Lead Opinion
Opinion by
Defendant, Daniel Lee Roldan, appeals the judgment of conviction entered on a jury verdict finding him guilty of theft by receiving. We reverse and remand for a new trial.
I. Background
In March 2007, Roldan purchased stolen automotive parts valued at $1,600, for which he paid $500. The People charged Roldan with theft by receiving, $500 to $15,000. He pleaded not guilty, and the matter proceeded to trial.
As a prospective juror, Juror R. informed the court in her questionnaire that her husband, brother, and cousin were police officers. In response to a question on her questionnaire asking if there was any reason she believed she could not be fair, she wrote "yes" and explained, "I am very aware of some of the tricks attorn[eys] (especially defense) try to do[,] I would be biased."
During voir dire, she further stated, "I've worked for construction companies that have had things stolen and pawned, and so I think I might be a little biased."
Concerning her relatives in law enforcement she explained, "I love my husband and cops.... I got a lot of friends that are." When asked, "[DJo you think you can be fair and impartial in setting those personal experiences behind?" Juror R. responded, "I think I probably can." |
Regarding the credibility of a person with a criminal history, Juror R. stated, "[With the job that my husband and my brother do[ ], that I would be skeptical." She explained, "[MJaybe I'm a little biased in that area, just because of my background like that." When asked, "If somebody walks in in uniform, are they going to start out as more truthful for you?" Juror R. responded, "Most likely, yeah," and then stated, "[YJou just want me to say yes. Yes."
Juror R. also expressed concern for defense attorney "tricks" and for evidence that is "held out of cases just for, you know, various reasons." She stated that she might be concerned that there was other evidence that was not being introduced, which might affect her decision when deliberating. When asked if she could make a fair and rational decision based on all of the evidence and its context, Juror R. responded, "Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah."
Defense counsel challenged the juror for cause, which the trial court denied. Defense counsel later used a peremptory challenge to remove Juror R. and eventually exhausted all the remaining peremptory challenges.
The jury found Roldan guilty as charged, and the trial court sentenced him to three years of probation. This appeal followed.
II. Standard of Review
We review a trial court's ruling on a challenge for cause to a prospective juror for an abuse of discretion. Carrillo v. People,
Roldan contends that the trial court abused its discretion by denying his challenge for cause to Juror R., because she held a bias for law enforcement, stated that she might base her opinion of Roldan's guilt on unadmitted evidence, and stated that she was biased because of her experiences with theft. We agree.
The Due Process Clauses of the United States and Colorado Constitutions guarantee a criminal defendant the right to a fair trial. Morrison,
Relying on People v. Rogers, Roland argues that "close association" with the law enforeement establishment requires the dismissal of a prospective juror.
Similarly, in People v. Reddick, the reviewing division found that the trial court abused its discretion in denying a challenge for cause of a prospective juror, because a "combination of factors reflecting her close association with the law enforcement establishment required her dismissal for cause."
[dJlespite her somewhat ambivalent statements that these factors would not affect her ability to be a fair and impartial juror, the possible unconscious influence of her respect for the prosecutor and her relationship with police officers was such as to have significant impact on [the] defendant's right to an impartial jury.
Id. at 280,
In addition to considering a "combination of factors," courts assess a juror's impartiality based on his or her statements during voir dire. In People v. Prator, the reviewing division held that the trial court abused its discretion when it denied a challenge for cause to a prospective juror, because the juror's response to questions on voir dire "indicated a clear expression of bias" in favor of law enforcement witnesses.
In contrast, a trial court did not abuse its discretion in denying a defendant's motion to dismiss a juror for cause where that juror's brother was a police officer, because the juror unequivocally stated that he could be fair and impartial to the parties. People v. Vigil,
Similarly, a reviewing division concluded that evidence supported a finding that a juror could be impartial, despite the juror's close association with law enforcement, including having a sheriff brother-in-law and friends in law enforcement. People v. Richardson,
Here, the record does not support the trial court's decision to deny a challenge for cause to Juror R. because of a combination of factors, including close association with law enforcement and her statements on voir dire. The single factor that Juror R.'s husband, brother, and cousin were police officers was insufficient to require her dismissal as a prospective juror. Vigil,
Unlike the juror in Richardson, who stated that he would "possibly" believe a police officer's testimony over another person's, Juror R. stated that she would "most likely" accept a police officer's statements as more truthful than another person's. Richardson,
Further, Juror R.'s statement that she could "probably" be fair and impartial did not qualify as an unequivocal, rehabilitating statement. Juror R. failed to expressly state that her relationships with law enforcement would not interfere with her ability to hold the prosecution to its burden, or that she would be fair and impartial with both parties. See id. When asked if she could be a fair and impartial juror despite close associations with law enforcement, Juror R. vaguely answered, "I think I probably can."
