space and found a small
semiautomatic handgun — later identified as a .380 —
and a single shell casing.
 The recovered gun, which had a capacity of five rounds in
the magazine plus one round chambered, had three
rounds in the magazine and one round chambered.
8
 The gun was capable of firing, and the recovered shell
had been fired from the recovered gun.
¶ 18 This evidence was sufficient for the jury to conclude that (1) a
second shot was fired when five members of the SWAT team were in
the basement and (2) the shot was directed at them.
¶ 19 Richardson stresses that recovering only one shell casing
means the evidence was insufficient to support a finding that two
shots were fired in the basement. But, on review we do not sit as a
thirteenth juror, Sprouse, 983 P.2d at 778, and it is the function of
the fact finder alone “to consider and determine the weight to be
given to the evidence and to resolve conflicts, inconsistencies, and
disputes in the evidence,” People v. Liggett, 114 P.3d 85, 89 (Colo.
App. 2005), aff’d, 135 P.3d 725 (Colo. 2006). The photographs of
the basement presented to the jury show that the basement was
cluttered; the jury could reasonably have concluded that a second
shell casing was lost among the disorder, and thus resolve this
asserted discrepancy in the evidence.
¶ 20 The jury could reasonably have concluded that Richardson
attempted second degree assault or attempted third degree assault
because firing at the officers would constitute a substantial step
9
toward the commission of either offense. § 18–2–101(1) (Criminal
attempt is defined as “engag[ing] in conduct constituting a
substantial step toward the commission of [an] offense. A
substantial step is any conduct . . . which is strongly corroborative
of the firmness of the actor’s purpose to complete the commission of
the offense.”).
¶ 21 The recovered gun in the crawl space allowed the jury to
reasonably conclude that Richardson was armed with a deadly
weapon.
¶ 22 There was also sufficient evidence — the comment “I shot at
you,” and the timing of the shot after tear gas was deployed — to
conclude that Richardson fired at the officers, evidencing an intent
to cause bodily injury. See § 18-2-101(1); § 18-3-203(1)(b); see also
People v. Phillips, 219 P.3d 798, 800 (Colo. App. 2009) (“If there is
evidence upon which the jury may reasonably infer an element of
the crime, the evidence is sufficient to sustain that element.”).
¶ 23 The evidence was also sufficient to conclude that Richardson
acted with criminal negligence because he fired a gun in a small
space where a bullet would likely cause injury. See § 18-2-101(1);
§ 18-3-204(1)(a).
10
¶ 24 Thus, we reject Richardson’s argument that the evidence was
insufficient to support his convictions for attempted second degree
assault and attempted third degree assault.
III. Judge’s Spouse Serving on the Jury
¶ 25 We now turn to the novel question in Richardson’s appeal: Is it
reversible error for a judge to preside over a case in which his
spouse was in the venire and to allow his spouse to remain on the
jury? Richardson argues that the judge had a responsibility to
dismiss his spouse — or recuse himself from the case — sua sponte
given his counsel’s failure to object. Even assuming there was
error, and recognizing that the trial judge had other options
available in this situation, we affirm.
A. Preservation
¶ 26 The People argue that Richardson abandoned this argument
because no objection was raised during trial and Richardson did
not use any challenges on the judge’s spouse. The partial dissent
suggests that the judge preserved the issue for review by bringing
the issue of his wife being in the venire to the attention of the
parties. But, it is the responsibility of the litigants — not the judge
— to preserve issues for review. See People v. Cordova, 293 P.3d
11
 114, 120 (Colo. App. 2011) (“To preserve an issue for appeal, a
defendant must alert the trial court to the particular issue. This is
so because ‘the judge must largely rely upon the parties to research
and raise issues, and giving the judge the wrong reason for a
request is usually equivalent to giving the judge no reason at all.’”)
(citations omitted).
¶ 27 Whether a defendant waived or forfeited a right is a question of
law we review de novo. See Stackhouse v. People, 2015 CO 48, ¶ 4.
Allowing a defendant to stand silent and then protest an adverse
verdict on that basis can “encourage gamesmanship” or allow a
windfall for the defendant. Id. at ¶ 16.
¶ 28 There is a difference between waiver and forfeiture. United
States v. Olano, 507 U.S. 725, 733 (1993); see People v. Lopez, 129
P.3d 1061, 1065 (Colo. App. 2005). Waiver is the “intentional
relinquishment or abandonment of a known right,” while “forfeiture
is the failure to make the timely assertion of a right.” Olano, 507
U.S. at 733 (citation omitted); see also People v. Rediger, 2018 CO
32, ¶¶ 39-40.
¶ 29 Although the judge and counsel were clearly aware the judge’s
spouse was in the venire and a member of the selected jury panel,
12
we conclude that Richardson did not timely and properly alert the
trial court that he objected to the judge’s spouse serving on the
jury. Before voir dire, the judge said, “Be nice to Juror 25. My
dinner is on the line.” During voir dire, the prosecutor spoke to the
judge’s spouse, Juror 25, but neither party voiced a problem with
her serving or otherwise challenged her. When the parties were
exercising their peremptory challenges, the judge said, “[Juror 25]?
We have the defendant’s fifth peremptory challenge to the panel. I
need you to make a call.” In response, the defense excused a
different juror, thus forgoing his opportunity to remove Juror 25.
¶ 30 After the jury was sworn and dismissed for a break, the
following dialogue occurred:
[Judge]: Quite frankly, I don’t know that I’ve
ever heard of a sitting judge having a spouse
or family member on the jury. There’s nothing
wrong with it. I think she’ll be a fine juror. I
have not spoken to her about this case.
[Defense Counsel]: I think we’re both afraid to
challenge her.
[Judge]: That wasn’t a stupid idea. Thank you.
I appreciate it.
[Defense Counsel]: Thank you.
13
While defense counsel indicated — after the jury was sworn — that
he was afraid to directly challenge the judge’s wife, counsel did not
sufficiently raise a timely objection.
¶ 31 Whether a defendant is entitled to a jury free of the presiding
judge’s spouse is a novel question in Colorado. And, it is unclear if
that is a right that a defendant or his counsel can affirmatively
waive. Crim. P. 24(b)(2) (providing that, generally, the parties waive
all matters relating to the qualification and competency of
prospective jurors by not raising the issues prior to the jury being
sworn in, but exceptions may apply); see Olano, 507 U.S. at 733;
Stackhouse, ¶ 15 (“[O]nly a select few rights are so important as to
require knowing, voluntary, and intelligent waiver to be personally
executed by the defendant.”); cf. People v. Bowens, 943 N.E.2d
1249, 1258 (Ill. App. Ct. 2011) (“These circumstances compel the
conclusion that defendant’s decision not to peremptorily remove
[the judge’s spouse] was an affirmative acquiescence to [the
spouse’s] jury service, which thereby constitutes a waiver of this
issue on appeal.”). Even assuming error, because Richardson failed
to make a timely objection, we conclude he at least forfeited the
right. See Olano, 507 U.S. at 733; see also Weaver v.
14
Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1912-13 (2017)
(deciding that constitutional error, even a structural error, can be
forfeited and waived).
