1
Reginald Keith Clark, Petitioner v. The People of the State of Colorado. Respondent
No. 22SC313
Supreme Court of Colorado, En Banc
July 1, 2024
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 19CA340
Attorneys for Petitioner: Megan A. Ring, Public Defender Casey Mark Klekas, Deputy Public Defender
Attorneys for Respondent: Philip J. Weiser, Attorney General Patrick A. Withers, Senior Assistant Attorney General
Attorneys for Amici Curiae Colorado Hispanic Bar Association, Asian Pacific American Bar Association, South Asian Bar Association of Colorado, and Sam Cary Bar Association: Lewis Roca Rothgerber Christie LLP Kendra N. Beckwith Tyler J. Owen
Attorneys for Amici Curiae Colorado-Montana-Wyoming Area Conference of the National Association for the Advancement of Colored People and American Civil Liberties Union of Colorado: Martina Tiku Anna Kathryn Barnes
Timothy R. Macdonald Anna I. Kurtz
Attorneys for Amicus Curiae Mountain States Legal Foundation: William E. Trachman James L. Kerwin
Attorneys for Amici Curiae Office of the Alternate Defense Counsel and Colorado Criminal Defense Bar: Law Offices of Ann M. Roan, LLC Ann M. Roan
JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined. JUSTICE HOOD, joined by JUSTICE GABRIEL, dissented.
OPINION
MÁRQUEZ, JUSTICE
¶1
Racial discrimination, while detestable in any context, is
"especially pernicious" in the criminal justice
system. Rose v. Mitchell,
¶2
Procedures for preventing biased jurors from serving are
critical to the protection of the defendant's right to an
impartial jury. McCollum,
¶3 If, however, a juror evinces racial bias during voir dire but does not ultimately serve on the jury, no Sixth Amendment violation has occurred. These are the circumstances we are presented with today.
¶4 Reginald Keith Clark, a Black man, was charged with multiple crimes arising from his alleged sexual assault of A.B., a white woman. He faced trial in Gilpin County, an area that is predominantly white.[1] During voir dire, a venire member made comments that Clark believed evinced racial bias. Clark moved to strike the juror for cause, but the trial court denied the challenge, concluding that the juror's statements expressed a political view and did not indicate that he could not be fair. Clark later removed the juror using a peremptory challenge. Thus, the juror did not sit on the jury. Clark was convicted and appealed on multiple grounds.
¶5
In a divided opinion, the court of appeals affirmed
Clark's conviction. People v. Clark, 2022 COA
33, ¶ 1,
¶6 First, we consider whether the trial court's denial of Clark's for-cause challenge may be analyzed for harmlessness or instead constitutes structural error requiring reversal. In light of Supreme Court and Colorado precedent, we conclude that, because any error by the trial court was made in good faith and because the juror never actually sat on the jury, Clark's Sixth Amendment right to an impartial jury was not violated. Accordingly, the trial court's erroneous denial of the challenge for cause in this case did not result in structural error and automatic reversal is not required. And because no state actor purposefully discriminated against Clark (or anyone else) on the basis of race, no equal protection violation occurred either.
¶7 Second, we separately conclude that a juror's comment about her previous jury experience recalling a judge's alleged statement that the jury must deliberate until it reached a unanimous verdict does not constitute "extraneous prejudicial information" under CRE 606(b).
¶8 Accordingly, we affirm the judgment of the court of appeals and uphold Clark's conviction.
¶9 In November 2017, Clark approached A.B. in his car as she was walking through downtown Denver to catch a bus. Clark offered A.B. a ride. A.B., who recognized Clark, accepted. A.B. asked Clark to take her to a nearby location, but Clark instead drove into the mountains near Black Hawk.
¶10 During the drive, Clark stopped and sexually assaulted A.B. Shortly after this, A.B. ran away. Police officers later contacted her on the side of the road. A.B. told them about the assault and described her assailant. Soon after, the officers spotted Clark driving in the vicinity and arrested him.
¶11 Clark was charged in Gilpin County with second degree kidnapping, § 18-3-302(1), (3), C.R.S. (2023); sexual assault with a deadly weapon, § 18-3-402(1)(a), (5)(a)(III), C.R.S. (2023); sexual assault caused by threat of imminent harm, § 18-3-402(1)(a), (4)(b); and sexual assault achieved through the application of physical force, § 18-3-402(1)(a), (4)(a). The case proceeded to a jury trial.
