People v. Lefebre

• Decision Date: 13 November 1998
• Docket Number: No. 97CA0958,97CA0958
• Citation: 981 P.2d 650
• Parties: 98 CJ C.A.R. 5747 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John F. LEFEBRE, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 650

981 P.2d 650

98 CJ C.A.R. 5747

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John F. LEFEBRE, Defendant-Appellant.

No. 97CA0958.

Colorado Court of Appeals,

Div. III.

Nov. 13, 1998.

As Modified on Denial of Rehearing Dec. 10, 1998.

Certiorari Granted July 26, 1999. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge JONES.

Defendant, John F. Lefebre, appeals from the judgment entered upon jury verdicts finding him guilty of two counts of aggravated robbery and eight habitual criminal counts. We reverse the convictions, vacate the sentences, and remand for a new trial.

I.

Defendant's primary contention is that the trial court committed reversible error by dismissing three prospective jurors for cause without first allowing defense counsel to question them as permitted under Crim. P. 24(a). We agree.

It is fundamental to the right of a fair trial that a defendant be provided with an impartial jury. A defendant's constitutional right to an impartial jury is assured through the voir dire process, the purpose of which is to enable counsel to determine whether any prospective jurors are possessed of beliefs which would cause them to be biased in such a manner as to prevent the counsel's client from obtaining a fair and impartial trial. People v. Rodriguez, 914 P.2d 230 (Colo.1996).

While a defendant does not have a constitutional right to voir dire a prospective jury panel, such right is expressly granted under our rules of criminal procedure. People v. O'Neill, 803 P.2d 164 (Colo.1990); People v. Reaud, 821 P.2d 870 (Colo.App.1991). Indeed, Crim. P. 24(a)(2) provides that "the parties or their counsel shall be permitted to ask the prospective jurors additional questions." (emphasis supplied) Thus, while trial courts are vested with discretion to place limitations on the scope and extent of counsel's right to voir dire, it is not within the trial court's discretion to take away that right. See People v. O'Neill, supra.

Here, the record reflects that the trial court did not make a record of the proceedings that occurred when the venire panel was first administered the jurors' oath and then given the written questionnaire. Thus, we do not know, and cannot speculate concerning, whether the charges and lists of witnesses were read to the jurors, whether a general outline of the facts was read to them, whether they were instructed about how to fill out their questionnaires, and whether counsel for the parties had any input in instructing and questioning them prior to their receiving the questionnaires.

Each of three prospective jurors indicated on his respective juror questionnaire that he did not believe that he could be a fair juror in this case. The first prospective juror indicated on the questionnaire that he could not be fair because his "sister serves as an expert witness and behavior of DA's staff towards her while I've been present in court room." The second prospective juror's justification for his belief was "[p]rior criminal background." Finally, the third prospective juror indicated that he could not be fair "because my brother has been convicted on the same charges in court."

Based on these responses, the prosecution challenged the three prospective jurors for cause. Over defendant's objection, the trial court excused the prospective jurors, rejecting defendant's argument that he had not been afforded the opportunity to examine them or to rehabilitate them. The trial court noted counsel's objection, but stated:

The Court of Appeals is basically taking the position that this whole rehabilitation of jurors who indicate that they cannot be fair is an error. As far as I'm concerned, if they indicate on these questionnaires they cannot be fair they ought to be excused.

By refusing to allow defense counsel to ask the prospective jurors any questions before excusing them, the trial court deprived defendant of the rights provided by Crim. P. 24(a)(2). While the trial court had the discretion to limit the scope of defendant's examination of the prospective jurors, it had no discretion to deny defendant the right to make all such reasonable inquiries which would have enabled him to determine whether the prospective jurors, regardless of their personal experiences, would have been able to decide the issues based solely upon the evidence and instructions of the court.

The mandatory language of the rule and the statute providing that counsel be allowed to examine potential jurors expresses a strong policy from the General Assembly and the Supreme Court that counsel for the parties not be denied input in the jury selection process as to any potential juror. See Crim. P. 24(b)(1)(X); 16-10-103(1)(j), C.R.S.1998; see also People v. De Lordo, 350 Ill. 148, 182 N.E. 726 (1932)(while trial court has discretion to limit extent to which attorneys may examine jurors, it may not deny a defendant the right to make inquiries that would enable him to determine whether or not such juror will be free from bias and prejudice in exercising judgment in the case, and that would enable him to exercise his right of peremptory challenge intelligently); O'Connell v. State, 480 So.2d 1284 (Fla.1986)(the refusal of trial court to allow defendant to examine two potential jurors before dismissing them could not be justified as an exercise of control of unreasonably repetitious and argumentative voir dire questioning since defendant was not permitted to ask a single question).

Under the record here, we cannot conclude with fair assurance that the three jurors had states of mind manifesting a bias that would have prevented them from rendering impartial verdicts based solely on the evidence presented and the law as given in the instructions of the court. See People v. Macrander, 828 P.2d 234 (Colo.1992). Rather, the subject responses on the three jurors' questionnaires seem to illustrate the rationale for that part of Crim. P. 24(b)(1)(X) that states:

[N]o person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion ... 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 .... (emphasis added)

Absent any record to the contrary here, it is clear that the expressions of the three jurors were no more than "previously formed or expressed" opinions, as to which the trial court had a duty to allow examination so as to determine whether the answers, indeed, were evidence of actual bias. See People v. Reaud, supra.

We note that the prosecution did not exercise two of its peremptory challenges during jury selection. That would, presumably, mean that the prosecutor could have used those challenges to remove two of the three jurors in question, if she had still desired to do so after any questioning by both counsel under Crim. P. 24(a)(2) would have been completed.

Consequently, even if we were to assume that the doctrine of harmless error and the burden to show prejudice apply in cases such as this, as another division of this court determined in People v. Evans, --- P.2d ---- (Colo.App. No. 96CA1602, November 13, 1998), we would, nevertheless, conclude that, because only two of the three jurors...