When asked if she could make a fair and rational decision based on all of the evidence and its context, Juror R. ambiguously stated, "Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah." The record suggests that Juror R. doubted her capacity for fairness, similarly to the juror Prator who "really" doubted her impartiality and who expressly stated that she thought she would "end up" being biased.
Thus, Juror R.'s opinion on police officer testimony, combined with her express statements that she might be "biased," as well as answering a query of her capacity for fairness and impartiality as a juror with, "I think I probably can," do not support the trial court's denial of Roldan's challenge for cause.
The judgment is reversed and the case is remanded for a new trial.
Notes
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2010.
Concurrence Opinion
specially concurring.
Because I am bound by our supreme court's jurisprudence in this area, I must agree with the majority's holding that defendant's conviction has to be reversed. See People v. Smith,
This case presents a common scenario. A defendant challenges a juror for cause, and the trial court denies the challenge. The defendant then exercises a peremptory challenge, removing that juror and exhausts all the allotted peremptory challenges.
If we conclude that the trial court's denial of the challenge for cause was erroneous, we must, in such cases, reverse the defendant's conviction. See People v. Macrander,
I respectfully submit that the existing remedy for this error is unnecessarily absolute and an artifact of a bygone era. Our law concerning harmless error has evolved significantly since our supreme court first adopted this remedy. If the court were writing on a clean slate today, I am convinced that it would reach a different conclusion in light of significant authority supporting a different remedy. As it is, Colorado is one of a rapidly dwindling number of states that still requires the remedy of automatic reversal for such errors.
Other judges on this court have previously raised various concerns about this remedy. Two have done so in published opinions. See People v. Novotny, - P.3d -, - (Colo.App.2010) (Connelly, J., specially concurring); People v. Merrow,
I. Origins of the Automatic Reversal Remedy
A. The Genesis of Colorado's Remedy
As early as 1885, our supreme court held that it would not reverse a conviction in which the trial court had erroneously denied the defendant's challenge for cause to a juror because the defendant did not also exhaust his peremptory challenges. Minich v. People,
What was implicit in 1885 became explicit in 1911. In Denver City Tromway Co. v. Kennedy,
Here a right given the defendant by statute was denied. The injury complained of was the denial of a statutory right. That is the error the court committed, and that is the injury complained of, the result of which compelled the defendant to exhaust one of its peremptory challenges on this juror when it was entitled to have him excused without so doing. This left the defendant one less peremptory challenge to be used upon others.... Had the objection been sustained, the personnel of the*392 jury would have been different. As to what effect this might or might not have had upon the ultimate result of the trial is a matter of pure conjecture and is not for the trial court, or even this court, to make a guess at.
In other words, a defendant in Colorado has an "absolute right" to "the use of all peremptory challenges granted him by statute," and, if this right is denied by a court's erroneous ruling, there will be reversible error "because the jury so forced upon the [defendant] is not a statutory tribunal." Harris v. People,
B. The Exchequer Rule
However, Kennedy was decided during a time when the general analysis of error in criminal cases was significantly different than it is today. Many states had adopted the so-called Exchequer Rule, under which even slight errors created a presumption of prejudice that almost mechanically required reversal. See State v. Rodriguez,
Of course all courts go so far as to deny a new trial if the error could not have been prejudicial; and all would grant a new trial if it is affirmatively shown that the error must have been prejudicial. Under the prevailing [Exchequer] [Rjule in this country, in the absence of a statute, it is held that a new trial will be granted if the error might have been prejudicial.
Austin W. Scott, The Progress of the Law, 1918-1919 Civil Procedure, 33 Harv. L.Rev. 236, 250 (1919).
Under the Exchequer Rule, many criminal convictions were reversed for reasons that we would deem trivial, insignificant, or technical today. For example, "convicted murderers [were granted] new trials because of the misspelling of non-essential words or other typographical errors in the indictment, or minor and inconsequential evidentiary errors at trial." Roger A. Farifax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 Marq. L.Rev. 433, 436 (Winter 2009).
The Exchequer Rule turned trials into sporting events in which the goal was to sow the record with reversible error. Kotteakos v. United States,
Whether Colorado has explicitly followed the Exchequer Rule is unclear because specific reference to it does not appear in any published Colorado case. On the one hand, there are hints that the Exchequer Rule was applied in some situations, or at least considered. See, e.g., Painter v. Wilcox,
On the other hand, as early as 1907, Colorado's legislature passed. a statute stating that a criminal conviction should not be reversed because of certain variances between the charging document and the proof at trial unless the defect "tend[ed] to prejudice the substantial rights of the defendant on the merits." Ch. 163, see. 1, 1907 Colo. Sess. Laws 358-54. This statute partially prefigured our present rule of criminal procedure concerning harmless error-Crim. P. 52(a) ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.")-that was adopted in 1961. See People v. Baenziger,
IL Harmless Error Analysis: A Product of Reform
A. First Steps
The problems generated by the Exchequer Rule prompted a reform movement. In 1919, Congress adopted a "harmless error" statute that instructed federal appellate courts to disregard "technical errors, defects, or exceptions which do not affect the substantial rights of the parties." Act of Feb. 26, 1919, 40 Stat. 1181, 28 U.S.C. § 391. Many states quickly followed suit, adopting harmless error analysis by legislation or judicial action. Kotteakos,
to substitute judgment for automatic application of rules [and] to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.