¶ 32 Forfeited errors can be reviewed on appeal for plain error. See
Rediger, ¶ 40; see also Stackhouse, ¶ 27 (Márquez, J., dissenting)
(“Yet, if a legal rule is violated during trial, ‘and if the defendant did
not waive the rule, then there has been an “error” . . . despite the
absence of a timely objection.’” (quoting Olano, 507 U.S. at 733-34)).
B. Standard of Review
¶ 33 Before addressing the merits of Richardson’s argument, the
first question is whether this was structural error requiring
automatic reversal or plain error. While it may have been preferable
for the trial judge to excuse his spouse from jury service or to
recuse himself, because counsel chose not to challenge her or
otherwise seek relief, we cannot say — based on this record — that
either decision constitutes structural error. Given Richardson’s
failure to point to prejudice resulting from the spouse’s jury service,
we conclude that the judge’s conduct here did not amount to plain
error.
15
1. Structural Error
¶ 34 Structural errors require reversal, regardless of whether the
error affected the judgment of conviction. Hagos v. People, 2012 CO
63, ¶ 10. Examples of these errors in Colorado include “complete
deprivation of counsel, trial before a biased judge, unlawful
exclusion of members of the defendant’s race from a grand jury,
denial of the right to self-representation, and denial of the right to a
public trial.” Id. None of these errors are at issue here.
¶ 35 An error is structural when it affects the framework of the trial
rather than being an error in the trial process. Weaver, 582 U.S. at
___, 137 S. Ct. at 1907 (concluding that prejudice is not presumed
where a defendant first claims a violation of his right to a public
trial in an ineffective assistance of counsel claim). The Supreme
Court has identified three broad rationales for what constitutes a
structural error: (1) the right “is not designed to protect the
defendant from erroneous conviction but instead protects some
other interest”; (2) the error’s effects are too hard to measure; and
(3) “the error always results in fundamental unfairness.” Id. at ___,
137 S. Ct. at 1908.
16
a. Right Protects Some Other Interest
¶ 36 The first rationale does not appear to apply here because,
contrary to the partial dissent’s assertion, there is apparently no
widely recognized interest in having a jury free of a presiding judge’s
spouse. Compare People v. Hartson, 553 N.Y.S.2d 537, 538-39 (N.Y.
App. Div. 1990) (holding that the trial judge’s wife serving as a juror
required automatic reversal, even though the defendant did not
raise a timely objection and there was no evidence of actual
prejudice), with State v. Sellhausen, 809 N.W.2d 14, 28 (Wis. 2012)
(Ziegler, J., concurring) (asserting that a presiding judge’s
immediate family member serving as a juror is not “per se
objectively biased”). Having a presiding judge’s spouse on the jury
does not in and of itself create partiality. See Hartson, 553 N.Y.S.2d
at 538-39; Sellhausen, 809 N.W.2d at 28; see also United States v.
Tejeda, 481 F.3d 44, 50-52 (1st Cir. 2007) (recognizing that neither
juror bias nor juror misconduct is structural error, but attorney or
judicial bias is); Carratelli v. State, 961 So. 2d 312, 325-26 (Fla.
2007) (inquiring into whether an actually biased juror served on the
jury); People v. Miller, 759 N.W.2d 850, 855-56 (Mich. 2008)
(concluding it was not structural error for a convicted felon to serve
17
as a juror and was harmless error absent a showing that the juror
was not impartial). But see Franklin v. Anderson, 434 F.3d 412,
428 (6th Cir. 2006) (where counsel’s ineffectiveness resulted in
seating a biased juror, prejudice was presumed).
b. Effects Too Hard to Measure
¶ 37 The second rationale has been applied in very limited
circumstances, notably, when the defendant is denied the right to
select his own counsel. See Weaver, 582 U.S. at ___, 137 S. Ct. at
1908. This sort of error must pervade the entirety of the
proceedings. State v. Travis, 813 N.W.2d 702, 706-08 (Wis. Ct.
App. 2012) (holding structural error existed where the prosecution
mistakenly told the court that there was a five-year mandatory
minimum prison sentence for the applicable charges). Here,
Richardson does not assert that the trial was conducted in a
different manner than it otherwise would have been had the judge’s
spouse not been on the jury. Cf. id. at 708 (considering situation
where the error — misstating the law — affected the charging, plea
negotiations, discussions with counsel, plea hearing, and
sentencing). Counsel did not challenge the judge’s spouse during
voir dire, so the trial was not colored by circumstances suggesting
18
Richardson was unable to select the jury he wanted. See Weaver,
582 U.S. at ___, 137 S. Ct. at 1913 (noting that the defendant’s trial
was not fundamentally unfair where his mother and her minister
were excluded from the courtroom during part of jury selection
because the trial was not conducted in a secret or remote place).
Defense counsel advocated zealously throughout trial on
Richardson’s behalf, undermining any argument that counsel was
afraid of the judge or uncomfortable conducting a trial in the
presence of the judge’s spouse. Contra Davis v. Ayala, 576 U.S. ___,
___, 135 S. Ct. 2187, 2213 (2015) (Sotomayor, J., dissenting)
(asserting that because the record lacked material facts as to what
defense counsel would have asserted had he been present at an ex
parte Batson hearing, the Court was left to speculate on what the
trial court considered and thus counsel’s absence constituted
reversible error). Contrary to the partial dissent’s assertion, the
question is not whether the jurors were influenced by the judge’s
wife. The inquiry is, if they deferred to her, did that deference lead
to an actual bias against Richardson, and the record does not
reveal one. Indeed, the jury returned a mixed verdict, part of which
favored Richardson. Thus, we are not convinced that the claimed
19
error here so pervaded the trial that its effects became impossible to
measure.
c. Error Resulting in Fundamental Unfairness
¶ 38 The third rationale has been applied where an indigent
defendant was denied an attorney or the trial judge failed to give a
reasonable doubt instruction. See Weaver, 582 U.S. at ___, 137 S.
Ct. at 1908. The United States Supreme Court explained that an
error could be structural “even if the error does not lead to
fundamental unfairness in every case.” Id. But, the error must still
be one that “infect[s] the entire trial process and necessarily
render[s] a trial fundamentally unfair.” People v. Novotny, 2014 CO
18, ¶ 21.
¶ 39 Here, we are not convinced that the judge’s spouse being on
the jury — where the defense failed to contemporaneously object to
her presence and points to no objective record evidence of prejudice
— rendered the trial fundamentally unfair. Richardson’s ability to
shape the jury was not impeded and none of the statutory rules
dictating qualifications for jury service were broken. See
§ 13-71-105, C.R.S. 2017; Novotny, ¶ 7. But see C.J.C. 1.2 (“A
judge shall act at all times in a manner that promotes public
20
confidence in the independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the appearance of
impropriety.”) (emphasis added). Significantly, there were no
indications of bias by Juror 25 for or against Richardson. See, e.g.,
People v. Maestas, 2014 COA 139M, ¶ 14 (holding that jurors who
said they could not afford the defendant a presumption of
innocence should have been removed for cause). While Juror 25’s
questionnaire indicated that she might be distracted because the
judge was her husband, she stated that there was no reason she
could not be fair if she was selected for the jury. In fact, she had
previously served on a jury. Thus, contrary to the partial dissent’s
position, Juror 25 indicated she was willing to render a fair and
impartial verdict. And none of the attorneys challenged the trial
judge’s statement that he had not discussed the case with her, and
would not do so. But, in allowing his spouse to remain on the jury,
the presiding judge created a situation where he later might have
been called to assess her fairness, if either party had challenged
her. See, e.g., City of New York v. Exxon Corp., 683 F. Supp. 70, 72
(S.D.N.Y. 1988) (“Under certain circumstances, a judge’s
relationship with a prospective witness is a proper basis for recusal.
