People v. Lefebre

passed it my the statute. Under construc- I am authorized to state that Chief Justice statute, tion of the Farmers would MULLARKEY not be join Justice BENDER this allowed to dissent. liability by reduce its pointing to

Dr. negligence Lachow's conduct. Farmers' referring Lachow, Mrs. Dr. Slack to when just it knew he recently sexually had assault- insured, ed another created the exact risk of harm that occurred. Precluding Farmers reducing from liability in this manner impose any does not unfair burden on Farm- The PEOPLE of the State of ers in contravention of the General Assem- Colorado, Petitioner, bly's purpose. Accordingly, I believe that interpretation this of the statute is consistent with Assembly's the General purpose in en- LEFEBRE, Respondent. John F. acting section 18-21-111.5.

Nos. 99SC8 & 99SC42. Supreme

IL CONCLUSION Colorado, Court of En Banc. conclusion, In I believe that the General June Assembly's use of the term "fault" in section 13-21-111.5 was not intended to allow for

apportionment liability negli- between a

gent tortfeasor and an intentional tortfeasor.

I my reach conclusion analysis based on an legislative history concerning the addi- tion of statute, the term "fault" to the as well

as a underlying review of the legal principles policy concerns in this area of law. view, my 13-21-111.5, before we read section ambiguous statute that compel does not majority's conclusion, negligent allow a tortfeasor liability reduce his compar-

ing his actions to those of an intentional

tortfeasor, require we should a clear state- ment of intent part of the General Assembly. interpretation proposed by majority important raises policy concerns troubling

and leads to results best addressed legislature. Sisk, Gregory C. Interpretation Statutory Modification Joint and Inability, Several Puget 16 U. (1992) ("[Tihe Sound L.Rev. expansion comparative responsibility concept to wrongdoing

intentional significant poli- raises cy concerns that are best resolved in the government.

democratic branch of state Be- yond the threshold issue compar- of whether

ative fault should include intentional torts at

all, questions there are of what situations are ..."). best suited for application. such an Accordingly, I respectfully dissent.

297 Salazar,

Ken Attorney General, Barbara McDonnell, Deputy Chief Attorney General, Gilbert, Alan J. General, Solicitor John Dan- iel Dailey, Deputy Attorney General, Robert Russel, M. First Assistant Attorney General, Cannici, Peter J. Attorney Assistant General, Appellate Division, Denver, Colorado, Attor- neys for Petitioner. Kaplan,

David Colorado State Public De- fender, Brien, Katherine Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent. Justice MARTINEZ Opinion delivered the of the Court.

In this we must decide whether a trial court erred in excusing jurors several for cause without allowing first voir dire questioning those defense coun- sel. We must whether, also decide if there error, was the defendant's convictions must be reversed as a result.

