County District Court No. 13CR3497 Honorable Thomas R. Ensor,
Cynthia H. Coffman, Attorney General, Paul E. Koehler, First
Assistant Attorney General, Denver, Colorado, for
M. Mooney, Alternate Defense Counsel, Denver, Colorado, for
, J., specially concurs.
1 Gary Val Richardson appeals the judgment of conviction
entered on jury verdicts finding him guilty of possession of
a controlled substance, violation of bail bond conditions,
attempted second degree assault, and attempted third degree
assault. Richardson's appeal presents this novel question
in Colorado: Is it reversible error for a judge to preside
over a case in which his spouse is in the venire and to allow
his spouse to remain on the jury? While we cannot endorse the
judge's decision here, even assuming error we affirm
because Richardson can show no prejudice resulting from this
2 An attempt by three Adams County sheriff's deputies to
serve Richardson with an arrest warrant led to a police
standoff. The standoff ended when officers deployed tear gas
into the basement crawl space where Richardson was hiding and
Richardson fired a gun at the police.
3 After Richardson was extracted from the crawl space, he was
arrested and taken to jail. While he was changing into jail
clothing, a vial containing a white, crystalline substance -
later confirmed to be methamphetamine - fell to the floor at
4 Richardson was ultimately charged, as a habitual criminal,
with possession of a controlled substance, violation of bail
bond conditions, five counts of attempted second degree
assault or attempted third degree assault, and possession of
a weapon by a previous offender. The jury found him guilty of
most of the charges (including two counts of attempted second
degree assault and three counts of attempted third degree
assault), but acquitted him of possession of a weapon by a
previous offender. Richardson was then sentenced to an
effective term of sixteen years in the Department of
5 Richardson raises five arguments on appeal: (1) there was
insufficient evidence to convict him of attempted second
degree assault or attempted third degree assault; (2) the
presiding judge erred by allowing his spouse to sit on the
jury; (3) the court violated his equal protection rights in
denying a Batson v. Kentucky, 476 U.S. 79 (1986),
challenge (to different prospective jurors) as untimely; (4)
the court erred by admitting hand-drawn diagrams of the
alleged crime scene; and (5) the court erred by allowing a
witness to testify as an expert without being qualified as
such, despite the court's earlier ruling that the witness
must be qualified as an expert to testify. We address these
arguments in turn.
Sufficiency of the Evidence
6 Richardson argues that there was insufficient evidence to
support his convictions for attempted second degree assault
and attempted third degree assault. We disagree.
7 Adams County sheriff's deputies and a K-9 dog arrived
at Richardson and his daughter's residence. With the
daughter's permission, three officers entered the house
and - following three announcements of their presence by one
officer - sent the K-9 to search the basement. The K-9 did
not indicate that there was a person at the bottom of the
stairs, so the officers descended into the east side of the
8 From the bottom of the stairs, the officers observed a
water heater and furnace to their left. A sheet hung behind
the furnace. Through an opening in the sheet, they saw a bed
in the northwest corner of the basement (to their right). The
K-9 was directed to search again. As the K-9 approached the
opening in the sheet, the officers heard a sound they
identified as a loud gunshot. The officer handling the K-9
noted that the K-9 responded to the sound the same way he did
to gunshots at the gun range - he hunkered down with his ears
down. A male voice from behind the sheet then said,
"Fuck you. Send that dog in here and I'll kill it
and you're going to kill me."
9 The officers called for backup, and members of the Commerce
City Special Weapons and Tactical (SWAT) team arrived to
extract Richardson from the basement. Richardson proceeded to
engage five members of the SWAT team in a five-to-six-hour
10 Over the course of the standoff, the SWAT team fired
multiple rounds of tear gas into the crawl space (at the
southwest corner of the basement) where Richardson had
barricaded himself. After firing the initial rounds of tear
gas, the SWAT team members heard a sound they believed to be
a muffled gunshot. Richardson still refused to leave the
crawl space - allegedly making comments such as "[w]hy
don't you mother fuckers come in and get me,"
"I'm coming out," "[g]ive me some
cigarettes," and "I want my phone." Several
more rounds of tear gas were deployed into the crawl space
before Richardson surrendered.