¶12 During voir dire, defense counsel raised the issue of race, noting that Clark was the only Black individual in the courtroom. One potential juror commented that if she were in Clark's position, she might doubt the fairness of the trial and "would like to see a little more diversity" in the courtroom. Other potential jurors agreed that some people in Gilpin County might have stereotypes about Black men. Soon after, the conversation moved away from the topic of diversity. A few minutes later, defense counsel asked Juror K about his thoughts related to the presumption of innocence, inquiring whether he thought the prosecution "start[ed] off . . . with a little bit of a lead," given that Clark was charged with a crime. Juror K responded by returning to the topic of diversity, saying:
You've said a lot, and I'm trying to think through each thing.... I apologize for some of my thoughts.... The diversity and stuff, yes, it's obvious there's a [B]lack gentleman over there. This is Gilpin County. I moved to Gilpin County. I didn't want diversity. I want to be diverse up on top of a hill. That's—I hear the things, that diversity makes us stronger and things like that. I don't quite believe it in life from what my personal experiences are. And I can't change that. I can look and judge what is being said by your side and their side and be fair, but I can't change that—when I walked in here seeing a [B]lack gentleman here. And I can't say that the prosecutor has a leg up on this or something until I hear what's happened.
¶13 At a bench conference, Clark challenged Juror K for cause. As Clark later explained,[3] his basis for the challenge was that Juror K's statements about diversity were unprompted and reflected "actual bias and prejudice." Following this challenge, the court asked Juror K additional questions:
Court: So here's kind of the two-part bottom line .... If you're chosen as a juror in this case, and if you're back in the jury room and you think the prosecution hasn't proven its case, would you have any trouble finding this defendant to be not guilty?
Juror K: Not at all.
Court: And the other side of that coin, what if you're back there and you say that [the] prosecutor has proven his case, would you have any trouble finding the defendant to be guilty?
Juror K: Again, the same answer. Not at all.
¶14 The court denied the challenge, and later provided its reasoning that Juror K's statements "that he didn't think that diversity was a good thing" expressed "a political view" and did not "answer the question of whether he can be a fair juror." The judge observed that "a person can certainly have offensive views and still apply the law. Those two things are really separate in my mind."
¶15 After his challenge for cause was denied, Clark exercised all of his allotted peremptory strikes, using his first to remove Juror K. Juror K was excused and did not sit on the jury.
¶16 After deliberating for approximately seventeen hours over three days, the jury convicted Clark of second degree kidnapping and sexual assault caused by threat of imminent harm. The court sentenced Clark to eighteen years for the kidnapping conviction and a consecutive term of twelve years to life for the sexual assault.
¶17 Following the verdict, Clark filed a motion for a new trial based on an affidavit from Juror LL. The affidavit explained that the jury was deadlocked for the first two days of deliberations. Juror LL alleged that on the third day of deliberations, another juror
mentioned a previous jury they [sic] she served on, in which the jury was told by the judge "I don't want a hung jury, and I want you guys to stay as long as you need to become unanimous." That juror stated that she was told in the previous trial by the judge that the jury must deliberate until a unanimous verdict was reached.... The original juror who referenced her previous jury service, presented that information as the factual information about the law that the jury was required to reach a unanimous verdict.
¶18 Juror LL further alleged that the other juror's statement sparked fears among the other jurors about the impact that protracted deliberations would have on their personal and professional lives, and, as a result, many jurors—including her—voted guilty to avoid those ramifications.
¶19 Based on this information, Clark requested a new trial or, alternatively, an evidentiary hearing. As relevant here, Clark argued that Juror LL's affidavit was admissible under the extraneous prejudicial information exception to CRE 606(b). The court disagreed, concluding that the affidavit did not allege the introduction of "extraneous prejudicial information" for purposes of meeting the exception to CRE 606(b), which otherwise prohibits a juror from testifying as to any statements made during jury deliberations. Consequently, the court concluded it could not consider the statements in the juror's affidavit. It therefore denied Clark's motion.
¶20 Clark appealed his conviction, and in a divided opinion, the court of appeals affirmed. Clark, ¶ 1, 512 P.3d at 1076.
¶21
With respect to the challenge for cause, the division split
three ways. Judges Fox and Schutz agreed with Clark that the
trial court erred when it denied Clark's challenge for
cause of Juror K. Id. at ¶ 21,
¶22
Regarding the remedy, the lead opinion, authored by Judge
Fox, concluded that, under this court's decision in
People v. Novotny,
¶23
In a partial dissent, Judge Schutz agreed with Clark that the
error was structural and required automatic reversal. Id. at ¶ 79,
¶24
According to Judge Schutz, the trial court's
"tolerance" of Juror K's express racial bias
amounted to structural error, not because it violated
Clark's right to an impartial jury, but because it
violated his right to equal protection. Id. at
¶ 95,
While the structural error created by Batson typically arises through the exercise of a peremptory challenge, the equal protection violation is even more pronounced in the context of a trial court's failure to grant a challenge for cause against a juror who has confirmed his racial bias against a defendant. In such situations, racial bias in the jury selection process need not be assumed, it has been openly acknowledged to the court, the parties, and the public. If the injection of assumed bias into the jury selection process through the exercise of a peremptory challenge creates structural error, then surely the trial court's tolerance of a prospective juror's express racial bias after that bias has been brought to the court's attention through a challenge for cause also constitutes structural error.