During jury selection at the trial of John Fred Lefebre aggravated for robbery, sever- al indicated on questionnaire a written that, reasons, for various they could not be fair. prosecution The challenged and the judge granted trial 18-4-302(1)(b), 6 C.R.S. to. section pursuant counsel allowing defense challenges without in June 1996 allegation that (1999), on the appeals The court jurors. question in the stores grocery three robbed in. so judge erred trial that Lefebre determined charged as also 24 mandates area. Lefebre P. Denver Crim. doing because 16-13-101, section under criminal an habitual prospective be allowed counsel judge consolidated 6 C.R.S. P.2d Lefebre, People v. jurors. See robbery aggravated counts The court all (Colo.App.1998). found Lefebre jury convicted single trial. to the defen- prejudice resulted error robbery, deadlock aggravated counts trial. four a new ordered consequently dant, and result, As a fifth count. ing on charge. theOn dismissed court abused agree We judge sentenced counts, remaining questioning permit refusing to discretion sixty-four eriminal a habitual Lefebre as by the defendant. jurors challenged the of each count.1 years on firmly and not establish does The record conviction, claiming his appealed aside Lefebre not set jurors could clearly the that er- reversible judge committed trial the case that the and decide beliefs preconceived their At the process. dire the voir during ror in- the court's and evidence on the based judge out- proceedings, the Therefore, counsel start of defense structions. vénire, adminis- charges for the lined the jurors to these of each question entitled some oath, their the venire extent of asked and and nature the the tered determine true all as whether questions, such erroneously preliminary dis- judge Thus, trial the bias. residents, English, and spoke were allowing such members jurors without the missed point, this At proceedings. the hear could questioning. of the twenty-four members judge the called trial court's the this facts On the judge consid- then The into the box. venire and of law a matter as prejudicial is error any claims and hardship claims ered convictions. vacating the defendant's requires jurors and the relationship between sonal of the a result excused jurors were Three personnel. law enforcement witnesses prosecu- grant decision court's trial basic explained some judge next The trial cause, prosecu- for tion's procedure. law and courtroom principles its two of use tion declined prospective prosecu- proceedings, result, if the to these even Prior challenges. As questionnaires. standard remaining peremp- out jurors filled used to have tion were copies of had the court two Counsel challenges to strike tory fifteen Question number cause, trial forms. completed erroneously for removed you believe that asked, any an reason prosecution there "Is afforded in effect in this a fair it re- mot be you when could that additional prior Our case?" for cause. criminal a third moved resulting imba- that establish decisions began questioning attorneys Before unfair tactical prosecution gave the lance if the judge asked panel, the the seated such, and, as jury, shaping the advantage based challenges for cause attorneys had Accordingly, we inherently prejudicial. jurors' answers prospective on the appeals the court judgment of affirm the challenged prosecutor The questionnaires. new trial. and order grounds that on the jurors for cause three that, questionnaires their they indicated on L. they reasons, they not think did for various Trujillo wrote jurors. Juror fair could Fred Lefe- charged John prosecution brother his fair because not be he could robbery aggravated counts five bre with concurrent- be served 27, 1996 on June sentences occurred judge that the ordered 1. The However, 24 inci- on the June alleged ly. the sentences stemming incident from the two counts served 1996 be consecutive, so June are to have occurred June 27 incident and the dent years. total of Similarly, ordered concurrently. she would serve Lefebre alleged to have two offenses sentences had been convicted charges. of the same cution successfully challenged three Juror MeClanahan wrote prior that his erimi- and had two unused peremptory history nal prevent would him being from strikes, presumed the court prejudice to the fair. MceClanahan did not elaborate further Therefore, defendant. See id. the court re as to provide his answer nor did he versed the defendant's convictions and or trial, response information in previous to a ques- dered a new asking tion if he had been convicted of a appeals.2 now crime other than infringements traffic in the years. last ten Juror Greene wrote that he IL. could not be fair because his sister was an expert cases, witness in object- other and he We first must determine whether ed to the manner in which the district attor- judge abused its discretion in dismissing ney's officehad treated his sister. the three allowing without objected Defense counsel to all three chal- defense counsel to them. agree We lenges requested an opportunity ques- with the appeals court of jurors. tion the The trial denied the erred, approach but we problem some request, that, stating Appeals "[the Court of differently. what We hold that if there is basically taking position that this whole firm and clear evidence that a is unfit jurors rehabilitation of they who indicate that serve, to then the trial may court properly cannot be fair is an error. As far as I'm dismiss the allowing without question they if concerned question- indicate on these ing by parties. the Because the record be they naires they cannot be fair ought to be fore us does not establish firm and clear excused." The trial court then dismissed all jurors evidence that the at issue were unfit jurors three objection. over defense counsel's serve, to the trial court abused its discretion in replacement dismissing jurors prior Three them questioning by were to seated box, the the defense. proceeded counsel question to jury pool. the After questioning conclud- ed, the trial court ruled on further A. for cause and both exercised their peremptory challenges. The ex- Generally, trial courts have considera ercised four challenges, while the ble discretion in fashioning voir dire. See defense exhausted its challenges, People Harlan, (Colo. v. 8 P.3d 462 striking jurors six panel. from the 2000). judges Trial significant leeway The appeals court of in conducting determined that voir ruling dire and in on chal lenges judge trial during erred process because the voir dire is ulti by not affording mately defense opportu responsible counsel an providing for an nity question to jurors. the challenged panel jurors. See People See v. Rodriguez, (Colo.1996). Lefebre, 981 P.2d at 260 652. The court held that statutory right had a to exam ine the prospective jurors. three See id. A grant trial court must a Although seope could limit the if prospective juror cause is unable or of the questioning, deprive she could not unwilling accept to principles basic question of the ju those criminal law and to render a fair impar altogether. rors ap The court of tial verdict based on the evidence admitted at peals also found suggested the record trial Russo, and the court's instructions. See that the could fact have been reha 360-61; 713 P.2d at § see also 16-10- 103(1)G); 24(b)(1)(X). bilitated. See id. at 658. Crim. P. prose A reviewing Because the granted 2. We 2) certiorari on two issues: prohibits When a trial court ques- voir dire 1) appeals Whether the court of erred in con- tioning and dismisses three who stated cluding that permit- defense counsel must be fair, they could not be whether a defen- ted prospective to rehabilitate jurors under dant prejudice must demonstrate to establish 24(a)(2) Crim. P. where the have stated reversible error. questionnaires they could not be fair. 300 juror and a relationship between sonal trial court's ordinarily will overturn court People See trial. in the criminal participant cause concerning a decision (Colo.1994). Rhodus, 475 P.2d 870 showing that affirmative only upon an (XII) 24(b)(1)(D)-(IX), section P. Crim. Car See discretion. its abused court lower (1999), 16-10-108(1)(a)-G),(k), out 6 C.R.S. (Colo.1999). 478, 485 P.2d People, 974

