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                                                      ADVANCE SHEET HEADNOTE
                                                                December 16, 2019

                                     2019 CO 105

No. 15SC770, Vigil v. People—Criminal Law—Jury—Evidence—Witnesses.

      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.
      The supreme court affirmed, ruling that the trial court did not abuse its

discretion in denying Vigil’s challenge to Juror C.A.; 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 the trial court did not abuse its

discretion in admitting the officer’s testimony as lay opinion.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                 2019 CO 105

                     Supreme Court Case No. 15SC770
                   Certiorari to the Colorado Court of Appeals
                     Court of Appeals Case No. 12CA15

                                  Petitioner:

                            Nathan Richard Vigil,

                                       v.

                                 Respondent:

                     The People of the State of Colorado.

                             Judgment Affirmed
                                  en banc
                              December 16, 2019


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

CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special
concurrence.
JUSTICE GABRIEL dissents.
¶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.




                                           2
                                        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.

                                        3
¶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

                                          4
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




                                          5
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

                                          6
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

                                         7
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

                                          8
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

                                          9
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

                                         10
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.




                                         11
¶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

                                         12
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.

                                         13
¶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

                                        14
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.




                                          15
¶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.




                                           16
¶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 on specialized experiences, knowledge, or training, for that

testimony to be admissible, the witness must be qualified as an expert. Id.




                                         17
¶27   Vigil asserts that the officer’s opinion testimony constituted improper

expert testimony in the guise of lay testimony. At trial, the prosecution asked the

officer to compare the shoeprints he photographed at the victim’s farm with the

photos he took of Vigil’s shoes. The officer merely opined that the print of Vigil’s

shoes “visually matched the prints that were out on the scene.” He later explained

that he based his comparison of the shoeprint and the shoe itself on their identical

“Skechers” emblems and similar size measurements.

¶28   Because neither a comparison of a shoe and an imprint left in the dirt by a

shoe based on the size of each, nor a visual comparison of an emblem on the sole

of a shoe and an imprint in the dirt left by a shoe, is beyond the ken of an ordinary

person without specialized training or experience of any kind, id., an opinion that

the defendant’s shoe caused the imprint in the dirt observed by the officer was

admissible as a lay opinion. Although the officer in question made reference to

his experience and training with regard to evidence collection generally, that

testimony could not reasonably have been understood to suggest that the officer

had specialized training in the comparison of shoeprints or that his opinion was

entitled to any greater weight than the opinion of anyone capable of measuring

the size of the two and visually observing the emblem and imprint in the dirt. The

trial court therefore did not abuse its discretion by admitting the officer’s shoeprint

comparison testimony as lay testimony pursuant to CRE 701.

                                          18
¶29   We also reject the defendant’s contention that the officer’s testimony was

unhelpful to the jury. Although he photographed the prints in question, his

measurements of the shoes themselves and the imprints at the scene were the first-

hand observations of the evidence in question.

                                        IV.

¶30   Because the trial court did not abuse its discretion in denying Vigil’s

challenge to Juror C.A. for cause; because any error the trial court committed in

granting the prosecution’s challenge to prospective Juror D.K. for cause did not

result in a violation of Vigil’s constitutional, statutory, or rule-based rights, and

therefore does not require reversal; and because the trial court properly admitted

the officer’s testimony as lay opinion, the judgment of the court of appeals is

affirmed.



JUSTICE HOOD specially concurs, and JUSTICE HART joins in the special
concurrence.
JUSTICE GABRIEL dissents.




                                         19
JUSTICE HOOD, specially concurring.

¶31   For the reasons set forth below, I join the court’s judgment in all respects. I

write separately, however, to explain why I believe People v. Novotny, 2014 CO 18,

320 P.3d 1194, dictates today’s result as to prospective Juror D.K. and why I believe

the division majority’s “clear bias” rationale as to Juror C.A. was incorrect.

Therefore, I respectfully concur.

            I. Prospective Juror D.K. and Prejudice Post-Novotny

¶32   The majority acknowledges that the court’s decision in Novotny “largely

foreshadowed today’s holding.” Maj. op. ¶ 18. The majority then explains that

“[t]oday 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.” Id.; see also id. at ¶ 20 (“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.”).