21
For example, in United States v. Ferguson, 550 F. Supp. 1256
(S.D.N.Y. 1982), . . . where the credibility of a former law clerk was
‘a vital issue’ in the case[,] . . . the judge’s impartiality might
reasonably have been questioned had he presided over the trial.”).
¶ 40 We recognize that the “class of error to which bright-line rules
of reversal” apply has greatly narrowed. Novotny, ¶ 21; see Weaver,
582 U.S. at ___, 137 S. Ct. at 1909. Further, as a court of error
correction, it is not our prerogative to declare new classes of
structural errors as the partial dissent attempts to do. Because
Richardson cannot point to any prejudice resulting from the judge’s
spouse serving on the jury, we are unable to conclude, based on
this record, that this presiding judge’s spouse’s presence on the
jury rose to the level of structural error. See Weaver, 582 U.S. at
___, 137 S. Ct. at 1910 (refusing to review error implicating the right
to a public trial for structural error where the defendant failed to
preserve the issue on direct review); see also Bowens, 943 N.E.2d at
1259 (holding that because the defendant failed to assert actual
bias, there was no error in the judge’s spouse sitting on the jury
based merely on the appearance of bias).
22
¶ 41 The partial dissent appears to conclude that the judge should
have, sua sponte, recused himself or dismissed his spouse when he
realized she was in the venire. He did not act sua sponte, and
counsel did not object. Thus, our proper inquiry here, indeed our
only inquiry, is whether the spouse’s presence on the jury so
undermined the fundamental fairness of the trial that it cast doubt
on the reliability of the judgment of conviction. See Bowens, 943
N.E.2d at 1259 (“On this record, we decline to address whether jury
service by a trial judge’s spouse in a case in which (1) that judge
presides and (2) defendant has not acquiesced in that service, might
constitute per se reversible trial error.”). A doubt on the reliability
of the judgment of conviction would have to stem from actual bias
by the judge directed toward the parties and not toward a juror,
which is the partial dissent’s main focus. The partial dissent is
prematurely anticipating the next case, when an objection is lodged
and the judge is called upon to decide his spouse’s impartiality.
That is not what happened here, and, as discussed below,
Richardson fails to allege any actual prejudice.
¶ 42 Therefore, we review for plain error.
23
2. Plain Error
¶ 43 “Plain error is obvious and substantial.” Hagos, ¶ 14. We
reverse under the plain error standard to correct “particularly
egregious errors,” id. (citation omitted), that “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment of conviction,” id. (citation
omitted). Richardson has not cited — and we have not found — a
Colorado statute or case that makes it clear, let alone obvious, that
it is error for a judge’s spouse to serve on a jury in which the judge
presides. Nor does the record demonstrate that the jury service of
the judge’s wife resulted in a fundamentally unfair trial or caused
serious doubt about the reliability of the judgment of conviction.
C. Law and Analysis
¶ 44 There are specific circumstances under which a court must
sustain a challenge to a juror for cause. § 16-10-103, C.R.S. 2017;
Crim. P. 24(b)(1). A marital relationship between the judge and a
juror is not included in these circumstances. Richardson argues
that we should interpret section 16-10-103(1)(b)’s language,
“[r]elationship within the third degree, by blood, adoption, or
marriage, to a defendant or to any attorney of record or attorney
24
engaged in the trial of the case,” to include a circumstance where
the judge’s spouse is on the jury because the judge is an attorney
involved in the case.1 We are not convinced. Considering the
statute as a whole and giving the word “attorney” its plain and
ordinary meaning in context, it is apparent that it refers to
attorneys who represent or have represented the parties and
advocated on their behalf. Moreover, an attorney is defined as
“[s]omeone who practices law,” Black’s Law Dictionary 153 (10th ed.
2014), and a judge is prohibited from engaging in the practice of
law, C.J.C. 3.10. Thus, the judge’s relationship to his wife does not
contravene the plain meaning of the statute. Nonetheless, even
assuming the trial court erred, we cannot automatically reverse
1 The legislature or our supreme court, not a division of this court,
would be the proper body to amend the statutes or rules dictating
juror qualification or the rules requiring judicial recusal. Colo.
Const. art. VI, § 21 (“The supreme court shall make and promulgate
rules governing the administration of all courts and shall make and
promulgate rules governing practice and procedure in civil and
criminal cases.”); see, e.g., People v. Miller, 759 N.W.2d 850, 855-56
(Mich. 2008) (“[T]he right to a jury free of convicted felons is granted
by statute.”); see also Raymond J. McKoski, Judicial Discipline and
the Appearance of Impropriety: What the Public Sees is What the
Judge Gets, 94 Minn. L. Rev. 1914, 1960 (2010) (“But [the decision
that a judge’s spouse should not serve as a juror in a case presided
over by the judge] is a policy question properly left to those charged
with writing a judicial code.”).
25
without a showing that a jury was biased with regard to the parties.
Weaver, 582 U.S. at ___, 137 S. Ct. at 1912-13; Olano, 507 U.S. at
733.
¶ 45 Richardson also argues that the judge should have sua sponte
removed his spouse from the jury — or recused himself from the
case — because judges must “act at all times in a manner that
promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” C.J.C. 1.2. True, the judicial code
creates high standards and high expectations for judges. However,
Richardson’s contention is that having the judge’s wife on the jury
affected the fairness of the jury, not the independence, integrity, or
impartiality of the judge. Nonetheless, we understand Richardson’s
position. Making remarks during trial that highlighted his
relationship to this juror — such as “I said no to my wife” in
response to a question from Juror 25 about witness testimony;
“[w]hat are we having for dinner”; “[w]hat am I getting tonight? . . .
I’m getting chicken again”; and “[y]ou forced [my wife] to spend
more time with me[,] which is worse” — affected the solemnity of the
proceedings and were ill-advised.
26
¶ 46 Counsel’s comment that the attorneys were afraid to challenge
the judge’s spouse and the judge’s response, “That wasn’t a stupid
idea,” were made when the jury was not present, so speculation
that the jury might have given greater consideration to her opinions
are just that — speculation. See United States v. Poindexter, 942
F.2d 354, 360 (6th Cir. 1991) (noting the significance of the jury’s
presence in determining whether a judge’s comment unfairly
prejudiced the defendant); see also Ayala, 576 U.S. at ___, 135 S.
Ct. at 2208 (holding that exclusion of the defendant’s attorney from
an ex parte Batson hearing constituted harmless error where the
record provided nothing more than speculation about what defense
counsel might have said had he been present at the Batson
hearing).