rillo v. implied bias. that constitute factors line the deference great usually accord We "shall" the court provisions state These cause challenge for handling aof court's implied bias is juror when potential dismiss on an assess turn decisions such because 24(b)(1); § 16-10- P. Crim. present. See demeanor, and credibility, juror's ment 108(1). must dismiss The trial of mind. state her explaining sincerity in provisions these under falls who Russo, P.2d at 362. 485-86; at im appearance maintain in order to position superior in a trial court system. See Carril justice in the partiality reviewing ais than factors these evaluate Rhodus, at 475. 486; P.2d lo, P.2d record only to a cold court, has access which Davis, 794 People v. for its assessment. short, not rooted implied bias is will, (Colo.1990). there We P.2d related matters juror thinks about what re decision court's fore, a trial overturn or her relation in his but rather allowing the without juror for cause move Therefore, answers cireumstances. ships or juror, after the parties to may disclose questionnaire a written only if juror, questioned itself court has ques information, without enough showing in the record affirmative is an there juror. of that tioning, dismissal to warrant discretion. See abused trial court that the im also reveal could questioning dire Voir selection Carrillo, P.2d However, impliedly biased plied bias. jury. A a fair produce designed to susceptible to rehabilitation is not right to a fair has a constitutional implied questioning because through further amend. Const. jury. See U.S. impartial and established, ameliorated bias, cannot be once II, is § Voir dire VI; art. Colo. Const. nonethe she juror's by assurances a defendant's which means important an fair. can be less fair trial is jury and a impartial right to an Harlan, at 462. Voir P.8d 8 See secured. hand, "is a bias, on the other Actual a constitutional however, itself dire, not is juror from a prevents mind that of state 164, O'Neill, P.2d 803 People v. right. See without impartially deciding the case Rather, that the (Colo.1990). is a tool it 169 of the right of one to a substantial prejudice revealing and purpose of use for parties Macrander, Ac 828 P.2d parties." jurors. See potential in addressing bias grounded encompasses beliefs tual bias or he may serve because juror A biased relation personal a knowledge or personal a defendant's poison the could she ju in the grounded well as beliefs ship, as Drake, P.2d 748 v. People fair trial. See race, religion, regarding the feelings ror's (Colo.1988). 1237,1243 defen group to which or other and ethnic LaFave, Wayne R. belongs. 5 See dant ed.1999). 22.3(c) (2d two forms of § recognized We Procedure Criminal a he has juror that by the An indication jurors-implied may potential exist bias judge mind can cause of Macrander, biased state v. People See actual bias. Rhodus, P.2d 870 juror. See (Colo.1992). Implied bias to excuse P.2d 238 828 at 473.3 factors, per aas such external arises out of guilt or inno- regarding the opinion pressed states that: 3. Crim. P. 24 grounds for shall be of the cence (b)(1) shall sustain is juror, the court unless following grounds: of the disqualification of the or more cause on one an juror render will that the satisfied juror (X) in a of mind of state and the solely upon The existence evidence verdict based defendant, against manifesting or a bias for the court. of instructions ac- prosecution, or the against or for or ex- previously or knowledgement formed of a potential juror A who exhibits actual cannot be set aside as can actual bias. Sub- not, juror bias is unlike a (a) whose bias is section also is in tension with subsection implied law, as matter automatically (b)(1)(X), which directs juror dismissal of a disqualified serving. from prospective ju A for actual bias if judge is convinced the ror who makes a suggesting statement actual juror cannot be fair. If gives an may bias nonetheless sit on the if she unequivocal statement of actual bias that agrees to set preconceived aside notions cannot changed be through ques- voir dire and make a decision based on the evidence tioning, judge should not required and the instructions. People delay court's process the selection with needless Fuller, (Colo.1990); 791 P.2d see questioning. Drake, 1243; also 748 P.2d at People v. Abbott, This court (Colo.1984). attempt must 1266-68 harmon provisions ize different Our Rules of Crimi recognize decisions potential that a nal Procedure. People v. Hampton, can sometimes set aside her actual bias be (Colo.1994). P.2d cause of what the Therefore, learns during the voir we that, now hold under 24(a), Crim. dire P. about concepts such as burden judge ordinarily proof permit must or voir presumption dire innocence. in cireumstances that could involve gives Crim P. 24 attorneys oppor actual arising bias under Crim. P. tunity prospective jurors regard 24(b)(1)(X). Questioning may be useful ing 24(a)(8). bias. See Crim P. The rule in determining whether prospective juror effect at the time of Lefebre's trial stated can set aside her bias and decide the case that, "[the shall ... prospec ask the based on the presented evidence and the jurors any questions tive he believes are court's instructions. The mandatory lan pertinent qualifications to their to serve as guage 24(a)(3), therefore, Crim. P. entitles jurors in the case on parties trial. The parties or counsel in their most instances to their counsel permitted shall be to ask the voir potential juror dire a to determine if she prospective questions." qualified to serve under Crim. P. 24(a)(2) Crim. P. Although Rule 24(b)(1)(X). 24(a)(8) provides parties or their counsel with opportunity prospective ju voir dire However, scope of Crim. P. rors, can limit the extent and 24(a)(8) 24(b)(D)(K), limited Crim. P. the nature of the questioning. See Rodri does not entitle or counsel guez, 260; O'Neill, 914 P.2d at 803 P.2d at prospective juror in certain situa 168-69. tions. If there is firm and clear evidence recognize We that the mandatory language potential that a juror holds an actual bias 24(a), of Crim. P. which parties states that that unlikely is change to through education shall be allowed to prospective voir dire ju- concerning process, exposure to ba rors, inis 24(b)(1)(D)- tension with Crim. P. principles sic governing trials, criminal or (IX), (XID), which dictates mandatory dis- questioning by the court or parties, the then juror missal of a when one of the factors judge the permitted is juror to exeuse that indicating implied bias arises. If the without questioning. additional juror If the juror must dismiss a unequivocally implied bias, is for disqualified under Crim. P. voir dire need not occur implied 24(b)(1)(X), because bias require we will not the trial court 16-10-103(1) Section he will render an contains according simi- verdict substantially language, stating

