People v. Garcia, Court of Appeals No. 16CA1134

• Decision Date: 27 December 2018
• Docket Number: Court of Appeals No. 16CA1134
• Citation: 446 P.3d 922
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tanya Marie GARCIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

446 P.3d 922

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

v.Tanya Marie GARCIA, Defendant-Appellant.

Court of Appeals No. 16CA1134

Colorado Court of Appeals, Division V.

Announced December 27, 2018

Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Tanya Marie Garcia, appeals the judgment of conviction entered on a jury verdict finding her guilty of one count of felony menacing, seven counts of reckless endangerment, and one count of reckless driving. We affirm.

I. Background

¶ 2 On January 24, 2014, Garcia became convinced that one of her children’s friends, a twelve-year-old boy named T.H., had stolen a bottle of nail polish from her home. Garcia drove to a local park and confronted T.H., who claimed that Garcia’s daughter had given him the nail polish. A heated argument ensued in which Garcia threatened to assault T.H., causing T.H. to retreat. Garcia then returned to her SUV, started the car, accelerated over the curb in the direction of T.H., and drove across the park. T.H. testified that he had to hide behind a fence to avoid being hit by Garcia’s car. At the time of the incident, many children were in the park. Some of those children testified at trial and were named victims in this case.

¶ 3 During voir dire, Garcia’s counsel informed prospective jurors that they would be hearing testimony from alleged victims who were children. Counsel then made various inquiries as to whether each prospective juror could fairly judge the credibility of children and whether a juror’s sympathy for children would trigger bias against Garcia.

¶ 4 Along with several other prospective jurors who expressed concerns, prospective juror J.P. indicated that while he had had a "soft spot" for his young children, he felt he could "comply with what [the judge was] asking," although it might be difficult. He also noted, "I feel like children are so innocent. I don’t know when they don’t become innocent but my two little — two girls are — are so innocent and that does weigh on me." Garcia’s counsel later challenged J.P. for cause, arguing that he could not fairly evaluate a child witness’s credibility. The trial court denied Garcia’s challenge. Garcia exhausted her peremptory challenges but did not use a peremptory challenge to remove J.P. He then served as a juror in Garcia’s trial.

¶ 5 On appeal, Garcia contends that the trial court erred in denying her challenge for cause as to J.P. because his position on the credibility of children prevented him from being fair and impartial. In response, the People first argue that Garcia invited the error of which she complains by failing to use a peremptory challenge to excuse J.P. and that any potential error is not reviewable on appeal. In the alternative, the People argue that the trial court properly denied Garcia’s challenge for cause.

II. Invited Error

¶ 6 We first address the contention that Garcia invited error by failing to use a peremptory challenge to excuse J.P. If we perceive that Garcia’s claimed error resulted from the affirmative injection of error into the case, then the claim of error is unreviewable. People v. Rediger , 2018 CO 32, ¶ 37, 416 P.3d 893 ; see also Horton v. Suthers , 43 P.3d 611, 619 (Colo. 2002) (declining to review the merits of appellant’s argument because appellant’s position at trial was plainly inconsistent with his position on appeal).

¶ 7 The doctrine of invited error is based on the principle that a party must abide by the consequences of her actions at trial. Horton , 43 P.3d at 618. She "may not complain on appeal of an error that [s]he has invited or injected into the case ...." People v. Zapata , 779 P.2d 1307, 1309 (Colo. 1989). The invited error doctrine, therefore, prevents a party from taking a position on appeal that is inconsistent with the position she initially took. Horton , 43 P.3d at 618. However, its application is limited to situations where an error was caused by a party’s affirmative, strategic conduct and not by a party’s inaction or inadvertence. People v. Becker , 2014 COA 36, ¶ 20, 347 P.3d 1168 ; see also People v. Gross , 2012 CO 60M, ¶¶ 11-12, 287 P.3d 105 (holding that the court would not consider whether the trial court erred in giving a jury instruction where the defendant’s counsel argued in its favor at trial in a deliberate and strategic manner); People v. Stewart , 55 P.3d 107, 119-20 (Colo. 2002) (holding that where an instruction was not given due to counsel’s apparent inadvertence, the court would review the claim of error on appeal).

¶ 8 In this case, we do not perceive that Garcia’s position on appeal is inconsistent with the position that she took at trial. In addition, due to the uncertain nature of counsel’s motivations with respect to peremptory strikes, the record does not allow us to discern why J.P. remained on the jury. Accordingly, we decline to apply the doctrine of invited error to prohibit review of Garcia’s arguments.

