People v. Lefebre, No. 99SC8 | 99SC42.

• Decision Date: 19 June 2000
• Docket Number: No. 99SC8 | 99SC42.
• Citation: 5 P.3d 295
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John F. LEFEBRE, Respondent.
• Court: Colorado Supreme Court

5 P.3d 295

The PEOPLE of the State of Colorado, Petitioner, v. John F. LEFEBRE, Respondent.

Nos. 99SCSC42.

Supreme Court of Colorado, En Banc.

June 19, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert M. Russel, First Assistant Attorney General, Peter J. Cannici, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Petitioner.

David Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

In this case, we must decide whether a trial court erred in excusing several jurors for cause without first allowing voir dire questioning of those jurors by defense counsel. We must also decide whether, if there was error, the defendant's convictions must be reversed as a result.

During jury selection at the trial of John Fred Lefebre for aggravated robbery, several jurors indicated on a written questionnaire that, for various reasons, they could not be fair. The prosecution challenged the jurors for cause, and the trial judge granted the challenges without allowing defense counsel to question the jurors. The court of appeals determined that the trial judge erred in so doing because Crim. P. 24 mandates that counsel be allowed to question prospective jurors. See People v. Lefebre, 981 P.2d 650, 652 (Colo.App.1998). The court found that the error resulted in prejudice to the defendant, and consequently ordered a new trial. See id.

We agree that the trial court abused its discretion in refusing to permit questioning of the challenged jurors by the defendant. The record does not establish firmly and clearly that the jurors could not set aside their preconceived beliefs and decide the case based on the evidence and the court's instructions. Therefore, defense counsel was entitled to question each of these jurors to determine the true nature and extent of their bias. Thus, the trial judge erroneously dismissed the jurors without allowing such questioning.

On the facts of this case, the trial court's error is prejudicial as a matter of law and requires vacating the defendant's convictions. Three jurors were excused as a result of the trial court's decision to grant the prosecution's challenges for cause, and the prosecution declined to use two of its peremptory challenges. As a result, even if the prosecution were to have used its remaining peremptory challenges to strike two of the jurors erroneously removed for cause, the trial court in effect afforded the prosecution an additional peremptory challenge when it removed a third juror for cause. Our prior decisions establish that the resulting imbalance gave the prosecution an unfair tactical advantage in shaping the jury, and, as such, is inherently prejudicial. Accordingly, we affirm the judgment of the court of appeals and order a new trial.

I.

The prosecution charged John Fred Lefebre with five counts of aggravated robbery pursuant to section 18-4-302(1)(b), 6 C.R.S. (1999), on the allegation that in June 1996 Lefebre robbed three grocery stores in the Denver area. Lefebre also was charged as an habitual criminal under section 16-13-101, 6 C.R.S. (1999). The trial judge consolidated all of the counts of aggravated robbery for a single trial. The jury convicted Lefebre on four counts of aggravated robbery, deadlocking on the fifth count. As a result, the prosecution dismissed that charge. On the remaining counts, the trial judge sentenced Lefebre as a habitual criminal to sixty-four years on each count.¹

Lefebre appealed his conviction, claiming that the trial judge committed reversible error during the voir dire process. At the start of the proceedings, the trial judge outlined the charges for the venire, administered the oath, and asked the venire some preliminary questions, such as whether all members were residents, spoke English, and could hear the proceedings. At this point, the judge called twenty-four members of the venire into the box. The judge then considered hardship claims and any claims of personal relationship between the jurors and witnesses or law enforcement personnel. The trial judge next explained some basic principles of law and courtroom procedure.

Prior to these proceedings, the prospective jurors filled out standard questionnaires. Counsel and the court had copies of the completed forms. Question number fifteen asked, "Is there any reason that you believe that you could not be a fair juror in this criminal case?"

