v. People
December 16, 2019
2019 CO 105
No. 15SC770, Vigil v. People—Criminal Law—Jury—Evidence—Witnesses.
Vigil sought review of the court of appeals’ judgment affirming his convictions of second degree burglary and second degree aggravated motor vehicle theft. As pertinent to the issues on review in the supreme court, the trial court denied Vigil‘s for-cause challenge to Juror C.A. but granted the prosecution‘s challenge to Juror D.K. At trial, and over defense counsel‘s objection, an officer was permitted to opine without qualification as an expert that Vigil‘s shoes visually matched shoeprints he photographed at the crime scene. With regard to Vigil‘s assignments of error concerning these rulings, the court of appeals concluded that the trial court had not abused its discretion by denying Vigil‘s challenge to Juror C.A.; that any error committed in granting the prosecution‘s challenge to prospective Juror D.K. would in any event have been harmless; and that the trial court did not abuse its discretion in allowing the officer to offer a lay opinion concerning the shoeprint comparison in question.
The supreme court affirmed, ruling that the trial court did not abuse its discretion in denying Vigil‘s challenge to Juror C.A.; granting the prosecution‘s challenge to prospective Juror D.K., even if it amounted to an abuse of discretion, did not result in any violation of Vigil‘s rights; and the trial court did not abuse its discretion in admitting the officer‘s testimony as lay opinion.
JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special concurrence.
JUSTICE GABRIEL dissents.
¶2 Because the trial court did not abuse its discretion in denying Vigil‘s challenge to Juror C.A.; because granting the prosecution‘s challenge to prospective Juror D.K., even if it amounted to an abuse of discretion, did not result in any violation of Vigil‘s rights; and because the trial court did not abuse its discretion in admitting the officer‘s testimony as lay opinion, the judgment of the court of appeals is affirmed.
¶3 Nathan Richard Vigil was charged with first degree aggravated motor vehicle theft, second degree burglary, theft, and attempt to commit second degree burglary in connection with the disappearance of a truck, motorcycle, and various other items of personal property from a farm in Conejos County. Although the attempted burglary count was dismissed and the defendant was acquitted of theft, he was convicted of second degree burglary and a lesser included offense of second degree aggravated motor vehicle theft. He was sentenced to concurrent terms of six years and eighteen months in the custody of the Department of Corrections.
¶4 Evidence was presented at trial from which the jury could find that in November 2010, the victim discovered that his truck, motorcycle, and other personal property were missing from his farm. An officer of the Conejos County Sheriff‘s Department responded to the farm and photographed shoeprints near the area where the truck had been parked. Witnesses informed the officer that the defendant had asked them to tow a truck to a trading post in the area but that they had not realized at the time that the truck belonged to the victim. While the defendant was being held for a different crime at the Alamosa County Sheriff‘s Office, the officer examined his shoes and determined that they “visually matched” shoeprints on the victim‘s farm.
¶6 Without qualification as an expert and over defense objection at trial, the investigating officer in question was permitted to opine, on the basis of his observation of what he considered to be identical “Skechers” emblems and similar size, that the soles of the shoes he examined at the Sheriff‘s Office “visually matched the prints that were out on the scene.”
¶7 On appeal, the intermediate appellate court affirmed the defendant‘s convictions. With regard to the defendant‘s assignments of error concerning these three rulings of the trial court, the appellate court found that the ruling concerning Juror C.A. fell within the broad discretion permitted trial courts when ruling on
¶8 The defendant petitioned this court for a writ of certiorari.
II.
A.
¶9 Criminal defendants in this jurisdiction are entitled to trial by an impartial jury of the county or district in which the offense was alleged to have been committed.
¶10 Section 105 of the Uniform Jury Selection and Service Act,
¶11 The absence of any qualification prescribed by statute to render a person competent as a juror is itself designated cause for removal, on the basis of which a challenge by one of the parties must be sustained.
¶12 In addition to permitting each party to challenge prospective jurors for cause, the legislature has provided a specific number of challenges to each side, varying with the nature of the charge and circumstances of the particular prosecution, to be exercised peremptorily.
