People v. Asberry

• Decision Date: 31 May 2007
• Docket Number: No. 04CA2431.,04CA2431.
• Citation: 172 P.3d 927
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn Devin ASBERRY, Defendant-Appellant.
• Court: Colorado Court of Appeals

172 P.3d 927

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn Devin ASBERRY, Defendant-Appellant.

No. 04CA2431.

Colorado Court of Appeals, Div. III.

May 31, 2007.

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Shawn Devin Asberry, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession of one gram or less of a schedule II controlled substance, a class six felony, § 18-18-405(1), (2.3)(a)(I), C.R.S.2006. We affirm.

I. Background

The following facts are undisputed. On July 30, 2003, two Denver police officers saw defendant walking in the 1600 block of Washington Street. One of the officers recognized defendant from a prior undercover narcotics transaction, conducted in 2001, and believed defendant was violating an area restriction. An "area restriction" defines a geographical area a person previously arrested during an undercover narcotics operation is prohibited from entering.

The officers stopped defendant, asked for his name, date of birth, and whether he had an area restriction. On running a clearance, the officers found defendant was not violating his area restriction. However, defendant had an outstanding arrest warrant for a misdemeanor.

The officers arrested defendant, put him in the back of their patrol car, and drove him to the police station. On the way to the police station, the officers observed defendant moving around in the back seat. After removing defendant from the car at the police station, one of the officers checked the back seat and found a plastic baggy containing a substance he suspected to be crack cocaine. The substance was later confirmed to be cocaine weighing 0.847 grams.

A jury convicted defendant on the charge of possession of one gram or less of a schedule II controlled substance, and the trial court sentenced defendant to three years in the Department of Corrections. Defendant appealed his sentence, and a division of this court granted a limited remand to allow the trial court to consider defendant's motion for sentence reconsideration. The trial court modified the sentence to three years of intensive supervision probation. The case was returned to this court for resolution of the remaining issues.

II. Trial Court's Sua Sponte Dismissal of Prospective Juror

Defendant contends the trial court committed reversible error by dismissing a prospective juror for cause, sua sponte, without establishing that grounds for a statutory challenge existed. We conclude defendant did not preserve this issue for review on appeal, because defendant did not use reasonable diligence to determine whether the trial court's action was proper.

During voir dire, the trial court asked the prospective jurors whether any of them were "surety on any bond or obligation with or for the defendant." One prospective juror replied: "Right. I'm — did you say Asberry is his last name? I'm surety for one of these family members." The trial court then dismissed this prospective juror, stating, "All right. You are excused, Sir." The trial court dismissed this prospective juror under § 16-10-103(1)(c), C.R.S.2006, which states a court "shall sustain a challenge for cause," if the prospective juror has "[s]tanding in the relation of ... surety on any bond or obligation for any defendant."

The following exchange between the trial court and counsel, initiated by the prosecutor, took place at the bench immediately after the trial court dismissed the prospective juror:

[Prosecutor]: I never had this before.

The Court: I think it's statutory.

[Prosecutor]: I just wanted to — like I said, never had that happen before.

[Defense Counsel]: I'm not sure it's statutory. I think if he was a surety on Mr. Asberry's bond, then that would be statutory, but I have no objection to his knowing the Asberry family.

The Court: I would have been pretty confused about — concerned about keeping him.

[Defense Counsel]: The problem is he's the only African-American on the entire panel.

The Court: I understand that.

Defendants who believe a challenge for cause should or should not be granted have an obligation to make their positions known. See § 16-10-103(3), C.R.S.2006; Crim. P. 24(b)(2). Under Crim. P. 51, at the time a court ruling is made, parties must make known to the court their objection to the court's action. Because § 16-10-103, C.R.S.2006, provides the legal basis for challenges for cause,

it is incumbent upon the challenging party to clearly state of record the particular ground on which a challenge for cause is made. Only in this way can the court and opposing counsel direct appropriate questions to the juror to determine whether the challenge is well taken.

