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People v. Novotny

Supreme Court of Colorado, En Banc

March 17, 2014

The People of the State of Colorado, Petitioner
v.
Martin Novotny., Respondent The People of the State of Colorado, Petitioner
v.
Edward Arthur Vigil, Respondent

Page 1195

Certiorari to the Colorado Court of Appeals. Colorado Court of Appeals Case No. 08CA1748. Certiorari to the Colorado Court of Appeals. Colorado Court of Appeals Case No. 08CA1748.

Judgments Reversed.

SYLLABUS

The People petitioned for review of the court of appeals judgments reversing convictions in People v. Novotny, No. 06CA2204, ___ P.3d ___, (Colo. App. Mar. 18, 2010), and People v. Vigil, No. 08CA1748, (Colo. App. May 12, 2011) (not published pursuant to C.A.R. 35(f)). In each case, the intermediate appellate court applied a rule requiring automatic reversal as the remedy for any erroneous ruling on a challenge for cause adversely impacting the defendant's ability to shape the jury through peremptory challenges. In the former case, the district court denied a defense challenge to an assistant attorney general, on grounds that he was employed by a law enforcement agency, in response to which the defendant removed the prospective juror with a peremptory challenge and ultimately exercised all of his peremptory challenges. In the latter case, the district court granted a prosecution challenge for cause on grounds of bias, with the effect that the prosecution was able to exercise all of its peremptory challenges on other prospective jurors.

The supreme court overruled its prior holdings to the contrary and concluded in this consolidated opinion that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained; and further, that allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, does not, in and of itself, amount to structural error. The supreme court therefore reversed the judgments of the court of appeals and remanded the cases for the court of appeals to consider whether the error in each case was harmless under the proper outcome-determinative test.

For Petitioner: John W. Suthers, Attorney General, Rebecca A. Jones, Senior Assistant Attorney General, Denver, Colorado.

For Martin Novotny, Respondent: Douglas K. Wilson, Public Defender, Karen Mahlman Gerash, Deputy Public Defender, Denver, Colorado.

For Edward Arthur Vigil, Respondent: Douglas K. Wilson, Public Defender, Michael C. Mattis, Deputy Public Defender, Denver, Colorado.

JUSTICE COATS delivered the Opinion of the Court. JUSTICE HOOD concurs in part and dissents in part, and JUSTICE HOBBS joins in the concurrence in part and the dissent in part.

OPINION

Page 1196

COATS, JUSTICE.

[¶1] The People petitioned for review of the court of appeals judgments reversing convictions in People v. Novotny, No. 06CA2204, ___ P.3d ___, (Colo. App. Mar. 18, 2010), and People v. Vigil, No. 08CA1748, (Colo. App. May 12, 2011) (not published pursuant to C.A.R. 35(f)). In each case, the intermediate appellate court applied a rule requiring automatic reversal as the remedy for any erroneous ruling on a challenge for cause adversely impacting the defendant's ability to shape the jury through peremptory challenges. In the former case, the district court denied a defense challenge to an assistant attorney general, on grounds that he was employed by a law enforcement agency, in response to which the defendant removed the prospective juror with a peremptory challenge and ultimately exercised all of his peremptory challenges. In the latter case, the district court granted a prosecution challenge for cause on grounds of bias, with the effect that the prosecution was able to exercise all of its peremptory challenges on other prospective jurors.

[¶2] Today we overrule our prior holdings to the contrary and conclude in this consolidated opinion that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained; and further, that allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, does not, in and of itself, amount to structural error. The judgments of the court of appeals in these two cases are therefore reversed.

I.

[¶3] Martin Novotny was convicted of first degree murder and first degree burglary in connection with the death of his ex-girlfriend, and he was sentenced to life imprisonment without parole. He appealed his convictions to the court of appeals, contending among other things, that the district court had erroneously denied his challenge for cause to an assistant attorney general, thereby forcing him to expend one of his peremptory challenges to prevent that individual from sitting on the jury.

