Vigil v. People

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA15

         Judgment Affirmed

          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 Vigil's for-cause challenge to Juror C.A. but granted the prosecution's challenge to Juror D.K. At trial, and over defense counsel's objection, an officer was permitted to opine without qualification as an expert that Vigil's shoes visually matched shoeprints he photographed at the crime scene. With regard to Vigil's assignments of error concerning these rulings, the court of appeals concluded that the trial court had not abused its discretion by denying Vigil's challenge to Juror C.A.; that any error committed in granting the prosecution's 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 Vigil's challenge to Juror C.A.; because granting the prosecution's challenge to prospective Juror D.K., even if it amounted to an abuse of discretion, did not result in any violation of Vigil's rights; and because the trial court did not abuse its discretion in admitting the officer's testimony 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 Sheriff's 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 Sheriff's Office, the officer examined his shoes and determined that they "visually matched" shoeprints on the victim's farm.

         ¶5 During voir dire, Juror C.A. indicated that he knew the victim's family and that he might work on the father's 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 counsel's challenge for cause after directly asking C.A. if he could evaluate the victim's 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 Sheriff's Office "visually matched the prints that were out on the scene."

         ¶7 On appeal, the intermediate appellate court affirmed the defendant's convictions. With regard to the defendant's 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 prosecution's 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 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 juror's ability to remain impartial. These circumstances include 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, and employment by either a law enforcement agency or the public defender's 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 (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 court's unique role and perspective," and the "preferred position" in which it finds itself, in evaluating a prospective juror's 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. Sheriff's Dep't, 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, instead, must affirm as long as the trial court's 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 defendant's 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 defendant's 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 (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; that exercising the authorized number of peremptory challenges is all that the parties are entitled to by the rule, id. at 315; 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; 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.

         ¶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 defendant's 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 (1965), and those cases on which it relied, see Rivera, 556 U.S. at 160; Martinez-Salazar, 528 U.S. at 317 n.4, 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 defendant's 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 what we had previously considered to be the "forced" use of a defendant's 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 today's 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, 117 P. 167 (Colo. 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 (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). 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. 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 nothing less than that to which the rule entitled him. Id. at 315. 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 victim's family and the possibility that he might work on the father's farm equipment sometime in the future, the trial judge sought, and C.A. expressly gave, his assurance that he thought he could evaluate the victim's testimony "just like all the other witnesses who will testify." It was for the trial court not only to assess the juror's 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 (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 victim's family, it was within the trial court's unique role in jury selection and discretion to conclude from C.A.'s clarification that he could assess the victim's testimony just as any other witness and that he could render an impartial verdict.

         ¶25 With regard to the trial court's ruling granting the prosecution's 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, see Johnson v. Schonlaw, 2018 CO 73, ¶ 16, 426 P.3d 345, 350, it could not require reversal. Because D.K. did not sit in judgment of the case, that ruling could not have deprived the defendant of his constitutional right to a fair and impartial jury; and because neither the prosecution nor the defendant is granted any right in this jurisdiction, by constitution, statute, or rule, to shape the composition of the jury through the use of peremptory challenges, the defendant could not have been harmed by the deprivation of any such right.

         III.

         ¶26 In Venalonzo v. People, 2017 CO 9, ¶ 22, 388 P.3d 868, 875, this court recently clarified the distinction between expert and lay opinion within the contemplation of Rules 701 and 702 of the Colorado Rules of Evidence. If opinion testimony could be based on an ordinary person's experiences or knowledge, the testimony in question may be admitted as a lay opinion. Id. at ¶ 2, 388 P.3d at 871. If, however, a witness offers testimony in the nature of an opinion that could not be formed without reliance ...