Id. at ¶ 95,
¶25 Judge Schutz further reasoned that Batson was
designed to serve multiple ends, including circumstances like
this where, as he saw it, the trial court's error sent a
message that racial bias may be tolerated in the criminal
justice system. Id. at ¶¶ 96, 98, 512 P.3d
at 1090-91. Whereas Judge Fox's opinion evaluated the
challenge-for-cause error through a Sixth Amendment lens,
Judge Schutz viewed
the issue as implicating a defendant's Fourteenth
Amendment right to equal protection because the juror's
bias against the defendant was based on race. Id. at
¶¶ 100-02,
¶26
As for Juror LL's affidavit, the majority decided that
the trial court correctly determined that the statements it
contained did not constitute extraneous prejudicial
information and therefore did not meet the exception to CRE
606(b).[4]Id. at ¶ 59,
¶27 We granted Clark's petition for certiorari review on these two issues and now address them in turn.
¶28 We first address Clark's argument that the trial court's denial of his for-cause challenge to Juror K amounted to structural error and required automatic reversal. Applying our precedent, we conclude that any error by the trial court was made in good faith, and because Juror K did not actually serve on the jury, the court's error was harmless.
¶29 We then turn to the second issue before us—whether the statements in Juror LL's affidavit constitute "extraneous prejudicial information" for purposes of CRE 606(b). We conclude that the juror's comment recounting a judge's statement about jury deliberations during a past jury experience was not legal content relevant to Clark's case. Accordingly, we hold that the information was not extraneous prejudicial information for purposes of the exception to Rule 606(b).
¶30
The division determined that the trial court's denial of
Clark's for-cause challenge to Juror K was an abuse of
discretion. Clark, ¶ 21,
¶31 Clark's primary argument, mirroring Judge Schutz's partial dissent, is that our decisions in Novotny and Vigil do not apply because the trial court's erroneous denial of his for-cause challenge to Juror K implicated his rights to equal protection under the Fourteenth Amendment. Alternatively, Clark argues that the trial court's error falls outside the general rule in Novotny and Vigil.
¶32 We begin with a discussion of the applicable standard of review. Next, we review the distinction between structural error requiring automatic reversal and trial error that is analyzed for harmlessness. We then describe Supreme Court and Colorado precedent, including Novotny and Vigil, regarding the standard of reversal that applies to errors impacting the use of peremptory challenges. Consistent with that precedent, we conclude that the trial court's error is subject to harmless-error analysis. We also reject Clark's argument that the error amounted to a violation of his equal protection rights. Accordingly, applying the harmless-error standard of reversal, we determine that any error by the trial court was harmless and does not warrant reversal.
¶33
The determination of the proper standard of reversal to be
applied in a case is a question of law that we review de
novo. See A.R. v. D.R.,
¶34 "Certain constitutional rights are so basic to a fair
trial that their violation can never be harmless." Abu-Nantambu-El, ¶ 27,
¶35 We have held that when a trial court's error results in
the seating of a juror who is biased against the defendant,
the error is structural. Abu-Nantambu-El, ¶ 30,
¶36
Both for-cause and peremptory challenges serve as means of
securing this right. First, Colorado law requires a court,
upon a party's challenge, to remove a juror for cause
when particular circumstances implicate the juror's
ability to remain impartial. Id. at ¶ 15, 454
P.3d at 1048. Relevant here, section 16-10-103(1)(j) requires
a trial court to excuse a juror who "evinc[es] enmity or
bias toward the defendant or the state." Second, section
16-10-104, C.R.S. (2023), permits both parties to exercise
peremptory challenges, which allow the removal of
"jurors whom they perceive as biased." Abu-Nantambu-El, ¶ 18,
¶37
Prior to Novotny and Vigil, Colorado
precedent required automatic reversal when a defendant used a
peremptory strike to remove a prospective juror who should
have been removed for cause and the defendant otherwise
exhausted their peremptory challenges. People v.