[¶4] Edward Arthur Vigil was convicted of sexual assault on a child by one in a position of trust, as well as a separate offense of sexual assault on a child by one in a position of trust committed as part of a pattern of abuse, for abusing a teenage girl while she was a resident at the treatment facility where he worked. He was sentenced to concurrent, indeterminate terms of imprisonment of 15 years to life and 10 years to life. Vigil appealed his convictions to the court of appeals, contending that the district court erroneously granted two of the prosecution's challenges for cause, thereby effectively permitting the prosecution to exercise more peremptory challenges than authorized by statute and more than allowed of the defense.

[¶5] In each case, the respective division of the court of appeals agreed with the defendant that the district court erred in ruling on a challenge for cause, and although the challenged prospective juror in neither case ultimately served on the jury, the defendant in each case was nevertheless disadvantaged by effectively receiving fewer peremptory challenges than authorized or than allowed of, and actually exercised by, the prosecution. In each case, the respective division applied

Page 1197

binding precedent of this court, requiring reversal without consideration of the likely impact of the error on the particular verdict at issue.

[¶6] In both cases, the attorney general petitioned this court on behalf of the People, asking that we revisit the question of remedy for erroneous rulings on challenges for cause and expressly overrule our prior precedents that dictate automatic reversal. In addition, the People sought review of the court of appeals determination that the challenged assistant attorney general in Novotny was a paid employee of a law enforcement agency and therefore should have been removed for cause.

II.

[¶7] 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. Colo. Const. art. II, § 16. As we have noted elsewhere, " [t]he essential features of a jury trial lie in interposing between the accused and the accuser the common sense judgment of lay representatives of the community 'and in the community participation and shared responsibility that results from that group's determination of guilt or innocence.'" City of Aurora v. Rhodes, 689 P.2d 603, 610 (Colo. 1984) (quoting Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1979)). Within constitutional limitations, the legislature determines the qualifications for jury service. People v. White, 242 P.3d 1121, 1124 (Colo. 2010).

[¶8] Section 105 of the Uniform Jury Selection and Service Act, § § 13-71-101 to -145, C.R.S. (2013) (UJSSA), initially defines qualification for jury service in terms of citizenship and either residency or habitation in a particular county, but it then provides a number of specific conditions that will nevertheless disqualify an otherwise qualified prospective juror. Although a prospective juror may therefore be qualified in terms of citizenship and vicinage, he nevertheless " shall be disqualified" for failing to meet a number of other conditions related to such things as his age, facility with the English language, physical or mental capabilities, familial obligations, and prior jury service. See § 13-71-105(2)(a)-(g), C.R.S. (2013). Whether and, if so, precisely how and when disqualification on the basis of any of these conditions must be asserted to avoid waiver has not yet been the subject of express determination by this court. See White, 242 P.3d at 1126; but see § 13-71-140, C.R.S. (2013) ( " The court shall not declare a mistrial or set aside a verdict based upon allegations of any irregularity in selecting, summoning, and managing jurors, . . . or based upon any other defect in any procedure performed under this article unless the moving party objects to such irregularity or defect as soon as possible after its discovery and demonstrates specific injury or prejudice." ).

[¶9] Whether or not it must be raised in a particular manner, however, the absence of any qualification prescribed by statute to render a person competent as a juror is clearly designated cause for removal, on the basis of which a challenge by one of the parties must be sustained. See § 16-10-103(1)(a), C.R.S. (2013). Beyond the actual absence of some statutory qualification, the legislature has designated a number of other grounds that will also support a challenge for cause, generally involving such things as the prospective juror's relationship with the defendant or counsel, any prior adverse relationship with the defendant in a civil or criminal matter, prior juror service or service as a witness in a related matter, the existence of a fiduciary relationship with the defendant or a victim, the existence of enmity or bias toward the defendant, and employment by either a law enforcement agency or the public defender's office. § 16-10-103(1)(a)-(k). Apart from imposing a duty upon jurors to inform the court concerning any ground supporting a challenge for cause of which they are aware, whether asked about it or not, § 16-10-103(2), the statute also provides for the introduction of evidence of the " incompetency, disqualification, or prejudice of any prospective juror" who might otherwise appear to be qualified, competent, and unprejudiced, § 16-10-103(3).