¶13 Because challenges for cause, unlike peremptory challenges, are limited only by statutory grounds for removal and not in number, a trial court may entertain numerous challenges for cause from either or both sides during the selection of a single jury. As the Supreme Court has noted, often such challenges are “fast paced, made on the spot and under pressure,” and the court “must be prepared to decide [them], often between shades of gray, ‘by the minute.‘” United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (citation omitted). And while some of the qualifications for jury service and other statutory grounds justifying a challenge for cause are matters of law determinable with relative certainty, others are not.
¶14 The question whether there exists a state of mind in any particular prospective juror evincing enmity or bias toward the defendant or the state such that he cannot judge the matter fairly and impartially is necessarily a matter
¶15 Even a ruling on a challenge for cause that clearly falls outside this acceptable range and is therefore erroneous, however, will not necessarily result
¶16 In a series of cases decided over the last quarter-century, the United States Supreme Court has retreated from its earlier pronouncements concerning the role and importance of peremptory challenges in jury selection and has now made clear that peremptory challenges have no basis in the federal constitution and are, instead, purely a creature of legislation. Rivera v. Illinois, 556 U.S. 148, 157 (2009) (“[T]here is no freestanding constitutional right to peremptory challenges.“). Recounting the long history of legislative provision for peremptory challenges in federal criminal trials, and construing the current provision approved by Congress as
¶17 In Novotny, we reconsidered a line of authority in this jurisdiction dictating automatic reversal for any erroneous ruling on a challenge for cause adversely impacting the defendant‘s ability to shape the composition of the jury through the use of peremptory challenges. ¶¶ 14–17, 320 P.3d at 1199–1200. Much as the Supreme Court had done in disavowing its earlier pronouncements from Swain v. Alabama, 380 U.S. 202, 219 (1965), and those cases on which it relied, see Rivera, 556 U.S. at 160; Martinez-Salazar, 528 U.S. at 317 n.4, we overturned this line of our own precedents as having been substantially undermined by developments in the harmless-error doctrine in general, and the structural error/trial error dichotomy in particular, Novotny, ¶ 17, 320 P.3d at 1200. Because we were there faced with the specific question whether automatic reversal was the proper remedy for such an error in light of the subsequently developed structural error doctrine, we reserved the question whether the use of a peremptory challenge to remove a prospective juror for whom a challenge for cause was erroneously denied must be disregarded as harmless in every case. Id. at ¶¶ 1–2, 320 P.3d at 1196. Instead we
¶18 Although in Novotny we focused on the propriety of automatic reversal for what we had previously considered to be the “forced” use of a defendant‘s peremptory challenge to cure an erroneous ruling on a challenge for cause, our reliance not only on developments in the harmless error doctrine, but also on more recent Supreme Court jurisprudence finding a lack of any constitutional underpinning whatsoever for peremptory challenges, largely foreshadowed today‘s holding. Today we expressly answer the question left open in Novotny by disavowing our prior understanding that the constitution, statute, rule, or some combination of the three, grants a criminal defendant a right to shape the jury through the use of peremptory challenges.
¶20 While providing the same number of peremptory challenges to both the defense and prosecution in the absence of good reason to do otherwise clearly evidences an intent to permit, at least initially, each side to exercise the same number of peremptory strikes, on its face it implies virtually nothing about the purpose for providing for peremptory, in addition to for-cause, challenges. Much like the federal legislative authorization for peremptory strikes, our statute simply provides a specified number of strikes, varying with the nature of the charges and number of defendants, and our rule merely embellishes on that provision by permitting additional strikes to the prosecution or defense for good cause. Our prior cases fail to suggest support in the text or legislative history of either provision for any underlying legislative intent to permit the parties to shape the jury to their tactical advantage, as distinguished from merely to aid in the ultimate acquisition of a constitutionally required fair and impartial jury.
¶22 We are not unmindful that retreating from the shape-the-jury rationale that led to the now-overturned remedy of automatic reversal further implicates the doctrine of stare decisis. For virtually the same reasons we found it important and justified in Novotny to partially overturn this line of our own prior holdings, we consider it similarly justified to now overturn them in full. To the extent that our prior rationale was based on pre-harmless error holdings, the constitutional
B.
¶23 Vigil contends that the trial court erred by denying his challenge for cause to Juror C.A. Though Juror C.A. initially appeared equivocal as to his ability to remain impartial due to his acquaintance with the victim‘s family and the possibility that he might work on the father‘s farm equipment sometime in the future, the trial judge sought, and C.A. expressly gave, his assurance that he thought he could evaluate the victim‘s testimony “just like all the other witnesses who will testify.” It was for the trial court not only to assess the juror‘s credibility but also to evaluate whether he would be able to render an impartial verdict.
