dissenting:
The majority concludes that a criminal defendant who exhausts all of his peremptory challenges and uses one of those challenges to exclude a juror who erroneously was not excused for bias is entitled to a new trial. Because I do not believe that the defendant in this case has proven that he was prejudiced by the trial court’s error, I respectfully dissent.
I agree with the majority that prospective juror Betty Steele should have been excused for bias and that the trial court’s failure to excuse her was error. Steele has three generations of relatives in law enforcement and her statements on voir dire showed that she would tend to favor testimony by law enforcement officials. However, apart from seeking to have the juror excused for cause, the defendant did nothing to bring the trial court’s attention to its alleged error. By failing to request an additional peremptory challenge and remaining silent, the defendant has not shown that he was prejudiced by a denial of his right to affect the composition of the jury.
In order for an error to require the reversal of a verdict of conviction on appeal, that error must be prejudicial to the rights of the defendant. See C.A.R. 35(e) (“The appellate court shall disregard any error or defect not affecting the substantial rights of the parties.”). In People v. Macrander, 828 P.2d 234 (Colo.1992), we held that a defendant must show: (1) an erroneous *844ruling on a challenge for cause, (2) the use of a peremptory challenge by the defense to remove the offending juror, and (3) the defendant’s exhaustion of all available peremptory challenges. Without considering Crim.P. 24(d)(3), we noted that defense counsel’s request for an additional peremptory challenge was not legally significant. Id. at 238-39, n. 5. We also stated that “the number of peremptory challenges is set by statute and is not a matter of judicial discretion.”
Crim.P. 24(d)(3), however, provides that, “For good cause shown, the court at any time may add peremptory challenges to either or both sides.” Thus, Macrander was in error in finding no trial court discretion with respect to the number of peremptory challenges allotted to each side. I believe that, in light of the plain language of Crim.P. 24(d)(3), the defendant should have requested an additional peremptory challenge in order to show prejudice. Because of the rule, we were incorrect in saying in Macrander that a request for an additional peremptory challenge was legally insignificant. The majority in the present case is similarly incorrect when it characterizes such a requirement as a needless procedural “hoop.” Maj. op. at 842. I see no reason to assume that moving for an additional peremptory challenge is a mere formality and that the motion is sure to be denied. In my view, Crim.P. 24(d)(3) is a useful vehicle which, if properly brought to the court’s attention, may serve to avoid error at trial and the eventual necessity of a retrial.
For these reasons, I respectfully dissent.
I am authorized to say that Chief Justice ROVIRA, joins in this dissent.