May 21, 2019

Colorado Court of Appeals: Invited Error Does Not Preclude Appellate Review Where Defendant Objected to Juror but Did Not Use Peremptory Challenge to Excuse Her

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, December 27, 2018.

Juries — Challenges for Cause — Peremptory Challenges; Appeals — Invited Error Doctrine

A division of the court of appeals considers whether appellate review is precluded by the doctrine of invited error where a trial court denies a defendant’s challenge for cause, the defendant later exhausts all her peremptory challenges, and the defendant does not use a peremptory challenge to excuse the challenged juror. The partial dissent in People v. Novotny suggests that such a result is arguably justified by these facts. 2014 CO 18, ¶ 31 (Hood, J., concurring in part and dissenting in part). Relying on Morrison v. People, 19 P.3d 668 (Colo. 2000), the division concludes that (1) a defendant is not required use a peremptory challenge against an objectionable juror in order to preserve her claim that the juror was biased and should not have participated in her trial; (2) a defendant does not take legally inconsistent positions where her challenge for cause is denied as to a particular juror but she chooses not to use her peremptory challenges to excuse that juror; and (3) where the record does not support an inference that defendant’s counsel purposely failed to use a peremptory challenge in order to preserve an issue for appeal, counsel’s failure to dismiss an objectionable juror does not demonstrate her affirmative acquiescence to the trial court’s denial of her challenge for cause. Therefore, invited error does not preclude appellate review in this case.

The division further rejects the defendant’s contention that a trial court may not deny a challenge for cause unless a juror provides unequivocal assurances that she can put aside her bias and give the defendant a fair trial. Because the trial court is in the best position to observe the juror’s credibility and demeanor, it may accept a juror’s assurances that she can act fairly even though some of her statements are ambivalent or self-contradictory.

Accordingly, the division affirms the judgment of the trial court.

Summary provided courtesy of Colorado Lawyer.

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