lar that a court shall sustain a to the law and the evidence submitted to the challenge for cause if: jury at the trial. (§) The existence of a state of mind in the 16-10-103, § 6 C.R.S. evincing enmity or bias toward the defendant state; however, or the person no summoned as 4. The rule was amended January effective disqualified by shall be reason of a language 1999. The of the new rule continues to previously expressed formed or opinion with parties state that "[the or their counsel shall be guilt reference to the or innocence of the ac- permitted prospective ask the satisfied, cused if the court is from the exami- questions." 24(a)(3). Crim. P. evidence, nation of the or from other that allowing de- without and Greene dire her.5 to voir time devote pointlessly question them. counsel or fense by the court questioning, Certainly some juror's the whether explore parties prosecution's granted the The unshakeable, however. preferable, is bias is jurors' based challenges for cause 24(a)(8) not P. does that Crim. hold We also standard, questionnaire. written to a answers indicating im factors apply when pro only to designed questionnaire The P. under Crim. plied bias data, not and was demographic basic vide implied bias Because (IX),(XII) present. The revealing bias. specifically directed it process, voir dire affected cannot occupa juror's age, asked questionnaire ques to allow be senseless would experience with education, tion, previous irremediably juror who is prospective tion a witness, Juror, victim system as a judicial implied serving once disqualified from crime, defendant.6 a criminal or clear evi by firm and established bias is specific ques did not contain questionnaire dence. robbery aggravated relating to tions 24 harmon- P. of Crim. This construction case, or other in Lefebre's facts involved parties or affords provisions, its various izes necessar questions, that would general more opportunity appropriate their counsel More actual bias. ily irremediable uncover time at the same questioning, dire voir summary and are over, jurors' answers in- economy minimizes judicial preserves with the agree for us detail sufficient lack jurors. to the convenience decide jurors could not court juror's review each fairly. now case We of actu- claims us involves The case before explain our hold responses to questionnaire without excused were and the al bias . ing Hence, we court. from questioning the record contains whether must determine he could Trujillo stated that Juror jurors' ques- that the clear evidence firm and had been his brother not be fair because bias that actual reflected answers tionnaire Lefe- offense which of the same convicted issue To that aside. not set could convic as a criminal on trial. Just bre was now turn. we dismissal, grounds for automatic tion is not relative, even on a close conviction of B. automatically dis charges, does same 13-71-105, § juror. potential qualify a record does conclude We judge or (1999); § 16-10-1083. the CRS. clear evidence firm and not contain recent investigated how should biases counsel held actual cause jurors removed for convicted, and Trujillo's brother was ly We therefore not set aside. they could that he him to the extent biased whether that abused discretion that the trial hold possible that McClanahan, fairly. It serve could not Trujillo, removing Jurors today's would case outlined in effectively The rationale ruling today over- 5. We note that our judge holding When a trial appeals' compel in result. a different part court of of the rules Evans, (Colo.App.1998). juror potential and that extensively questions a People 987 P.2d v. case, bias, if judge the venire par- asked the trial the In that actual juror unequivocally reveals moral, religious, potential jurors had a any of the opportunity to con- an be afforded ties need not they would believed philosophical reason judge juror. long the As as questioning the tinue serving juror. See id. at as a prevent them from professed actual juror's sufficiently probed the not juror that he could answered After one bias, Directing addi- may juror excused. be the jury experience, the court prior serve based on would attorney in such instances voir dire tional juror beliefs. about his extensively questioned delay, unnecessary both the cause not commit that he could The said See id. serving in the venire. the other citizens solely on the evidence decide the case based ex- trial court therefore, law, and the guidelines largely follows questionnaire 6. The ques- judge allow did not The trial cused him. in section 13-71- jury questionnaires outlined tioning by parties. See id. The 115, 5 C.R.S. trial for the that it was error appeals determined questioning the prevent from judge counsel excusing him. before questionnaire Trujillo The any could have jurors precon- answers of these set aside panel. ceived notions and served provide on the some evidence of actual bias that might prevented have them being quali- from "prior Juror McClanahan indicated that a fied to serve on the in this case. How- background" criminal prevent would him ever, standing alone, the answers are not McClanahan, being however, from fair. did firm and clear evidence that the could question asking not answer if he had fairly. serve Consequently, been convicted of a crime other than traffic judge permitted should have ques- voir dire infringements years. the last ten tioning go forward. We thus hold that the judge further, probed or counsel should have trial court abused its excusing discretion in possibly inquiring toas whether he had been Trujillo, McClanahan, Jurors and Greene for activities, any convicted of criminal the na- cause without allowing first defense counsel activity, ture of that prior and whether his opportunity an question them. experiences prevent fairly would him from hearing the Although prior evidence. IIL history may criminal party lead a to exercise We turn now to the whether the peremptory potential juror, strike on a prejudiced court's error the defendant. history such disqualify does not from The trial court's decision ju to remove the serving, nor statutory ground is it a of dis- rors for cause in granted effect prosecu whole, missal for cause. See id. On the tion an challenge.7 As given by juror minimal information MeClana- consequence, may while the defendant han did not evidence a state of mind that been able to exercise his full complement of prevented would have serving him from as an peremptory challenges, prosecution none impartial juror. enjoyed theless an unfair tactical advantage over the shaping jury. As Juror Greene stated he could not fair such, granting prosecution, on the facts because his expert "sister serves as an wit- of this unwarranted ness and behavior of DA's staff towards her challenge inherently prejudicial to the de present while I've been in court room [sic]." fendant. This answer likewise was not sufficient warrant his dismissal. The or counsel A. should have examined proceed- whether ings involving place Greene's sister took function of chal county, the same whether the same district lenges in a proceeding criminal is to allow attorney involved, whether Greene's both the and the defense to se- ception of bias stemmed from the eure a more fair jury by en cross-examination, and whether animosi- abling them to remove they whom ty he held attorney toward that district ex- perceive biased, if even are not tended to all counsel for the state. Greene's subject to a for cause. See Har statement, alone, standing did not reveal an lan, 459; Prator, People 8 P.3d at unchangeable state of mind that pre- would (Colo.1993); Macrander, 828 P.2d at vent him serving from jury. on a It 242; see also United States v. Annigoni, 96 possible that being after educated on the (9th Cir.1996) ("Al F.3d 1136 n. 4 he agreed could have to main- though we decide this case in the context of open tain an mind and decide the case based rights defendant, Thus, evidence. did equally important is an tool to in not have sufficient evidence to conclude that government sure that the receives a fair Greene unequivocally was biased before voir trial.") Elem, (citing 765, Purkett v. 514 U.S. 1769, (1995)). questioning began. 115 S.Ct. dire 131 L.Ed.2d 834 To Depending statutorily- Because, emptory however, number of its challenges. the peremptory allotted challenges prosecution prosecution the peremptory used four of its six chal- use, elected to the lenges, trial court's effectively actions could have granted prosecu- the trial the given prosecution up the to three additional peremptory tion one challenge. additional 304 peremptory two of its to exercise decided able to equally are the that ensure Therefore, assume if we even challenges. this challenges toward peremptory employ have, if trial the would (1999), prosecution the 16-10-104(1), 6 C.R.S. end, section challenges, cause its for had denied 24(d) they receive court mandate P. and Crim. chal remaining peremptory two challenges used its peremptory of number