Preservation and Standard of Review
11 Defense counsel moved for a judgment of acquittal on the
attempted assault charges. The court granted the motion on
the charges concerning the first three alleged victims - the
Adams County sheriff's deputies - but denied the motion
for the remaining five alleged victims - the SWAT team
12 Although the People suggest that the trial court erred
when it granted the motion of acquittal as to the first three
officers, they have not cross-appealed and that ruling is not
before us. However, Richardson contends that given the
acquittal on those charges, he should have been acquitted on
the remaining charges. We are not convinced.
13 "We review de novo whether the evidence is sufficient
to support a conviction." People v. Randell,
2012 COA 108, ¶ 29. In evaluating the sufficiency of the
evidence, we must determine whether a rational fact finder
might accept the evidence, taken as a whole and in the light
most favorable to the prosecution, as sufficient to support a
finding of the defendant's guilt beyond a reasonable
doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.
1999); Randell, ¶ 31. Our inquiry is guided by
five well-established principles: (1) we give the prosecution
the benefit of every reasonable inference that might fairly
be drawn from the evidence; (2) the credibility of witnesses
is solely within the jury's province; (3) we may not
serve as a thirteenth juror to determine the weight of the
evidence; (4) a modicum of relevant evidence will not
rationally support a conviction beyond a reasonable doubt;
and (5) verdicts in criminal cases may not be based on
guessing, speculation, or conjecture. Sprouse, 983
P.2d at 778; Randell, ¶ 31.
14 The record evidence was sufficient for the jury to
conclude that Richardson attempted second and third degree
assault against the SWAT team members.
15 A person commits attempted second degree assault if, with
intent to cause bodily injury to another person, he attempts
to cause such injury to any person by means of a deadly
weapon. § 18-2-101(1), C.R.S. 2017; §
18-3-203(1)(b), C.R.S. 2017.
16 A person commits attempted third degree assault if, with
criminal negligence, he attempts to cause bodily injury to
another person by means of a deadly weapon. §
18-2-101(1); § 18-3-204(1)(a), C.R.S. 2017.
17 The following evidence was presented to the jury:
• The SWAT team members were familiar with the sound of
gunshots - several had experience as firearms instructors or
snipers, and they spent significant time training at gun
• The SWAT team members testified that the tear gas
launcher discharging does not sound like a handgun
• After the initial rounds of tear gas were deployed
into the crawl space, several of the officers heard a sound
that they identified as "a gunshot from the crawl
space," "a muffled gunshot," "a muffled
pop which I believed to be a partial gunshot,"
"what I believe was a gunshot," and "what I
thought was a muffled gunshot. It's a very distinct sound
• One officer saw the insulation around the crawl space
move just after he heard the alleged gunshot.
• One officer testified he heard a team member yell,
"That was a shot."
• The officers initially wondered if Richardson had
self-inflicted a gunshot wound until they heard him coughing.
• An officer - located across from the crawl space
behind the bed in the basement - heard what he identified as
a bullet impact the wall to the left of him after he heard
the alleged gunshot.
• The same officer heard Richardson yell something to
the effect of "I shot at you" or "The shot
came out towards you."
• The SWAT team members checked with each other to
confirm a bullet had not ricocheted or hit someone.
• After Richardson was arrested, one of the officers
searched the crawl space and found a small semiautomatic
handgun - later identified as a .380 - and a single shell
• The recovered gun, which had a capacity of five rounds
in the magazine plus one round chambered, had three rounds in
the magazine and one round chambered.
• The gun was capable of firing, and the recovered shell
had been fired from the recovered gun.