¶33   The majority’s characterization of Novotny as simply foreshadowing today’s

holding is puzzling, however, given Novotny’s rationale. Of course, the opinion is

best known for overruling the automatic-reversal rule of People v. Macrander,


                                          1
828 P.2d 234 (Colo. 1992).     But in overruling Macrander, the court expressly

disavowed the notion that parties have a due process right to use peremptory

challenges to “shape” the jury. See, e.g., Novotny, ¶ 22, 320 P.3d at 1201 (“Whether

or not the Fourteenth Amendment due process violation we mistakenly identified

in Lefebre could have itself catapulted impairment of a defendant’s ability to shape

the jury into this limited class of fundamental constitutional errors, the Supreme

Court has since made abundantly clear that no such due process protection exists

for state-granted peremptory challenges.”).

¶34   Thus, from my perspective, Novotny did more than foreshadow today’s

holding. It foreordained it. Were this simply a case of foreshadowing—with a

genuine choice remaining—I might choose a different path. But, as it is, I feel

compelled to join the decision because we have done no more than arrive at the

end of the path on which Novotny placed us. Although I dissented in Novotny,

stare decisis compels my reluctant obedience to its dictates today. On that basis, I

concur as to the Juror D.K. portion of the court’s holding in the case at bar.

             II. Juror C.A. and the Standard for Reviewing Bias

¶35   As to Juror C.A., I note that the majority correctly eschewed the division’s

articulation of a “clear bias” standard of review in evaluating whether Juror C.A.

should have been dismissed for cause. I write separately to spell out why I think

this was a wise choice.


                                          2
¶36   The division concluded that “a trial court is not compelled to grant a

challenge for cause where a juror’s responses are equivocal and do not articulate

a clear expression of bias . . . .” People v. Vigil, 2015 COA 88M, ¶ 11, __ P.3d __; see

also id. at ¶ 15 (“We do not agree, however, that the juror’s answers taken as a

whole revealed any ‘clear bias’ that ‘would make his dismissal from the jury

compulsory.’” (quoting People v. Young, 16 P.3d 821, 826 (Colo. 2001))). Because

Juror C.A. “did not clearly evince bias,” the division held that “Juror C.A.’s

equivocal responses did not require the trial court to excuse him.” Id. at ¶¶ 11, 14.

¶37   In gleaning this “clear bias” standard, the division relied on references to

clear bias in several of our decisions, the most relevant being Carrillo v. People,

974 P.2d 478, 488 (Colo. 1999), and Young, 16 P.3d at 826. But I believe the

division’s reliance is misplaced.

¶38   True, in concluding in Carrillo that the trial court did not abuse its discretion

in denying a defendant’s challenge for cause, this court observed that a

prospective juror’s “answers to questions about his working relationship with [the

victim’s father] appear ambiguous and fail to articulate a clear expression of bias

requiring his dismissal.” 974 P.2d at 488. And, following a similar conclusion in

Young, we briefly noted in dicta that the record did “not reveal that [the challenged

juror] had any clear bias against [the defendant] which would make his dismissal

from the jury compulsory.” 16 P.3d at 826.

                                           3
¶39   But while these observations may permit an appellate court to consider

whether a juror’s responses articulated a “clear expression of bias” when

reviewing the challenged voir dire as a whole, they do not announce a new legal

standard for determining whether a juror evinced enmity or bias, as the division

did here. Not only is such a standard absent from the challenge-for-cause statute’s

plain language, see § 16-10-103(1)(j), C.R.S. (2019), it also doesn’t make sense. After

all, if a trial court can never abuse its discretion in denying a challenge for cause if

a prospective juror’s responses are equivocal, appellate review of such decisions

could become a hollow exercise. Rare is the case in which a prospective juror

unyieldingly clings to a clear statement of bias. Unless the prospective juror is

intent on being excused, probing by counsel and the court typically leaves us with

a muddle of equivocal statements, not unlike what we see here as to Juror C.A. In

the absence of some evidence of rehabilitation demonstrating that the juror is

willing to render a verdict according to the law and evidence—and not based on

enmity or bias—equivocation alone can make it manifestly unreasonable or unfair

to deny a challenge for cause.       Accordingly, the majority properly avoided

applying a “clear bias” standard of review.