the same issue, there at peremptory against the lenges to add exists cause good unless P. prosecu See Crim. sides. or both one challengesto one remained would peremptorily. removed therefore, not have defendant, could must tion A(d)(3).8 A com shape the to capacity Bustamante, court's the same the trial Therefore, as in afforded by the possessed prose- affording jury as effect of position of had the decision peremptory challenge. of the exercise peremptory prosecution an additional ecution 500, P.2d challenges. Bustamante, 297 at 133 Colo. See at 540. 497, Colo. People, 133 v. In Bustamante (1956), held that we 540 P.2d 297 an addi prosecution Affording the prosecu wrongly granted court inherently challenge is peremptory tional prosecution cause. challenge for tion's greater side with "the because prejudicial statutorily allotted already exhausted had clearly has challenges peremptory number of challenges when peremptory number of have the it will advantage because a tactical id. granted. See cause was challenge for balanced jury presumably power to select grant erroneously court concluded This number greater by challenging a in its favor effect of had the cause challenge for ing the This Blades, at 322. P.2d jurors." per an additional prosecution affording the im presumptively advantage unfair tactical Thus, challenge. See emptory equal use to pairs a defendant's of discretion "an abuse was action court's prose Allowing the challenges. peremptory the sub have affected could that affected peremp an additional Id.; see in effect what is cution the defendant." rights of stantial between challenge an imbalance tory creates DaFoe, P.2d also Blades prosecution of the capacities party granting one (Colo.1985) (stating that objectionable potential to remove defendant requires peremptory additional was able jurors. In this even without jury verdict of the reversal peremp complement freely his full use ruling, In so prejudice). showing actual properly trial court challenges and the tory the defendant's whether consider we did not However, challenges for cause.9 ruled on his im challenges was of his use ability power to Indeed, the defendant's amplified paired. composition of the shape the irrele challenges prosecution was exercise peremp effectively giving it an extra prosecution jury by analysis. That vant to our prosecution Allowing the challenge. ability tory remove relatively greater had a position is to its jury predisposed inde objectionable shape jurors it viewed Oklahoma, Ross v. the defendant's error. prejudicial prejudicial pendently 2273, 101 L.Ed.2d 81, 89, 108 S.Ct. 487 U.S. new reason, we ordered rights. For that Bustamante, process (1988) due (stating that a federal the defendant. trial for pro fails if a trial court results violation Colo. guarantees law what state vide a defendant not receive him). did Because B. prior deci our guaranteed under ishe what - in the prosecution with the parity sions re the same compels Bustamante - challenges he suf exercise Here, court erro in this case. sult due Amendment a Fourteenth fered neously granted prosecution's violation. jurors. three for cause of dispute these claims. does not 9. The granting the in the record is no basis 8. There prosecution an provision. under this Affording prosecution A. an unwarranted additional challenge also under Because merely Martines-Salazar applies purpose mines the exercising essential the doctrine set forth Ross to a federal law peremptory challenges by prosecu either the context, Martinez-Salazar, see 120 S.Ct. at tion "Peremptory or the defense. challenges 780, begin we with a discussion of Ross. serve to 'eliminate of partiality extremes both sides' and 'to assure that the 1. they before whom try the case will decide on the basis of placed the evidence Ross, the defendant charged was with Prator,

before them and not otherwise."" murder,. capital Ross, 83, 487 U.S. at Alabama, 856 P.2d at (quoting Swain v. 108 S.Ct. 2273. During juror voir dire a 202, 219, 824, 380 U.S. 85 S.Ct. 13 L.Ed.2d indicated that he would automatically impose (1964)). Allowing prosecution in this upon death sentence if he jury case to predisposed craft a toward its 838-84, were convicted. See id. at 108 S.Ct. position by removing more than the 2273. Defense counsel challenged therefore defendant was able to hardly remove juror cause, for but the trial court denied achieves this critical purpose. 84, counsel's motion. See id. at 108 S.Ct. 22783. eventually Ross used his sixth per If a trial court alloweda defendant full use emptory challenge juror to remove the of her complement peremptory challenges eventually exhausted all his chal correctly ruled on each of her lenges. See id. None of the who sat good but without overtly cause jury on Ross' challenged were by granted prosecution an per- defense counsel. jury See id. The found the emptory challenge, clearly we would find the guilty him sentenced to death. trial court's actions to constitute reversible See 1d. present error. The case differs from that only scenario the means which the The Oklahoma Court of Appeals Criminal prosecution was afforded perempto- its extra upheld the defendant's conviction and sen- ry challenge. Whether per- the additional grounds tence on the jury that the was fair. emptory challenge Supreme prosecution's See id. The fell into the granted Court certio- hands overtly because the trial court granted rari to determine whether "the trial court's it or because the trial court erroneously re- failure challenged juror] to remove [the moved juror for cause one more than the subsequent cause and [Ross'] use of a prosecution remaining peremptory emptory had juror]" chal- [the strike vio- lenges, prejudicial effect is identical. lated the defendant's Sixth or Fourteenth rights. 85,

Amendment Id. at 108 S.Ct. 2278. The Court first considered whether Ross' IV. Sixth and Fourteenth right Amendment argues that Lefebre was violated is entitled only to a new trial if the trial 85, court's action. See id. at 108 S.Ct. 2278. court's actions resulted in jury. a biased The The defendant impairment suffered no of this Supreme United States recently Court has right jury ultimately because the seated was analyzed a related issue in United States v. 85-86, fair. See id. at If S.Ct. 2278. Martinez-Salazar, 528 U.S. 120 S.Ct. seated, issue had been then the 145 L.Ed.2d 792 We conclude defendant would have been entitled to a new the case presents before us legiti no trial because the incompetent mate basis for departure wholesale from the serve. See id. at 108 S.Ct. 2278. Howev- line of cases which presumed we have er, the through removed the prejudice if the improperly trial court im use of a peremptory challenge. Therefore, pairs or party's increases a capacity to use impairment defendant suffered no of his peremptory challenges shape ultimate to a fair trial. See id. at 108 S.Ct. composition jury.