III.
¶26 In Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875, this court recently clarified the distinction between expert and lay opinion within the contemplation of Rules 701 and 702 of the Colorado Rules of Evidence. If opinion testimony could be based on an ordinary person‘s experiences or knowledge, the testimony in question may be admitted as a lay opinion. Id. at ¶ 2, 388 P.3d at 871. If, however, a witness offers testimony in the nature of an opinion that could not be formed without reliance on specialized experiences, knowledge, or training, for that testimony to be admissible, the witness must be qualified as an expert. Id.
¶28 Because neither a comparison of a shoe and an imprint left in the dirt by a shoe based on the size of each, nor a visual comparison of an emblem on the sole of a shoe and an imprint in the dirt left by a shoe, is beyond the ken of an ordinary person without specialized training or experience of any kind, id., an opinion that the defendant‘s shoe caused the imprint in the dirt observed by the officer was admissible as a lay opinion. Although the officer in question made reference to his experience and training with regard to evidence collection generally, that testimony could not reasonably have been understood to suggest that the officer had specialized training in the comparison of shoeprints or that his opinion was entitled to any greater weight than the opinion of anyone capable of measuring the size of the two and visually observing the emblem and imprint in the dirt. The trial court therefore did not abuse its discretion by admitting the officer‘s shoeprint comparison testimony as lay testimony pursuant to
IV.
¶30 Because the trial court did not abuse its discretion in denying Vigil‘s challenge to Juror C.A. for cause; because any error the trial court committed in granting the prosecution‘s challenge to prospective Juror D.K. for cause did not result in a violation of Vigil‘s constitutional, statutory, or rule-based rights, and therefore does not require reversal; and because the trial court properly admitted the officer‘s testimony as lay opinion, the judgment of the court of appeals is affirmed.
JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special concurrence.
JUSTICE GABRIEL dissents.
¶31 For the reasons set forth below, I join the court‘s judgment in all respects. I write separately, however, to explain why I believe People v. Novotny, 2014 CO 18, 320 P.3d 1194, dictates today‘s result as to prospective Juror D.K. and why I believe the division majority‘s “clear bias” rationale as to Juror C.A. was incorrect. Therefore, I respectfully concur.
I. Prospective Juror D.K. and Prejudice Post-Novotny
¶32 The majority acknowledges that the court‘s decision in Novotny “largely foreshadowed today‘s holding.” Maj. op. ¶ 18. The majority then explains that “[t]oday we expressly answer the question left open in Novotny by disavowing our prior understanding that the constitution, statute, rule, or some combination of the three, grants a criminal defendant a right to shape the jury through the use of peremptory challenges.” Id.; see also id. at ¶ 20 (“Our prior cases fail to suggest support in the text or legislative history of either provision for any underlying legislative intent to permit the parties to shape the jury to their tactical advantage, as distinguished from merely to aid in the ultimate acquisition of a constitutionally required fair and impartial jury.“).
¶33 The majority‘s characterization of Novotny as simply foreshadowing today‘s holding is puzzling, however, given Novotny‘s rationale. Of course, the opinion is best known for overruling the automatic-reversal rule of People v. Macrander, 828 P.2d 234 (Colo. 1992). But in overruling Macrander, the court expressly disavowed the notion that parties have a due process right to use peremptory challenges to “shape” the jury. See, e.g., Novotny, ¶ 22, 320 P.3d at 1201 (“Whether or not the Fourteenth Amendment due process violation we mistakenly identified in Lefebre could have itself catapulted impairment of a defendant‘s ability to shape the jury into this limited class of fundamental constitutional errors, the Supreme Court has since made abundantly clear that no such due process protection exists for state-granted peremptory challenges.“).
¶34 Thus, from my perspective, Novotny did more than foreshadow today‘s holding. It foreordained it. Were this simply a case of foreshadowing—with a genuine choice remaining—I might choose a different path. But, as it is, I feel compelled to join the decision because we have done no more than arrive at the end of the path on which Novotny placed us. Although I dissented in Novotny, stare decisis compels my reluctant obedience to its dictates today. On that basis, I concur as to the Juror D.K. portion of the court‘s holding in the case at bar.