People v. Russo, 713 P.2d 356, 361 (Colo. 1986); see also People v. Fultz, 761 P.2d 242, 243 (Colo.App.1988)(defendant's argument that his challenge for cause was improperly denied failed because "[d]efense counsel not only failed to lay a proper foundation for a challenge but also failed to state a reason for the challenge"), abrogated on other grounds by People v. Wiedemer, 852 P.2d 424 (Colo. 1993).

In the absence of an objection, a defendant waives the right to argue, on appeal, that the trial court erred in dismissing the prospective juror. Crim. P. 24(b)(2) states:

All matters pertaining to the qualifications and competency of the prospective jurors shall be deemed waived by the parties if not raised prior to the swearing in of the jury to try the case, except that the court for good cause shown or upon a motion for mistrial or other relief may hear such evidence during the trial out of the presence of the jury and enter such orders as are appropriate.

See § 16-10-103(3) (challenges to court's determination of competency of jurors "cannot be taken after the jury has been sworn to try the case except upon a motion for mistrial").

A challenge for cause is waived if counsel does not use reasonable diligence during jury selection to determine whether the grounds for such a challenge exist. People v. Lewis, 180 Colo. 423, 428, 506 P.2d 125, 127 (1973); People v. Backus, 952 P.2d 846, 852 (Colo.App.1998). Counsel is reasonably diligent if he or she takes the opportunity to question the prospective juror adequately. Ma v. People, 121 P.3d 205, 209 (Colo.2005); see also People v. Cevallos-Acosta, 140 P.3d 116, 121 (Colo.App.2005) (declining to address for the first time on appeal issue of whether prospective juror was presumptively biased, because defense did not raise a challenge for cause based on § 16-10-103(1)(k), C.R.S.2006); cf. United States v. Diaz-Albertini, 772 F.2d 654, 657 (10th Cir.1985)(holding that litigants have a duty to disclose their objection to a prospective juror by promptly bringing the matter to the attention of the trial court).

Here, defense counsel did not initiate the discussion at the bench about the prospective juror. Rather, the prosecutor asked the court for permission to approach the bench.

During the bench conference, defense counsel made four statements about the prospective juror's dismissal: (1) she was not "sure" the basis for removing the juror was statutory; (2) the objection would have a statutory basis if the juror were a surety for defendant; (3) counsel did not object to the prospective juror's knowing defendant's family; and (4) the juror was the only African-American on the jury panel.

Defense counsel did not use vocabulary, such as "object," "oppose," or "disagree," indicating opposition to the trial court's action. Defense counsel did not ask the court to leave the juror on the panel or ask the court not to excuse the juror. There was no statement that the prospective juror should not be released based upon the grounds relied upon by the court.

Counsel did not seek the court's permission to ask the prospective juror questions to clarify his surety status in relation to defendant. See Crim. P. 24(a)(3) ("The judge shall ask prospective jurors questions concerning their qualifications to serves as jurors. The parties or their counsel shall be permitted to ask the prospective jurors additional questions."). Counsel did not ask the court to keep the juror in the courtroom, or propose a bailiff should be sent to bring the juror back to the courtroom, until the trial court or counsel could make a further record with the juror.

Counsel did not seek alternative relief. For example, there was no request for a mistrial.

We conclude defendant did not use reasonable diligence to determine whether the prospective juror should have been excused for cause. Under People v. Russo, supra, and People v. Fultz, supra, defense counsel did not apprise the court or the prosecutor that the court should not have excused the juror or that further action, like additional questioning, could have clarified whether the juror was disqualified from service by § 16-10-103(1)(c).

A request for additional questioning here could have helped to resolve whether the juror should have been dismissed for cause under § 16-10-103(1)(c). The prospective juror's statement, "I'm surety for one of these family members," did not eliminate the possibility the juror was surety for defendant on this case or on another. If additional questioning had established the juror was, in fact, defendant's surety, there would be no doubt the trial court's decision was proper. If additional questioning had established the juror was not defendant's surety, the court might have reversed course. See People v. Lefebre, 5 P.3d 295, 302 n. 5 (Colo. 2000)("When a trial judge extensively questions a potential juror and that juror unequivocally reveals actual bias, the parties need not be afforded an opportunity to continue questioning the juror. As long as...