30§ Fifth a defendant's held The Court whether Ross' considered then The Court right not violated process is process due right to due Amendment Amendment Fourteenth 88-89, Martinez-Sala S.Ct. See 108 in circumstances. id. at these See violated. was zar, argued that S.Ct. The defendant 2273. challenge for of his denial erroneous court's Martinez-Salazar, was the defendant In peremptory chal- a him to use cause forced drug-related offenses. of accused various thereby depriving juror, lenge to remove with Fed. In accordance id. at 777. See peremptory full use right him of his 24(b)-(c), co-defen- he and his Pro. R.Crim. 89, 2278. 108 S.Ct. at challenges. See id. peremptory jointly eleven allotted dant were proposition rejected the The Court prosecution received challenges, while challenge itself suffi- is peremptory of a loss n. 2. Martinez-Salazar id. & T79 seven. See war- Constitution the federal under cient on the basis juror challenged a conviction. the defendant's reversal of rant and his answers questionnaire his written a creature challenges "are Peremptory id. at 778. See voir dire statements. by the Constitu- required not statute challenge Mar- trial court denied Therefore, 2278. 108 S.Ct. Id. at tion." juror with ultimately struck tinez-Salazar number determine the "it for the State is ul- challenge. The defendants peremptory a and to de- challenges allowed peremptory chal- peremptory timately all eleven used of their the manner purpose and fine their However, defendants id. lenges. See a defendant Consequently, Id. exercise." they entitled to do request, as are did not only if he does violation process a due suffers 24(b), peremptory an additional under Rule provides. law which state receive that not (Sout- id.; also id. at 788 challenge. see See id. See cone.). er, J., law, must a defendant Under Oklahoma challenges to peremptory appealed his convictions allotment of use his Martinez-Salazar Appeals excusing ju- for the States Court to the United court's errors cure 2278. id. at 108 S.Ct. appeals cause. See rors for The court of id. Ninth Cireuit. See a due Moreover, not suffer not suffered defendant did has held his right to an unless he exhausts process violation Amendment deprivation of Sixth to chal- challenges, and is unable emptory allege that he did not because result, who, incompetent lenge an incompetent. jurors were any of the seated 89, 108 S.Ct. jury. id. at See sits on However, reversed the the court See id. peremptory chal- used a Because Ross 2273. the basis of defendant's convictions error, thus trial court's lenge to cure the guarantee. process due Fifth Amendment jury, incompetent sat no denying the court's error id. The trial he to which the benefit received him to challenge for cause forced defendant's at id. under state law. See entitled was curatively, which peremptory use a Therefore, of his no violation 2278. S.Ct. id. Rule 24. See required under is not right process due Amendment Fourteenth to his Therefore, federal law right under his occurred. challenges peremptory complement of full impaired. See 2. granted certiorari Supreme Court Manrtines-Salazgar, returned the Court right a defendant's whether determine whether, if, open in Ross: question left

to a challenges impaired when Ross, a defendant unlike the defendant erroneously denies his trial court challenges use required his exhausts the defendant for cause and impairment of his curatively, he suffers reversed challenges. The Court to exercise holding that judgment, the Ninth Cireuit's trial court he removes when infringement of his no suffers for cause. See erroneously failed to excuse right under due Fifth Amendment 782; Martinez-Salazar, also at see 120 S.Ct. id. at 779. this scenario. Ross, n. 108 S.Ct. U.S. (internal began analysis by The Court reaffirm- quotation marks and citation omit- ted). ing peremptory its view that challenges are right not a under the federal constitution. rejected The Court argument, this holding However, the Court also stressed that Rule 24 entitles a only to a peremptory the critical role that challenges specified number of peremptory challenges. play in "reinforcing a right defendant's See id. at 781. The defendant received the impartial jury," something the total challenges number of which he was "long recognized." Court has Id. guaranteed 24(b); therefore, under Rule he applied reasoning Court then received all to which he was entitled under it,

Ross to observing the seenario before that the Rule. See Additionally, id. Martinez the salient difference between Ross and the request Salazar did not case before it was that Ross "arose in a emptory challenges, right as is his under setting" state-law whereas Martines-Salazar 24(b). Rule After the trial erroneously was a federal-law case. denied Martinez-Salazar's challenge First, rejected position that, the Court the defendant juror by removed the more, "without 'the loss of a peremptory using peremptory one of his strikes. Conse- challenge constitutes a violation of the consti- quently, the defendant did not depri- suffer a right tutional impartial jury!" to an Id. vation of his Fifth Amendment process due Ross, (quoting 487 U.S. at 108 S.Ct. right. See id. at 782. 2278). If impartial, the fact peremptory used a chal- B. lenge "to achieve that result does not mean the Sixth Amendment was violated." Both Ross and Martines-Salazar (internal Id. quotation marks and citation set forth narrow holdings that have little omitted). Therefore, agreed the Court with application to the case before us. The cases the Ninth Circuit that Martinez-Salazar did stand for the proposition Fifth, not suffer a violation of his Sixth Amendment Sixth, and Fourteenth Amendments are not to an jury. See id. violated when a defendant bears the burden