II. Juror C.A. and the Standard for Reviewing Bias
¶35 As to Juror C.A., I note that the majority correctly eschewed the division‘s articulation of a “clear bias” standard of review in evaluating whether Juror C.A. should have been dismissed for cause. I write separately to spell out why I think this was a wise choice.
¶37 In gleaning this “clear bias” standard, the division relied on references to clear bias in several of our decisions, the most relevant being Carrillo v. People, 974 P.2d 478, 488 (Colo. 1999), and Young, 16 P.3d at 826. But I believe the division‘s reliance is misplaced.
¶38 True, in concluding in Carrillo that the trial court did not abuse its discretion in denying a defendant‘s challenge for cause, this court observed that a prospective juror‘s “answers to questions about his working relationship with [the victim‘s father] appear ambiguous and fail to articulate a clear expression of bias requiring his dismissal.” 974 P.2d at 488. And, following a similar conclusion in Young, we briefly noted in dicta that the record did “not reveal that [the challenged juror] had any clear bias against [the defendant] which would make his dismissal from the jury compulsory.” 16 P.3d at 826.
¶40 Likewise, the majority is right to tacitly reject the defendant‘s argument for a “genuine doubt” standard. Pointing to our decision in People v. Russo, 713 P.2d 356, 362 (Colo. 1986), in which we stated in part that “[i]f the trial court has genuine
¶41 Instead, the majority correctly focuses on the statute‘s plain language. Maj. op. ¶ 11 (“The detection of actual enmity or bias toward the defendant or the state is, of course, also expressly designated cause for removal.“); see also id. at ¶ 24 (“Similarly, the statutory requirement that a challenge for cause be sustained as to any juror having a state of mind evincing enmity or bias toward the defendant or the state also makes clear that no person shall be disqualified by reason of having formed an opinion as to guilt or innocence if the court is satisfied from examination of the juror or from other evidence that he will render a verdict according to the law and the evidence submitted to the jury at the trial.“).
¶42 And here, there was at least some follow-up by the trial court. I therefore agree with the majority that under the highly deferential standard of review, premised on the trial court‘s opportunity to see and interact with the juror, there was no abuse of discretion.
¶43 In the end, the division put it well:
Juror C.A.‘s statement that he would treat [the victim‘s] testimony the same as other witnesses’ testimony meant that he would treat [the
victim‘s] testimony impartially (i.e., he would not be unduly partial toward [the victim] when assessing his testimony). Juror C.A.‘s statement that he would treat [the victim‘s] testimony impartially was some evidence that he would render an impartial verdict (i.e., he would not be unduly partial toward [the victim] when rendering the verdict). With the benefit of hindsight and time to parse the record, we could conceive of more complete follow-up questions for Juror C.A. However, simply because we could construct additional useful questions for the juror does not necessarily give us license to overturn the trial court‘s decision. The restraint on our review of the trial court‘s ruling reflects the supreme court‘s considered judgment of the respective roles of the trial and appellate courts regarding challenges for cause. Thus, we must resist the temptation to second-guess the trial court‘s decision based on a cold record.
Although the trial court‘s questioning could have been more comprehensive, it still elicited a response significant to the challenge for cause, as explained above. Therefore, even if imperfect, the trial court‘s questioning of the juror weighs in favor of affirmance.
Vigil, ¶¶ 16–18 (internal citations omitted).
¶44 In concluding, I echo the sentiment expressed by the division majority. The trial court‘s follow-up questioning of Juror C.A. regarding his potential bias in favor of the victim in this case was less than ideal. But this was a quintessential game-time call. The trial judge was there; we weren‘t. Moreover, I take comfort in the fact that this court tends to see outliers. I place my faith in Colorado‘s trial judges to go beyond perfunctory questioning that superficially protects the record but endangers a defendant‘s (and, when at issue, the state‘s) right to a truly fair and impartial jury.
¶45 I agree with the majority‘s conclusion that the trial court did not abuse its discretion in admitting a police officer‘s lay opinion that Vigil‘s shoes matched shoeprints that the officer had photographed at the crime scene. Maj. op. ¶¶ 28–30. I disagree, however, with the majority‘s conclusions that (1) the trial court did not abuse its discretion in denying Vigil‘s challenge for cause to Juror C.A. and (2) any error that the trial court committed in granting the prosecution‘s challenge for cause as to Juror D.K. did not prejudice Vigil. Id. In particular, I disagree with the majority‘s apparent test for prejudice, which makes it virtually impossible for a criminal defendant ever to prove prejudice in this context and which I believe results in an unlevel playing field.
