January 19, 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.

Colorado Supreme Court: Contracting Jail Nurse Not “Compensated Employee” of Law Enforcement Agency

The Colorado Supreme Court issued its opinion in Mulberger v. People on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “compensated employee of a public law enforcement agency” is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. The potential juror in this case contracted with and received compensation from a private agency for work she performed as a nurse at a county jail. That potential juror therefore was not a “compensated employee” of the county jail because she was not paid by the county jail, and the record does not contain any evidence that she was subject to the jail personnel’s direction and control. Accordingly, the trial court did not err in denying defendant’s challenge for cause. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Privately Owned Prison Not “Law Enforcement Agency” for Jury Selection Purposes

The Colorado Supreme Court issued its opinion in People v. Bonvicini on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “public law enforcement agency” is a division or subdivision of state or federal government that has the authority to investigate crimes and to arrest, prosecute, or detain suspected criminals. The potential juror in this case worked at a prison owned and operated by a private company that housed inmates from Alaska. The Court concluded that the private company operating the prison is not a “public law enforcement agency” under the statute because it is not an official governmental entity. Therefore, the trial court appropriately denied defendant’s challenge for cause to the potential juror who worked at the private prison. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Erroneous Denial of Challenge for Cause Does Not Require Automatic Reversal

The Colorado Supreme Court issued its opinion in Newman, LLC v. Roberts on Monday, February 8, 2016.

Civil Law—Jury—Overruling Challenges to Jurors—Harmless Error— CRCP 61—Stare Decisis.

The Supreme Court held that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with C.R.C.P. 61. This conclusion follows from People v. Novotny, 2014 CO 18, in which the Court determined that the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a “substantial right” and thus warranted automatic reversal. This same assumption undergirds the Court’s parallel rule in the civil context, but, as it held in Novotny, subsequent developments in the law concerning harmless error analysis and the significance of the right to shape the jury have invalidated that assumption. As such, the Court rejected the automatic reversal rule in the civil context and overruled prior decisions to the contrary. See Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Safeway Stores, Inc. v. Langdon, 532 P.2d 337 (Colo. 1975); and Denver City Tramway Co. v. Kennedy, 117 P. 167 (Colo. 1911).

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Peremptory Challenges Can Only Be Used on Newly Empaneled Jurors After Waiver

The Colorado Court of Appeals issued its opinion in People v. Terhorst on Thursday, August 13, 2015.

Peremptory Challenge—Waiver—Motion to Suppress—Evidence—Exigent Circumstances—Underage Drinking.

Defendant held a birthday party for his 17-year-old son at their large multistory home in Lakewood. Hundreds of teenagers attended the party, alcohol was present, and some of the teenagers were intoxicated. Police responded to the party after a neighbor reported that “underage kids” were drinking alcohol at defendant’s home. A jury found defendant guilty of four counts of contributing to the delinquency of a minor.

On appeal, defendant argued that he was improperly denied a fifth peremptory challenge during jury selection. Defendant was entitled to five peremptory challenges pursuant to CRS § 16-10-104. Defendant’s counsel used peremptory challenges to strike two potential jurors and waived the third and fourth peremptory challenges. Under Crim.P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Because no jurors were called into the jury box after defendant’s counsel’s waiver of the fourth peremptory challenge, defense counsel lost his ability to use any additional peremptory challenges.

Defendant also argued that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home. Exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. An underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance because there is a real threat that the alcohol, which is the evidence of underage drinking, will be destroyed. Accordingly, the police officers’ entry into defendant’s home was legally justified, and the trial court did not err in admitting the evidence derived from that entry.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Insufficient Findings on Batson Challenge Warranted Reversal

The Colorado Court of Appeals issued its opinion in People v. Beauvais on Thursday, October 23, 2014.

Jury Selection—Peremptory Challenge—Batson Challenge.

A jury found Beauvais guilty of one count of stalking under CRS § 18-3-602(1)(c) after she repeatedly called, e-mailed, and sent text messages to a man she met on the Internet. On appeal, she contended that the trial court committed reversible error in the jury selection process, and that CRS § 18-3-602)(1)(c) is unconstitutional.

Beauvais first contended that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender [Batson v. Kentucky, 476, U.S. 79 (1986)]. The record refutes several of the prosecutor’s explanations for excusing potential jurors. The prosecutor did not attempt to excuse several males on the panel that had the same characteristics for which the prosecutor claimed he excused the female jurors. However, the prosecutor also claimed that each of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. However, the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Because the record was insufficient to determine whether the trial court’s ruling was clearly erroneous, the matter was remanded to the trial court for additional findings.