¶ 47 Although it would have been prudent for the judge to excuse
his wife — or to recuse himself as presiding judge — we cannot say
that his misjudgment was so egregious that it requires reversal
under the plain error standard. As we already concluded, the
evidence was sufficient to support Richardson’s conviction; and
Richardson failed to show how this juror’s service calls the
reliability of the judgment of conviction into question. Hagos, ¶ 14;
27
Sprouse, 983 P.2d at 777 (Evidence is sufficient where it “support[s]
a finding of the accused’s guilt beyond a reasonable doubt.”). The
judge stated he had not discussed the case with his wife and he
would instruct their son not to discuss the case at home. The
record reflects no challenge to these statements, no suggestion of
juror bias, and no evidence of prejudice to Richardson. Based on
this record, we must conclude that the judge’s spouse’s service did
not “so undermine the fundamental fairness” of Richardson’s trial
that reversal is warranted. See Hagos, ¶ 14.
IV. Batson Challenge
¶ 48 Richardson argues that the trial judge incorrectly denied his
Batson challenge as untimely. We disagree.
¶ 49 We agree with the People that Richardson failed to preserve his
Batson challenge.
¶ 50 During voir dire, the prosecution used its fifth and sixth
peremptory challenges on the two remaining African Americans in
the venire. The jury was immediately sworn in and excused for a
break. Defense counsel then stated that he might make a motion
but first wanted to talk to the prosecutor about the final two
peremptory challenges. The court responded, “If this is a Batson
28
challenge, it’s far too late to do that. . . . That’s a challenge that has
to be made while we have those people here.”
¶ 51 Later, defense counsel attempted to renew the Batson
challenge. The court again responded that the challenge was not
proper because (1) it had not been made contemporaneously and (2)
the appropriate remedy of disallowing the challenged peremptory
strike was no longer available as the venire had been dismissed.
¶ 52 “[A] Batson objection must be made before the venire is
dismissed and the trial begins.” People v. Mendoza, 876 P.2d 98,
102 (Colo. App. 1994). Here, defense counsel waited until after the
venire was dismissed to make the Batson objection. The trial court
was thus correct in holding that Richardson’s Batson objection was
untimely. See id.
V. Diagrams
¶ 53 Richardson next argues that three hand-drawn diagrams,
entered as Exhibits 45, 46, and 47, were not fair and accurate
representations of the alleged crime scene and thus were not
admissible as demonstrative evidence. He also argues that the
court violated his constitutional right to confrontation when it
29
limited questioning regarding the alleged inaccuracies of the
exhibits. We disagree.
A. Additional Background and Preservation
¶ 54 The prosecution introduced the three diagrams during the
testimony of various police officers and investigators to help the
jury understand the basement’s layout.
Exhibit 45
30
Exhibit 46
Exhibit 47
¶ 55 Exhibit 45 was first introduced through an investigator’s
testimony. Defense counsel objected on the basis that the diagram
31
was not drawn to scale. The court overruled the objection, stating,
“I’m going to allow it with the understanding that it’s not drawn to
scale. I think the jury has the right to get an idea of what the
basement looked like even if it isn’t a drawing that’s to scale.”
¶ 56 Defense counsel objected on similar grounds to the admission
of Exhibits 46 and 47. The court disagreed, noting that even if the
three diagrams contained inconsistencies, “It’s not unusual to have
conflicting evidence. The [p]eople who resolve those conflicts [are]
the jury.”
B. Standard of Review and Law
¶ 57 The admission of demonstrative evidence is within the trial
court’s discretion. People v. Richardson, 58 P.3d 1039, 1045 (Colo.
App. 2002). An abuse of that discretion occurs only when the trial
court’s ruling is manifestly arbitrary, unreasonable, or unfair.
People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002).
¶ 58 Demonstrative evidence must constitute a “fair and accurate
representation.” People v. Brown, 313 P.3d 608, 614 n.3 (Colo. App.
2011); see Richardson, 58 P.3d at 1045 (“[D]emonstrative or
illustrative evidence must be shown to be reasonably accurate and
correct[.]”). Every detail of the evidence does not have to be exact,
32
“but the important elements must be identical or very similar” to
the represented scene. People v. Douglas, 2016 COA 59, ¶ 45
(citation omitted). “It is not necessary that the witness whose
testimony is illustrated [by the demonstrative exhibit] has
personally prepared the evidence.” Richardson, 58 P.3d at 1045-46.
As long as the evidence fairly and accurately portrays the
proponent’s version of events, the court is not required to exclude
the evidence if it is inconsistent with evidence or testimony the
opposing party presents. Douglas, ¶ 45.
C. Analysis
¶ 59 Here, the challenged exhibits are a fair and accurate
representation of the alleged crime scene. None of the witnesses
testified that the diagrams were exact replicas of the basement;
rather, they testified that they were rough drawings created from
memory introduced to help the jury understand the basement’s
layout. The jury could reasonably understand that slight variations
among the diagrams — specifically the exact location of the water
heater and furnace — might vary in drawings not drawn to scale
and created from memory. See People v. Wilson, 2014 COA 114,
¶ 67 (“It is not expected that jurors should leave their common
33
sense and cognitive functions at the door . . . . Nor is it expected
that jurors should not apply their own knowledge, experience, and
perceptions acquired in the everyday affairs of life to reach a
verdict.”) (citation omitted). And, the jury could find the exhibits
useful in understanding what happened in the basement.
¶ 60 That witnesses whose testimony was illustrated by the
diagrams did not prepare the exhibits is also immaterial. See
Richardson, 58 P.3d at 1045-46. None of the discrepancies in the
diagrams Richardson highlights is so grave that they could have
seriously misled the jury because the witnesses’ testimony on the
basement’s layout was consistent, and the testimony and three
diagrams were consistent with corresponding photographic evidence
of the basement. See People v. Cardenas, 42 Colo. App. 61, 65, 592
P.2d 1348, 1352 (1979) (“The question of what constitutes a
permissible variation depends upon whether it tends to confuse or
mislead the jury.”); see also People v. Stewart, 2017 COA 99, ¶ 67
(stating that discrepancies between experimental evidence created
for trial and actual conditions at the time of the crime went to the
evidence’s weight, not its admissibility).
34
¶ 61 Finally, the trial court did not violate Richardson’s
confrontation right. The judge did not unreasonably limit defense
counsel’s questions on the accuracy of the diagrams where counsel
had ample opportunity to highlight these purported inaccuracies
during voir dire and on cross-examination. Kinney v. People, 187
P.3d 548, 559 (Colo. 2008) (“[T]he scope and duration of
cross-examination [are] controlled by the trial court, and judges
have wide latitude under the Confrontation Clause to impose
reasonable limits on cross-examination because of concerns about
harassment, prejudice, repetition, or marginal relevance.”). Thus,
the judge was within his discretion to limit repetitive questioning on
the fact that the diagrams were not to scale.
VI. Expert Testimony
¶ 62 The prosecutor called a crime scene investigator (CSI) to testify
— based on her training and experience — on the trajectory of
bullets, the use and placement of trajectory rods, whether certain
holes and marks discovered at the alleged crime scene were made
by bullets, and where and how bullets and shell casings land.
