2022 COA 47
Colo. Ct. App.2022Background
- Khalil Sanders shot a motorist (Jamie Vasquez) during a road‑rage incident; victim suffered serious injury; jury convicted Sanders of first‑degree extreme indifference assault, illegal discharge of a firearm, and menacing.
- During voir dire the assigned judge disclosed she had been the victim of a shooting years earlier; defense moved to disqualify under §16‑6‑201(1)(d), Crim. P. 21, and C.J.C. 2.11(A).
- The judge denied disqualification, stating she had no actual bias and the prior incident was distinguishable and remote (no injury, no charges, not road rage).
- During jury selection the prosecutor used a peremptory to strike Juror W (Black); defense raised a Batson challenge, the court sustained it and reseated Juror W; Juror W later missed day‑two arrival and — with defense agreement — was dismissed and alternates used.
- The victim was subpoenaed but at trial became uncooperative; prosecutors obtained then quashed a warrant and did not call her; defense sought a missing‑witness instruction, which the court refused because the victim’s absence was not solely due to the People.
- Sanders raised multiple unobjected‑to prosecutorial‑misconduct claims on appeal; the court reviewed for plain error and rejected them. Judgment affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Sanders) | Held |
|---|---|---|---|
| Whether judge must be disqualified for prior, similar criminal victimization | Motion lacked proof of actual bias; judge properly remained because she was impartial | Prior similar criminal conduct created an appearance of partiality under C.J.C. 2.11(A) requiring recusal | No disqualification: no appearance of partiality given remoteness and material differences (incident 3 years earlier, no injury, no charges, not road rage) |
| Whether litigant may rely on C.J.C. 2.11(A) after Richardson | C.J.C. still relevant for recusal motions; Richardson does not bar party‑initiated CJC claims | Richardson limits remedies from CJC violations absent actual bias, so C.J.C. arguments shouldn’t mandate reversal | Rule 2.11(A) remains a proper basis for a disqualification motion; Richardson did not eliminate party reliance on the Code when preserved |
| Proper remedy for a sustained Batson challenge (reseating vs. restarting venire) | Reseating the wrongly struck juror preserves equal protection and prevents counsel from benefiting from an improper strike | Reseating may be improper; restarting venire or other remedies sometimes required | Reseating Juror W was an appropriate and not plain error remedy under the circumstances; it can be the only complete remedy in some cases |
| Whether dismissal of reseated juror after she was late was error | (People) Parties agreed to proceed without her; alternates available | (Sanders) Dismissal after reseating violated jury rights and Batson remedy | Waived: defense affirmatively agreed to proceed without Juror W, so appellate challenge to her dismissal is waived |
| Whether court erred in denying defense instruction on absent victim | No missing‑witness instruction required because victim’s absence was not solely due to the prosecution | Instruction was lawful and necessary to explain jury may consider the victim’s absence | No abuse of discretion: instruction only appropriate when absence is solely due to the People; reasonable‑doubt instruction already covered lack of evidence |
| Whether prosecutors’ closing/rebuttal remarks constituted plain error | Prosecutors’ remarks were responsive to defense, tied to evidence, and not plainly improper | Remarks improperly appealed to sympathy, misstated law, expressed personal opinion, or lowered burden of proof | No plain error: remarks were within permissible response/inference range, analogies did not dilute burden, and misstatements were harmless or clumsy but not reversible |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (prohibits race‑based peremptory strikes; recognizes reseating as one possible remedy)
- Williams v. Pennsylvania, 579 U.S. 1 (2016) (due process bars a judge from presiding where actual bias exists)
- Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing to raise juror equal‑protection violations on behalf of excluded jurors)
- People in Interest of A.G., 262 P.3d 646 (Colo. 2011) (C.J.C. 2.11(A) requires recusal when a reasonable observer might doubt a judge’s impartiality)
- Zoline v. Telluride Lodge Ass’n, 732 P.2d 635 (Colo. 1987) (appearance of impropriety can require reversal)
- Wright v. Dist. Ct., 731 P.2d 661 (Colo. 1987) (recusal principles and appearance‑of‑impropriety analysis)
- People v. Raibon, 843 P.2d 46 (Colo. App. 1992) (missing‑witness instruction appropriate only when absence is solely due to the prosecution)
- People v. Julien, 47 P.3d 1194 (Colo. 2002) (judge must consider the Code of Judicial Conduct sua sponte or in response to a disqualification motion)
- Jones v. State, 683 A.2d 520 (Md. 1995) (minimal prejudice where Batson discussion occurred at bench conference out of jury hearing)