¶40   Likewise, the majority is right to tacitly reject the defendant’s argument for

a “genuine doubt” standard. Pointing to our decision in People v. Russo, 713 P.2d

356, 362 (Colo. 1986), in which we stated in part that “[i]f the trial court has genuine

                                           4
doubt about the juror’s ability to be impartial . . . , it should resolve the doubt by

sustaining the challenge,” Vigil argues that an expression of doubt as to

impartiality, minus rehabilitation expressly regarding impartiality, requires the

prospective juror’s dismissal for cause. But this “genuine doubt” language is also

nowhere to be found in the challenge-for-cause statute. See § 16-10-103(1)(j).

¶41   Instead, the majority correctly focuses on the statute’s plain language. Maj.

op. ¶ 11 (“The detection of actual enmity or bias toward the defendant or the state

is, of course, also expressly designated cause for removal.”); see also id. at ¶ 24

(“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.”).

¶42   And here, there was at least some follow-up by the trial court. I therefore

agree with the majority that under the highly deferential standard of review,

premised on the trial court’s opportunity to see and interact with the juror, there

was no abuse of discretion.

¶43   In the end, the division put it well:

      Juror C.A.’s statement that he would treat [the victim’s] testimony the
      same as other witnesses’ testimony meant that he would treat [the
                                          5
      victim’s] testimony impartially (i.e., he would not be unduly partial
      toward [the victim] when assessing his testimony). Juror C.A.’s
      statement that he would treat [the victim’s] testimony impartially was
      some evidence that he would render an impartial verdict (i.e., he
      would not be unduly partial toward [the victim] when rendering the
      verdict).

      With the benefit of hindsight and time to parse the record, we could
      conceive of more complete follow-up questions for Juror C.A.
      However, simply because we could construct additional useful
      questions for the juror does not necessarily give us license to overturn
      the trial court’s decision. The restraint on our review of the trial
      court’s ruling reflects the supreme court’s considered judgment of the
      respective roles of the trial and appellate courts regarding challenges
      for cause. Thus, we must resist the temptation to second-guess the
      trial court’s decision based on a cold record.

      Although the trial court’s questioning could have been more
      comprehensive, it still elicited a response significant to the challenge
      for cause, as explained above. Therefore, even if imperfect, the trial
      court’s questioning of the juror weighs in favor of affirmance.

Vigil, ¶¶ 16–18 (internal citations omitted).

¶44   In concluding, I echo the sentiment expressed by the division majority. The

trial court’s follow-up questioning of Juror C.A. regarding his potential bias in

favor of the victim in this case was less than ideal. But this was a quintessential

game-time call. The trial judge was there; we weren’t. Moreover, I take comfort

in the fact that this court tends to see outliers. I place my faith in Colorado’s trial

judges to go beyond perfunctory questioning that superficially protects the record

but endangers a defendant’s (and, when at issue, the state’s) right to a truly fair

and impartial jury.

                                          6
     I am authorized to state that JUSTICE HART joins in this special

concurrence.




                                 7
JUSTICE GABRIEL, dissenting.

¶45   I agree with the majority’s conclusion that the trial court did not abuse its

discretion in admitting a police officer’s lay opinion that Vigil’s shoes matched

shoeprints that the officer had photographed at the crime scene.          Maj. op.

¶¶ 28–30. I disagree, however, with the majority’s conclusions that (1) the trial

court did not abuse its discretion in denying Vigil’s challenge for cause to Juror

C.A. and (2) any error that the trial court committed in granting the prosecution’s

challenge for cause as to Juror D.K. did not prejudice Vigil. Id. In particular, I

disagree with the majority’s apparent test for prejudice, which makes it virtually

impossible for a criminal defendant ever to prove prejudice in this context and

which I believe results in an unlevel playing field.

¶46   Accordingly, I respectfully dissent.

                             I. Factual Background

¶47   The majority does not quote much of the voir dire examinations of either

Juror C.A. or Juror D.K. Because those examinations are central to my analysis, I

discuss them at greater length.

¶48   During voir dire, Juror C.A. volunteered that he had “done quite a bit of

work” for the victim and his family and that he had “gotten along great with them

for years and years.” The following exchange then occurred with defense counsel:




                                         1
      [Defense Counsel]: . . . Due to these business relationships you’ve had
      with the alleged victim in this case, do you feel it would be difficult
      for you to render an impartial verdict?