A. Inconsistency

¶ 9 Relying on the partial dissent in People v. Novotny , the People argue that a party who unsuccessfully challenges a juror for cause must use one of her peremptory challenges to excuse that juror if she wishes to preserve her right to have the challenge reviewed on appeal. 2014 CO 18, ¶ 31, 320 P.3d 1194 ("[I]f the defendant chooses not to use a peremptory, any error is arguably invited and not reviewable on appeal.") (Hood, J., concurring in part and dissenting in part). This approach is apparently premised on the notion that once a defendant has alleged juror bias, her subsequent failure to use a peremptory challenge to strike that juror is inconsistent with her initial claim.

¶ 10 However, in Morrison v. People , long before Novotny was decided, the supreme court held, in part, that its "prior decisions do not require a defendant to cure a trial judge’s error on a challenge for cause by using a peremptory strike against the objectionable juror in order to preserve a claim that his right to a fair trial was violated by the presence of a biased juror on his jury." 19 P.3d 668, 670 (Colo. 2000) ; see also United States v. Martinez-Salazar , 528 U.S. 304, 314-15, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (noting that the federal peremptory challenge statute does not require a party to use a peremptory challenge to cure judicial error). And although Justice Hood’s partial dissent in Novotny , ¶ 47, raised the "specter of invited error" if counsel elects not to use a peremptory strike on the challenged juror, the Novotny court did not revisit its prior holding in Morrison .

¶ 11 Thus, the supreme court has expressly held that the type of actions taken by Garcia’s counsel should not be construed as a bar to appellate review. This holding indicates that there is no inherent inconsistency in allowing counsel to challenge a juror for cause while also permitting her to use peremptory challenges to excuse other jurors. Counsel may consider certain jurors disadvantageous to her client for reasons that do not fall within the statutory framework and, unless there is an alleged discriminatory basis for her challenges, she does not owe the court or the opposing party an explanation of her decisions. Batson v. Kentucky , 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Moreover, when a trial court rules against a party on a particular issue, the party may choose to change her plan in response to the ruling without affirmatively embracing its rationale. See, e.g. , McGill v. DIA Airport Parking , 2016 COA 165, ¶ 11, 395 P.3d 1153 (noting that where the defendant objected to the admission of certain impeachment evidence and her objection was overruled, she did not invite error by introducing the evidence herself to gain a strategic advantage).

B. Affirmative Conduct

¶ 12 Next, we consider whether Garcia’s conduct was sufficiently affirmative and strategic to adequately support an invited error claim. We look to the record for evidence that Garcia argued in favor of the trial court’s ruling or, by her words or conduct, expressly and strategically acquiesced to it. Rediger , ¶ 10 (finding no strategic acquiescence, and thus no invited error, where a defendant challenged jury instructions on appeal despite stating at trial that he was "satisfied" with them); Horton , 43 P.3d at 619 ("The [invited error] doctrine applies where one party expressly acquiesces to conduct by the court or the opposing party.").

¶ 13 Garcia never argued in favor of seating the challenged juror. In fact, she specifically objected to his "inability to follow along and be a fair and impartial juror," and she never withdrew the objection.

¶ 14 In addition, the record contains no suggestion that Garcia’s counsel purposely failed to use a peremptory challenge to juror J.P. in order to preserve an issue for appeal in the event of a conviction. She accepted the trial court’s ruling on the challenge for cause and used her peremptory challenges as provided in the relevant statute and rule. See § 16-10-104, C.R.S. 2018; Crim. P. 24(d). She did not indicate why she declined to strike J.P. nor did she explain why she did strike other jurors through peremptory challenges. We do not view that conduct as demonstrating acquiescence to the trial court’s rationale for denying the challenge for cause, nor can we declare that counsel was acting for some strategic purpose. People v. Zadra , 2013 COA 140, ¶ 49, 396 P.3d 34 (holding that where the record did not show that counsel’s failure to act was strategic, invited error doctrine did not preclude appellate review), aff’d , 2017 CO 18, 389 P.3d 885 ; see also People v. Allgier , 2018 COA 122, ¶¶ 27-28, 428 P.3d 713 (deciding that where the record did not "foreclose the possibility that defense counsel overlooked" the...