People v. Carrillo

Judge ROTHENBERG,

specially concurring.

Although I conclude there was no gross abuse of discretion in the trial court’s denial of defendant’s challenge to a potential juror, I view this one ruling as being precipitously close to requiring reversal. I write separately because denials of for-cause challenges to prospective jurors in criminal cases are becoming a recurring, and perhaps avoidable, appellate issue.

Recently, another divided panel of this court addressed a similar situation. There, the trial court, over the objection of both counsel, denied defendant’s challenge for cause tó another highly questionable potential juror. There, as here, one member of the panel would have reversed an otherwise valid criminal conviction on that basis. See People v. Veloz, 946 P.2d 525 (Colo.App.1997). The issue also arises frequently in unpublished opinions that go unnoticed by the bench and bar.

*553Here, one juror knew and had worked with the murder victim’s father. Their contact was not superficial. Before the crime they had engaged in numerous, lengthy conversations and the victim’s father had talked extensively about his family. Although the juror and the father had not spoken since the homicide, the juror had discussed the murder with other employees.

During voir dire, the juror made it clear he was very uncomfortable sitting as a member of this panel. He said he had formed certain opinions about the case which he had been “trying real hard to push away,” but he was having difficulty doing so. It is self-evident that most jurors would be reluctant to serve on a.jury involving the murder of a co-worker’s family member, and would be uncomfortable at the prospect of having to face coworkers after the verdict, especially in the event of an acquittal. Jurors should not have to explain their verdict afterwards. See COLJI-Crim. No. 1:06 (1983) (mandatory instruction to jury upon discharge)

Nevertheless, the prosecution urged the trial court to deny the challenge for cause. The court agreed without comment, thus requiring defendant to remove the potential juror with a peremptory challenge.

A trial court has broad discretion to determine challenges for cause, and appellate courts have almost never interfered with that discretion. Morgan v. People, 624 P.2d 1331 (Colo.1981). However, the trial court’s discretion is not unlimited. See People v. Rogers, 690 P.2d 886 (Colo.App.1984) (trial court abused discretion in denying challenge for cause where potential juror had close association with law enforcement establishment and crime scene in question); Beeman v. People, 193 Colo. 337, 340, 565 P.2d 1340, 1342 (1977) (trial court abused discretion in not excusing for cause juror whose daughter had possible earlier contact with defendant; “the most sincere assurances and good faith belief by the juror in her capacity to act impartially cannot compensate for factors which inherently produce prejudice”). See also Fitzgerald v. People, 1 Colo. 56, 58 (1867) (“If upon such examination it appears that the [potential] juror is, from any cause, under any influence of fear, favor, or affection, or that he has in any way and on any cause made up an opinion as to the merits of the cause, he is ... an incompetent juror in that cause.”)

I also recognize that trial judges may have problems obtaining .a sufficient jury pool for serious felonies that have received pre-trial publicity. I further acknowledge that, although this case was tried in an urban court, the problem may be more acute in smaller communities. Notwithstanding these administrative difficulties, however, when a juror admits to preconceived notions about a case, especially based upon personal contact with a member of the victim’s family, I view it as extremely unwise for a trial court to jeopardize an otherwise valid conviction and risk reversal and retrial by retaining a juror whose impartiality is questionable. That course of action becomes even more problematic in a case such as this in which the charge is first degree murder.

If error later is found in the court’s denial of a for-cause challenge and if the defendant exhausted all peremptory challenges, reversal of the conviction is required despite the existence of overwhelming evidence of defendant’s guilt. See People v. Macrander, 828 P.2d 234 (Colo.1992) (reversal required when defendant used peremptory challenge to remove prospective juror who should have been excused for cause and then exhausted all peremptory challenges; court rejected harmless error analysis). But see United States v. McIntyre, 997 F.2d 687 (10th Cir.1993) (fn.7) (erroneous denial of a for-cause challenge does not rise to the level of a constitutional violation; court applied harmless error analysis), cert. denied, 510 U.S. 1063, 114 S.Ct. 736, 126 L.Ed.2d 699 (1994).