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Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 12CA15
Attorneys
for Petitioner: Megan A. Ring, Public Defender, Brian Cox,
Deputy Public Defender, Denver, Colorado
Attorneys
for Respondent: Philip J. Weiser, Attorney General, Carmen
Moraleda, Assistant Attorney General, Denver, Colorado
OPINION
COATS,
CHIEF JUSTICE.
[¶1]
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 Vigils for-cause challenge to Juror C.A. but granted
the prosecutions challenge to Juror D.K. At trial, and over
defense counsels objection, an officer was permitted to
opine without qualification as an expert that Vigils shoes
visually matched shoeprints he photographed at the crime
scene. With regard to Vigils assignments of error concerning
these rulings, the court of appeals concluded that the trial
court had not abused its discretion by denying Vigils
challenge to Juror C.A.; that any error committed in granting
the prosecutions 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.
[¶2]
Because the trial court did not abuse its discretion in
denying Vigils challenge to Juror C.A.; because granting the
prosecutions challenge to prospective Juror D.K., even if it
amounted to an abuse of discretion, did not result in any
violation of Vigils rights; and because the trial court did
not abuse its discretion in admitting the officers testimony
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as lay opinion, the judgment of the court of appeals is
affirmed.
I.
[¶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 Sheriffs
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 Sheriffs Office, the officer examined his
shoes and determined that they "visually matched"
shoeprints on the victims farm.
[¶5]
During voir dire, Juror C.A. indicated that he knew the
victims family and that he might work on the fathers farm
equipment sometime in the future, and he appeared equivocal
as to whether he could render an impartial verdict for these
reasons. The court denied defense counsels challenge for
cause after directly asking C.A. if he could evaluate the
victims testimony "just like all the other witnesses
who will testify," and after receiving C.A.s answer,
"I think I could." The court subsequently granted a
prosecution challenge to prospective Juror D.K. on the ground
that he was biased against the police and prosecution.
Ultimately, both the prosecution and defense exhausted their
allotted number of peremptory challenges, and neither used a
peremptory challenge to strike Juror C.A. nor requested any
additional challenge.
[¶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
Sheriffs Office "visually matched the prints that were
out on the scene."
[¶7]
On appeal, the intermediate appellate court affirmed the
defendants convictions. With regard to the defendants
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 challenges of juror
bias; that any error, had one occurred, in granting the
prosecutions challenge to prospective Juror D.K. was
necessarily harmless; and that the trial court did not abuse
its discretion in admitting lay opinion of shoeprint
comparison.
[¶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. Colo. Const.
art. II, § 16. Within constitutional limitations, the
legislature determines the qualifications for jury service.
People v. White, 242 P.3d 1121, 1124 (Colo. 2010).
[¶10]
Section 105 of the Uniform Jury Selection and Service Act, §
§ 13-71-101 to -145, C.R.S. (2019), 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. § 13-71-105(1), (2), C.R.S. (2019). Although
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a prospective juror may therefore be qualified in terms of
citizenship and vicinage, he nevertheless "shall be
disqualified" for failing to meet any of 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. Id.
[¶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. § 16-10-103(1)(a), C.R.S.
(2019). Beyond the actual absence of some statutory
qualification, however, the legislature has enumerated a
number of other grounds that will also support a challenge
for cause in criminal cases, broadly involving circumstances
implicating a prospective jurors ability to remain
impartial. These circumstances include such things as the
prospective jurors 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, and employment
by either a law enforcement agency or the public defenders
office. § 16-10-103(1)(a)-(k). The detection of actual enmity
or bias toward the defendant or the state is, of course, also
expressly designated cause for removal. § 16-10-103(1)(j).
[¶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. § 16-10-104(1), C.R.S. (2019).
As the term implies, these challenges may, within
constitutional limitations, be exercised without regard for
or specification of any reason whatsoever. The statute
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 the mechanics
and timing for exercising peremptory challenges but also
permits the trial court to add peremptory challenges to
either side, or to both sides, for good cause shown.
[¶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, 120 S.Ct. 774, 145 L.Ed.2d 792 (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
involving an exercise of discretion on the part of the trial
court and therefore a range of permissible judgments about
the ability and willingness of that prospective juror.