¶46 Accordingly, I respectfully dissent.
I. Factual Background
¶47 The majority does not quote much of the voir dire examinations of either Juror C.A. or Juror D.K. Because those examinations are central to my analysis, I discuss them at greater length.
¶48 During voir dire, Juror C.A. volunteered that he had “done quite a bit of work” for the victim and his family and that he had “gotten along great with them for years and years.” The following exchange then occurred with defense counsel:
[Defense Counsel]: . . . Due to these business relationships you‘ve had with the alleged victim in this case, do you feel it would be difficult for you to render an impartial verdict?
[Juror C.A.]: I can‘t say that. I really can‘t. I‘d like to say no. I‘d like to say no, but I don‘t know.
[Defense Counsel]: So what are you saying? Are you saying, yes, you can render an impartial [verdict] or no you can‘t?
[Juror C.A.]: It‘s something that sits there. I know the people. I really do. I don‘t know the defendant here.
[Defense Counsel]: Do you think you may be doing business with them in the future?
[Juror C.A.]: Possibly with the dad. I work out in that area, out in Questa. And I come through there, and I do stop and visit with [the victim‘s father] every once in a while. If he‘s got something that‘s out of whack on his pivots, I go and take care of it for him. I don‘t know.
[Defense Counsel]: Your Honor, I‘m going to ask the same thing of [Juror C.A.]. He stated he has a business relationship with the—[the victim] and his family and may be having business in the future; and in the back of his mind, that may make him where he‘s not completely unbiased or prejudiced in making an ultimate determination.
THE COURT: Sir, can you evaluate his testimony just the same as the testimony of all the other witnesses?
[Juror C.A.]: His you‘re talking about?
THE COURT: [The victim‘s]. Can you evaluate his testimony just like all the other witnesses who will testify in this case?
[Juror C.A.]: I think I could.
THE COURT: Challenge for cause is denied.
¶49 Ultimately, Juror C.A. served as the jury‘s foreperson.
¶51 Juror D.K. then observed, “My tendency is for my heart to be in favor of the defendant,” and he said that he would “like to let [the defendant] off.” He added, however, by way of explanation, “I would like to think the best of most people,” including the police in Conejos County, many of whom he thought were “really nice guys.” When the prosecution then asked whether his foregoing comments meant that he was predisposed to acquit Vigil, he answered, “I‘m predisposed to let him or his mouthpiece have their say.” Having already exhausted its allotted peremptory challenges, the prosecution challenged Juror D.K. for cause.
¶52 The court then allowed defense counsel to question Juror D.K., and counsel asked him if he could reach a verdict based solely on the evidence presented and the court‘s instructions. Juror D.K. responded, “Yes, I believe so. I take this
No. I wouldn‘t think so. Again, I take this seriously. It‘s a responsibility. If a person has done something which society believes merits retribution, then that person should be punished; but I don‘t want to just throw somebody to the dogs unless I‘m sure that that person deserves the punishment.
¶53 Defense counsel followed up by asking if Juror D.K. meant that it would be unfair not to afford Vigil the presumption of innocence. D.K. responded, “This is the United States. You are presumed innocent until you‘re found guilty.” He added, however, that although he is a forgiving person, some things should not be forgiven, including “murder, rape, incest, thievery, assault, et cetera, et cetera.”
¶54 Based on this colloquy, defense counsel passed Juror D.K. for cause. The court, however, granted the prosecution‘s challenge.
