DocketNumber： No. 08CA2144
Judges： Miller, Taubman, Terry
Filed Date： 7/21/2011
Status： Precedential
Modified Date： 11/13/2024
Opinion by
Defendant, Adrian Chavez, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault-aided and abetted, sexual assault on a child-force, sexual assault on a child, enticement of a child, and enticement of a child-bodily injury. He also appeals his designation as a sexually violent predator (SVP).
Because we conclude the trial court should have granted challenges for cause to two prospective jurors who expressed actual bias; defendant exercised peremptory challenges to exeuse those jurors; and he exhausted all of his peremptory challenges, we further conclude that under Morrison v. People, 19 P.3d 668, 671 (Colo.2000), and People v. Macrander, 828 P.2d 234, 244 (Colo.1992), his convietion must be reversed and a new trial held on remand. As a result of this disposition, we need not address the other trial issues raised by defendant or his challenge to his SVP designation.
I. Standard of Review and Applicable Law
We review a trial court's ruling on a juror challenge for cause for an abuse of discretion based on the entire voir dire at issue. People v. Young, 16 P.3d 821, 824 (Colo.2001). A
This is a "very high standard of review" that gives deference to the trial court's superior ability to assess a potential juror's credibility. Young, 16 P.3d at 824 (quoting Carrillo v. People, 974 P.2d 478, 485-86 (Colo.1999)). "The placing of this discretion in the trial judge does not, however, permit appellate courts to abdicate their responsibility to ensure that the requirements of fairness are fulfilled." Morgan v. People, 624 P.2d 1331, 1332 (Colo.1981); see also People v. Hancock, 220 P.3d 1015, 1016 (Colo.App.2009).
Constitutional principle of due process guarantee a criminal defendant the right to a fair trial. Morrison, 19 P.3d at 672. An impartial jury is fundamental to that right, and "[a] defendant's right to an impartial jury is violated if the trial court fails to remove a juror biased against the defendant." Id.; see also Nailor v. People, 200 Colo. 30, 31, 612 P.2d 79, 79 (1980). A defendant's right to challenge prospective jurors for cause is integral to his or her right to a fair trial. Carrillo, 974 P.2d at 486; Macrander, 828 P.2d at 238.
Section 16-10-108(1)(J), C.R.S.2010, codifies these precepts and states that a trial court must excuse a prospective juror for cause where "[the existence of a state of mind in the juror evine[es] enmity or bias toward the defendant or the state." However, the statute further provides:
[N]Jo 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.
Id.
Where a prospective juror is challenged on grounds of actual bias, the trial court must consider whether the juror will render an impartial verdict based on the law and the evidence. Young, 16 P.3d at 824. The trial court must grant the challenge if the prospective juror is unwilling or unable to render an impartial verdiet based upon the court's instructions and the evidence admitted at trial. Morrison, 19 P.3d at 672.
Several rules guide a trial court's analysis in this regard. For example, a trial court may give considerable weight to a prospective juror's statement that he or she can fairly and impartially decide the case. People v. Sandoval, 7338 P.2d 319, 321 (Colo.1987); People v. Simon, 100 P.3d 487, 492 (Colo.App.2004). Further, a challenge should not be sustained if the subsequent examination of the prospective juror reveals that the alleged bias "was the product of mistake, confusion, or some other factor unrelated to the juror's ability to render a fair and impartial verdict." People v. Blessett, 155 P.3d 388, 392 (Colo.App.2006); see also People v. Russo, 713 P.2d 356, 362 (Colo.1986). A trial court should resolve any doubts as to a prospective juror's impartiality by excusing the juror. Morrison, 19 P.3d at 672. _
Reversal is required if a trial court erroneously denies a challenge for cause and the defendant exhausts his or her peremptory challenges. Id. at 671; Macrander, 828 P.2d at 244.