      [Juror C.A.]: I can’t say that. I really can’t. I’d like to say no. I’d like
      to say no, but I don’t know.

      [Defense Counsel]: So what are you saying? Are you saying, yes, you
      can render an impartial [verdict] or no you can’t?

      [Juror C.A.]: It’s something that sits there. I know the people. I really
      do. I don’t know the defendant here.

      [Defense Counsel]: Do you think you may be doing business with
      them in the future?

      [Juror C.A.]: Possibly with the dad. I work out in that area, out in
      Questa. And I come through there, and I do stop and visit with [the
      victim’s father] every once in a while. If he’s got something that’s out
      of whack on his pivots, I go and take care of it for him. I don’t know.

      [Defense Counsel]: Your Honor, I’m going to ask the same thing of
      [Juror C.A.]. He stated he has a business relationship with the—[the
      victim] and his family and may be having business in the future; and
      in the back of his mind, that may make him where he’s not completely
      unbiased or prejudiced in making an ultimate determination.

      THE COURT: Sir, can you evaluate his testimony just the same as the
      testimony of all the other witnesses?

      [Juror C.A.]: His you’re talking about?

      THE COURT: [The victim’s]. Can you evaluate his testimony just like
      all the other witnesses who will testify in this case?

      [Juror C.A.]: I think I could.

      THE COURT: Challenge for cause is denied.

¶49   Ultimately, Juror C.A. served as the jury’s foreperson.
                                           2
¶50   Also during voir dire, Juror D.K. noted that he was watching a law

enforcement officer friend’s farm for him. The prosecution then asked Juror D.K.

how on a scale of one to ten, with ten being the best, he would “rate” law

enforcement in Conejos County. D.K. responded, “I would have to split the

difference and say five because I take it on a case-by-case basis. So some they get

right; some they get wrong.” He explained this answer by noting that he had

heard allegations of “heavy-handedness and favoritism, racism,” and when the

prosecution asked if that would influence how he would look at this case, he

responded, “It depends on the evidence presented.”

¶51   Juror D.K. then observed, “My tendency is for my heart to be in favor of the

defendant,” and he said that he would “like to let [the defendant] off.” He added,

however, by way of explanation, “I would like to think the best of most people,”

including the police in Conejos County, many of whom he thought were “really

nice guys.” When the prosecution then asked whether his foregoing comments

meant that he was predisposed to acquit Vigil, he answered, “I’m predisposed to

let him or his mouthpiece have their say.” Having already exhausted its allotted

peremptory challenges, the prosecution challenged Juror D.K. for cause.

¶52   The court then allowed defense counsel to question Juror D.K., and counsel

asked him if he could reach a verdict based solely on the evidence presented and

the court’s instructions. Juror D.K. responded, “Yes, I believe so. I take this

                                        3
seriously.” Although he then offered that he had had a negative experience with

the justice system elsewhere in the past, when defense counsel asked whether that

experience would affect how he thought today, he replied:

      No. I wouldn’t think so. Again, I take this seriously. It’s a
      responsibility. If a person has done something which society believes
      merits retribution, then that person should be punished; but I don’t
      want to just throw somebody to the dogs unless I’m sure that that
      person deserves the punishment.


¶53   Defense counsel followed up by asking if Juror D.K. meant that it would be

unfair not to afford Vigil the presumption of innocence. D.K. responded, “This is

the United States. You are presumed innocent until you’re found guilty.” He

added, however, that although he is a forgiving person, some things should not

be forgiven, including “murder, rape, incest, thievery, assault, et cetera, et cetera.”

¶54   Based on this colloquy, defense counsel passed Juror D.K. for cause. The

court, however, granted the prosecution’s challenge.

                                    II. Analysis

¶55   I begin by setting forth the law applicable to challenges for cause. I then

address the trial court’s rulings on the challenges for cause to Jurors C.A. and D.K.,

and I conclude that the court abused its discretion in denying Vigil’s challenge to

Juror C.A. and in granting the prosecution’s challenge to Juror D.K. I end by

addressing the issue of prejudice, and I conclude that (1) because Juror C.A. sat on

the jury, reversal is required and (2) the majority’s test for prejudice renders it all
                                          4
but impossible for a defendant to prove prejudice in this context and results in

what I believe to be an unlevel playing field.