Macrander,
¶38 Novotny also relied on Supreme Court case law
recognizing that peremptory strikes are rooted in state law,
not the federal constitution. ¶¶ 14-17,
¶39
Accordingly, Vigil rejected the notion that a
defendant who uses a peremptory strike to remove a juror for
whom the trial court erroneously denied a for-cause challenge
was effectively "forced" to use their peremptory
strike. ¶ 21,
¶40
Our decision in Novotny acknowledged that, aside
from "an actual Sixth Amendment violation," there
may be some circumstances in which an erroneous denial of a
for-cause challenge does rise to the level of structural
error, requiring automatic reversal. ¶¶ 23, 27, 320
P.3d at 1202-03. Citing Martinez-Salazar, the court
acknowledged that such reversible errors include violations
of state law "committed in other than good faith." Id. at ¶ 23,
¶41 Novotny thus contemplated two ways an erroneous denial of a for-cause challenge might rise to the level of structural error: (1) where the error resulted in a Sixth Amendment violation because the biased juror actually served on the jury, and (2) where the error involved a deliberate misapplication of the law intended to disadvantage the defendant.
¶42
The law in Colorado following Novotny and
Vigil is clear: when a defendant uses a peremptory
challenge to correct a trial court's erroneous denial of
a challenge for cause, "so long as the defendant
receives both an impartial jury and the number of peremptory
challenges specified by state statute, the defendant's
constitutional rights remain unaffected." Abu-Nantambu-El, ¶ 20,
¶43 Here, Clark was permitted to use his statutorily allotted number of peremptory challenges. Juror K did not serve on the jury for Clark's trial, and Clark does not allege that any biased juror otherwise evaded removal. Under Novotny and Vigil, any error by the trial court in denying the challenge for cause to Juror K was harmless.
¶44
Clark nevertheless argues that the trial court's error
deprived him of a peremptory challenge because he was forced
to use one to cure the trial court's
error. But as Judge Fox noted below, this argument is
foreclosed by our reasoning in Vigil and the Supreme
Court's decision in Martinez-Salazar, which
expressly rejected this argument. Clark, ¶ 31,
¶45 Clark also argues that the trial court's error was not made in good faith and thus Novotny and Vigil's general rule for peremptory challenges does not apply. But nothing in the record indicates that the court deliberately misapplied the law in order to force Clark to sacrifice a peremptory challenge, and Clark alleges no facts that indicate the trial court otherwise acted in bad faith.
¶46 In sum, any error by the trial court in this case did not result in a biased juror participating in Clark's trial, and Clark has not shown that any error was otherwise deliberate or made in bad faith.
¶47 Mirroring Judge Schutz's partial dissent, Clark argues that because Juror K expressed racial bias against him, the trial court's denial of Clark's for-cause challenge violated Clark's right to equal protection under the Fourteenth Amendment, and that the court's error amounted to structural error. Because Clark cannot establish a violation of his right to equal protection, we disagree. a. Bias in Jury Selection and the Equal Protection Clause
¶48
The Equal Protection Clause of the Fourteenth Amendment
prohibits the state from denying "any person within its
jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. The "central purpose"
of the Equal Protection Clause is "the prevention of
official conduct discriminating on the basis of race." Washington v. Davis,
¶49
Beginning with Swain v. Alabama,
¶50
Although Clark leans into the Batson framework to
argue against racial bias in the jury trial context, he fails
to articulate how the Batson framework applies to
the challenge for cause to Juror K. The Batson
framework addresses racial bias in the jury selection process
by prohibiting the discriminatory use of peremptory
challenges to remove jurors on the basis of race. Clark's
argument focuses on a completely different kind of
"racial bias in the jury selection
process"—namely, a potential juror's
expression of racial bias during voir dire. But the
Batson framework was not designed to address the
issue of juror bias, which implicates the
defendant's Sixth Amendment right to an impartial jury. Instead, Batson and its progeny rest on the
defendant's "right to be tried by a jury whose
members are selected by nondiscriminatory criteria." Powers v. Ohio,
¶51
In his separate opinion, Judge Schutz noted that the
Batson framework "was designed 'to serve
multiple ends,' only one of which was to protect
individual defendants from discrimination in the selection of
jurors." Clark, ¶ 96,
¶52 Even aside from the obvious factual distinctions between Batson cases and the circumstances here, Clark fails to allege any equal protection violation. As explained above, the Equal Protection Clause prohibits state actors from purposefully discriminating on the basis of race. Clark argues that, by "tolerating" Juror K's continued presence on the jury despite his racially biased comments, the court denied Clark equal protection of the law.
¶53
To support his contention that the tolerance of racial bias
constitutes an equal protection violation, Clark cites
McCollum. In McCollum, the Court addressed
whether to extend the Batson framework to apply to a
criminal defendant's "purposeful racial
discrimination in the exercise of peremptory
challenges."
¶54
Accordingly, the McCollum Court's analysis began
with the question of whether the purposefully discriminatory
exercise of peremptory challenges by the defense
causes the same kind of harm addressed by Batson. The Court concluded that it did, stating: "'[B]e it
at the hands of the State or the defense,' if a court
allows jurors to be excluded because of group bias, '[it]
is [a] willing participant in a scheme that could only
undermine the very foundation of our system of
justice—our citizens' confidence in it.'"