The Court then addressed defendant's removing through exercise of a Fifth process Amendment peremptory due claim. challenge whom the trial court Court premise identified as the central should have removed for cause. See Mar Ninth argument Circuit's proposition tinez-Salazar, Ross, 782; 120 S.Ct. at 487 the trial court's erroneous denial of 90-91, the de- U.S. at However, 108 S.Ct. 2273. Ross, as fendant's 487 at U.S. cause forced 108 S.Ct. the de- fendant peremptory states, exercise a a defendant does suffer a Fourteenth juror. to remove the See id. at 781. As a process Amendment due if violation result, according to the appeals, court of deprive court's actions him of that to which 24(b) "Rule was violated because Martinezs- he is entitled state regarding law use of effectively Salazar could only exercise peremptory challenges.10 [sic] Our decisions have of the 10 peremptory [sic] initial challenges consistently that, recognized under Colorado for which provided." the Rule Id. The law, a defendant prejudice suffers reversible appeals court of thus concluded that "due if he is forced a peremptory challenge to use is violated when a to remove a whom the trial court failed foreed to exercise a peremptory challenge to to remove for cause and he exhausts his cure an erroneous for-cause refusal." peremptory challenges.11 Harlan, Id. implicitly 778; (Souter, J., conc.). Martinezs-Salazar consistent with at id. at 783 The Court's proposition this only because the case involved analysis bearing therefore has little on a situation matters of federal law. comple- which a defendant does exhaust full peremptory challenges. ment of 11. Because Martinez-Salazar did not seek addi- 24(b), challenges tional under Rule In contrast, this court does not a defen- require in effect he complement did not exhaust request dant to an additional chal- peremptory challenges guaranteed to him un- lenge after he uses one to cure a trial court's Martinez-Salazar, der federal law. See 120 S.Ct. 840-42; challenges than Prator, effectively more P.2d at 459; P.3d jury more it to select a defendant permits 244 n. 12. 242-44 & Macrander, P.2d at violates and thus its view per predisposed the use governing law federal That rights. substantial defendant's from Colorado differs emptory chal the use governing law entirely are Martines-Salazar Ross and of Ross when the effect not alter lenges does Those logically distinet issue. on this silent also State law. See to Colorado applied in re guidance provide little cases therefore 776, 262, 779 P.2d 855 Huerta, Ariz. 175 present no and question before us solving the procedural (1993) on state-law (relying Bustamante to overturn reason compelling conviction); v. Thomas reverse grounds to cases.13 and related 252, (Ky. Commonwealth, 260 864 S.W.2d a due law creates our decision 1993) Consequently, state we affirm (holding that chal peremptory of to full right the trial hold that when in Bustamante use 722, Fire, Wash.App. prosecution's 100 erroncously grants v. lenges); State (2000) (declining follow has the 362, this decision challenge 363 998 P.2d grounds); on state-law an additional prosecution Moartinez-Salazar giving the of effect 662, inherently P.2d Vreen, Wash.App. 994 challenge, the error 99 is peremptory v. State Ramos, 211 (same); (2000) v. State to the defendant. prejudicial (stat (1997) 328, 333 12, 564 N.W.2d Wis.2d a defen even if required is ing that reversal v. right to a fair constitutional federal dant's appeals that court of agree with the We right if his statute-based jury not violated is prose- erroneously granted the the trial court challenges peremptory full use The trial for cause. cution's abridged). affording had the effect court's decision fo Moreover, and Martines-Salazar Ross peremptory an additional prosecution federal a defendant's only on whether cus inher- this error is challenge. hold that We simply be rights are violated pros- constitutional it allowed the ently prejudicial because juror with a removes cause he advantage shap- tactical an unfair ecution have been juror should Accordingly, challenge when this favor. jury in its ing a biased Ross, at 487 U.S. See for cause. removed ap- the court of judgment of we affirm Martinez-Salazar, 120 S.Ct. 2273; 108 S.Ct. for a new trial. the case remand peals and presents a differ us case before at 777. The upon not called areWe factual scenario. ent dissents. KOURLIS Justice the defendant's whether to decide do not COATS and Justice RICE Justice im challenges is full of his use participate. challenge aon paired if he uses cause but challenged for juror he whom KOURLIS, dissenting: Justice to remove.12 erroneously failed trial court permit- judge should if the trial Even enlarging the if Instead, determine we must challenged the three questioning of composi ted some shape the capacity to prosecution's them, agree excusing I cannot jurors prior to jury by giving tion of the 779 n. 2. challenge 120 S.Ct. at cause. See Martinez-Salazar, of his 7. See denial erroneous that, 24(d) contrast, requires unless Crim. R. In P.2d Prator, 856 shown, prosecution and both the good cause the same number receive defense 459; Pra Harlan, 8 P.3d 12. Our decisions therefore, P.2d at challenges. Macrander, law, 840-42; normally Colorado P.2d at tor, 856 242-44, another in conclusively parity that the defen with one parties to demonstrate both entitles peremptory to ability thereby prejudiced. respective to use dant is their jury. composition Fed shape the ultimate parity in some require similar does not eral law an im contains addition, In Martinez-Salazar 24. There Fed.R.Crim.P. of cases. kinds the case before from portant factual difference fore, less rele becomes even was Martinez-Salazar us. The Martinez-Salazar question the case resolving precise 24(b) vant peremptory chal guaranteed Rule presents. only us before prosecution was entitled lenges while any prejudice ability the error caused to the "the change defendant's the ulti I, therefore, respectfully composition dis- mate try selected to Macrander, showing sent. The defendant made no has the case." 828 P.2d at 244. We panel that the ultimate included individuals held that the defendant need not demon fair; rather, who were unable to be ar- he strate that another who was seated on gues opportunity panel that his to exercise his was biased. See id. at 245-46. emptory challenges tactically in a advanta- In applied a 1956 we the same stan view, geous abridged. my In manner was dard in a situation where enough that is not to warrant reversal. erroneously granted for cause. Generally, a granting 497, 500, trial court's error in People, See Bustamante v. 133 Colo. denying Bustamante, for cause results in 297 P.2d only the reversal of a judge improperly defendant's conviction excused a if the error affected the defendant's substan- after challenged rights. People Vigil, tial prosecution. prose See id. Because the (Colo.1986). If the error does not com- cution peremptory exhausted its challenges, promise rights, defendant's constitutional this court grant held that the erroneous preju- then the defendant must challenge effectively gave demonstrate in strike, thus, dice order to be entitled a peremptory new trial. an additional and we See id. Because Lefebre had no constitu- found reversible error. See id. panel,

