on v. People, 2020 CO 46

Background

Defendant Gary Richardson was tried on multiple assault and related charges; the jury that convicted him included Juror 25, the trial judge’s wife, a fact disclosed during voir dire.
The trial judge repeatedly referenced his relationship with Juror 25 on the record (e.g., telling counsel to “be nice” to her, joking about dinner, commenting she was a “fine juror”).
Defense counsel did not question Juror 25, did not challenge her for cause, and did not use a peremptory to remove her; counsel likewise did not move the judge to recuse.
Richardson was convicted on several counts and sentenced; he appealed claiming Juror 25’s service (and the judge’s conduct) denied him a fair trial and constituted structural error.
The Colorado Supreme Court held Richardson waived his challenge by failing to object and that, absent a contemporaneous objection, the trial judge had no duty to sua sponte excuse Juror 25 or to recuse himself; the court affirmed the court of appeals.
Justice Gabriel dissented, arguing the judge’s conduct created an appearance of impropriety that undermined jury independence and amounted to structural error requiring reversal.

Issues

Issue	Richardson's Argument	People’s Argument	Held
Whether defendant preserved challenge to juror who was the judge’s wife	Waiver should not apply given judge’s on-record comments and chilling effect on counsel; alleged implied bias is structural	Defense counsel failed to object or challenge Juror 25 during voir dire; Crim. P. 24(b) and precedent require timely challenge	Waiver: Richardson waived the claim by not challenging Juror 25; no appellate review on the merits
Whether trial judge had duty to sua sponte excuse Juror 25	Judge should have excused juror on his own because her relation to him created appearance of impropriety	No authority requires a judge to remove a juror sua sponte; judges need not act absent objection	No duty to sua sponte excuse Juror 25
Whether judge had duty to recuse himself sua sponte	Judge should have recused to avoid appearance of impropriety under Code of Judicial Conduct	Statute and Crim. P. require disqualification only in specified circumstances; neither statute nor Code compels recusal because a judge’s relation to a juror isn’t listed	No statutory or categorical duty to recuse sua sponte on these facts; recusal not required absent evidence of bias or statutory disqualification
Whether error (if any) was structural requiring automatic reversal	The judge’s conduct and juror relationship so tainted the process that prejudice is unprovable under CRE 606(b); therefore structural error	Any ethical concerns are for judicial discipline and do not, without actual bias or timely objection, mandate reversal; defendant can waive rights	Not structural here; absent preserved objection and absent proof of judicial bias, reversal not required

Key Cases Cited

Stackhouse v. People, 386 P.3d 440 (Colo. 2015) (distinguishes waiver from forfeiture; waiver extinguishes appellate review)
People v. Abu-Nantambu-El, 454 P.3d 1044 (Colo. 2019) (challenge to an allegedly biased juror must be made at trial to preserve the issue)
People v. Rediger, 416 P.3d 893 (Colo. 2018) (defining waiver as intentional relinquishment of a known right)
Weaver v. Massachusetts, 137 S. Ct. 1899 (U.S. 2017) (framework for identifying structural errors that defy harmless-error analysis)
Elmore v. State, 144 S.W.3d 278 (Ark. 2004) (trial judge’s spouse on jury created appearance-of-impropriety reversal)
State v. Tody, 764 N.W.2d 737 (Wis. 2009) (trial judge’s close relative serving as juror implicated impartiality concerns)
People v. Russo, 713 P.2d 356 (Colo. 1986) (party must timely state grounds for challenge for cause)
Ma v. People, 121 P.3d 205 (Colo. 2005) (counsel may forfeit a challenge by failing to exercise reasonable diligence during voir dire)