                    A. Law Regarding Challenges for Cause

¶56   A fair trial is a basic requirement of due process, and the right to challenge

a juror for cause is an integral part of a fair trial. People v. Macrander, 828 P.2d 234,

238 (Colo. 1992), overruled on other grounds by People v. Novotny, 2014 CO 18, ¶ 27,

320 P.3d 1194, 1203. To ensure a defendant’s right to a fair trial with an impartial

jury, a trial court must excuse biased or prejudiced persons from the jury.

Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). This requirement is codified in

section 16-10-103(1)(j), C.R.S. (2019), which requires a court to sustain a challenge

for cause when “[t]he existence of a state of mind in the juror evinc[es] enmity or

bias toward the defendant or the state.” Accord Crim. P. 24(b)(1)(X).

¶57   Specifically, a trial court must grant a challenge for cause if, among other

things, a prospective juror is unwilling or unable to accept the basic principles of

criminal law and render a fair and impartial verdict based on the evidence

admitted at trial and the court’s instructions. Morrison, 19 P.3d at 672. Similarly,

if the trial court has genuine doubt about the prospective juror’s ability to be

impartial, it should ordinarily resolve the doubt by sustaining the challenge.

People v. Russo, 713 P.2d 356, 362 (Colo. 1986).

¶58   Conversely,

                                           5
      no person summoned as a juror shall be disqualified by reason of a
      previously formed or expressed opinion with reference to the guilt or
      innocence of the accused, if the court is satisfied, from the
      examination of the juror or from other evidence, that he will render
      an impartial verdict according to the law and the evidence submitted
      to the jury at the trial.


§ 16-10-103(1)(j); accord Crim. P. 24(b)(1)(X).
¶59   When reviewing a trial court’s denial of a challenge for cause, we review the

entire voir dire at issue to place the prospective juror’s statements in context, and

we review the trial court’s ruling on a challenge for cause for an abuse of

discretion. People v. Young, 16 P.3d 821, 824 (Colo. 2001). The abuse of discretion

standard gives deference to the trial court’s credibility assessment of a prospective

juror’s responses, recognizes the trial court’s unique role and perspective in

evaluating the demeanor and body language of live witnesses, and serves to

discourage an appellate court from “second-guessing those judgments based on a

cold record.” Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999). Despite the wide

discretion afforded trial courts, however, appellate courts must not “abdicate their

responsibility to ensure that the requirements of fairness are fulfilled.” Morgan v.

People, 624 P.2d 1331, 1332 (Colo. 1981).

¶60   Applying these principles, appellate courts in this state have concluded that

reversible error occurs when a trial court denies a challenge for cause to a

prospective juror who expresses doubt as to his or her ability to be impartial and


                                            6
neither the prosecution nor the trial court then rehabilitates that juror. See, e.g.,

People v. Luman, 994 P.2d 432, 436 (Colo. App. 1999); see also People v. Gurule,

628 P.2d 99, 103 (Colo. 1981) (concluding that reversal was required when a

prospective juror had formed a firm opinion as to the defendant’s guilt and her

voir dire responses did not sufficiently call that opinion into question so as to raise

a credibility issue for the court’s determination in ruling on the defendant’s

challenge for cause); Morgan, 624 P.2d at 1332 (concluding that the trial court had

abused its discretion in failing to excuse a prospective juror for cause when the

juror repeatedly indicated that he would have difficulty applying the principle

that the burden of proof rested on the prosecution, notwithstanding the fact that

the juror at one point also said that he could “go along” with the presumption of

innocence and the defendant’s right to remain silent).

                                   B. Juror C.A.

¶61   In light of the foregoing principles, I would conclude that the trial court

abused its discretion in denying Vigil’s challenge for cause as to Juror C.A.

¶62   As noted above, Juror C.A. consistently expressed doubt as to his ability to

render an impartial verdict, given his long (“years and years”) and “great”

relationship with the victim’s family. Specifically, when asked directly whether it

would be difficult for him to render an impartial verdict, he responded, “I’d like

to say no, but I don’t know.” He added, “It’s something that sits there. I know the

                                          7
people. I really do. I don’t know the defendant here.” And he indicated that he

anticipated possibly doing business with the victim’s family in the future.