II. Voir Dire
Defendant contends the trial court erred in denying his challenges for cause to Jurors P., M., and R. We agree as to Jurors P. and R., and because reversal of defendant's conviction is therefore required, we need not decide whether the challenge for cause to Juror M. should have been sustained.
When viewed in context of the entire voir dire, the statements of Jurors P. and R. indicate that it was an abuse of discretion for the trial court to deny defendant's challenges for cause to them. In the early part of voir dire, these prospective jurors made fairly innocuous statements. However, toward the close of voir dire, defense counsel raised a significant issue that revealed these prospective jurors harbored a significant bias. The trial court declined to extend voir dire to
Defense counsel questioned jurors early in voir dire about the prosecution's burden of proof. Near the close of voir dire, defense counsel informed the prospective jurors for the first time that evidence would be presented at trial showing that defendant had shot someone other than the alleged sexual assault victim. Defense counsel carefully questioned each prospective juror about the impact this evidence might have on him or her. The course of voir dire showed how the views of Jurors P. and R. stood in stark contrast to those of all the other jurors, except for Juror M., who was not excused for cause, and two others who were excused for cause.
Defense counsel first asked a prospective juror, "Do you think you can separate [evidence of the shooting] in your mind, even if you think [defendant] acted inappropriately? Can you still make the prosecution meet their [sic] burden with regard to the accusations?" The juror said that she could, and counsel posed the same question to three additional prospective jurors, all of whom said they could mentally separate the shooting from the sexual assault for which defendant was on trial.
Juror B. (who was later exeused for cause) was the first to disagree, stating:
It would give me [al propensity to believe there was-there was other behavior. I would try to focus on the task at hand, but just associating it with other deviant acts, I would have a hard time differentiating it.
Juror B. reiterated that the shooting would cloud her judgment and ease the prosecution's burden.
Defense counsel said to the next prospective juror, "The prosecution has the burden with regard to the accusations of the sexual assault. Do you understand that?" The juror said that he did and agreed to hold the prosecution to that burden. Defense counsel then asked five more prospective jurors for their thoughts on the matter, and all five indicated that the shooting would not influence their decision. Counsel told one of these jurors, "The judge is going to tell you [the shooting] ean only be used for a limited purpose."
When defense counsel questioned Juror H. (who was later excused for cause), he indicated that, in his mind, the shooting would shift the burden to defendant:
JUROR H.: Honestly I believe that someone that's a criminal is more likely to commit a crime. So I mean, I think that would put him at a lower level to start out with, shifted a lot more burden on 'your side.
DEFENSE COUNSEL: Okay. [The prosecution is] starting up a little higher than we are; is that what you are saying?
JUROR H.: That is what I'm saying because I do feel that someone that's already a proven criminal is more likely to be a criminal than somebody who is not.
Defense counsel reminded Juror H., "I told someone earlier the judge is going to tell you [that] you are not supposed to do that." The juror responded, "I can certainly try my best," but added, "My opinion is my opinion."
The next three prospective jurors indicated that they would be able to separate the two acts and hold the prosecution to its burden to prove the sexual assault.
At this point, the end of the trial day was approaching, and the trial court told defense counsel that she needed to "finish up." She then asked Juror P. whether the shooting would give the prosecution a "leg up." He replied:
JUROR P.: To answer quite honestly, I feel lack of judgment shown in the shooting would color my opinion. I'd have a hard time getting past it. I'd have to hear evidence, of course, but the lack of judgment is a big thing.... I feel I probably would just tie those together.
DEFENSE COUNSEL: Same question to you I've been asking everyone.
JUROR P.: [Defendant] only had [a] couple points to start with, yeah, to be honest.
DEFENSE COUNSEL: [It would] give [the prosecution] a little advantage, improving the allegations in this case, in your mind?
*598 JUROR P.: Yeah ... I'm really anti-violent, just the ability to pull a trigger to shoot someone, that shows a lot of character. To me it's a big thing.