See Carrillo v. People, 974 P.2d 478,
485-86 (Colo. 1999). We have previously recognized "the
trial courts unique role and perspective," and the
"preferred position" in which it finds itself, in
evaluating a prospective jurors credibility, demeanor, and
sincerity in explaining his state of mind. Id. at
486 (quoting in part People v. Macrander, 828 P.2d
234, 239 (Colo. 1992), overruled in part by
People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194,
1203). For these reasons, among others, such assessments by a
trial court are subject to a "very high standard of
review," id. at 485-86, meriting a finding that the
court has abused its discretion only if its ultimate ruling
is "manifestly arbitrary, unreasonable, or unfair."
Freedom Colo. Info., Inc. v. El Paso Cty. Sheriffs
Dept, 196 P.3d 892, 899 (Colo. 2008). In determining
whether a trial court has abused its discretion, reviewing
courts have therefore been admonished from considering merely
whether they would have reached the same conclusion and,
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instead, must affirm as long as the trial courts decision
fell within a range of reasonable options. Churchill v.
Univ. of Colo. at Boulder, 2012 CO 54, ¶ 74, 285 P.3d
986, 1008 (quoting E-470 Pub. Highway Auth. v.
Revenig, 140 P.3d 227, 230-31 (Colo.App. 2006)).
[¶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 in a violation of a
criminal defendants right to an impartial jury. Should a
prospective juror be erroneously removed for cause, that
action, in and of itself, will not result in a biased juror
sitting in judgment of the defendant. By the same token, the
defendants right to an impartial jury can be adversely
affected by an erroneous denial of his challenge for cause
only if that juror is not otherwise removed, as by a
different challenge for cause or a challenge exercised
peremptorily.
[¶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,
129 S.Ct. 1446, 173 L.Ed.2d 320 (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 Fed. R. Crim. P. 24, the Court has
more recently emphasized the fact that a principal reason for
permitting peremptory challenges has always been to help
secure the constitutional guarantee of trial by an impartial
jury, Martinez-Salazar, 528 U.S. at 314-16, 120
S.Ct. 774; that exercising the authorized number of
peremptory challenges is all that the parties are entitled to
by the rule, id. at 315, 120 S.Ct. 774; that the
decision of a defendant to use one of his peremptory
challenges to cure what turns out to be an erroneous denial
of a for-cause challenge therefore does not impair his
statutory right, id. at 317, 120 S.Ct. 774; and that
the mistaken denial of a state-provided peremptory challenge
does not, without more, violate the federal constitution,
Rivera, 556 U.S. at 158, 129 S.Ct. 1446.
[¶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 defendants 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, 85 S.Ct. 824, 13 L.Ed.2d 759
(1965), and those cases on which it relied, see
Rivera, 556 U.S. at 160, 129 S.Ct. 1446;
Martinez-Salazar, 528 U.S. at 317 n.4, 120 S.Ct.
774, 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
remanded to the court of appeals for consideration of the
appropriate remedy in that particular case. Id. at ¶
27, 320 P.3d at 1203. In the intervening five years, a number
of divisions of the intermediate appellate court have
reasoned that in the absence of bad faith or actual
participation by a biased juror, the use of a peremptory
challenge to cure an erroneous ruling on a defendants
challenge for cause is necessarily harmless.
People v. Marciano, 2014 COA 92M-2, ¶ 10, 411 P.3d
831, 835 (citing People v. Wise, 2014 COA 83, ¶¶
28-29, 348 P.3d 482, 489); People v. Wilson, 2014
COA 114, ¶ 23, 356 P.3d 956, 963 (quoting Wise, ¶
28, 348 P.3d at 489); Wise, ¶¶ 28-29, 28 n.6, 348
P.3d at 489 & n.6.
[¶18]
Although in Novotny we focused on the propriety of
automatic reversal for
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what we had previously considered to be the
"forced" use of a defendants 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 todays
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.
[¶19]
In both the context of erroneously denying a defense
challenge for cause and the context of erroneously granting a
prosecution challenge for cause, we had come to believe that
a criminal defendant, quite apart from being denied his
constitutional right to an impartial jury, is harmed, or
disadvantaged tactically, see Blades v.
DaFoe, 704 P.2d 317, 322 (Colo. 1985), overruled in
part by Laura A. Newman, LLC v. Roberts, 2016
CO 9, ¶ 2, 365 P.3d 972, 973, by being deprived of an equal
opportunity to change the composition of, or
"shape," the jury, see People v.
