Conejos County District Court No. 10CR72 Honorable Robert W. Ogburn, Judge
Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Nathan Richard Vigil, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree burglary and second degree aggravated motor vehicle theft. In Section V of our opinion, we address an issue of first impression and hold that the trial court did not err in permitting a lay witness to testify to the substantial similarity between shoeprints found in connection with the crime and Vigil's shoes. Because we also conclude that Vigil's other contentions of error do not warrant reversal, we affirm.
¶ 2 In November 2010, Casey Caldon discovered that his truck and other personal property were missing from his farm. The other missing property included a motorcycle, flat-screen television, DVD player, and stereo. The truck had been parked in the third bay of a "lean-to, " a "shed that's up against" a shop on the farm (the south shop). The motorcycle had been inside a different shop (the north shop). The television and DVD player had been in a trailer, and the stereo was missing from a tractor. On the same day, Caldon also noticed that a truck resembling his was parked near an establishment in town, the La Jara Trading Post.
¶ 3 Caldon called the sheriff. Sergeant Crown from the Conejos County Sheriff's Department went to the La Jara Trading Post, took photographs of the truck, and confirmed that it was registered to Caldon Farms. Sergeant Crown went to the farm, where he took more photographs, including photographs of shoeprints found in the lean-to. Further investigation revealed that the shoeprints appeared to match shoes worn by Vigil when he was later arrested in connection with a different case in neighboring Alamosa County.
¶ 4 The investigation also revealed that, three days earlier, other witnesses had seen Vigil in possession of Caldon's truck. The truck had broken down, and one of these witnesses helped Vigil tow it to the La Jara Trading Post.
¶ 5 Vigil was charged with first degree aggravated motor vehicle theft, second degree burglary, theft, and attempt to commit second degree burglary. The attempted burglary count was later dismissed. A jury convicted Vigil of the lesser included offense of second degree aggravated motor vehicle theft and second degree burglary but acquitted him of theft. The jury also found that the value of the truck was in the range of $1000 to $20, 000. This appeal followed.
II. Juror C.A. and Prospective Juror D.K.
¶ 6 Vigil contends that the trial court reversibly erred when it denied his challenge for cause to Juror C.A. and granted the prosecutor's challenge for cause to prospective Juror D.K. We do not agree.
A. Standard of Review
¶ 7 We review a trial court's decision to grant or deny a challenge for cause for an abuse of discretion. People v. Schmidt, 885 P.2d 312, 314 (Colo.App. 1994). We apply this very deferential standard of review because the trial court is in a unique position to analyze the juror's responses, demeanor, and body language. People v. Young, 16 P.3d 821, 824 (Colo. 2001); Carrillo v. People, 974 P.2d 478, 485-86 (Colo. 1999); see also People v. Harlan, 8 P.3d 448, 464 (Colo. 2000) ("The principle of deference applicable to our review requires us to presume that the trial court's decisions were based on nonverbal communications from jurors that do not appear in the transcript."), overruled on other grounds by People v. Miller, 113 P.3d 743 (Colo. 2005). A trial court abuses its discretion in this context "only if there is no evidence in the record to support its decision." People v. Wilson, 2014 COA 114, ¶ 11. Accordingly, "we do not look to see whether we agree with the trial court"; instead, we consider "whether the trial court's decision fell within the range of reasonable options." Hall v. Moreno, 2012 CO 14, ¶ 54 (internal quotation marks omitted).
B. Juror C.A.
¶ 8 During voir dire, Juror C.A. acknowledged that he had performed "quite a bit of [electrical] work" for the Caldons and had "gotten along great with them for years." Defense counsel asked Juror C.A. whether it would be difficult to render an impartial verdict, and the following exchange occurred:
[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 [Casey Caldon's] dad. . . . I don't know.
[Defense Counsel]: Your honor . . . . He stated that he has a business relationship with the - Mr. Caldon 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 [sic].
[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?
[Court]: [Casey] Caldon'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.
[Court]: Challenge for cause is denied.
Ultimately, Juror C.A. served on the jury as foreperson.
¶ 9 A prospective juror must be disqualified if his or her state of mind evinces enmity or bias toward the defendant or the state, unless the trial court is satisfied that the juror "will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." § 16-10-103(1)(j), C.R.S. 2014; see also People v. Shreck, 107 P.3d 1048, 1057 (Colo.App. 2004). When a prospective juror makes a statement evincing bias, he or she may nonetheless serve if the juror agrees to set aside any preconceived notions and make a decision based on the evidence and the court's instructions. People v. Phillips, 219 P.3d 798, 801 (Colo.App. 2009).
¶ 10 We reiterate that, under the abuse of discretion standard, the question for us is not whether the record would have supported a decision to grant the challenge for cause or whether we would have granted the challenge. See DeBella v. People, 233 P.3d 664, 666 (Colo. 2010) ("It is a long-standing principle of appellate review that an appellate court may not substitute its own judgment for that of the trial court where a matter is committed to the trial court's discretion."). Rather, the question presented is whether the record compelled the trial court to grant the challenge. See Harlan, 8 P.3d at 462 ("In a noncapital case, we will overturn the trial court's resolution of a challenge for cause only if the record presents no basis for supporting it.").
