People v. Clark

• Decision Date: 24 March 2022
• Docket Number: Court of Appeals No. 19CA0340
• Citation: 512 P.3d 1074,2022 COA 33
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Reginald Keith CLARK, Defendant-Appellant.
• Court: Colorado Court of Appeals

512 P.3d 1074

2022 COA 33

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Reginald Keith CLARK, Defendant-Appellant.

Court of Appeals No. 19CA0340

Colorado Court of Appeals, Division I.

Announced March 24, 2022

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶ 1 Defendant, Reginald Keith Clark, appeals his conviction for aggravated kidnapping and sexual assault on three separate grounds. We affirm.

I. Background

¶ 2 In the early hours of November 5, 2017, A.B., a woman experiencing homelessness, was walking through downtown Denver to catch a bus. Clark approached in a car and offered her a ride. Recognizing Clark from a nearby shelter, A.B. accepted.

¶ 3 A.B. asked to be driven to a nearby location, but Clark left Denver and drove into the mountains near Black Hawk. Clark stopped several times along the way to smoke methamphetamine, sexually assaulting A.B. during a stop. Shortly after the incident, A.B. ran away, eventually coming to rest on the side of a road where she was contacted by police. A.B. described the assault and her assailant to the officers, who soon spotted Clark driving in the vicinity, pulled him over, and arrested him.

¶ 4 Clark was charged with second degree kidnapping (a class 2 felony, § 18-3-301(1), (3)(a), C.R.S. 2021); sexual assault with a deadly weapon (a class 2 felony, § 18-3-402(1)(a), (5)(a)(III), C.R.S. 2021); sexual assault caused by threat of imminent harm (a class 3 felony, § 18-3-402(1)(a), (4)(b) ); and sexual assault achieved through application of physical force (a class 3 felony, § 18-3-402(1)(a), (4)(a) ).

¶ 5 The case proceeded to a jury trial. After deliberating for approximately seventeen hours over three days, the jury convicted Clark of second degree kidnapping and sexual assault caused by threat of imminent harm. The court sentenced Clark to eighteen years for the kidnapping conviction and twelve years to life for the sexual assault conviction, to be served consecutively in the custody of the Department of Corrections.

¶ 6 Clark raises three issues on appeal. We address each in turn.

II. Biased Prospective Juror

¶ 7 Clark first argues that the trial court abused its discretion by rejecting his challenge to remove an allegedly biased prospective juror. Judge Fox and Judge Schutz agree that the court abused its discretion in denying the challenge for cause, but Judge Fox and Judge Dailey do not believe that any error requires reversal.

A. Additional Background

¶ 8 During voir dire, defense counsel probed the jury about the fact that Clark was the only Black individual in the room. One juror opined that the lack of diversity could undermine the fairness of the trial as a whole. Several minutes later, Prospective Juror K returned to the diversity topic:

[PROSPECTIVE JUROR K]: You've said a lot, and I'm trying to think through each thing ... I apologize for some of my thoughts.

[DEFENSE COUNSEL]: Don't apologize.

[PROSPECTIVE JUROR K]: The diversity and stuff, yes, it's obvious there's a [B]lack gentleman over there. This is Gilpin County. I moved to Gilpin County. I didn't want diversity. I want to be diverse up on top of a hill. That's -- I hear the things, that diversity makes us stronger and things like that. I don't quite believe it in life from what my personal experiences are. And I can't change that. I can look and judge what is being said by your side and their side and be fair, but I can't change that -- when I walked in here seeing a [B]lack gentleman here. And I can't say that the prosecutor has a leg up on this or something until I hear what's happened.

(Emphases added.)

¶ 9 After a bench conference, the court engaged with Prospective Juror K:

[THE COURT]: So here's kind of the two-part bottom line .... If you're chosen as a juror in this case, and if you're back in the jury room and you think the prosecution hasn't proven its case, would you have any trouble finding this defendant to be not guilty?

[PROSPECTIVE JUROR K]: Not at all.

[THE COURT]: And the other side of that coin, what if you're back there and you say that prosecutor has proven his case, would you have any trouble finding the defendant to be guilty?

[PROSPECTIVE JUROR K]: Again, the same answer. Not at all.