35
¶ 63 Richardson argues that the trial court reversibly erred in
allowing the CSI to testify as an expert without being qualified as
such. We disagree.
A. Preservation and Standard of Review
¶ 64 The parties disagree regarding whether Richardson preserved
this issue. “[W]hen an opponent acts contrary to a pretrial order, a
party must contemporaneously object to preserve an appellate
argument that the court should have prohibited the action.” People
v. Dinapoli, 2015 COA 9, ¶ 24. But see Camp Bird Colo., Inc. v. Bd.
of Cty. Comm’rs, 215 P.3d 1277, 1289-90 (Colo. App. 2009) (“Once
the trial court makes definitive rulings either at or before trial, the
objecting party need not renew the objection contemporaneously
during trial to preserve a claim of error on appeal.”).
¶ 65 At a pretrial hearing, the court granted defense counsel’s
request that the CSI be designated as an expert witness. The court
stated, “Well, the things that she spoke about are clearly things that
a normal lay person would not know so they cannot be discussed
by a lay witness.” When the prosecution submitted its endorsed
witnesses, it did not designate the CSI as an expert. At trial, the
prosecution did not qualify the CSI as an expert. But, defense
36
counsel did not contemporaneously object to her trial testimony or
otherwise alert the court to its pretrial ruling. See Dinapoli, ¶ 22.
¶ 66 We review unpreserved claims for plain error, and we will
reverse only if an error was obvious and substantial. Hagos, ¶ 14.
“Obvious” means the error was so clear cut that the trial judge
should have been able to avoid it even without the benefit of an
objection. People v. Pollard, 2013 COA 31M, ¶ 39. “Substantial”
means the error was so serious that it undermined the fundamental
fairness of the trial “so as to cast serious doubt on the reliability of
the judgment of conviction.” Hagos, ¶ 14 (citation omitted).
B. Analysis
¶ 67 Even if the error was obvious, Richardson fails to show that it
was substantial. Thus, we conclude the court did not plainly err in
allowing the CSI to testify, absent a contemporaneous objection, as
a lay witness.
¶ 68 The CSI’s testimony was based primarily on her observations
of the alleged crime scene — not on her technical knowledge. Her
observations were consistent with other witnesses’ testimony, and
defense counsel had ample opportunity to challenge her on
cross-examination. See People v. Caldwell, 43 P.3d 663, 667 (Colo.
37
Ohio App. 2001) (The trial court did not err in admitting a lay witness’
testimony on ballistics based on the witness’ observations because
“[s]uch observations could just as easily have been made by the
jury from the photographs. No special expertise is required to look
at the hole made by the bullet and realize that it followed a
straight-line path.”).
¶ 69 The essence of the CSI’s testimony was that, based on the
appearance of a hole in the insulation, it seemed to have been
punctured by a projectile coming out of the crawl space. She also
testified that she did not test the hole for gunshot residue and
admitted on cross-examination that she could not say with
certainty that a mark on the basement’s west wall was made by a
bullet. See Davis v. People, 2013 CO 57, ¶ 18 (affirming that a
detective’s testimony on interviewee credibility was admissible
where all three interviewees were subject to cross-examination,
thus providing the jury an opportunity to judge the witnesses’
credibility). While the CSI was the only witness who testified on the
possible trajectory of the bullet, other witnesses testified on the
bullet being fired, and another expert testified that the gun
recovered from the crawl space was functional. Thus, we cannot
38
say the CSI’s testimony, without her being qualified as an expert,
created an error that was so substantial that it undermined the
fundamental fairness of the trial. See Hagos, ¶ 14.
VII. Conclusion
¶ 70 While it would have been preferable for the judge to excuse his
spouse or to recuse himself from the case, reversal here is not
warranted. Because Richardson’s other arguments fail, we affirm.
JUDGE CARPARELLI specially concurs.
JUDGE FURMAN concurs in part and dissents in part.
39
JUDGE CARPARELLI, specially concurring.
¶ 71 I concur in the majority opinion but write separately to further
discuss the issues addressed in the partially dissenting opinion.
I. Structural Error
¶ 72 The partial dissent refers to the three rationales for structural
error that the United States Supreme Court identified in Weaver v.
Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1903 (2017), but
its analysis applies the second and third rationales beyond the
Court’s explanation of those rationales. In Weaver, the Supreme
Court stated that structural error “affect[s] the framework within
which the trial proceeds” and “def[ies] analysis by harmless error
standards.” Id. at ___, 137 S. Ct. at 1907-08 (quoting Arizona v.
Fulminante, 499 U.S. 279, 309, 310 (1991)).
¶ 73 With regard to the second Weaver rationale — errors too hard
to measure — the Court cited the denial of a defendant’s right to
select his or her own attorney as an example of circumstances in
which “the precise ‘effect of the violation cannot be ascertained,’” id.
at ___, 137 S. Ct. at 1908 (quoting United States v. Gonzalez-Lopez,
548 U.S. 140, 149 n.4 (2006)), it would be “almost impossible to
show that the error was ‘harmless beyond a reasonable doubt,’
40
[and] the efficiency costs of letting the government try to make the
showing are unjustified,” id. (citation omitted). When a defendant is
denied this right to select counsel, he is denied the benefit of his
preferred counsel’s knowledge, skills, experience, and tactics.
Because the harm is in the manner in which the entire defense case
was tried, the harm cannot be measured by evaluating the evidence
and the outcome of the trial and determining “with fair assurance
that, in light of the entire record of the trial, the error did not
substantially influence the verdict or impair the fairness of the
trial.” People v. Stewart, 55 P.3d 107, 124 (Colo. 2002) (quoting
People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989)).
¶ 74 With regard to the third Weaver rationale — errors that always
result in fundamental unfairness — the Court gave two examples:
denying counsel to an indigent defendant and failing to give a
reasonable doubt instruction. As to these, the Court again noted
that it “would be futile for the government to try to show
harmlessness.” Weaver, 582 U.S. at ___, 137 S. Ct. at 1908. With
regard to the denial of counsel, the defendant is also denied the
benefit of an attorney’s knowledge, skills, experience, and tactics,
and the harm cannot be measured by reviewing the evidence and
41
the outcome. Proof beyond a reasonable doubt is fundamental to
the determination of whether a defendant is guilty or not guilty.
Failure to give a reasonable doubt instruction renders the jury’s
verdict and the outcome of the trial invalid. Harm cannot be
determined by appellate review of the evidence.
¶ 75 Here, the effect of the judge’s wife’s service on the jury can be
ascertained based on a review of the evidence and is susceptible of
constitutional harmless error and plain error review. Therefore, I
conclude that these two rationales do not support application of
structural error.
II. Preservation
¶ 76 If, as the partial dissent argues, the asserted error was
preserved, we would not treat it as structural error, but, instead,
review it for harmless error or, perhaps, constitutional harmless
error. Here, however, the asserted error was not preserved.
