People v. Merrow

Judge WEBB

specially concurring.

While I am in agreement with the majority's disposition, retrial in this and similar cases may exact significant social costs. See People v. Sepulveda, 65 P.3d 1002, 1008 (Colo.2008) ("Resources of the district attorney are limited, witnesses' memories fade, witnesses move away and victims hesitate to testify again."). Hence, I write separately in the hope that if the supreme court grants certiorari in this case, it will provide additional guidance concerning the following issues. Such guidance would make appellate decisions on challenges for cause more predictable and could reduce the risk of trial court error.

I. Carrillo

Many criminal defendants appeal trial court decisions rejecting challenges for cause to prospective jurors. Under the broad discretion afforded trial courts in Carrillo v. People, 974 P.2d 478 (Colo.1999), the vast majority of those decisions must be affirmed, which raises the question of why the issue is argued on appeal so often. See People v. Rodriguez, 914 P.2d 280, 303 (Colo.1996) (appellate counsel's "duty to render effective advocacy requires prioritizing issues on appeal based upon their strength").

The answer may lie in People v. Young, 16 P.3d 821, 824 (Colo.2001), where the supreme court said, "When it considered the present case on remand, the court of appeals appeared to interpret Carrillo as lowering the standard of appellate review. That was not our intent." But in my view, the data suggests otherwise.

Since Carrillo, divisions of this court have reversed denial of challenges for cause based on statements of prospective jurors during voir dire in four published cases. The supreme court upheld the trial court in Young, supra, and People v. Vecchiarelli-McLaughlin, 984 P.2d 72 (Colo.1999).

In the other two cases, certiorari was denied. See People v. Wilson, 114 P.3d 19 (Colo.App.2004); People v. Luman, 994 P.2d 482 (Colo.App.1999). However, "the denial of a petition for a writ of certiorari does not support the conclusion that either the majority or the dissent at the prior levels correctly applied the law." Allison v. Indus. Claim Appeals Office, 884 P.2d 1113, 1120 (Colo.1994).

According to Carrillo, supra, 974 P.2d at 485-86, "the abuse of discretion standard is already a very high standard of review.... It ... serves to discourage an appellate court from second-guessing those judgments based on a cold record." This standard has been applied to uphold denial of a challenge for cause "although the record is somewhat ambiguous." People v. Young, supra, 16 P.3d at 825. Yet, an appellate court can inform itself only from the record.

The divisions in Wilson and Luman juxtaposed the Carrillo language against the maxim that appellate courts must not "abdicate their responsibility to ensure that the requirements of fairness are fulfilled." Morgan v. People, 624 P.2d 1831, 1832 (Colo.1981). I discern no bright-line test between not abdicating such appellate responsibility while avoiding second-guessing.

Moreover, abuse of discretion is a very elastic standard. See People v. Riggs, 87 P.3d 109, 114 (Colo.2004) ("judicial discretion implies the absence of any settled legal standard that controls the controversy at hand"); People v. Milton, 782 P.2d 1199, 1207 (Colo. 1987) (discretion means the trial court "has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other").

A more manageable standard would be akin to the clear error test that protects factual findings: if the trial court's denial of the challenge for cause finds any support in the record, it may not be disturbed. See People v. Arko, 159 P.8d 713, 720 (Colo. App. 2006) (cert. granted on other issues, Apr. 30, 2007).

Using such a standard, appellants could choose to raise this issue only where they can point to particular deficiencies in the record, and we could decide it by focusing on such deficiencies. Both advocates and reviewing courts would be relieved of the uncertainty inherent in "the trial court's unique role and perspective in evaluating the demeanor and body language of live witnesses." Carrillo v. People, supra, 974 P.2d at 486.

IL. Trial Court Rehabilitation

"It is the trial court's duty to determine the competency and credibility of each juror." Medina v. People, 114 P.3d 845, 856 (Colo.2005). The majority refers to "the absence of rehabilitative questioning." But in my view, once a challenge for cause has been made, attempted rehabilitation of the prospective juror by the trial court, often effected through leading questions, raises two new problems.

First, "the trial court must remain neutral." People v. Romero, 694 P.2d 1256, 1274 (Colo.1985); see also People in Interest of NAT, 124 P.Bd 585, 548 (Colo.App.2006) (Roman, J., dissenting) (to search the record for issues "not raised by counsel or to construct arguments to support identified issues . violates the neutrality and independence of the court").

A trial court may properly inject itself during voir dire to clarify a prospective juror's position. And after a challenge for cause has been raised, the court could afford the adverse party further voir dire on the issue without compromising its neutrality. Otherwise, however, I believe that following a challenge for cause, the trial court should act only as a neutral arbiter.

Second, "(tlhe influence of the trial judge on the jury is necessarily and properly of great weight." Simpson v. Stiernholm, 985 P.2d 31, 85 (Colo.App.1998) (quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946)); see also People v. James, 40 P.3d 86, 41 (Colo.App.2001).

But rehabilitative questions by the trial court risk abusing that influence. See Leick v. People, 186 Colo. 585, 570, 822 P.2d 674, 693 (1958) (Sutton, J., dissenting) ("Slome jurors who were up to then disqualified due to their answers were pressed with leading questions and thorough interrogation to finally give the answers desired by the state to qualify them. Trial courts have a rather wide latitude in such examinations ...; however, here I believe . the trial court abused its discretion...."). Further, answers to leading questions are viewed with suspicion. See Wigger v. McKee, 809 P.2d 999, 1007 (Colo.App.1990); see also Berger v. People, 122 Colo. 867, 395-97, 224 P.2d 228, 248 (1950) (Holland, J., dissenting).

For both reasons, a record laden with leading questions by the trial court can leave a reviewing court uncertain about the sincerity of the prospective juror's answers. The answers to such questions may suggest overt acquiescence in the trial court's efforts to elicit a commitment to neutrality. But bias remains if the prospective juror tells the court only what it wants to hear, while covertly holding on to the previously articulated views that precipitated the challenge.

In sum, a trial judge who subjects a prospective juror with a strong preconceived bias to a barrage of leading questions creates a record that is problematic on appellate review. Exeusing that prospective juror does not.