¶ 10 Defense counsel challenged Prospective Juror K for cause. The court denied the challenge for cause after an unrecorded bench conference. The court later explained why it denied the challenge, reasoning that,

[h]e did say those things about – that he didn't think that diversity was a good thing, or something to that effect. But that's a political view, I think. That doesn't really answer the question of whether he can be a fair juror. And a person can certainly have offensive views and still apply the law. Those two things are really separate in my mind. ... [R]egardless of his political views, I didn't see any bias in Mr. [K] that would have prevented him from being able to serve.

¶ 11 The court denied the challenge for cause, and defense counsel used one of his peremptory strikes to remove Prospective Juror K.

B. Law and Analysis

¶ 12 We first examine whether the court abused its discretion by denying the for-cause challenge to Prospective Juror K. Concluding that it did, we then analyze whether Clark's later use of a peremptory strike to remove Prospective Juror K amounts to structural error requiring reversal and determine that it does not.

1. Challenge for Cause

¶ 13 An impartial jury is an essential element of a defendant's constitutional right to a fair trial under the United States and Colorado Constitutions. U.S. Const. amends. V, VI, XIV ; Colo. Const. art. II, §§ 16, 25. To secure that right, Colorado law requires courts, upon a party's challenge, to remove jurors when particular circumstances implicate their ability to remain impartial. See § 16-10-103(1)(j), C.R.S. 2021. A court therefore must grant a challenge for cause to a prospective juror who "envinc[es] enmity or bias toward the defendant or the state," unless the court is satisfied that the prospective juror "will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." Id. ; People v. Abu-Nantambu-El , 2019 CO 106, ¶ 16, 454 P.3d 1044.

¶ 14 To determine whether a prospective juror should be dismissed for cause, we analyze "whether the person would be able to set aside any bias or preconceived notion and render an impartial verdict based on the evidence adduced at trial and the instructions given by the court." People v. Drake , 748 P.2d 1237, 1244 (Colo. 1988).

¶ 15 We review a trial court's ruling on a challenge for cause to a prospective juror for an abuse of discretion. People v. Clemens , 2017 CO 89, ¶ 13, 401 P.3d 525. This standard defers to the trial court's assessment of the credibility of the prospective juror's responses, recognizes the trial court's unique role and perspective in evaluating the demeanor and body language of the prospective juror, and discourages reviewing courts from second-guessing the trial court based on a cold record. Id. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

¶ 16 Several prospective jurors opined on the value of a diverse jury pool. Prospective Juror K, however, volunteered that he moved to Gilpin County because he "didn't want diversity" — the obvious inference being that he moved to Gilpin County to distance himself from nonwhite people. Although his opinion can theoretically be framed as a political view, the glaring implication persists: his acknowledged bias against nonwhite people like defendant.¹ People v. Lefebre , 5 P.3d 295, 300 (Colo. 2000) ("Actual bias encompasses beliefs ... grounded in the juror's feelings regarding the race, religion, and ethnic or other group to which the defendant belongs."), overruled on other grounds by People v. Novotny , 2014 CO 18, 320 P.3d 1194.

¶ 17 In denying the challenge for cause, the trial court pointed to Prospective Juror K's statements that (1) the prosecution did not have a "leg up," and (2) he would hold both sides to their respective burdens of proof. It denied the challenge despite Prospective Juror K's repeated acknowledgement that he could not change how he felt about diversity. In so doing, he made clear that he would not "set aside any bias or preconceived notion and render an impartial verdict" as he was required to do to avoid being stricken for cause. Drake , 748 P.2d at 1244 ; People v. Cisneros , 2014 COA 49, ¶ 94, 356 P.3d 877. Moreover, the limited rehabilitation the court performed focused on whether Prospective Juror K would apply the correct burdens of proof — not whether he could (or would) set aside his admitted bias.

¶ 18 It is true that we give great deference to the trial court's decision to grant or deny a challenge for cause. Clemens , ¶ 13. Consistent with this principle, the People contend that the court rationally relied on Prospective Juror K's assurances that he could render an impartial verdict. Embedded in this argument is the suggestion that when a juror agrees to perform his duties impartially, he implicitly disavows any previously expressed bias.

¶ 19 That is not the case here. Instead, Prospective Juror K volunteered his views and then preemptively clarified that he could not change those views. We recognize, of course, that trial courts do not need to secure affirmative statements from prospective jurors that they will set aside each and every bias to conclude that they can sit impartially. Vigil v. People , 2019 CO 105, ¶ 24, 455 P.3d 332 ("[I]t 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.").

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