Beauvais next contended that, on its face, CRS § 18-3-602(1)(c) (the stalking statute)is unconstitutionally vague and overbroad. The Colorado Supreme Court and a division of the Court of Appeals have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. Therefore, Beauvais’s facial challenge was rejected.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Applying Novotny to Case Pending on Appeal Not a Retroactive Application

The Colorado Court of Appeals issued its opinion in People v. Maestas on Thursday, October 23, 2014.

Challenge for Cause—Peremptory Challenge—Constitutional Right to Impartial Jury.

A jury found defendant guilty of aggravated robbery, menacing, and eluding police. A division of the Court of Appeals overturned defendant’s conviction and remanded the case for a new trial after determining the trial court had erred by denying one of defendant’s for-cause challenges. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in People v. Novotny, 2014 CO 18, which held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not “harmless under the proper outcome-determinative test.”

The Court first rejected defendant’s contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Applying Novotny to a case pending on appeal is not a retroactive application of the law and does not offend due process.

The Court agreed with defendant that the trial court abused its discretion by denying his challenges for cause to two prospective jurors, Juror F and Juror H, who indicated they would hold it against defendant if he refused to testify. The trial court denied defendant’s challenges for cause as to Jurors F and H, and defendant used a peremptory challenge to remove Juror H from the jury. Defendant had exhausted his peremptory challenges, so Juror F ultimately served on the jury. Because Juror F, a biased juror, sat on the panel, defendant’s constitutional right to an impartial jury was implicated, and reversal was required. The case was remanded for a new trial.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Supreme Court’s Mandate that Court of Appeals Apply Novotny Rule Could Not Be Disregarded

The Colorado Court of Appeals issued its opinion in People v. Wise on Thursday, July 3, 2014.

Challenge for Cause—Novotny—Due Process—Retroactive Application—Bias—Consecutive Sentences.

A division of the Court of Appeals previously determined that the district court had erroneously denied defendant’s challenge for cause to a prospective juror. The Colorado Supreme Court vacated the division’s decision, and remanded the case for reconsideration in light of People v. Novotny, No. 10SC377, 2014 CO 18.

On appeal, defendant contended that applying the holding of Novotny to this case would violate his right to due process because he did not have fair warning of Novotny’s change in the law. In Novotny, the court abrogated the automatic reversal rule on which the previous division had relied, holding that reversal is required for a district court’s deprivation of a defendant’s peremptory challenge only where the error was not “harmless under the proper outcome-determinative test.” Here, the Supreme Court mandated that the Court of Appeals apply that rule in this case. Further, because retroactive application to this case has no legaleffect on proceedings in the district court, including both the determination of guilt and punishment, defendant’s due process rights were not violated. Therefore, in applying Novotny to defendant’s case, and assuming that the district court erred in denying the challenge for cause to prospective juror K, the district court’s error resulting in defendant’s loss of a peremptory challenge was harmless, because defendant did not show that a biased or incompetent juror participated in deciding his guilt.

Defendant also contended that the district court abused its discretion in imposing consecutive sentences for his two felony convictions. Where, as here, a defendant’s multiple convictions are not based on identical evidence, the district court has discretion to impose either concurrent or consecutive sentences. The court’s remarks considered as a whole constitute a sufficient explanation of the basis for its decision to impose consecutive sentences. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Automatic Reversal Still Required in Civil Case Despite Supreme Court’s Ruling in Novotny

The Colorado Court of Appeals issued its opinion in Morales-Guevara v. Koren on Thursday, July 3, 2014.

Motor Vehicle Accident Damages Calculation—Jury Selection—Automatic Reversal Rule.

At trial, defendant did not dispute that she caused a motor vehicle accident by driving while intoxicated. Damages were in dispute. Defendant challenged plaintiff’s claim that the accident was the cause of a heart attack he suffered two months later.

During voir dire, there was an exchange between plaintiff’s counsel and a prospective juror concerning whether she could properly apply the burden of proof to the issue of the causation of the heart attack. After receiving a negative response, plaintiff challenged her for cause. Neither defendant nor the court tried to rehabilitate the prospective juror. The court denied the challenge, plaintiff removed the juror using a peremptory challenge, and plaintiff then exhausted his remaining peremptory challenges.

On appeal, plaintiff raised two issues: (1) whether the trial court abused its discretion in denying plaintiff’s challenge for cause to the prospective juror and, if so, (2) whether the “automatic reversal rule” announced in the civil case of Denver City Tramway Co. v. Kennedy,50 Colo. 418, 117 P. 167 (1911), remains binding after the Supreme Court’s decision in the criminal case of People v. Novotny, 2014 CO 18, 320 P.3d 1194.

