dissenting:
Even if the trial judge should have permitted some questioning of the three challenged jurors prior to excusing them, I cannot agree *309that the error caused any prejudice to the defendant and I, therefore, respectfully dissent. The defendant has made no showing that the ultimate panel included individuals who were unable to be fair; rather, he argues that his opportunity to exercise his peremptory challenges in a tactically advantageous manner was abridged. In my view, that is not enough to warrant reversal.
Generally, a trial court's error in granting or denying a challenge for cause results in the reversal of a defendant's conviction only if the error affected the defendant's substantial rights. See People v. Vigil, 718 P.2d 496, 500 (Colo.1986). If the error does not compromise defendant's constitutional rights, then the defendant must demonstrate prejudice in order to be entitled to a new trial. See id. Because Lefebre had no constitutional entitlement to voir dire the panel, see maj. op. at 299-300, he has the burden to demonstrate that the judge's dismissal of the three prospective jurors prejudiced him.
In the past, this court has presumed prejudice to result when the trial judge erred in denying a challenge for cause, thereby leaving an objectionable juror on the panel, and the complaining party used a peremptory strike to remove that objectionable juror. See People v. Prator, 856 P.2d 837, 842 (Colo. 1993); People v. Macrander, 828 P.2d 234, 244 (Colo.1992).1 We have observed that in such situations the trial judge's error effectively granted the defendant fewer peremptory challenges, and as a result, impaired "the defendant's ability to change the ultimate composition of the jury selected to try the case." Macrander, 828 P.2d at 244. We held that the defendant need not demonstrate that another juror who was seated on the panel was biased. See id. at 245-46.
In a 1956 case, we applied the same standard in a situation where the trial judge erroneously granted a challenge for cause. See Bustamante v. People, 133 Colo. 497, 500, 297 P.2d 538, 540 (1956). In Bustamante, the trial judge improperly excused a juror after the juror was challenged for cause by the prosecution. See id. Because the prosecution exhausted its peremptory challenges, this court held that the erroneous grant of the challenge effectively gave the prosecution an additional peremptory strike, and thus, we found reversible error. See id.
In reaching the same conclusion here, the majority follows Bustamants, and I would not. Rather, I view a recent pronouncement by the United States Supreme Court to have significantly altered the landscape in this area of jurisprudence. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). In Martinez, Salazar, the trial judge erroneously denied the defendant's challenge of a prospective juror for actual bias. Therefore, a juror who had demonstrated some bias was left on the panel. See 120 S.Ct. at 778. The defendant used a peremptory challenge to remove the objectionable juror, and subsequently exhausted all other peremptory strikes.2 See *310id. The Ninth Cireuit Court of Appeals held that the mistake resulted in a violation of the defendant's due process rights because the defendant was forced to use a peremptory challenge to cure the trial judge's error, and thus, he did not have his full complement of discretionary peremptory challenges. See id.
The Supreme Court unanimously reversed the Ninth Circuit, holding that the trial judge's error did not deny the defendant either his statutory right to peremptory challenges or his due process rights under the Fifth Amendment. See id. at 781. The defendant received the exact number of peremptory strikes to which he was entitled under federal law, and the defendant exercised every one of those strikes. See id. The Court concluded that Fed.R.Crim.P. 24 does not require that a party use a peremptory challenge curatively. See id. at 781. The fact that the defendant used one of the strikes to remove the objectionable juror was a tactical choice made by the defendant, not a choice coerced by the error. See id.3 As the Court observed, "[a] hard choice is not the same as no choice." Id. "In choosing to remove [the juror] rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge." Id. at 781-82. Rather, he used the challenge for its principal purpose-to remove a disfavored juror, and thus, secure the constitutional guarantee of trial by an impartial jury. See id. at 782.
The Supreme Court ultimately concluded that the error by the trial court did not require reversal. See id. In so holding, the Court noted that the trial judge's error did not result in a juror serving on the panel who should have been dismissed for cause. See id.4
The manner in which the Supreme Court discusses the Martines-Salazar issue refocuses the critical inquiry in this area of the law. The Court concludes that the question of prejudice should turn on whether the seated panel was fair, not whether a party had free reign over the tactical use of its peremptory strikes. The Court's statements, therefore, reject our earlier holdings in Macran-der, Prator, and Bustamante that an error on a ruling for cause presumptively prejudices a party by giving the opposing party a tactical advantage in the use of its peremptory strikes. The right that is constitutionally protected is the right to an impartial jury. Peremptory challenges are a tool designed to assure that goal, but the interference with peremptory challenges, without more, does not automatically cause prejudice.