DEFENSE COUNSEL: So more likely you would think that he is then guilty of sex assault?
JUROR P.: Hard to say without hearing the evidence. Definitely, I would be coloring in that direction.
DEFENSE COUNSEL: starting from the beginning? Starting off,
JUROR P.: I feel that way.
After this exchange, one more prospective juror stated he could hold the prosecution to its burden. The court then asked, "Anyone [we] haven't spoken to ... that feel you would not be able to-?" Juror M. raised his hand, and then said:
I definitely feel ... it could come down to he said-she said. And I agree with the gentleman over here, violent shooting, shooting is a violent act and therefore it would dictate a character trait or behavior or pattern that you know I would essentially be kind of somebody else [sic] a tipping point if it was at that level.
Juror R. also raised his hand and said, "I think you're telling a story here [and] you're leaving one chapter out. To me it's all-that's the book of who the person is." Defense counsel asked him if "[the prosecution's] burden gets a little bit less because of the shooting," and Juror R. said, "Yes."
A short time later, voir dire ended. Importantly, there was no additional questioning of Jurors P., M., or R. by either the court or counsel.
Defense counsel challenged Jurors B., H., P., M., and R., as well as one other prospective juror. The prosecutor agreed with the challenge to Juror H., but added that further inquiry was necessary as to the other challenged jurors:
I think what needs to happen is that the jury needs to hear from the Court and they need to hear how they will be instructed as [sic] to handle that evidence. And then they need to be asked if they can follow that instruction or not.... [Flur-ther inquiry needs to be made.
The trial court declined to engage in further inquiry. The court granted the challenge for cause to Juror H. based on counsel's agreement that he should be excused. It also excused Juror B., noting that she had used the word "propensity" and had refused to reconsider her opinion that the shooting would color her opinion. However, the court overruled the challenges to the other prospective jurors, and defense counsel objected:
I would like to state for the record that at the point where I was questioning [Juror R.] and [Juror M.], I had moved away from individual questioning ... in light of the fact that the Court had alerted me to my time running out. Specifically, ... [Juror R.] said [the shooting] is who [defendant] is as a person, and indicating that he would use that as character evidence, that the burden gets less because of the shooting.
[Juror M.] indicated [that] ... he agreed with the people ... who had been seated prior to him with regard to the fact that [the shooting] presents a character trait for violence and that [it] would factor into his estimation of the prosecution's case.
The court overruled counsel's objection, noting that Juror R. had indicated "he would have to listen to the evidence," and Juror M. "had been very clear throughout the day that he would follow the law." The court concluded, "There is going to be a limiting instruction so that's why I'm overruling those objections."
The defense exercised peremptory challenges to remove Jurors P., M., and R., and exhausted all of its peremptory challenges.
IIL Analysis
The trial court's denial of the challenges for cause to Jurors P. and R. was an abuse of discretion and requires reversal of the conviction.
We are unable to conclude that the voir dire as a whole supports the trial court's ruling as to Jurors P. and R. Those jurors each made statements demonstrating actual bias against defendant. As noted above, Juror P. stated that the shooting would color his opinion and ease the prosecution's bur
By the time the prospective jurors made these statements, the trial court had explained the prosecution's burden of proof, and had twice reminded the venire that defendant was presumed innocent. The court had told the jurors not to decide the case based on "sympathy or prejudice," but "solely on the evidence admitted by the Court and law as set forth in [its] instructions." Defense counsel had said repeatedly that the burden of proof rested on the prosecution. She had explained clearly that the jurors would be required to follow the court's instruction not to use evidence of the shooting to prove the sexual assault charges.
The contrast was stark between the strong statements of other prospective jurors that they would be able to follow these requirements and the equally strong statements of Jurors P. and R. indicating that they would not be able to do so. These two jurors must have been aware that their views diverged significantly from those of nearly all the other jurors who spoke before they did, and yet they persisted in their pronouncements of bias, thus demonstrating "an unwillingness to accept and apply those principles that form the bedrock of a fair trial." People v. Gurule, 628 P.2d 99, 103 (Colo.1981).