[¶10] In addition to challenges for cause, the legislature has also provided for a specific number of challenges, varying with the

Page 1198

nature of the charge and circumstances of the particular prosecution, to be exercised peremptorily. § 16-10-104, C.R.S. (2013). As the term implies, these challenges may, within constitutional limitations, be exercised without regard to or specification of any reason whatsoever. The statute further directs that such peremptory challenges are to be exercised as provided by applicable rule of criminal procedure. § 16-10-104(2). Rule 24(d) of the Colorado Rules of Criminal Procedure not only provides for the mechanics and timing of exercising peremptory challenges but also purports to permit the trial court to add peremptory challenges to either side, or to both sides, for good cause shown.

A.

[¶11] With regard to Novotny's challenge to the assistant attorney general in his case, a trial court is therefore statutorily required to sustain a proper challenge for cause to a prospective juror who is a compensated employee of a public law enforcement agency. See § 16-10-103(1)(k); see also Crim. P. 24(b)(1)(XII) (similar but omitting the word " compensated" ). On a number of occasions, we have addressed what unit of organization constitutes an employing " agency" for purposes of the statute and rule and, more particularly, when that agency amounts to a " law enforcement" agency. See, e.g., People v. Speer, 255 P.3d 1115 (Colo. 2011); Ma v. People, 121 P.3d 205 (Colo. 2005). Although the assessment of a prospective juror's employing agency may become more complex if he works in a subunit with traditional law enforcement duties operating within a broader organization or department that would not constitute a law enforcement agency, see Speer, 255 P.3d at 1121, the analysis is relatively straightforward with regard to employment with an umbrella organization or department that is itself a law enforcement agency.

[¶12] While we have relied, in part, on the nature and characteristics of those entities designated law enforcement agencies by statute to develop a set of factors to be considered in determining whether particular undesignated public employers may also qualify as law enforcement agencies within the contemplation of the statute, see Ma, 121 P.3d at 211-12, we have never suggested that an entity actually designated a law enforcement agency by statute must additionally be evaluated according to these factors. Quite the contrary, if it were not already obvious, we have made abundantly clear that whenever an employing agency is statutorily designated a law enforcement agency, a challenge to a prospective juror on the basis of his employment must be sustained. Speer, 255 P.3d at 1121 ( " [W]e have interpreted the statutory designation to include not only those agencies specifically identified but also other agencies performing similar functions." (emphasis added)).

[¶13] The office of the state attorney general has been specifically included in a number of different statutory provisions defining the term " law enforcement agency." See, e.g., § 8-47-203.3(2), C.R.S. (2013) (" 'Law enforcement agency' includes . . . the office of the state attorney general . . . ." ); § 8-72-111(2), C.R.S. (2013) (same); § 24-50-127(2)(b), C.R.S. (2013) (same); § 26-1-114(3)(a)(III)(B), C.R.S. (2013) (same). Not only have we never implied that the statutory identification to which we referred should be limited to those entities designated as public law enforcement agencies specifically for purposes of section 16-10-103(1)(k), but we have in fact treated the office of the state attorney general as an archetype of a " law enforcement agency" in express reliance on the aforementioned statutory references. See Speer, 255 P.3d at 1121. Where the prospective juror's employer in this case had been both expressly identified as a law enforcement agency by statute and had been expressly acknowledged by this court in published opinions as a law enforcement agency, the defendant clearly had no obligation to produce additional evidence in support of his challenge. Id. (" Finally, unless a public agency has already been identified as a ...


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