¶63   Neither the trial court nor the prosecution asked Juror C.A. directly

whether, despite his relationship with the victim’s family, he could render an

impartial verdict and follow the court’s instructions. The court merely asked,

generally and without reference to Juror C.A.’s expression of doubt as to whether

he could be fair, whether Juror C.A. could evaluate the victim’s testimony just like

all of the other witnesses. Although Juror C.A. responded, “I think I could,” this

response did not resolve his consistent expressions of doubt as to whether he could

render an impartial verdict, and he never expressed a belief that he could—or that

he would try to—do so. To the contrary, his statement that he did not know

whether he could render an impartial verdict stood unrebutted, even after he

responded to the court’s single question to him.

¶64   In these circumstances, I would conclude that the trial court abused its

discretion in denying Vigil’s challenge for cause as to Juror C.A. See Gurule,

628 P.2d at 103; Morgan, 624 P.2d at 1332; Luman, 994 P.2d at 436. Although I

recognize and respect trial courts’ broad discretion regarding challenges for cause,

I am also mindful of our obligation as appellate judges not to abdicate our

responsibility to ensure that the requirements of fairness are fulfilled. Morgan,

624 P.2d at 1332. I believe that this case requires our intervention.

                                          8
                                   C. Juror D.K.

¶65   Applying the above-described legal principles, I would further conclude

that the trial court abused its discretion in granting the prosecution’s challenge for

cause as to Juror D.K.

¶66   In contrast to Juror C.A., Juror D.K. repeatedly and consistently provided

assurances that he took his obligations as a juror seriously, that he could reach a

verdict solely based on the evidence and the court’s instructions, and that he

understood the presumption of innocence. He even stated that he believed that

crimes like “thievery,” which was the type of charge that Vigil was facing, should

not be forgiven.

¶67   Nor do I perceive anything in Juror D.K.’s responses indicating a bias

against either the prosecution or law enforcement. Juror D.K. did no more than

recognize that police officers, like all other witnesses, are sometimes right and

sometimes wrong, and he committed to assess their credibility based on the

evidence. I perceive little difference between these statements and Juror C.A.’s

statement that he thought he could evaluate the victim’s testimony like that of all

of the other witnesses, which statement precipitated the trial court’s decision to

deny Vigil’s challenge for cause as to Juror C.A.

¶68   On these facts, although the prosecution may well have wished to exercise

a peremptory challenge had it had any remaining, I perceive no legitimate basis

                                          9
for a challenge for cause as to Juror D.K. Accordingly, I would conclude that the

trial court abused its discretion in granting that challenge.

                                    D. Prejudice

¶69   Having thus concluded that the trial court abused its discretion in denying

Vigil’s challenge for cause as to Juror C.A. and in granting the prosecution’s

challenge for cause as to Juror D.K., the question remains whether either of these

errors prejudiced Vigil so as to require a new trial.

¶70   As to Juror C.A., the majority does not address the question of prejudice

because it perceived no abuse of discretion in the denial of the challenge for cause.

For the reasons set forth above, I believe that the trial court did abuse its discretion,

and the prejudice here is manifest. Not only did a biased juror (i.e., Juror C.A.) sit,

despite Vigil’s well-founded effort to strike him for cause, but also he served as

the jury foreperson. Accordingly, I believe that Vigil is entitled to a new trial.

¶71   Although the foregoing is sufficient to end my analysis, I feel compelled to

address the majority’s recitation of the test for prejudice regarding the erroneous

grant of the prosecution’s challenge for cause as to Juror D.K.

¶72   With respect to Juror D.K., the majority concludes that whether the trial

court’s ruling amounted to an abuse of discretion or not, Vigil suffered no

prejudice because (1) Juror D.K. did not sit in judgment of the case and therefore

the court’s ruling could not have deprived Vigil of a fair and impartial jury and

                                           10
(2) neither the prosecution nor Vigil had any right to shape the composition of the

jury through the use of peremptory challenges and therefore Vigil could not have

been harmed by the deprivation of any such right. Maj. op. ¶ 25. I respectfully

disagree with this articulation of a test for prejudice because in my view it (1) is

inconsistent with the framework set forth in Hagos v. People, 2012 CO 63, ¶¶ 8–14,

288 P.3d 116, 118–20, for assessing whether an error in criminal proceedings

requires reversal; (2) essentially eliminates any inquiry into prejudice in this

context; and (3) results in an unlevel playing field.