¶55 Clark relies on this language to support his contention that a court's tolerance of racial bias is, standing alone, sufficient to establish an equal protection violation. But the quote from McCollum provides no such support. Whether conduct was purposefully discriminatory was not at issue in McCollum; thus, the quoted language has no relevance to that element of an equal protection violation claim. The language is likewise irrelevant to the determination of whether there was state action. In fact, the court immediately followed the quoted language by saying:
The fact that a defendant's use of discriminatory peremptory challenges harms the jurors and the community does not end our equal protection inquiry. Racial discrimination, although repugnant in all contexts, violates the Constitution only when it is attributable to state action. Thus, the second question that must be answered is whether a criminal defendant's exercise of a peremptory challenge constitutes state action for purposes of the Equal Protection Clause.
¶56 To the extent Clark contends that the trial court's ruling unnecessarily required him to use a peremptory challenge on the basis of his race, we disagree. Clark analogizes the trial court's ruling to a hypothetical statute that provides Black defendants with one less peremptory challenge than white defendants. While such a statute would surely violate the Equal Protection Clause, no comparable purposeful discrimination occurred here. As discussed above, nothing in the record suggests that the trial court purposely denied Clark's challenge for cause to force Clark to expend a peremptory challenge. Were that true, the court's error would not have been made in good faith and would therefore be excepted from Novotny's general rule.
¶57
Finally, Clark contends that the trial court's denial of
his challenge for cause to Juror K amounts to structural
error because the impacts of the error reflect the concerns
articulated by the Supreme Court in Weaver v.
Massachusetts,
¶58 As we have explained, structural errors are a narrow class of constitutional errors. Because Clark has not established a constitutional violation, any error by the trial court cannot be deemed structural. Regardless, the error here did not result in the type of harm contemplated by Weaver. Clark focuses on the impact of the judge's decision on the potential jurors' perception of the judiciary, saying that the denial "sent an intolerable message." As a factual matter, this claim is unsupported.
¶59 Crucially, there is no evidence that the jury was aware of the challenge, let alone the court's ruling or its reasoning. The challenge and the ruling were made during a bench conference, out of the potential jurors' hearing. And when the trial court provided its reasoning on the record after the fact, all of the jurors had been dismissed from the room. Ultimately, the only events the jurors witnessed were Juror K's comments during voir dire and Juror K's subsequent dismissal. If there was any reasonable conclusion to draw about the permissibility of racial bias in the courtroom, it was that such expressions of bias result in dismissal, not that they are tolerated or welcomed.
¶60 Clark has thus failed to prove any cognizable harm, much less a constitutional error that rises to the level of structural error.
¶61
Because Novotny and Vigil govern the
analysis here, we review the trial court's error for
harmlessness to determine whether reversal is required. "Under this standard, reversal is required only if the
error affects the substantial rights of the parties. That is,
we reverse if the error 'substantially influenced the
verdict or affected the fairness of the trial
proceedings.'" Hagos v. People,
¶62 Juror K did not actually serve on the jury in Clark's trial. Therefore, the trial court's denial of Clark's challenge to remove Juror K for cause did not substantially influence the verdict or affect the fairness of the trial proceedings. As explained above, the court's denial of his for-cause challenge did not "force" Clark to use one of his peremptory challenges or otherwise deprive him of the full allotment of peremptory challenges granted by statute to criminal defendants.
¶63 To hold that an erroneous denial of a challenge for cause to a potential juror who has expressed racial bias is not structural error is not to say it is unimportant or inconsequential. However, where, as here, the defendant's use of a peremptory challenge to remove the juror ensured that the biased juror did not ultimately sit on the jury, reversal of the defendant's conviction is not required because there was no violation of the right to an impartial jury or the right to equal protection. Where a good faith error does not end up impacting the defendant's trial, reversal is unwarranted.
¶64 Clark argues that Juror LL's affidavit describing statements made by another juror during deliberations constituted "extraneous prejudicial information" under CRE 606(b), and that he is therefore entitled to an evidentiary hearing to determine whether that information posed a reasonable possibility of prejudice. After setting forth the applicable standard of review, we discuss CRE 606(b) and the requirements for a new trial based on a claim that the jury was exposed to extraneous prejudicial information. Applying this framework, we conclude that the statements mentioned in Juror LL's affidavit did not constitute "extraneous prejudicial information."
¶65
Whether the statements in Juror LL's affidavit
constituted "extraneous prejudicial information"
under CRE 606(b) is a legal question we review de novo. See People v. Harlan,
¶66
In order to promote "finality of verdicts, shield
verdicts from impeachment, and protect jurors from harassment
and coercion," id., Colorado law strongly
disfavors any juror testimony impeaching a verdict,
Kendrick v. Pippin,
¶67 CRE 606(b) codifies this general prohibition on inquiries into the validity of a verdict, stating that:
a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.