These cireumstances are analogous to those that have been held to require a prospective juror's dismissal for cause. Seq, eg., Gurule, 628 P.2d at 108 (juror's statement, that the defense would have "to do a lot of proving" to overcome the opinion she had formed, nullified the presumption of innocence and required dismissal for cause); Hancock, 220 P.3d at 1019 (absent rehabilitative questioning or counterbalancing information, juror's statements manifesting an inability to apply the presumption of innocence and burden of proof required dismissal for cause); People v. Merrow, 181 P.3d 319, 321 (Colo.App.2007) (absent rehabilitative questioning or counterbalancing information, juror's statements that she could not find a drug user to be credible required dismissal for cause); People v. Wilson, 114 P.3d 19, 23 (Colo.App.2004) (absent statement indicating juror could be fair and impartial or presume the defendant innocent, juror's statement that defendant "had a strike against him" required dismissal for cause); People v. Luman, 994 P.2d 432, 435-36 (Colo.App.1999) (dismissal for cause required where juror was biased, and juror did not expressly or impliedly state that she could put that bias aside).
While the dissent concludes that other statements made by Jurors P. and R. during voir dire counterbalanced their statements of bias and support the trial court's ruling, we cannot agree.
The dissent notes that Juror P. stated, "I would expect a lot more than just hearsay.... I agree just because you're present doesn't mean you're guilty of anything." This statement was made in response to a question concerning what type of evidence Juror P. expected to see during the trial, and well before defense counsel revealed the fact of the shooting. In no way does this statement mitigate the significant bias shown by Juror P. It does not indicate that he would refrain from using evidence of the shooting to infer defendant's guilt of the sexual assault, and would properly hold the prosecution to its burden to prove defendant committed the sexual assault despite such evidence.
Similarly, the statements of Juror R. relied on by the dissent do not mitigate the bias he demonstrated. His statement that "it could go both ways," in response to the question, "Are you open to the possibility that someone may have said they did something and that might not in fact be true ... ?" does not demonstrate that he could fairly and impartially decide the case based solely on the law and the evidence, or that he could follow an instruction not to allow the shooting to influence his decision on defendant's guilt or innocence of the sexual assault.
Considering the voir dire in its entirety, we conclude the record is devoid of indications that these two jurors could set aside their
Moreover, the trial court provided no rationale for its denial of the challenge to Juror P. With regard to Juror R., it noted the juror had said "he would have to listen to the evidence," but the record does not show that Juror R. made such a statement. We note that the statements of Jurors P. and R. were similar to those made by Jurors B. and H., who were excused for cause.
The expressions of bias by Jurors P. and R. at such a late stage of the voir dire, especially when viewed in context with the contrasting views of most other prospective jurors, demonstrated that they were either unwilling or unable to render an impartial verdict based on the law and the evidence, and they should have been excused for cause. See Hancock, 220 P.8d at 1019; Morrison, 19 P.3d at 672.
We recognize that the supreme court has recently granted a petition for certiorari in People v. Novotny, - P.3d (Colo.App.2010) (cert. granted Jan. 31, 2011), to review its decisions in Macrander and later cases holding that reversal is required if a trial court erroneously denies a challenge for cause and the defendant exhausts his or her peremptory challenges. See Morrison, 19 P.3d at 671; Macrander, 828 P.2d at 244; cf. People v. Roldan, - P.3d -, - (Colo.App.2011) (Bernard, J., specially concurring); Merrow, 181 P.3d at 322-23 (Webb, J., specially concurring). Because we are bound by these supreme court precedents, we conclude that reversal of defendant's conviction is required.
Given our reversal of the conviction, we need not address the remaining issues raised by defendant here.
The judgment is reversed, and the case is remanded for a new trial.