¶ 77 Preservation requires more than a court’s awareness of an
issue and an opportunity to rule on it sua sponte. The dissent cites
a criminal case, People v. Abu-Nantambu-El, 2017 COA 154, that
relies on a civil case, Berra v. Springer & Steinberg, P.C., 251 P.3d
567, 570 (Colo. App. 2010), for the premise that a court’s
42
awareness and opportunity to rule are sufficient to preserve an
issue. In Abu-Nantambu-El, the juror was statutorily disqualified to
serve. Defense counsel challenged the juror for cause and stated a
statutory basis for the juror’s disqualification, but did not refer the
court to the statute itself. The division rejected the People’s
argument that defendant’s failure to cite the statute constituted a
waiver. In this context, the division said the court had enough
information to understand the challenge. Those are not the facts
here.
¶ 78 Here, the record demonstrates that defendant was aware of
the issue and decided to accept the juror. In such circumstances,
courts should not permit a defendant to “intentionally withhold an
objection to a constitutional deficiency, on appeal argue that the
error was not harmless beyond a reasonable doubt, and thus,
unfairly manipulate the judicial process.” People v. Petschow, 119
P.3d 495, 499 (Colo. App. 2004); see United States v. Stewart, 256
F.3d 231, 239 (4th Cir. 2001).
III. Whether Defense Counsel Was “Chilled”
¶ 79 As quoted in the partial dissent, there was a colloquy in which
defense counsel said, “I think we’re both afraid to challenge [the
43
judge’s wife].” This statement is not sufficient to support any
conclusions about defense counsel’s thinking and preferences
about whether having the judge’s spouse on the jury would be good
or bad for his client. Moreover, from the cold record, it is
impossible to determine whether defense counsel was engaging in
playful banter or wanted the court to know that he and the
prosecutor were both too timid to exercise a peremptory challenge.
As to the former, the judge’s reply that it was not a stupid idea
suggests playful banter. As to the latter, I cannot conclude that the
defense counsel was forthrightly telling the judge that he and
opposing counsel were afraid that the judge would not be fair to
them if they challenged his wife.
IV. Plain Error
¶ 80 Thus, the issue here is whether it was obvious and substantial
error for the judge to defer to the parties’ counsel about whether his
wife should sit as a juror, and, if so, whether that error so
undermined the fundamental fairness of the trial so as to cast
serious doubt on the reliability of the judgment of conviction.
¶ 81 The evidence as recounted in Part II.A of the majority opinion
demonstrates that the evidence of guilt regarding the offenses of
44
which defendant was convicted was strong. In addition, the jury,
including the judge’s wife, found defendant not guilty of one of the
charges.
¶ 82 For these reasons and those stated in the majority opinion, I
conclude that the presence of the judge’s wife on the jury did not
undermine the fundamental fairness of the trial and does not cast
serious doubt on the reliability of the judgment of conviction.
45
JUDGE FURMAN, concurring in part and dissenting in part.
¶ 83 The judge permitted his wife to sit on Richardson’s jury, over
which he presided. In my view, this was error because it resulted in
the judge
 not affording Richardson’s counsel the freedom to
challenge either the judge’s wife or the judge about his
wife — as the record reveals;
 being unable to impartially assess all potential jurors for
their fitness to serve on Richardson’s jury;
 according his wife special treatment during jury selection
and throughout trial; and
 making trifling comments to and about his wife in a case
involving serious criminal accusations.
¶ 84 Because I presume the judge was biased toward his wife, and
this created both an appearance of impropriety and improperly
affected the structure of the trial itself, I would reverse Richardson’s
convictions. I therefore dissent from Part III of the majority opinion
finding no error in the judge’s wife serving as a juror. I agree with
the majority that the evidence is legally sufficient based on the
existing record and concur in that part of the majority opinion.
46
Because I would reverse based on the judge’s presumed bias, I
would not address the other issues.
I. The Judge and Juror 25
¶ 85 The judge’s overt references to his relationship with his wife
(Juror 25) began when the proceeding to select the jury started.
¶ 86 At the beginning of voir dire, the judge declared to the
courtroom, “Be nice to Juror 25. My dinner is on the line.”
¶ 87 On her jury questionnaire, in response to the question
whether “there is any reason you believe you could not be a fair
juror in a criminal case,” Juror 25 wrote, “I don’t know.” She
explained, “[The] Judge . . . is my husband — I might be distracted.”
¶ 88 During voir dire, the prosecutor asked Juror 25, “[The] Judge .
. . is your husband?” Juror 25 confirmed, in front of the members
of the venire, to which the judge said, “Lucky you.”
¶ 89 After both parties had finished exercising their peremptory
challenges, and the jury was empaneled, the judge and counsel had
the following exchange outside of the jury’s presence:
THE COURT: Quite frankly, I don’t know that
I’ve ever heard of a sitting judge having a
spouse or family member on the jury. There’s
nothing wrong with it. I think she’ll be a fine
47
juror. I have not spoken to her about this
case. . . .
[DEFENSE COUNSEL]: I think we’re both
afraid to challenge her.
THE COURT: That wasn’t a stupid idea.
Thank you. I appreciate it.
(Emphasis added.)
¶ 90 Throughout the trial and in front of the jury, the judge made
comments toward and about his wife. At least twice on the record,
the judge asked Juror 25 what they were “having for dinner.” The
following dialogue took place before dismissing the jury on the third
day of trial:
THE COURT: What am I getting tonight? We’ll
get the teriyaki.
JUROR [25]: Chicken.
THE COURT: I’m getting chicken again? Oh
God.
¶ 91 Before deliberation — in the beginning of the defense’s closing
argument and in front of the jury — the following exchange took
place:
[DEFENSE COUNSEL]: [This trial has] taken
you away from your families and children. It’s
taken you away from your spouses. Not
everyone has been taken away.
48
JUROR [25]: I’ve spent more time with him this
week than usual.
THE COURT: You forced her to spend more
time with me which is worse.
[DEFENSE COUNSEL]: That is unique in
jurisprudence in Colorado.
¶ 92 Both the judge and defense counsel pointed out the
uniqueness of this situation. Indeed, neither the United States
Supreme Court nor our supreme court has addressed whether it is
error for a judge to permit his or her spouse to serve on a jury over
which he or she presides. Few courts have.
II. My Disagreement with the Majority
¶ 93 I respectfully disagree with the majority’s plain error analysis.
I will first discuss why it is error for a judge to permit his or her
spouse to serve on the jury over which he or she presides. I will
then discuss my disagreement with the majority over whether this
issue was preserved. After concluding the error was preserved, I
will then turn to a discussion about the error’s impact on the trial
— premised both on the critical role that trial court judges play in
ensuring that defendants in criminal cases receive a fair jury trial
and on the impact on a fair trial when a judge permits his or her
spouse to sit on a jury over which he or she presides. I will
49
conclude with a discussion of why I believe the consequence of such
an error both creates an appearance of impropriety and improperly
affects the structure of the trial itself.
A. The Error
¶ 94 Several courts have concluded that it is error for a trial judge
to permit a member of his or her immediate family to serve on a
jury.