Martinesz-Salazar presents the more common factual seenario-a defendant used one or more peremptory challenges to correct a trial judge's error in denying a challenge for cause. The Court's reasoning applies with even greater force, however, in cases such as Bustamante and the one before us today, where the trial judge erroneously granted a challenge for cause. See 188 Colo. at 500, 297 P.2d at 540. In such a case, the trial judge dismissed the questionable jurors and they posed no further risk of prejudice. The judge's decision did not force the defendant to make a strategic choice between striking the objectionable juror and some other juror. Once the parties passed the panel for cause, the defendant was free to apply each of his *311peremptory strikes to remove a disfavored juror. The only result of the trial judge's error is that a different panel of presumably nonobjectionable jurors served. Although the improperly excused jurors might have served fairly, it defies common sense to presume prejudice in such situations.
Applying the Supreme Court's reasoning to the facts of this case, I would find that the trial judge's errors in excusing jurors Trujillo, McClanahan, and Greene do not amount to reversible error requiring a new trial for Lefebre. Although the errors may have allowed the prosecution to strike three extra jurors from the panel, rather than using its peremptory challenges on these jurors, each side had their full six complement of peremptory challenges to use as they saw fit. See Crim. P. 24(d). There is no evidence in the record, and the defendant has made no claim, that the jurors who ultimately served were biased. In fact, the defendant approved the panel at the end of the voir dire process, demonstrating his apparent satisfaction with the panel.5
Accordingly, since I would reverse the court of appeals and affirm the trial court, I respectfully dissent.
. These holdings were restated in dicta in Harlan, 8 P.3d at 459. In Harlan, this court upheld the trial judge's rulings on the defendant's challenges for cause, and thus, was not required to reach the issue of prejudice. See id. at 462. Because the issue was not squarely presented in that case, the statements reiterating that a presumption of prejudice arises when a defendant's use of peremptory challenges is impacted should not be binding on today's holding.
In addition, Harlan presented a unique situation because the alleged errors arose in the context of a death penalty case. As this court stated, a higher level of scrutiny is appropriate in capital cases. See id. at 461. In capital cases, it is especially vital that jurors come to the trial with an open mind. Therefore, it may be appropriate in capital cases to continue to follow the rule of Macrander and presume prejudice when a defendant's use of his peremptory strikes is impacted by an error on a challenge for cause.
. The majority finds it significant that Martinez, Salazar did not request additional peremptory challenges, stating that therefore, the defendant did not actually exhaust his peremptory challenges. See maj. op. at 306, 307, 308 n. 11. The majority thus distinguishes Martines-Salazar from cases such as the one before the court today where the defendant does exhaust his full complement of peremptory challenges. See maj. op. at 307 n. 11.
Martinez-Salazar was permitted to request extra peremptory challenges only because the case involved multiple defendants. See Fed.R.Crim.P. 24(b). Martinez-Salazar, was not entitled to receive any additional strikes, however, as a trial judge has broad discretion in granting or denying requests for additional peremptory challenges. See United States v. Meredith, 824 F.2d 1418, 1423 (4th Cir.1987). In such situations, *310any award of additional challenges is often conditioned on the award of additional challenges to the prosecution. See United States v. Bruno, 873 F.2d 555, 561 (2d Cir.1989). Therefore, it is not at all clear that Martinez-Salazar failed to exhaust his strikes. It is equally probable that the defendant did exhaust his strikes, as Lefebre did in this case.
Justice Souter's concurrence does not suggest that Martinez-Salazar failed to exhaust his challenges. See 120 S.Ct. at 783. Rather, Justice Souter only points out that the Court's opinion does not cover cases in which a defendant requests an additional strike for the express purpose of removing another biased juror. See id.
It also should be pointed out that Lefebre could have requested additional peremptory strikes as Rule 24(d)(3) of the Colorado Rules of Criminal Procedure allows a trial judge to grant additional challenges upon a showing of good cause. Therefore, the facts of Martinez-Salazar are fully applicable to the case at hand.
. The Supreme Court noted that a different result would be compelled had the trial court deliberately misapplied the law in order to force the defendant to use a peremptory challenge to correct the court's error. See Martinez-Salazar, 120 S.Ct. at 782.
. As the Supreme Court pointed out, if a biased juror had been seated erroneously, the result would be different. See Martinez-Salazar, 120 S.Ct. at 782.
. Whether passing a panel for cause constitutes a waiver of previously asserted challenge for cause is an issue that the parties have not preserved for review, and that we do not address in this case.