¶73   After the court’s decision today, when a defendant’s challenge for cause is

improperly denied, he or she must exercise a peremptory challenge to excuse the

biased juror (or risk an appellate court’s finding that he or she waived or invited

error in allowing the biased juror to sit), and once this is done, the defendant

apparently can establish prejudice only by showing that a second, independent

error, namely, the seating of a different biased juror, also occurred. I perceive no

basis for conflating the prejudice resulting from one error with the merits of a

second, independent error. Indeed, as Vigil points out, if that were the test, then

the initial error would become a moot point because a new trial would be required

based on the second, independent error. I am aware of no other area of law in

which prejudice is assessed in this manner.




                                          11
¶74   Moreover, such an analysis seems contrary to the framework set forth in

Hagos, ¶¶ 8–14, 288 P.3d at 118–20, for determining whether an error in criminal

proceedings requires reversal. As pertinent here, in Hagos, we observed that we

review preserved trial errors of constitutional dimension for constitutional

harmless error, which requires reversal if there is a reasonable possibility that the

error might have contributed to the conviction. Id. at ¶ 11, 288 P.3d at 119. We

further stated that we review preserved, non-constitutional trial errors for

harmless error, which requires reversal if the error substantially influenced the

verdict or affected the fairness of the trial proceedings. Id. at ¶ 12, 288 P.3d at 119.

¶75   In both cases, we determine first whether an error occurred. If it did, then

we must determine, pursuant to a case-specific analysis, whether, applying the

proper standard, the error impacted the proceedings. We do not, however, assess

prejudice by reference to a different and independent error.

¶76   In contrast to the foregoing circumstance in which a defendant’s challenge

for cause is erroneously denied (and in which proof of prejudice is nearly

impossible), under the majority’s reasoning, when a prosecutor’s challenge for

cause is improperly granted, then a defendant literally can never prove prejudice

(absent, perhaps, evidence of bad faith).       This is because, by definition, the

improperly removed juror would never have sat in judgment of the case and

therefore the trial court’s erroneous ruling could not have deprived the defendant

                                          12
of a fair and impartial jury. Maj. op. ¶ 25. Accordingly, contrary to the framework

set forth in Hagos, we would never reach the question of whether such a trial error

required reversal in a given case because, as a matter of law, it never would.

¶77   In light of the foregoing, the analytical regime for prejudice that the majority

establishes in this case seems to result in a “heads I win, tails you lose” framework

in favor of the prosecution. Under this framework, a defendant essentially can

never establish prejudice, either from the erroneous denial of a defense challenge

for cause or the erroneous grant of a prosecution challenge for cause.

¶78   Moreover, such a regime incentivizes prosecutors to challenge every

debatable juror for cause because such challenges have no downside, given that

erroneously granted challenges for cause have no consequences (and only a

potential benefit) to the prosecution. This, in turn, effectively affords prosecutors

a substantial voice in deciding the composition of a jury, while, at the same time,

the majority’s opinion makes clear that criminal defendants have no right to such

a voice.

¶79   In my view, such a result creates an unlevel playing field. In addition, the

majority’s framework confirms Justice’s Hood’s observation in his partial

dissenting opinion in People v. Novotny, 2014 CO 18, ¶ 31, 320 P.3d 1194, 1204

(Hood, J., concurring in part and dissenting in part), that Novotny has moved us

from a regime of automatic reversal in cases involving erroneously denied

                                         13
challenges for cause to a regime of automatic affirmance in favor of the

prosecution. With respect, I cannot subscribe to such a regime, and I would hope

that, in an appropriate case, we will revisit the issue of prejudice and adopt a test

that will give defendants in cases like this a full and fair opportunity to seek to

establish prejudice in accordance with the case-specific, error/prejudice

framework set forth in Hagos.

                                     III. Conclusion
¶80   For the foregoing reasons, I would conclude that the trial court abused its

discretion in denying Vigil’s challenge for cause as to Juror C.A. and in granting

the prosecution’s challenge for cause as to Juror D.K. Because Juror C.A. then sat

on the jury, I would conclude that Vigil is entitled to a new trial.

¶81   Accordingly, I would reverse the judgment of the division below, and

therefore, I respectfully dissent.




                                           14