The automatic reversal rule provides that, when a trial court improvidently denies a challenge for cause to a prospective juror and then, after exercising a peremptory challenge to that juror, a litigant exhausts his or her peremptory challenges, reversal is required without a showing of prejudice. The resolution of this issue turns on whether the Supreme Court overruled Denver City Tramway and its progeny in Novotny.The Court of Appeals concluded that the trial court abused its discretion in denying the challenge for cause and the automatic reversal rule still applies in civil cases, thereby requiring reversal.

Here, the record disclosed that the prospective juror clearly stated she would be unable to follow the law. She made no affirmative assurance that she would follow the court’s instructions after expressing her unwillingness to do so. She should have been excused from the jury and it was an abuse of discretion not to do so.

The Court also discussed the case law behind the automatic reversal rule and the recent Novotny decision. It concluded that Novotny did not overrule Denver Tramway and its progeny, and that the application of the automatic reversal rule still controls in the civil context. The judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Waiver of Peremptory Challenge Alone Not Sufficient to Establish Discrimination Under Batson

The Colorado Court of Appeals issued its opinion in People v. Lucero on Thursday, April 24, 2014.

Prima Facie Case of Discrimination Under Batson—Failure to Exercise Peremptory Challenges.

On the first day of a jury trial, twenty-two potential jurors were seated for voir dire. The court stated that there would be no alternates and that the People and defendant would each have five peremptory challenges. Both defendant and the People passed the entire venire for cause.

Jurors were assigned seats one through twenty-two, but peremptory challenges were to be used against jurors in seats one through twelve only, with replacements taken from seats thirteen to twenty-two, a process known as the “struck jury” system. Juror P, the only potential juror with a Hispanic surname, was seated in chair twenty-two.

The People and defendant each struck two potential jurors. The People waived their third peremptory challenge and accepted the panel. Defendant exercised his third challenge and the People again accepted the panel. Defendant exercised his fourth challenge and the People exercised their third peremptory to strike the replacement juror. Defendant exercised his fifth challenge and the People exercised their fourth challenge to strike the replacement juror. The People then accepted the panel again. Because the People did not exercise their fifth challenge, Juror P was not on the final jury panel and was excused.

The court asked whether the parties had any objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). Defense counsel indicated he had a problem with how the peremptory challenges had been used with respect to Juror P. After discussion, the court ruled that the defense had not established a prima facie case of discrimination because the People had not exercised a strike to exclude Juror P. Defendant appealed, and the Court or Appeals affirmed.

To make a Batson challenge, the defendant must first make a prima facie showing that the State has excluded potential jurors based on race, ethnicity, or sex. In a case of first impression in Colorado, the Court held that waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson. However, a waiver of a peremptory challenge, with additional indicia of discriminatory purpose, could establish a prima facie case.

Here, the People’s waiver of its last peremptory challenge excluded a minority juror, but defendant failed to demonstrate any other discriminatory action by the prosecutor. Therefore, no pattern of discrimination was shown, and the trial court did not err in finding that defendant had failed to make out a prima facie case of discrimination. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Parental Consent Not Required for Victim to Consent to Recorded Phone Conversation

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, April 24, 2014.

Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

Summary and full case available here.

Colorado Supreme Court: Automatic Reversal for Denial of Challenge for Cause No Longer Appropriate

The Colorado Court of Appeals issued its opinion in People v. Montero-Romero on Monday, April 7, 2014.

Criminal Law—Juror Bias and Removal—Automatic Reversal Rule.

The People petitioned for review of the court of appeals’ judgment in People v. Montero-Romero, No. 10CA833 (Colo.App. Aug. 25, 2011) (not published pursuant to CAR 35(f)), in which that court reversed Montero-Romero’s convictions for first-degree assault and first-degree burglary and his sentence to twenty-eight years in the Department of Corrections. After concluding that the trial court abused its discretion in denying a challenge for cause on the ground of juror bias, and that Montero-Romero removed the prospective juror in question with a peremptory challenge and subsequently exhausted his remaining peremptory challenges, the court of appeals reversed, noting the Supreme Court’s rule of automatic reversal in People v. Macrander, 828 P.2d 234, 244 (Colo. 1992).

The court of appeals’ judgment was reversed. The case was remanded for reconsideration in light of People v. Novotny, 2014 CO 18, in which the Court overruled the bright-line, automatic reversal rule of Macrander and mandated an outcome-specific harmless error analysis.

Summary and full case available here.