II. Analysis
¶55 I begin by setting forth the law applicable to challenges for cause. I then address the trial court‘s rulings on the challenges for cause to Jurors C.A. and D.K., and I conclude that the court abused its discretion in denying Vigil‘s challenge to Juror C.A. and in granting the prosecution‘s challenge to Juror D.K. I end by addressing the issue of prejudice, and I conclude that (1) because Juror C.A. sat on the jury, reversal is required and (2) the majority‘s test for prejudice renders it all
A. Law Regarding Challenges for Cause
¶56 A fair trial is a basic requirement of due process, and the right to challenge a juror for cause is an integral part of a fair trial. People v. Macrander, 828 P.2d 234, 238 (Colo. 1992), overruled on other grounds by People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194, 1203. To ensure a defendant‘s right to a fair trial with an impartial jury, a trial court must excuse biased or prejudiced persons from the jury. Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). This requirement is codified in
¶57 Specifically, a trial court must grant a challenge for cause if, among other things, a prospective juror is unwilling or unable to accept the basic principles of criminal law and render a fair and impartial verdict based on the evidence admitted at trial and the court‘s instructions. Morrison, 19 P.3d at 672. Similarly, if the trial court has genuine doubt about the prospective juror‘s ability to be impartial, it should ordinarily resolve the doubt by sustaining the challenge. People v. Russo, 713 P.2d 356, 362 (Colo. 1986).
¶58 Conversely,
no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.
¶59 When reviewing a trial court‘s denial of a challenge for cause, we review the entire voir dire at issue to place the prospective juror‘s statements in context, and we review the trial court‘s ruling on a challenge for cause for an abuse of discretion. People v. Young, 16 P.3d 821, 824 (Colo. 2001). The abuse of discretion standard gives deference to the trial court‘s credibility assessment of a prospective juror‘s responses, recognizes the trial court‘s unique role and perspective in evaluating the demeanor and body language of live witnesses, and serves to discourage an appellate court from “second-guessing those judgments based on a cold record.” Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999). Despite the wide discretion afforded trial courts, however, appellate courts must not “abdicate their responsibility to ensure that the requirements of fairness are fulfilled.” Morgan v. People, 624 P.2d 1331, 1332 (Colo. 1981).
¶60 Applying these principles, appellate courts in this state have concluded that reversible error occurs when a trial court denies a challenge for cause to a prospective juror who expresses doubt as to his or her ability to be impartial and
B. Juror C.A.
¶61 In light of the foregoing principles, I would conclude that the trial court abused its discretion in denying Vigil‘s challenge for cause as to Juror C.A.
¶62 As noted above, Juror C.A. consistently expressed doubt as to his ability to render an impartial verdict, given his long (“years and years“) and “great” relationship with the victim‘s family. Specifically, when asked directly whether it would be difficult for him to render an impartial verdict, he responded, “I‘d like to say no, but I don‘t know.” He added, “It‘s something that sits there. I know the
¶63 Neither the trial court nor the prosecution asked Juror C.A. directly whether, despite his relationship with the victim‘s family, he could render an impartial verdict and follow the court‘s instructions. The court merely asked, generally and without reference to Juror C.A.‘s expression of doubt as to whether he could be fair, whether Juror C.A. could evaluate the victim‘s testimony just like all of the other witnesses. Although Juror C.A. responded, “I think I could,” this response did not resolve his consistent expressions of doubt as to whether he could render an impartial verdict, and he never expressed a belief that he could—or that he would try to—do so. To the contrary, his statement that he did not know whether he could render an impartial verdict stood unrebutted, even after he responded to the court‘s single question to him.
¶64 In these circumstances, I would conclude that the trial court abused its discretion in denying Vigil‘s challenge for cause as to Juror C.A. See Gurule, 628 P.2d at 103; Morgan, 624 P.2d at 1332; Luman, 994 P.2d at 436. Although I recognize and respect trial courts’ broad discretion regarding challenges for cause, I am also mindful of our obligation as appellate judges not to abdicate our responsibility to ensure that the requirements of fairness are fulfilled. Morgan, 624 P.2d at 1332. I believe that this case requires our intervention.
¶65 Applying the above-described legal principles, I would further conclude that the trial court abused its discretion in granting the prosecution‘s challenge for cause as to Juror D.K.
¶66 In contrast to Juror C.A., Juror D.K. repeatedly and consistently provided assurances that he took his obligations as a juror seriously, that he could reach a verdict solely based on the evidence and the court‘s instructions, and that he understood the presumption of innocence. He even stated that he believed that crimes like “thievery,” which was the type of charge that Vigil was facing, should not be forgiven.
¶67 Nor do I perceive anything in Juror D.K.‘s responses indicating a bias against either the prosecution or law enforcement. Juror D.K. did no more than recognize that police officers, like all other witnesses, are sometimes right and sometimes wrong, and he committed to assess their credibility based on the evidence. I perceive little difference between these statements and Juror C.A.‘s statement that he thought he could evaluate the victim‘s testimony like that of all of the other witnesses, which statement precipitated the trial court‘s decision to deny Vigil‘s challenge for cause as to Juror C.A.