18 This evidence was sufficient for the jury to conclude that
(1) a second shot was fired when five members of the SWAT
team were in the basement and (2) the shot was directed at
19 Richardson stresses that recovering only one shell casing
means the evidence was insufficient to support a finding that
two shots were fired in the basement. But, on review we do
not sit as a thirteenth juror, Sprouse, 983 P.2d at
778, and it is the function of the fact finder alone "to
consider and determine the weight to be given to the evidence
and to resolve conflicts, inconsistencies, and disputes in
the evidence," People v. Liggett, 114 P.3d 85,
89 (Colo.App. 2005), affd, 135 P.3d 725 (Colo.
2006). The photographs of the basement presented to the jury
show that the basement was cluttered; the jury could
reasonably have concluded that a second shell casing was lost
among the disorder, and thus resolve this asserted
discrepancy in the evidence.
20 The jury could reasonably have concluded that
Richardson attempted second degree assault or attempted third
degree assault because firing at the officers would
constitute a substantial step toward the commission of either
offense. § 18-2-101(1) (Criminal attempt is defined as
"engag[ing] in conduct constituting a substantial step
toward the commission of [an] offense. A substantial step is
any conduct . . . which is strongly corroborative of the
firmness of the actor's purpose to complete the
commission of the offense.").
21 The recovered gun in the crawl space allowed the jury to
reasonably conclude that Richardson was armed with a deadly
22 There was also sufficient evidence - the comment "I
shot at you," and the timing of the shot after tear gas
was deployed - to conclude that Richardson fired at the
officers, evidencing an intent to cause bodily injury.
See § 18-2-101(1); § 18-3-203(1)(b);
see also People v. Phillips, 219 P.3d 798, 800
(Colo.App. 2009) ("If there is evidence upon which the
jury may reasonably infer an element of the crime, the
evidence is sufficient to sustain that element.").
23 The evidence was also sufficient to conclude that
Richardson acted with criminal negligence because he fired a
gun in a small space where a bullet would likely cause
injury. See § 18-2-101(1); §
24 Thus, we reject Richardson's argument that the
evidence was insufficient to support his convictions for
attempted second degree assault and attempted third degree
Judge's Spouse Serving on the Jury
25 We now turn to the novel question in Richardson's
appeal: Is it reversible error for a judge to preside over a
case in which his spouse was in the venire and to allow his
spouse to remain on the jury? Richardson argues that the
judge had a responsibility to dismiss his spouse - or recuse
himself from the case - sua sponte given his counsel's
failure to object. Even assuming there was error, and
recognizing that the trial judge had other options available
in this situation, we affirm.
26 The People argue that Richardson abandoned this argument
because no objection was raised during trial and Richardson
did not use any challenges on the judge's spouse. The
partial dissent suggests that the judge preserved the issue
for review by bringing the issue of his wife being in the
venire to the attention of the parties. But, it is the
responsibility of the litigants - not the judge - to preserve
issues for review. See People v. Cordova, 293 P.3d
114, 120 (Colo.App. 2011) ("To preserve an issue for
appeal, a defendant must alert the trial court to the
particular issue. This is so because 'the judge must
largely rely upon the parties to research and raise issues,
and giving the judge the wrong reason for a request is
usually equivalent to giving the judge no reason at
all.'") (citations omitted).
27 Whether a defendant waived or forfeited a right is a
question of law we review de novo. See Stackhouse v.
People, 2015 CO 48, ¶ 4. Allowing a defendant to
stand silent and then protest an adverse verdict on that
basis can "encourage gamesmanship" or allow a
windfall for the defendant. Id. at ¶ 16.
28 There is a difference between waiver and forfeiture.
United States v. Olano, 507 U.S. 725, 733 (1993);
see People v. Lopez, 129 P.3d 1061, 1065 (Colo.App.
2005). Waiver is the "intentional relinquishment or
abandonment of a known right," while "forfeiture is
the failure to make the timely assertion of a right."