¶ 11 Juror C.A. did not clearly evince bias. Instead, the juror indicated that he could evaluate Caldon's testimony impartially, and the juror gave equivocal or ambiguous answers on the question whether his business relationship with the Caldons would prevent him from rendering an impartial verdict. In these circumstances, our supreme court's decisions in Carrillo and its progeny are especially enlightening. Under those decisions, a trial court is not compelled to grant a challenge for cause where a juror's responses are equivocal and do not articulate a clear expression of bias, as we shall explain.
¶ 12 Carrillo is a seminal case in this area. The supreme court grappled with, and endeavored to clarify, the divergent Colorado case law concerning the standard of review applicable to rulings on challenges for cause. See Carrillo, 974 P.2d at 485. Carrillo emphasized that the abuse of discretion standard is a "very high standard of review" that gives great deference to the trial court's judgments and "serves to discourage an appellate court from second-guessing those judgments based on a cold record." Id. at 485-86. Applying these principles, Carrillo upheld the trial court's denial of a challenge for cause that was based on the juror's relationship with the victim's father. Because the juror's answers to questions about his relationship with the victim's father appeared ambiguous and failed to "articulate a clear expression of bias requiring his dismissal, " the supreme court concluded that the trial court had acted within its discretion when it denied the challenge for cause. Id. at 488.
¶ 13 Similarly, in People v. Lefebre, the supreme court concluded that excusing the jurors for cause was inappropriate where "[t]he record does not establish firmly and clearly that the jurors could not set aside their preconceived beliefs and decide the case based on the evidence and the court's instructions." 5 P.3d 295, 298 (Colo. 2000) (emphasis added), overruled on other grounds by People v. Novotny, 2014 CO 18.
¶ 14 In Young, the supreme court stressed that "[r]eversals on juror challenges . . . should be rare." 16 P.3d at 825. "If the juror's recorded responses are unclear only the trial court can assess accurately the juror's intent from the juror's tone of voice, facial expressions, and general demeanor." Id. at 825-26. Because the record did not show that the challenged juror had "any clear bias against [the defendant] which would make his dismissal from the jury compulsory, " Young affirmed the trial court's denial of the challenge for cause. Id. at 826 (emphasis added); see also Harlan, 8 P.3d at 466 ("The equivocal nature of [the juror's] statements, however, does not allow us to displace the trial court in its role as evaluator of credibility." (internal quotation marks omitted))). According to these authorities, Juror C.A.'s equivocal responses did not require the trial court to excuse him.
¶ 15 Still, Vigil faults the trial court for not asking expressly whether Juror C.A. could render an impartial verdict. Vigil makes a valid point. We agree that it would have been preferable to have asked the juror such a specific follow-up question. We do not agree, however, that the juror's answers taken as a whole revealed any "clear bias" that "would make his dismissal from the jury compulsory." Young, 16 P.3d at 826; see Carrillo, 974 P.2d at 488 ("[A]lthough it would have been better practice for the trial judge to question [the juror] in order to fully explore his feelings, we do not find that the record of [the juror's] answers taken as a whole demonstrates that he had a state of mind evincing bias against Carrillo.").
¶ 16 Juror C.A.'s statement that he would treat Caldon's testimony the same as other witnesses' testimony meant that he would treat Caldon's testimony impartially (i.e., he would not be unduly partial toward Caldon when assessing his testimony). Juror C.A.'s statement that he would treat Caldon's testimony impartially was some evidence that he would render an impartial verdict (i.e., he would not be unduly partial toward Caldon when rendering the verdict).
¶ 17 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. See Carrillo, 974 P.2d at 486.
¶ 18 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. See Wilson, ¶ 11 (A trial court abuses its discretion "only if there is no evidence in the record to support its decision.").
¶ 19 In sum, the record reveals the juror's equivocal implication of bias and his answer to follow-up questioning that suggested that he could render an impartial verdict. Considering these facts, and presuming that the trial court's decision was based on "nonverbal communications" from the juror "that do not appear in the transcript, " Harlan, 8 P.3d at 464, we do not discern an abuse of discretion. See also People v. Vecchiarelli-McLaughlin, 984 P.2d 72, 76 (Colo. 1999) ("[O]nly the trial court had the opportunity to consider this juror's demeanor, including any doubts or convictions he displayed, in making its decision to deny the challenge for cause.").
C. Prospective Juror D.K.
¶ 20 We need not decide whether the trial court erred in granting the prosecutor's challenge for cause to prospective Juror D.K. because the alleged error was harmless.
¶ 21 With respect to an erroneous ruling on a challenge for cause, we will reverse a conviction only if the error is not harmless under an "outcome-determinative test." Novotny, ¶ 27. Thus, reversal is not automatic when a trial court erroneously grants the prosecution's challenge for cause. See Wilson, ¶ 23. Instead, "[t]o show prejudice sufficient to require reversal, the defendant ordinarily must show that a biased or incompetent juror participated in deciding his guilt." Id. (internal ...