Rule 606(b) nevertheless allows inquiry into three narrow matters: "(1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form." Id. Under the Rule, a trial court may not receive a juror's affidavit concerning anything other than these three matters. Id. ("A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.").
¶68
To set aside a verdict because of extraneous prejudicial
information improperly brought to the jurors' attention,
"a party must show both that extraneous information was
improperly before the jury and that the extraneous
information posed the reasonable possibility of prejudice to
the defendant." Kendrick,
¶69
The evaluation of whether the extraneous prejudicial
information exception to CRE 606(b) applies proceeds in two
steps. Harlan,
¶70
At step one, the court must determine whether the party
alleging misconduct has presented competent evidence alleging
that extraneous prejudicial information was improperly before
the jury. Kendrick,
¶71
If the information does constitute extraneous prejudicial
information, the court must determine at step two (often
following a hearing) whether there is a reasonable
possibility that the extraneous prejudicial information
influenced the verdict to the detriment of the defendant. Kendrick,
¶72 During the second step, the court should consider those factors articulated in our prior cases: (1) how the extraneous information related to critical issues in the case; (2) the degree of authority represented by the extraneous information; (3) how the information was acquired; (4) whether the information was shared with other jurors in the jury room; (5) whether the information was considered before the jury reached its verdict; and (6) whether there is a reasonable possibility that the information would influence a typical juror to the defendant's detriment. Id. at 630-31.
¶73 Clark argues that consideration of whether the extraneous information relates to an issue before the jury pertains only to the prejudice analysis at step two and has no bearing on whether the information is "extraneous" at step one. We disagree.
¶74
At step one, the court must determine whether the information
qualifies as "extraneous prejudicial information." This step requires the court to determine if
the information was "prejudicial" (and not merely
extraneous). By contrast, at step two, the inquiry is whether
there is a reasonable possibility that the extraneous
prejudicial information affected the jury's verdict to
the detriment of the defendant. While the determination of
whether the information is prejudicial at step one overlaps
with the determination of whether there is a reasonable
possibility that the information prejudiced the defendant at
step two, the burden on the defendant at each step is
different. At step one, "the party seeking impeachment
must produce competent evidence to attack the verdict,"
that is, evidence admissible under CRE 606(b) that calls into
question the validity of the verdict. People v.
Garcia,
¶75"
[E]xtraneous prejudicial information consists of (1) 'legal content and specific factual information' (2) 'learned from outside the record' (3) that is
'relevant to the issues in a case.'" Newman, ¶ 15,
¶76 Extraneous prejudicial information can take the form of legal content or factual information. Clark argues that the statements at issue here introduced extraneous legal content.
¶77
In evaluating what constitutes "legal content," Newman evaluated four of our decisions for guidance. First, in Alvarez v. People,
¶78
Similarly, in both Niemand v. District Court, 684
P.2d 931, 932 n.1 (Colo. 1984), and Wiser v. People,
¶79 Finally, in Harlan, this court found that the Bible scripture improperly considered by the jury during the death penalty phase of the case could be viewed as an improper "legal instruction, issuing from God, requiring a particular and mandatory punishment for murder." 109 P.3d at 632.
¶80
As Newman articulated, our prior decisions make
clear that "legal content" means a statement of
law. ¶ 23,
¶81 "Extraneous" information is information gleaned
from outside the record or information not included in the
court's instructions to the jury. Determining whether
information was introduced from outside the record is
straightforward when the juror conducts an independent
investigation into either the facts or the law. See id. at ¶ 32,
¶82 In Kendrick, we held that "the juror's use of her background in engineering and mathematics to calculate [the defendant]'s speed, distance, and reaction time and the sharing of those calculations with the other jurors did not constitute 'extraneous' information within the meaning of CRE 606(b)." Id. at 1066. We reasoned that, by performing and sharing those calculations, the juror "did not introduce any specific facts or law relevant to the case learned from outside of the judicial proceeding but, rather, merely applied her professional experience and preexisting knowledge of mathematics to the evidence admitted at trial." Id.
¶83 In sum, to be permissible, the experience used by the juror in deliberations must be part of the juror's background, "gained before the juror was selected to participate in the case and not as the result of independent investigation into a matter relevant to the case" and, though the information may be relevant to the matter at hand, it must not include "extra facts or law, not introduced at trial, that are specific to parties or an issue in the case." Id.
¶84
Because the line between past experience and extraneous
information is a fine one, the admonition that we "err
in favor of the lesser of two evils—protecting the
secrecy of jury deliberations at the expense of possibly
allowing irresponsible
juror activity"—is important. Garcia v.