¶ 95 In State v. Tody, 764 N.W.2d 737 (Wis. 2009), abrogated by
State v. Sellhausen, 809 N.W.2d 14, 28-29 (Wis. 2012) (Ziegler, J.,
concurring), the circuit court judge denied a causal challenge to the
circuit court judge’s mother serving on a jury over which the judge
presided. Although defense counsel did not exercise a peremptory
challenge, the Wisconsin Supreme Court reversed, holding that the
circuit court judge’s mother was per se objectively biased. Id. at
746. The court reasoned, in part, as follows:
[A] close and familial link between the judge
and a juror is not congruent with one of the
basic purposes underlying the constitutional
guarantee of trial by an impartial jury. The
United States Supreme Court has recognized
that the federal constitution, as well as the
constitutions of the many states, provides for
trial by jury in criminal cases in large part to
protect against the abuses of judges. The
50
presence of a member of the judge’s immediate
family on the jury seems conspicuously
inconsistent with the jury’s function as, in
part, a check upon the power of the judge.
Id. at 745-46 (footnote omitted). In my view, the Wisconsin
Supreme Court’s reasoning applies equally, if not more so, to the
present case because the judge’s wife served on this jury.
¶ 96 In Sellhausen, defense counsel used a peremptory challenge to
remove the judge’s daughter-in-law from the jury. 809 N.W.2d at
17. The Wisconsin Supreme Court affirmed, holding that reversal
of the conviction is not automatically required when a peremptory
strike removes the challenged juror from the jury. Id. at 19, 22.
The court rejected defense counsel’s argument that the use of a
peremptory challenge forced counsel to adopt an adversarial stance
to the judge, reasoning as follows:
We understand that attorneys fear
antagonizing judges. This fear is part of the
legal lore and legal culture. Lawyers fear that
judges, like other persons, may harbor ill will
to the messenger when they dislike or are
bothered by the message. As judges ourselves,
we tend to view any such concerns by lawyers
as exaggerated, but we appreciate that lawyers’
perceptions may be different. Although judges
are expected to perform their duties
objectively, impartially, and unemotionally,
lawyers and non-lawyers alike must concede
51
that judges are not immune to human
emotions.
We are not persuaded, however, that the risk
of an adversarial relationship developing
between the presiding judge and defense
counsel in the circumstances of the present
case is great enough to warrant automatic
reversal absent evidence that a party’s
substantial rights were actually impaired.
Nothing in the record suggests that defense
counsel changed trial strategy because he
feared antagonizing the circuit court judge.
Nothing in the record suggests that the circuit
court judge harbored any resentment toward
defense counsel for using a peremptory strike
to remove the daughter-in-law from the jury.
The potential chilling effect that concerned the
court in Tody does not appear to be present in
the instant case.
Id. at 22.
¶ 97 But the same cannot be said of the circumstances of this case.
Defense counsel apparently changed strategy by not making a
peremptory strike of the judge’s wife, and the record shows that the
judge would likely have harbored resentment if counsel had made
such a challenge by (1) informing counsel that not challenging her
“wasn’t a stupid idea” and (2) expressing appreciation for counsel
not doing so.
52
¶ 98 In People v. Hartson, 553 N.Y.S.2d 537, 539 (N.Y. App. Div.
1990), the Appellate Division of the New York Supreme Court
reversed the defendant’s convictions of rape in the third degree and
incest, even though the defendant did not timely challenge the
seating of the trial judge’s wife. The court reasoned that the case
necessitated reversal “given the importance of defendant’s right to
an impartial jury and the concomitant right of the public at large
that the jury appear to be impartial.” Id.
¶ 99 And, in Elmore v. State, 144 S.W.3d 278, 279-80 (Ark. 2004),
the Arkansas Supreme Court reversed a defendant’s conviction for
the rape of his twelve-year-old stepdaughter because the trial judge
permitted his spouse to sit on the jury. Without embarking on a
discussion of structural defects, the court reasoned that an
appearance of impropriety warranted reversal. Id.
¶ 100 In the present case, I believe the judge had two options: (1)
excuse his wife before the proceedings began or (2) recuse himself
from the trial after questioning started based on the appearance of
impropriety. See C.J.C. 2.11(A) (“A judge shall disqualify himself or
herself in any proceeding in which the judge’s impartiality might
reasonably be questioned . . . .”). I believe the judge erred by not
53
choosing either option. See, e.g., C.J.C. 2.4(B) (“A judge shall not
permit family . . . relationships to influence the judge’s judicial
conduct or judgment.”); see also C.J.C., Terminology (defining
“impartiality” as “absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as maintenance of an
open mind in considering issues that may come before a judge”).
B. Preservation
¶ 101 In general, a defendant is required to object at trial to preserve
an argument for appeal. People v. Melendez, 102 P.3d 315, 322
(Colo. 2004). This is to give the court an opportunity to rule on the
issue. People v. Abu-Nantambu-El, 2017 COA 154, ¶ 29. But a
defendant waives a challenge for cause if counsel does not use
reasonable diligence during jury selection to determine whether
grounds for such a challenge exist. People v. Romero, 197 P.3d 302,
305 (Colo. App. 2008). In my view, defense counsel could not have
done more to preserve this issue.
¶ 102 True enough, during jury selection defense counsel was able to
challenge the judge’s wife for cause. But the statute authorizing
such challenges does not include this very unusual situation. See §
16-10-103, C.R.S. 2017 (listing grounds to challenge prospective
54
jurors for cause). Thus, there was no statutory causal challenge to
make or waive, and if the judge had denied counsel’s challenge,
counsel then risked alienating those jurors who might participate in
the trial with the judge’s wife. After all, the judge told everyone to
accord his wife special treatment.
¶ 103 Defense counsel was also able to excuse the judge’s wife by
exercising a peremptory challenge. Counsel’s exchange with the
judge after the jury was selected suggests that he wanted to excuse
the judge’s wife but was afraid to do so. Counsel was undeniably
“caught between a rock and a hard place,” given the dilemma he
faced. In seeking to make the trial fair by excusing the judge’s wife,
defense counsel risked alienating the judge who was charged with
ensuring as much. As noted, the judge confirmed counsel was not
“stupid” for leaving the judge’s wife on the jury — and the judge
thanked counsel for refraining from using any challenges on her.
C. Discussion of the Error
¶ 104 In this case, (1) the judge’s bias in favor of his wife prevented a
fair assessment of her qualifications to serve as a juror and (2) his
preference for her as a juror improperly affected the fairness of the
trial.
55
¶ 105 From the outset of any criminal proceeding, the judge has a
duty to ensure fairness and integrity of the trial. This duty is the
cornerstone of the constitutional framework that is designed to
protect a criminal defendant’s trial rights. And, the Due Process
Clauses of the United States and Colorado Constitutions guarantee
every criminal defendant the right to a fair trial. See Morrison v.
People, 19 P.3d 668, 672 (Colo. 2000).
1. Assessment of His Wife’s Qualifications
¶ 106 Any inability of the trial judge to impartially assess the
potential jurors directly infringes on a defendant’s fair jury right.
This is so because the judge is afforded considerable discretion in
ruling on causal challenges predicated on actual bias. See People v.
Clemens, 2017 CO 89, ¶ 13 (“This standard gives deference to the
trial court’s assessment of the credibility of prospective jurors’
responses, recognizes the trial court’s unique role and perspective
in evaluating the demeanor and body language of prospective
jurors, and serves to discourage reviewing courts from second-
guessing the trial court based on a cold record.”).