Olano, 507 U.S. at 733 (citation omitted); see
also People v. Rediger, 2018 CO 32,
29 Although the judge and counsel were clearly aware the
judge's spouse was in the venire and a member of the
selected jury panel, we conclude that Richardson did not
timely and properly alert the trial court that he objected to
the judge's spouse serving on the jury. Before voir dire,
the judge said, "Be nice to Juror 25. My dinner is on
the line." During voir dire, the prosecutor spoke to the
judge's spouse, Juror 25, but neither party voiced a
problem with her serving or otherwise challenged her. When
the parties were exercising their peremptory challenges, the
judge said, "[Juror 25]? We have the defendant's
fifth peremptory challenge to the panel. I need you to make a
call." In response, the defense excused a different
juror, thus forgoing his opportunity to remove Juror 25.
30 After the jury was sworn and dismissed for a break, the
following dialogue occurred:
[Judge]: Quite frankly, I don't know that I've ever
heard of a sitting judge having a spouse or family member on
the jury. There's nothing wrong with it. I think
she'll be a fine juror. I have not spoken to her about
[Defense Counsel]: I think we're both afraid to challenge
[Judge]: That wasn't a stupid idea. Thank you. I
[Defense Counsel]: Thank you.
defense counsel indicated - after the jury was sworn - that
he was afraid to directly challenge the judge's wife,
counsel did not sufficiently raise a timely objection.
31 Whether a defendant is entitled to a jury free of the
presiding judge's spouse is a novel question in Colorado.
And, it is unclear if that is a right that a defendant or his
counsel can affirmatively waive. Crim. P. 24(b)(2) (providing
that, generally, the parties waive all matters relating to
the qualification and competency of prospective jurors by not
raising the issues prior to the jury being sworn in, but
exceptions may apply); see Olano, 507 U.S. at 733;
Stackhouse, ¶ 15 ("[O]nly a select few
rights are so important as to require knowing, voluntary, and
intelligent waiver to be personally executed by the
defendant."); cf. People v. Bowens, 943 N.E.2d
1249, 1258 (Ill.App.Ct. 2011) ("These circumstances
compel the conclusion that defendant's decision not to
peremptorily remove [the judge's spouse] was an
affirmative acquiescence to [the spouse's] jury service,
which thereby constitutes a waiver of this issue on
appeal."). Even assuming error, because Richardson
failed to make a timely objection, we conclude he at least
forfeited the right. See Olano, 507 U.S. at 733;
see also Weaver v. Massachusetts, 582
U.S.__, __, 137 S.Ct. 1899, 1912-13 (2017) (deciding that
constitutional error, even a structural error, can be
forfeited and waived).
32 Forfeited errors can be reviewed on appeal for plain
error. See Rediger, ¶ 40; see also
Stackhouse, ¶ 27 (Márquez, J., dissenting)
("Yet, if a legal rule is violated during trial,
'and if the defendant did not waive the rule, then there
has been an "error" . . . despite the absence of a
timely objection.'" (quoting Olano, 507
U.S. at 733-34)).
Standard of Review
33 Before addressing the merits of Richardson's argument,
the first question is whether this was structural error
requiring automatic reversal or plain error. While it may
have been preferable for the trial judge to excuse his spouse
from jury service or to recuse himself, because counsel chose
not to challenge her or otherwise seek relief, we cannot say
- based on this record - that either decision constitutes
structural error. Given Richardson's failure to point to
prejudice resulting from the spouse's jury service, we
conclude that the judge's conduct here did not amount to
34 Structural errors require reversal, regardless of whether
the error affected the judgment of conviction. Hagos v.
People, 2012 CO 63, ¶ 10. Examples of these errors
in Colorado include "complete deprivation of counsel,
trial before a biased judge, unlawful exclusion of members of
the defendant's race from a grand jury, denial of the
right to ...