People,
¶85 Here, the unnamed juror's statement during deliberations that, during a prior jury service, the judge told the jury that it must deliberate until they come to a unanimous decision did not constitute extraneous prejudicial information.
¶86
First, the juror's statement was not "legal
content." The retelling of a prior jury experience, even
the specific recollection of a judge's alleged statement
about jury deliberations, is not a "statement of
law." Second, the fact that the juror's statement is
based on prior experience and was not the result of
independent investigation further compels us to find that the
statement was not extraneous. After all, "[a]s a
practical matter, it is impossible to select a jury free of
preconceived notions about the legal system or to prevent
discussion of such information in the jury room." People v. Holt,
¶87 Third, even if we concluded that the juror's statement was extraneous legal content, unlike in Niemand and Wiser, it was not relevant to the jury's decision. The statement did not concern any definition or element of the crimes with which Clark had been charged. But even beyond that, the statement did not relate to any other matter the jury was charged with deciding. How long the jury was required to deliberate did not have anything to do with whether the prosecution had met its burden of proof.
¶88 Therefore, the trial court correctly determined that the statement described in Juror LL's affidavit did not constitute "extraneous prejudicial information" under CRE 606(b).
¶89 We conclude that the erroneous denial of a for-cause challenge to a juror who evinces racial bias against the defendant is not structural error where the error was made in good faith and the biased juror did not actually participate in the jury. In addition, we conclude that a juror's statement during deliberations recalling a judge's alleged comment during her prior jury service was not extraneous prejudicial information under CRE 606(b). Accordingly, we affirm the judgment of the court of appeals.
JUSTICE HOOD, joined by JUSTICE GABRIEL, dissenting.
¶90 This is a difficult and troubling case (at many levels) in which the division below and the majority here claim, in so many words, that obedience to doctrine forces us to swallow a bitter procedural pill. Despite declaring that racial bias is detestable in any context, Maj. op. ¶ 1, the majority, no doubt reluctantly, leaves unremedied the district court's failure to denounce racial bias during jury selection. Instead, it essentially says that we have little choice but to throw up our hands and concede, "no harm, no foul."
¶91 But the district court's error in excusing overt, in-court racism[1] as nothing more than legitimate political opinion, produced at least two harms, both of which are difficult to quantify but unmistakably real. First, a criminal defendant like Reginald Keith Clark—to whom our state and federal constitutions pledge rights to equal protection and a fair trial—suffered the risk that some remaining venire members were emboldened to act on similar but unvoiced biases. Second, and no less important, the whole unseemly exercise leaves our system of criminal justice diminished in the eyes of the public.
¶92
Even so, the majority concludes that (1) People v.
Novotny,
¶93
Our basic legal yardstick is straightforward. Structural
errors "defy analysis by 'harmless-error'
standards." Arizona v. Fulminante, 499 U.S.
279, 309 (1991). There are "at least three broad
rationales" for "[t]he precise reason why a
particular error is not amenable to [harmless-error]
analysis—and thus the precise reason why the Court has
deemed it structural," Weaver v. Massachusetts,
[1] errors concerning rights protecting some interest other than the defendant's interest in not being erroneously convicted; [2] errors the effects of which are too hard to measure, in the sense of being necessarily unquantifiable and indeterminate; and [3] errors that can be said to always result in fundamental unfairness,
Howard-Walker v. People,
¶94
Denying a party's for-cause challenge of a potential
juror who expressed racial bias implicates the first two of
these rationales. See Weaver,
¶95
Let's start with the harm to Clark. Over thirty years
ago, the Supreme Court warned that the presence of racial
discrimination during voir dire is "often apparent to
the entire jury panel, [and] casts doubt over the
obligation of the parties, the jury, and indeed
the court to adhere to the law." Powers v.
Ohio,
¶96
As Judge Schutz explained in his separate opinion below: The
district court's decision broadcasted to all who remained
"that a prospective juror could sit in judgment of a
person against whom he had an acknowledged racial bias." People v. Clark,
¶97 The majority dismisses this reality by claiming that "there is no evidence that the jury was aware of the challenge, let alone the court's ruling or its reasoning." Maj. op. ¶ 59. This argument suffers from a false premise: namely, that jurors lack the capacity to understand what is unfolding around them during our court proceedings. In my experience, however, jurors aren't as naive as my colleagues in the majority suggest.
¶98 On the contrary, there are at least three reasons why the prospective jurors here undoubtedly understood the district court to affirm Juror K's ability to serve despite his racial bias. First, the court had already explained to prospective jurors the mechanics of the for-cause-dismissal stage of voir dire, so everyone knew that the court was determining whether prospective jurors were eligible to serve. Second, the prospective jurors had witnessed the court remove a juror whose impartiality it had found wanting. And third, the district court asked Juror K follow-up questions—something it had only done when a prospective juror's answers gave it some pause—before confirming that Juror K could serve. It's of no moment that the court's justification was given out of earshot of the prospective jurors. The ruling itself was clear: Even after expressing racial bias, Juror K was fit to serve.