Before the attorneys began questioning the seated panel, the trial judge asked if the attorneys had any challenges for cause based on the prospective jurors' answers to the questionnaires. The prosecutor challenged three jurors for cause on the grounds that they indicated on their questionnaires that, for various reasons, they did not think they could be fair jurors. Juror Trujillo wrote that he could not be fair because his brother had been convicted of the same charges. Juror McClanahan wrote that his prior criminal history would prevent him from being fair. McClanahan did not elaborate further as to his answer nor did he provide additional information in response to a previous question asking if he had been convicted of a crime other than traffic infringements in the last ten years. Juror Greene wrote that he could not be fair because his sister was an expert witness in other cases, and he objected to the manner in which the district attorney's office had treated his sister.

Defense counsel objected to all three challenges and requested an opportunity to question the jurors. The trial judge denied the request, stating that, "[t]he 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." The trial court then dismissed all three jurors over defense counsel's objection.

Three replacement jurors were seated in the box, and counsel proceeded to question the jury pool. After the questioning concluded, the trial court ruled on further challenges for cause and both parties exercised their peremptory challenges. The prosecution exercised four peremptory challenges, while the defense exhausted its peremptory challenges, striking six jurors from the panel.

The court of appeals determined that the trial judge erred during the voir dire process by not affording defense counsel an opportunity to question the challenged jurors. See Lefebre, 981 P.2d at 652. The court held that the defendant had a statutory right to examine the three prospective jurors. See id. Although the trial judge could limit the scope of the questioning, she could not deprive the defendant of the right to question those jurors altogether. See id. The court of appeals also found that the record suggested that the jurors could in fact have been rehabilitated. See id. at 653. Because the prosecution successfully challenged three jurors for cause, and had two unused peremptory strikes, the court presumed prejudice to the defendant. See id. Therefore, the court reversed the defendant's convictions and ordered a new trial. See id. The prosecution now appeals.²

II.

We first must determine whether the trial judge abused its discretion in dismissing the three jurors for cause without allowing defense counsel to question them. We agree with the court of appeals that the trial judge erred, but we approach the problem somewhat differently. We hold that if there is firm and clear evidence that a juror is unfit to serve, then the trial court may properly dismiss the juror without allowing questioning by the parties. Because the record before us does not establish by firm and clear evidence that the jurors at issue were unfit to serve, the trial court abused its discretion in dismissing them prior to questioning by the defense.

A.

Generally, trial courts have considerable discretion in fashioning voir dire. See People v. Harlan, 8 P.3d 448, 462 (Colo. 2000). Trial judges have significant leeway in conducting voir dire and in ruling on challenges for cause because the judge is ultimately responsible for providing an impartial panel of jurors. See People v. Rodriguez, 914 P.2d 230, 260 (Colo.1996).

A trial court must grant a challenge for cause if a prospective juror is unable or unwilling to accept the basic principles of criminal law and to render a fair and impartial verdict based on the evidence admitted at trial and the court's instructions. See Russo, 713 P.2d at 360-61; see also § 16-10-103(1)(j); Crim. P. 24(b)(1)(X). A reviewing court ordinarily will overturn a trial court's decision concerning a challenge for cause only upon an affirmative showing that the lower court abused its discretion. See Carrillo v. People, 974 P.2d 478, 485 (Colo.1999). We usually accord great deference to the trial court's handling of a challenge for cause because such decisions turn on an assessment of the juror's credibility, demeanor, and sincerity in explaining her state of mind. See id. at 485-86; Russo, 713 P.2d at 362. The trial court is in a superior position to evaluate these factors than is a reviewing court, which has access only to a cold record for its assessment. See People v. Davis, 794 P.2d 159, 206 (Colo.1990). We will, therefore, overturn a trial court's decision to remove a juror for cause without allowing the parties to question the juror, after the trial court has itself questioned the juror, only if there is an affirmative showing in the record that the trial court abused its discretion. See Carrillo, 974 P.2d at 485. The jury selection process is designed to produce a fair jury. A defendant has a constitutional right to a fair and impartial jury. See U.S. Const. amend. VI; Colo. Const. art. II, §...