Lefebre, 5 P.3d 295, 304 (Colo. 2000), overruled in
part by Novotny, ¶ 27, 320 P.3d at 1203;
Macrander, 828 P.2d at 244. For this
proposition, we relied in part on pre-harmless error caselaw
finding that violation of the peremptory challenge statute
alone amounted to harm requiring reversal, see,
e.g., Macrander, 828 P.2d at 243 (relying on
Denver City Tramway Co. v. Kennedy, 50 Colo. 418,
117 P. 167 (1911)), and in part on now-rejected Supreme Court
caselaw implicitly finding federal constitutional
underpinnings of peremptory challenges, see, e.g.,
Lefebre, 5 P.3d at 306 (understanding Ross v.
Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80
(1988), to hold that a federal due process violation results
if a trial court fails to provide a defendant his state
law-granted right to peremptory challenges, a proposition
expressly rejected by the Court in Rivera, 556 U.S.
at 158, 129 S.Ct. 1446). In our most recent consideration of
this proposition, and the only instance in which we actually
relied on language from the statute and rule themselves, we
announced that "[t]he function of peremptory challenges
in a criminal proceeding is to allow both the prosecution and
the defense to secure a more fair and impartial jury by
enabling them to remove jurors whom they perceive as biased,
even if the jurors are not subject to a challenge for
cause," Lefebre, 5 P.3d at 303, and we inferred
that the allowance by statute and rule of the same number of
peremptory challenges, in the absence of good cause to add
peremptory challenges to one or both sides, was intended to
further this end, id. at 303-04.
[¶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.
[¶21]
In Martinez-Salazar, the Supreme Court expressly
rejected the notion that a criminal defendant who expends one
of his peremptory challenges to cure an erroneous ruling on
his challenge for cause has effectively been
"forced" to do so in order to remove the
objectionable veniremember and, therefore, has effectively
been deprived of one of the strikes allotted him by Rule 24.
528 U.S. at 314-15, 120 S.Ct. 774. The Court reasoned that
where the defendant has exercised the number of peremptory
challenges permitted by the rule, whatever the reason for his
decision to do so, he has received
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nothing less than that to which the rule entitled him.
Id. at 315, 120 S.Ct. 774. Following this same
logic, where the court erroneously grants a challenge for
cause, the party making that challenge has not effectively
received a peremptory challenge beyond the number allotted
him by statute, and therefore unless the court acted in bad
faith to assist him in some way other than acquiring a fair
and impartial jury, he has received no more than that to
which the statute entitled him.
[¶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 significance of peremptory challenges, and
even federal due process implications of violating state
peremptory challenge law, those premises have now all been
independently swept away by developments in the jurisprudence
of the Supreme Court which we have either already adopted or
by which we are constitutionally bound. As we indicated in
Novotny, the venerable principle of stare decisis is
not an immutable law but rather ultimately a matter of
discretion for a high court, and when, as here, the bases for
a prior holding, whether legal or factual, no longer support
that holding, and especially where retreating from that
holding would not unfairly upset settled expectations,
overturning it is not only merited but is in fact an
obligation of the high court. Novotny, ¶¶ 24-26, 320
P.3d at 1202-03.
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 victims family and the
possibility that he might work on the fathers farm equipment
sometime in the future, the trial judge sought, and C.A.
expressly gave, his assurance that he thought he could
evaluate the victims testimony "just like all the other
witnesses who will testify." It was for the trial court
not only to assess the jurors credibility but also to
evaluate whether he would be able to render an impartial
verdict.
[¶24]
Contrary to the assertion of the defendant, it was
unnecessary for the trial court to query the prospective
juror in precise terms of bias and impartiality and to
receive his express assurance that he was not biased and both
could and would render an impartial verdict. While the
ultimate aim of jury selection is to produce an unbiased and
impartial jury, Smith v. Dist. Court, 907 P.2d 611,
613 (Colo. 1995), neither the United States Constitution nor
the Colorado Constitution "dictate[s] a catechism for
voir dire." People v. Harlan, 8 P.3d 448, 464
(Colo. 2000) (alterations in original) (quoting Morgan v.
Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d
492 (1992)), overruled in part by People v.
Miller, 113 P.3d 743, 748 (Colo. 2005). 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. § 16-10-103(1)(j). Where
the source of concern for C.A.s impartiality arose from his
prior relationship with the victims family, it was within
the trial courts unique role in jury selection and
discretion to conclude from C.A.s clarification that he
could assess the victims testimony just as any other witness
and that he could render an impartial verdict.
[¶25]
With regard to the trial courts ruling granting the
prosecutions for-cause challenge of prospective Juror D.K.,
whether that ruling amounted to an abuse of discretion or
not, in the absence of bad faith, which has not been asserted
here, seeJohnson v. Schonlaw,2018 ...