City and County of Denver District Court No. 08CR25 Honorable Christina M. Habas, Judge
John W. Suthers, Attorney General, Rebecca A. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Joffe Law Firm, Danyel S. Joffe, Denver, Colorado, for Defendant-Appellant
¶ 1 On remand from the Colorado Supreme Court, we review our previous holding reversing Defendant Max Anthony Maestas's criminal convictions in light of our supreme court's recent decision in People v. Novotny, 2014 CO 18. We reverse the convictions and remand the case for a new trial.
I. Procedural Background
¶ 2 A jury found Maestas guilty of aggravated robbery, menacing, and eluding police. Maestas appealed, arguing that the trial court had erred by denying his challenges for cause to two prospective jurors and by denying his request for new counsel. See People v. Maestas, (Colo.App. No. 09CA2144, Sept. 13, 2012) (not published pursuant to C.A.R. 35(f)) (Maestas I). A division of this court determined that the trial court had indeed erred by denying one of Maestas's for-cause challenges. Id. Applying then-applicable Colorado Supreme Court precedent, the division overturned Maestas's conviction and remanded the case for a new trial. Id. The division did not address Maestas's other claims of error.
¶ 3 The reversal was based on the rule announced in People v. Macrander, 828 P.2d 234 (Colo. 1992). Macrander held that a criminal defendant is entitled to automatic reversal of his convictions where, as here, a jury found the defendant guilty after (1) the trial court erroneously denied a challenge for cause to a prospective juror; (2) the defendant used a peremptory challenge to excuse that prospective juror; and (3) the defendant ultimately used all of his peremptory challenges. See id. at 244. In that situation, the Macrander court reasoned, the trial court's erroneous ruling deprives the defendant of the number of peremptory challenges guaranteed by statute, impairing his ability to control the composition of the jury. Id. at 246.
¶ 4 After the division announced its decision in Maestas I, the prosecution petitioned for a writ of certiorari to the Colorado Supreme Court. While the petition was pending, the supreme court decided Novotny, in which the court overturned Macrander's automatic reversal rule. Novotny held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not "harmless under the proper outcome-determinative test." ¶ 27. The supreme court granted the prosecution's petition in this case, vacated the division's decision in Maestas I, and remanded the case to this court "for reconsideration in light of People v. Novotny." People v. Maestas, No. 12SC708, 2014 WL 1464530 (Colo. Apr. 14, 2014) (unpublished order).
¶ 5 On remand, we ordered the parties to provide supplemental briefing concerning Novotny's applicability to this case. Having read and considered Novotny, the record in this case, the parties' original briefs, and their supplemental briefs, we reverse Maestas's convictions and remand the case for a new trial.
II. Novotny Applies Here
¶ 6 We first address Maestas's contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Another division of this court recently concluded, in People v. Wise, 2014 COA 83, that applying the holding of Novotny to a pending appeal such as this does not offend due process. Wise, ¶¶ 7-16. The division first explained that applying Novotny to a case pending on appeal is likely not a retroactive application of the law:
The holding in Novotny does not affect the process for challenging prospective jurors for cause, the standards applicable to the determination of any such challenge, or any matter relevant to the use of peremptory challenges. Nor does it make criminal that which was not, alter any burden of proof, affect the admissibility or weight of evidence, or enhance a defendant's punishment.
Id. at ¶ 11 (citing Novotny, ¶ 25). Moreover, the Wise division explained, even assuming that applying Novotny would be a retroactive application of a change in the law, criminal defendants charged in recent years had fair warning of the change. See id. At ¶¶ 13-16. Thus, the division concluded, applying Novotny to cases that were pending on appeal at the time that case was decided does not offend due ...