¶99 The majority is equally wrong that "the only events the jurors witnessed were Juror K's comments during voir dire and Juror K's subsequent dismissal," which would've left them with the impression that "bias result[s] in dismissal." Id. Again, jurors are sharper than that. The court explained that the peremptory-challenge phase of voir dire was distinct from the for-cause stage. The court also emphasized that peremptory challenges don't require a reason and were attributable to the attorneys—not the court—so prospective jurors shouldn't "take any offense" at removal. The majority glosses over these facts, perhaps because they establish that no reasonable juror would have equated the defense's use of a peremptory strike with state condemnation of Juror K's racial bias.
¶100 The district court's error thus goes to the very
foundation of our criminal justice system—the
impartiality of the criminal jury, the body responsible for
determining a defendant's innocence or guilt. "When
constitutional error calls into question the objectivity of
those charged with bringing a defendant to judgment, a
reviewing court can neither indulge a presumption of
regularity nor evaluate the resulting harm." Vasquez
v. Hillery,
¶101
Here, any bias Juror K introduced into the proceeding during
voir dire lingered in the background of the entire trial. See Powers,
¶102 The district court's error in refusing to excuse Juror K
when Clark challenged him for cause jeopardized Clark's
right to a fair trial by giving judicial approval to Juror
K's racial bias in front of the remaining venire members:
"[A] defendant has the right to an impartial jury that
can view him without racial animus, which so long has
distorted our system of criminal justice." Georgia
v. McCollum,
¶103
The error was also structural because it impugned the
integrity of the justice system. Racial bias is "a
familiar and recurring evil that, if left unaddressed, would
risk systemic injury to the administration of justice." Pena-Rodriguez v. Colorado,
¶104 I agree with Judge Schutz that what occurred during voir dire
offends Clark's equal protection right to be free from
state-approved racial discrimination. See Clark,
¶¶ 93-96, 102,
¶105
This is an affront to basic equal protection principles and
does great harm to the public's perception of the justice
system. See Mistretta v. United States, 488 U.S.
361, 407 (1989) ("The legitimacy of the Judicial Branch
ultimately depends on its reputation for impartiality and
nonpartisanship."); McCollum,
¶106
The majority concludes that the district court's error
wasn't structural because the error wasn't
constitutional. Maj. op. ¶ 58. To the contrary, the
underlying error in this case violated Clark's Sixth
Amendment right to an impartial jury. "[I]f a trial
court error results in the seating of a juror who is actually
biased against the defendant, the defendant's right to an
impartial jury is violated, the error is structural, and
reversal is required." Abu-Nantambu-El, ¶ 30,
¶107 As discussed above, the error here fits that bill. The district court's error produced harms that (1) cannot
be measured and thus defy an outcomedeterminative analysis
and (2) concern interests other than the defendant's
right to a sound verdict; namely, protection of the
public's faith in the judiciary. Accordingly, the
district court's error is structural and, in my opinion,
entitles Clark to a new trial. See People v. Madrid,
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[1] As of the 2020 Census, 5,077—or about 87.41%—of Gilpin County's 5,808 residents were "[w]hite alone." U.S. Census Bureau, Race and Ethnicity: Gilpin County, Colorado, https://data.census.gov/profile/Gilpin_County,_Colorado?g=050XX00US08047#race-and-ethnicity [https:// perma.cc/XA8B-MRQU].
[2] We granted certiorari to review the following issues:
1. [REFRAMED] Whether the trial court's erroneous denial of a defendant's for-cause challenge to a juror who expressed racial bias was harmless or structural error.
2. Whether a juror's comments during deliberations, that she learned from a judge in prior jury service that jurors must deliberate indefinitely until a unanimous verdict is reached, constitute "extraneous prejudicial information" under CRE 606(b).
[3] Because the courtroom where voir dire was held was not equipped to record bench conferences, the record of the conversation the parties had with the judge during the bench conference was made by the judge after the fact. After the parties had finished exercising their peremptory challenges, the bailiff took the jurors to the jury room and the judge summarized for the record the parties' for-cause challenges and the judge's rulings on them.
[4] Because he would have reversed
Clark's conviction based on his resolution of the
challenge-for-cause issue, Judge Schutz declined to address
the remaining issues. Id. at ¶ 106,
[1] We agree with the division majority
that there was a "glaring implication" that Juror K
harbored an "acknowledged bias against nonwhite people
like defendant." People v. Clark,
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