Kotteakos,
B. The Evolution of Harmless Error Analysis
Even assuming that, when Minick and Kennedy were decided, Colorado's case law was not directly influenced by the Exchequer Rule, and that some form of harmless error analysis was embedded in Colorado's law of appellate review, the analysis of whether an error is harmless was far different then than it is now. As of 1885, or even 1911, the cases that presently inform our harmless error analysis did not exist and would not come into being for many years.
Kotteakos, which established the harmless error test for nonconstitutional errors, was decided in 1946. Chapman v. California,
The tests that these cases establish are by now familiar. Nonconstitutional error requires reversal only if the error substantially and injuriously affects or influences the jury's verdict. Kotteakos,
A. The Error Is Not Structural Error
In my view, the remedy of automatic reversal treats the jury selection error at issue here as a form of structural error because there is no evaluation whether the error was harmless. However, I respectfully submit that it does not meet the definition of structural errors established in Fulminante. Such errors are
structural defects in the constitution of the trial mechanism, which defy analysis by "harmless-error" standards.... [They affect] the framework within which the trial proceeds, rather than simply [constitute] an error in the trial process itself. "Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair."
Id.,
However, as Professor Pizzi and Judge Hoffman persuasively demonstrate, the error that prompts the remedy of automatic reversal in this context does not fit this definition. Jury Selection Errors on Appeal, 38 Am. Crim. L.Rev. at 1428-33. This is so because such errors do not affect the reliability of a trial truth-finding function and because the impact of such errors can be rationally determined. Several reasons support this conclusion.
First, peremptory challenges should be used to correct trial court errors in denying challenges for cause. The use of a peremptory challenge "to effect an instantancous cure of the [trial court's] error" in denying a challenge for cause "exemplifies 'a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." Skilling v. United States,
Second, the error in cases like this one is not constitutional because peremptory challenges are "creature[s] of statute and are not required by the Constitution." Ross v. Oklahoma,
Third, the United States Supreme Court has made clear that no federal constitutional error occurs when a defendant uses a peremptory challenge to remove a juror who should have been removed for cause, as long as no other biased juror is a member of the jury. Martinez-Salazar,
In contrast, harmless error analysis would ask the question whether the defendant has demonstrated that he or she was prejudiced by the error. This would require the defendant to show that a member of the jury that deliberated in his or her case was biased. See, e.g., Martinez-Salazar,
B. Colorado's Recent Experience
Ross, decided in 1988, and Martines-So-lazar, decided in 2000, held that the remedy of automatic reversal was not constitutionally required. After Ross was decided, our
After Martines-Salazar was decided, our supreme court again reaffirmed the Kennedy remedy in People v. Lefebre,
C. Reasons Why the Remedy of Automatic Reversal Should Be Replaced by Harmless Error Analysis
Certainly, states are free to choose their remedies in this area. See Rivera,
Further, the remedy of automatic reversal is quickly losing adherents in other states in light of these United States Supreme Court decisions. Of the four states mentioned in Lefebre, three have now abandoned the remedy of automatic reversal, even though it had long been entrenched in those jurisdictions. See State v. Hickman,
Of those three states, each had previously held, similar to our supreme court's holding, that automatic reversal was the proper remedy because
[reversal is the only feasible way to vindicate a party's 'substantial right' to peremptory challenges, which right is clearly impinged when a trial judge erroneously denies a challenge for cause.
State v. Huerta,
The fourth state, Kentucky, has vacillated. It decided to follow the United States Supreme Court precedent in this area, but then it returned to the remedy of automatic reversal. Compare Morgan v. Commonwealth,
Presently, at least twenty-nine states and the United States do not employ the remedy of automatic reversal, but, instead, require a
Moreover, the United States Supreme Court held in 2009 that, when all the jurors who deliberate in a case have been passed for cause and are unbiased, the Fourteenth Amendment's Due Process Clause does not require automatic reversal of a defendant's conviction even though a trial court erroneously denies a challenge for cause. Rivera,
Last, the Supreme Court recognized that language from Swain v. Alabama,
IV. Conclusion
As our supreme court recognized in Creacy v. Industrial Commission,
The rule of stare decisis is not a doctrine of mortmain; it does not exelude room for growth in the law and the courts are not without power to depart from a prior ruling, or to overrule it, where sound reasons exist and where the general interests will suffer less by such departure than from a strict adherence.
I1 understand that, if our supreme court were to discard the remedy of automatic reversal, it would likewise discard years of precedent. However, by doing so, the court would rely on "sound reasons" and promote the "general interest." See Hickman,