¶68 On these facts, although the prosecution may well have wished to exercise a peremptory challenge had it had any remaining, I perceive no legitimate basis
D. Prejudice
¶69 Having thus concluded that the trial court abused its discretion in denying Vigil‘s challenge for cause as to Juror C.A. and in granting the prosecution‘s challenge for cause as to Juror D.K., the question remains whether either of these errors prejudiced Vigil so as to require a new trial.
¶70 As to Juror C.A., the majority does not address the question of prejudice because it perceived no abuse of discretion in the denial of the challenge for cause. For the reasons set forth above, I believe that the trial court did abuse its discretion, and the prejudice here is manifest. Not only did a biased juror (i.e., Juror C.A.) sit, despite Vigil‘s well-founded effort to strike him for cause, but also he served as the jury foreperson. Accordingly, I believe that Vigil is entitled to a new trial.
¶71 Although the foregoing is sufficient to end my analysis, I feel compelled to address the majority‘s recitation of the test for prejudice regarding the erroneous grant of the prosecution‘s challenge for cause as to Juror D.K.
¶72 With respect to Juror D.K., the majority concludes that whether the trial court‘s ruling amounted to an abuse of discretion or not, Vigil suffered no prejudice because (1) Juror D.K. did not sit in judgment of the case and therefore the court‘s ruling could not have deprived Vigil of a fair and impartial jury and
¶73 After the court‘s decision today, when a defendant‘s challenge for cause is improperly denied, he or she must exercise a peremptory challenge to excuse the biased juror (or risk an appellate court‘s finding that he or she waived or invited error in allowing the biased juror to sit), and once this is done, the defendant apparently can establish prejudice only by showing that a second, independent error, namely, the seating of a different biased juror, also occurred. I perceive no basis for conflating the prejudice resulting from one error with the merits of a second, independent error. Indeed, as Vigil points out, if that were the test, then the initial error would become a moot point because a new trial would be required based on the second, independent error. I am aware of no other area of law in which prejudice is assessed in this manner.
¶75 In both cases, we determine first whether an error occurred. If it did, then we must determine, pursuant to a case-specific analysis, whether, applying the proper standard, the error impacted the proceedings. We do not, however, assess prejudice by reference to a different and independent error.
¶76 In contrast to the foregoing circumstance in which a defendant‘s challenge for cause is erroneously denied (and in which proof of prejudice is nearly impossible), under the majority‘s reasoning, when a prosecutor‘s challenge for cause is improperly granted, then a defendant literally can never prove prejudice (absent, perhaps, evidence of bad faith). This is because, by definition, the improperly removed juror would never have sat in judgment of the case and therefore the trial court‘s erroneous ruling could not have deprived the defendant
¶77 In light of the foregoing, the analytical regime for prejudice that the majority establishes in this case seems to result in a “heads I win, tails you lose” framework in favor of the prosecution. Under this framework, a defendant essentially can never establish prejudice, either from the erroneous denial of a defense challenge for cause or the erroneous grant of a prosecution challenge for cause.
¶78 Moreover, such a regime incentivizes prosecutors to challenge every debatable juror for cause because such challenges have no downside, given that erroneously granted challenges for cause have no consequences (and only a potential benefit) to the prosecution. This, in turn, effectively affords prosecutors a substantial voice in deciding the composition of a jury, while, at the same time, the majority‘s opinion makes clear that criminal defendants have no right to such a voice.
¶79 In my view, such a result creates an unlevel playing field. In addition, the majority‘s framework confirms Justice‘s Hood‘s observation in his partial dissenting opinion in People v. Novotny, 2014 CO 18, ¶ 31, 320 P.3d 1194, 1204 (Hood, J., concurring in part and dissenting in part), that Novotny has moved us from a regime of automatic reversal in cases involving erroneously denied
III. Conclusion
¶80 For the foregoing reasons, I would conclude that the trial court abused its discretion in denying Vigil‘s challenge for cause as to Juror C.A. and in granting the prosecution‘s challenge for cause as to Juror D.K. Because Juror C.A. then sat on the jury, I would conclude that Vigil is entitled to a new trial.
¶81 Accordingly, I would reverse the judgment of the division below, and therefore, I respectfully dissent.