People v. Bonvicini

JUSTICE GABRIEL,

concurring in the judgment.

123 In his concurring opinion in PDK Laboratories Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in the judgment), then-Judge and now-Chief Justice John Roberts noted the "cardinal principle of judicial restraint-if it is not necessary to decide more, it is necessary not to decide more." In this case, the majority holds that a private company that operates a prison is not a public law enforcement agency for purposes of seetion 16-10-108(1)(k), C.R.S. (2015). Maj. op. 12. The majority thus reverses the district court's decision, which had concluded that the county court erred in denying a challenge for cause to a juror who was an employee of a private company that operates a prison. Id. at 1 22.

124 Although I agree that the district court's ultimate determination should be reversed, in my view, our decision in People v. Novotny, 2014 CO 18, 320 P.3d 1194, is dis-positive, and we therefore need not-and should not-reach the merits of the statutory interpretation question presented. See PDK Labs., 362 F.3d at 799 (Roberts, J., concurring in part and concurring in the judgment). Accordingly, I respectfully concur in the judgment only. -

I. Novotny

25 In Novotny, ¶ 27, 320 P.3d at 1203, we overruled our decision in People v. Macrander, 828 P.2d 234, 244 (Colo.1992), in which we had held that a trial court's erroneous denial of a challenge for cause required reversal if the defendant then exercised a peremptory challenge to remove the challenged juror and exhausted all of his or her remaining peremptory challenges. We thus concluded that (1) allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, is not, in and of itself,- structural error; and (2) reversal for other than struc tural error is appropriate only when dictated by a case-specific, outcome-determinative evaluation of: the likelihood that the error affected the verdlct Novotny, ¶ 27, 320 P.3d at 1203.

1 26 The outcome-determinative evaluation to which we referred requires an assessment of harmlessness, under which a defendant must show prejudice to obtain reversal. Id. at ¶¶ 2, 18-23, 27, 320 P.3d at 1196, 1200-03; accord id. at ¶ 30, 320 P.3d at 1203 (Hood, J., concurring in part and dissenting in part). Most courts that have addressed the question, including divisions of our court of appeals, have concluded that to make such a showing of prejudice, a defendant ordinarily must show that a biased or incompetent juror participated in deciding the defendant's guilt. See, e.g., People v. Wise, 2014 COA 83, ¶ 28, 348 P.3d 482, 489 (collecting cases).

127 Here, even were I to asgume, without deciding, that the county court erred in denying the challenge for-cause to Juror F, who worked as a nurse at a privately owned prison, I would conclude that any such error was harmless under Novotny because Bonvi-cini has shown neither that a biased juror sat on his jury nor any other prejudice: See id. at ¶¶ 28-29, 348 P.3d at 489.

€ 28 I am not persuaded otherwise by Bon-vicini's assertion that Juror S8 was, in fact, a biased juror who sat on his jury. Bonvicini contends that Juror 8 gave conflicting answers about whether he would hold Bonvici-ni's decision not to testify against Bonvicini. *159Bonvicini further notes that he had sought an additional peremptory challenge to allow him to strike Juror S but that the county court denied that request.

129 As to Bonvicini's first argument the transcript of the voir dire of Juror S8 is incomplete because many of his answers were transcribed as "inaudible." Accordingly, it is not at all clear that Juror S gave conflicting answers. Even if he did, however, we would afford broad discretion to the trial court's determination not to strike Juror S for cause because that determination would ultimately have turned on the court's assessment of Juror S's demeanor, credibility, and sincerity, See Dunlap v. People, 173 P.3d 1054, 1082 (Colo.2007).

1180 As to Bonvicini's second argument, it amounts to nothing more than an assertion that he was necessarily prejudiced by the fact that he was required to exercise a peremptory challenge to excuse a juror who should have been dismissed for cause. Novotny, ¶ 27, 320 P.3d at 1203, however, expressly concluded that such an argument does not automatically establish the requ1s1te prejudice for reversal.

1 31 I am likewise unpersuaded by Bonvici-nis contention at oral argument that had 'he foreseen our decision in Novotny, he would have exercised a peremptory challenge on Juror S and left Juror F on the jury, thereby establishing prejudice, In my view, such a strategy would arguably have failed under the invited error doctrine. See People v. Wittrein, 221 P.3d 1076, 1082 (Colo.2009) (noting that under the invited error doctrine, a party may not complain on appeal of an error that the party invited or injected into the case' and that the party must abide the consequences of his or her acts); see also Novotny, ¶¶ 31, 47, 320 P.3d at 1204, 1207 (Hood, J., concurring in part and dissenting in part) (noting that the invited error doe-trine would arguably preclude a defendant from contending that a biaged juror sat on the jury if the defendant those not to use a peremptory challenge to remove the juror after the trial court had denied a challenge for cause of that juror).

II., Conclusion

182 For these reasons, I would reverse the district court's judgment by relying on Novotny, and I would not reach the merits of the statutory interpretation question 'that the People present, Accordingly, I respectfully concur in the judgment only.

I am authorized to state that JUSTICE HOOD joins in this concurrence in the judgment..