¶ 107 In a similar vein, the prosecution and defense must be free to
ask questions of potential jurors to reveal potential biases so that
56
the court may determine whether the prospective jurors are willing
to follow the court’s instructions and render a fair and impartial
verdict based on the evidence. § 16-10-103(1)(j); People v. Vigil,
2015 COA 88M, ¶ 9. Counsel must also bring to the judge’s
attention those jurors who are not so willing. See Crim. P. 24(b)(2).
I believe that without unhampered procedures, the foundation of a
fair jury right cannot be secured.
¶ 108 In this case, the judge could not fulfill his role as a neutral
arbiter in empaneling an impartial jury. Indeed, the judge
determined in the absence of substantive questioning of his wife
that she would make a fine juror. The judge made this
determination despite his wife’s expressed uncertainty in her jury
questionnaire about whether she could be fair and whether she
would be distracted.
¶ 109 The record shows that the judge’s bias in favor of his wife had
an ongoing chilling effect on defense counsel’s willingness to
challenge the judge’s wife’s serving on the jury. Unsurprisingly,
counsel withheld any objections after being told by the judge that
counsel was not stupid for being afraid to challenge the judge’s wife.
57
2. The Judge’s Preference for his Wife
¶ 110 The judge’s exhibited bias in favor of his wife as a juror
impacted the fairness of the trial beyond the jury selection process.
The judge’s wife was in a unique position to influence the other
jurors during deliberation. Elmore, 144 S.W.3d at 280. The other
jurors may have tended to give the deference to the judge’s wife that
they are presumed to give to the judge. The judge’s comments
throughout trial repeatedly underscored his and his wife’s
connection in the case and could have easily given other jurors the
impression that they should afford his wife special favor and
consideration during their deliberation.
D. The Consequence
¶ 111 The consequence of the error does not fit into a nice construct.
1. Colorado Law
¶ 112 At a minimum, I conclude that under Colorado law the
appearance of impropriety, which resulted from the judge’s
permitting his wife to serve on the jury in a case over which he
presided, warranted reversal even without a showing of prejudice.
See Elmore, 144 S.W.3d at 280; Hartson, 553 N.Y.S.2d at 539.
58
2. Structural Defect
¶ 113 I agree with the majority that this case does not fit into a
category of structural defects as currently defined by the United
States Supreme Court.
¶ 114 A deprivation of a constitutional right is a “structural defect
affecting the framework within which the trial proceeds.” Arizona v.
Fulminante, 499 U.S. 279, 310 (1991); see also Weaver v.
Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1907 (2017)
(Structural errors are those that infringe on “certain basic,
constitutional guarantees that should define the framework of any
criminal trial.”). Our supreme court has recognized several
structural errors, including “complete deprivation of counsel, trial
before a biased judge, unlawful exclusion of members of the
defendant’s race from a grand jury, denial of the right to self-
representation, and denial of the right to a public trial.” Hagos v.
People, 2012 CO 63, ¶ 10. Of course, this case does not fall
squarely into one of these categories because courts that have
wrestled with judicial bias are confronted with situations where the
judge has a direct, personal, or pecuniary interest in reaching a
conclusion against or in favor of one of the parties. See, e.g.,
59
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); Tumey v.
Ohio, 273 U.S. 510 (1927). But the facts of this case lead me to
conclude that the error improperly affected the structure of the trial
itself.
¶ 115 Structural error is “so intrinsically harmful as to require
automatic reversal.” Neder v. United States, 527 U.S. 1, 7 (1999);
see also Blecha v. People, 962 P.2d 931 (Colo. 1998). No
“individualized analysis of how the error impairs the reliability of
the judgment of conviction” is required. Hagos, ¶ 10.
¶ 116 The Supreme Court has recognized three broad rationales for
why an error might be deemed structural: (1) if the “right at issue is
not designed to protect the defendant from erroneous conviction but
instead protects some other interest”; (2) if the effects of the error
are too difficult to measure; or (3) if the “error always results in
fundamental unfairness.” Weaver, 582 U.S. at ___, 137 S. Ct. at
1908. I believe the facts of this case satisfy the second two of the
Weaver rationales.
a. Effects Too Difficult to Measure
¶ 117 The effect of a judge’s spouse serving on the jury is
incalculable. See Vasquez v. Hillery, 474 U.S. 254, 263 (1986)
60
(“[W]hen a petit jury has been selected upon improper criteria . . . ,
we have required reversal of the conviction because the effect of the
violation cannot be ascertained.”).
¶ 118 And, we cannot pry into what is said during deliberations, see
CRE 606(b); People v. Kriho, 996 P.2d 158, 166 (Colo. App. 1999),
and therefore cannot know the extent to which the judge’s
comments about his wife throughout the trial may have impacted
the jury. As in Elmore, “other jurors would likely give more
credence or weight to the judge’s wife’s views than the others on the
panel.” Elmore, 144 S.W.3d at 280; see, e.g., Starr v. United States,
153 U.S. 614, 626 (1894) (“[T]he influence of the trial judge on the
jury is necessarily and properly of great weight, and . . . his lightest
word or intimation is received with deference, and may prove
controlling.”).
¶ 119 Statements like “[b]e nice to Juror 25” highlight the difficulty
in measuring the effects of the error. The ability of one juror to
improperly influence the decisions or opinions of others runs a high
risk of partiality particularly where that juror is the subject of
special treatment by the judge.
61
¶ 120 The effects of a single juror’s ostensible authority, impressed
on other jurors by the judge himself, are immeasurable. Her words
and opinions might sway others during deliberations simply due to
the imprimatur of the judge’s preference for her. The effect is too
difficult to measure and too far-reaching to ignore.
b. Result is Always Fundamentally Unfair
¶ 121 Our legislature has recognized that a person is presumptively
biased toward his spouse. See, e.g., § 16-10-103(1)(b) (relationship
by marriage to an attorney engaged in the trial will sustain a for
cause objection). Even if the judge made no comments about (and
to) his wife, any knowledge of their spousal relationship by the
attorneys or the other jurors was enough to vest his wife with
unique status.
¶ 122 During voir dire, the judge is responsible for ensuring that an
impartial jury is empaneled. This requires him or her to be free of
bias toward the potential jurors. No judge can fairly and impartially
determine the ability of his or her spouse to serve as a juror. Their
spousal relationship imputes bias into the process itself — into the
framework of the trial. Bias toward one’s spouse prevents a judge
62
from fairly assessing that spouse as a juror, as the constitution
requires of the judge.
¶ 123 The spousal relationship between the judge and his wife —
coupled with his numerous comments about it — pervaded the trial
from its very start. Its presence was impossible for jurors to ignore.
Any preference the judge has for a juror based on a spousal
relationship undermines the very framework of a fair trial
constitutionally guaranteed to a defendant.
III. Conclusion
¶ 124 Because I believe the judge committed reversible error by
permitting his wife to serve on the jury over which he presided, I
would reverse Richardson’s judgment of conviction. See Elmore,
144 S.W.3d at 280; Hartson, 553 N.Y.S.2d at 539.
The lack of guidance for trial court judges confronted with a
prospective juror being a close family member reinforces my hope
that the legislature will address this in section 16-10-103 (providing
grounds on which the court shall sustain a challenge for cause).
63