tional entitlement to voir dire the see reaching here, In the same conclusion 299-300, maj. op. at he has the burden to Bustamants, majority follows and I would judge's demonstrate that the dismissal of the Rather, I pronouncement not. view a recent prospective jurors prejudiced three him. Supreme the United States Court to have past, In presumed preju this court significantly has landscape altered the in this jurisprudence. area of See United States v. dice to result when the trial erred in cause, denying challenge a thereby for leav Martinez-Salazar, 304, 528 U.S. 120 S.Ct. Martinez, ing objectionable 145 L.Ed.2d 792 In panel, an and Salazar, complaining party peremptory used a judge erroneously the trial denied objectionable juror. strike to remove that prospective defendant's of a Prator, (Colo. People See v. Therefore, 856 P.2d for actual bias. a who 1993); Macrander, People had demonstrated some bias was left on the 244 (Colo.1992).1 We have in panel. See 120 S.Ct. at 778. The defendant observed that judge's such situations the trial peremptory challenge error effec used a to remove the tively granted peremp objectionable the defendant juror, fewer subsequently and ex tory challenges, result, impaired and peremptory hausted all other strikes.2 See Martinez, holdings 1. These majority significant were restated in dicta Har- 2. in The finds it that lan, 8 P.3d at Harlan, In this court upheld request peremptory Salazar did not additional judge's rulings on the defendant's chal- therefore, challenges, stating that the defendant thus, lenges required was not actually peremptory did not exhaust his chal- prejudice. reach the issue of See id. at 462. maj. lenges. See at 306, 307, 308 n. 11. The op. squarely presented Because the issue was not in majority distinguishes thus Martines-Salazar reiterating pre- the statements that a today from cases such as the one before the court sumption prejudice arises when a defendant's where the defendant does exhaust his full com- peremptory challenges impacted use of is should plement peremptory challenges. maj. op. See binding today's holding. not be at 307 n. 11. addition, presented unique In Harlan situa- alleged tion because the in errors arose the con- permitted request Martinez-Salazar was ex- stated, penalty text of a death case. As this court peremptory challenges only tra because the case higher scrutiny appropriate capital level of is in multiple involved defendants. See Fed.R.Crim.P. cases. See id. at 461. it cases, capital 24(b). Martinez-Salazar, was not entitled to re- especially vital that come to the trial with ceive strikes, however, as a trial Therefore, open may appropriate mind. it granting deny- has broad discretion in capital cases to continue to follow the rule of ing requests for additional chal- presume prejudice Macrander and when a defen- Meredith, lenges. impacted See United States v. 824 F.2d dant's use of his strikes is (4th Cir.1987). situations, an error on a for cause. In such cause. See have been dismissed Appeals held should Court of Cireuit The Ninth id. id.4 violation of in a resulted the mistake rights because process due defendant's Supreme Court manner in which The to use was forced issue refo- the Martines-Salazar discusses error, judge's challenge to cure area of the inquiry this the critical cuses complement of his full thus, not have he did concludes that The law. Court challenges. id. See discretionary peremptory on whether the seat- prejudice turn should fair, unanimously party had reversed not whether a panel was Supreme Court ed The peremp- of its Circuit, holding that the tactical use reign over Ninth free statements, there- tory The Court's strikes. deny did not judge's error fore, holdings Macran- reject our earlier peremptory chal statutory right to his either Prator, der, that an error and Bustamante rights under the due lenges or his preju- presumptively The de ruling for cause id. at 781. on a Fifth Amendment. opposing party a by giving the party per dices a number of exact received the fendant perempto- advantage in the use of entitled tactical he was to which emptory strikes constitutionally right ry The strikes. law, exer under federal jury. to an protected is those strikes. every one of cised designed to challenges are a tool Peremptory Fed.R.Crim.P. concluded Court with the interference goal, but peremp assure that party use a require that a not does more, does challenges, without curatively. tory challenge prejudice. one of the automatically cause used fact that the defendant objectionable remove the strikes to presents the more com- Martinesz-Salazar defendant, not a by the choicemade a tactical used one defendant mon factual seenario-a As the by See id.3 the error. choice coerced a challenges to correct or more the observed, choice is not hard "[a] Court challenge for denying a judge's error trial choosing to "In Id. as no choice." same reasoning applies with The Court's cause. taking his juror] than rather [the remove force, however, in cases such as greater even did not appeal, Martinez-Salazar chances on today, one before us and the Bustamante at 781-82. challenge." Id. lose a erroneously a granted trial where the princi Rather, challenge for its he used the 188 Colo. at challenge for cause. See juror, a disfavored pal purpose-to remove case, trial In at 540. such guarantee thus, the constitutional secure jurors questionable judge dismissed 782. jury. See id. at of trial prejudice. The further risk of they posed no ultimately concluded the defendant did not force Supreme judge's decision Court striking strategic choice between to make trial court did the error juror. holding, the objectionable juror and some other In so require reversal. panel for parties passed the judge's error did Once trial noted that Court apply each of his free to the defendant was serving panel who not result in a 24(d)(3) challenges con- of is often the Colorado Rules additional as Rule award of strikes grant allows a trial Procedure Criminal additional ditioned on the award of Bruno, showing good challenges upon additional prosecution. States See United the facts of Cir.1989). Therefore, (2d cause. Martinez-Salazar Therefore, it is not F.2d fully applicable at hand. to the case are ex- failed to Martinez-Salazar at all clear that probable that the equally It is haust his strikes. that a different re Supreme Court noted 3. The Lefebre did strikes, his did exhaust compelled trial court delib had the would be sult in this case. force the erately misapplied the law in order to suggest does not Justice Souter's concurrence cor to use his chal- failed to exhaust that Martinez-Salazar Martinez-Salazar, 120 court's error. rect the Rather, Justice lenges. See 120 S.Ct. S.Ct. at 782. opinion only points the Court's out that Souter a defendant re- cases in which does not cover out, pointed if a biased Supreme Court express pur- theAs quests for the an additional strike erroneously, the result juror had been seated juror. See id. pose removing another biased Martinez-Salazar, be different. pointed that Lefebre would out It also should requested could have S.Ct. at 782.

peremptory strikes to remove a disfavored

juror. only judge's result of the trial panel presumably

error is that a different nonobjectionable Although served. improperly jurors might excused fairly,

served pre- it defies common sense to prejudice in sume such situations. Applying Supreme reasoning Court's to the facts of I this would find that the judge's excusing jurors Trujil errors lo, McClanahan, and Greene do not amount requiring reversible error a new Although may Lefebre. the errors have al

lowed the to strike three extra panel, using from the rather than peremptory challenges jurors, on these each complement peremp

side had their full six tory challenges they to use as saw fit. See 24(d). P.

Crim. There is no evidence in the record, claim, and the defendant has made no ultimately who served were fact, approved

biased. panel at process, the end of the voir dire demonstrating apparent his satisfaction with panel.5

Accordingly, I since would reverse court, appeals court of and affirm the trial I respectfully dissent. BENZ, Petitioner,

Richard S. The PEOPLE of the State

Colorado, Respondent.

No. 99SC223. Supreme Colorado, Court of

En Banc. July3,2000. passing panel 5. Whether preserved cause constitutes a is an issue that the have not review, previously waiver of asserted and that we do not address in this case.

Case Details

Case Name: People v. Lefebre

Court Name: Supreme Court of Colorado

Date Published: Jun 19, 2000

Citation: 5 P.3d 295

Docket Number: 99SC8 & 99SC42

Court Abbreviation: Colo.