People v. Oliver
| Decision Date | 18 June 2020 |
| Docket Number | Court of Appeals No. 18CA0085 |
| Citation | 474 P.3d 207 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Zachary Curtis OLIVER, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE TOW
¶ 1 Defendant, Zachary Curtis Oliver, appeals his judgment of conviction entered on jury verdicts finding him guilty of first degree introduction of contraband, first degree possession of contraband, and second degree possession of contraband. As a matter of first impression, we conclude that second degree possession of contraband is a lesser included offense of first degree possession of contraband under section 18-1-408(5)(c), C.R.S. 2019. However, we discern no plain error in the trial court's failure to instruct the jury accordingly, and thus affirm the conviction for possession of contraband in the second degree. We also affirm the conviction for introduction of contraband, but we vacate the conviction for first degree possession of contraband.
¶ 2 In April 2016, a corrections officer conducted a search of Oliver's prison cell and discovered a razor blade affixed to a toothbrush handle. Oliver admitted he had made the item but alleged he had only done so to cut holes in his prison uniform to use as pockets.
¶ 3 Oliver was charged with first degree introduction of contraband and first degree possession of contraband. At trial, the court also instructed the jury on second degree possession of contraband as a lesser nonincluded offense of first degree possession of contraband. A jury convicted Oliver of all three charges.
¶ 4 The court imposed concurrent sentences of four years each for first degree introduction of contraband and first degree possession of contraband. The court also imposed mandatory fines and fees for the conviction for second degree possession of contraband, but later waived them due to Oliver's indigence.
¶ 5 During voir dire, Oliver challenged ten potential jurors for cause. The trial court agreed as to two of them but denied the challenges to the other eight jurors. None of the eight individuals served on the jury, however, as Oliver used peremptory challenges to remove six of them and the prosecution exercised two of its peremptory challenges to remove the other two. On appeal, Oliver contends that the trial court erred by denying his challenges for cause to four of the prospective jurors, requiring Oliver to exercise a peremptory challenge to remove each potential juror.
¶ 6 We agree as to one challenge but conclude that the error was harmless.
¶ 7 We review a trial court's ruling on a challenge for cause to prospective jurors for an abuse of discretion. People v. Clemens , 2017 CO 89, ¶ 13, 401 P.3d 525.
This standard gives deference to the trial court's assessment of the credibility of prospective jurors' responses, recognizes the trial court's unique role and perspective in evaluating the demeanor and body language of prospective jurors, and serves to discourage reviewing courts from second-guessing the trial court based on a cold record.
Id. A court abuses its discretion when it issues a ruling that is manifestly arbitrary, unreasonable, or unfair, or when it misconstrues or misapplies the law. People v. Maestas , 2014 COA 139M, ¶ 11, 343 P.3d 1038. When reviewing a challenge for cause, we examine the entire voir dire of the prospective juror. Id.
¶ 8 "While jurors often express concern or indicate preconceived beliefs during voir dire, such concerns and beliefs do not automatically disqualify them from service." People v. Marciano , 2014 COA 92M-2, ¶ 8, 411 P.3d 831. However, where a juror "evinc[es] enmity or bias toward the defendant or the state," the trial court must sustain a challenge for cause unless "the court is satisfied, from the examination of the juror or from other evidence, that [the juror] will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." § 16-10-103(1)(j), C.R.S. 2019; see also Crim. P. 24(b)(1)(X).1
¶ 9 Given the substantial deference we afford the trial court in ruling on a challenge for cause, see Clemens , ¶ 13, we consider whether "a potential juror's statements compel[ed] the inference that he or she [could not] decide crucial issues fairly" in determining if a potential juror evinced "enmity or bias," People v. Merrow , 181 P.3d 319, 321 (Colo. App. 2007). If so, "a challenge for cause must [have been] granted in the absence of rehabilitative questioning or other counter-balancing information." Id.
¶ 10 Relying on two Colorado Supreme Court cases, Oliver asserts that a challenge for cause must be sustained if a potential juror's impartiality is "in doubt" or "appears doubtful." See People v. Russo , 713 P.2d 356, 362 (Colo. 1986) ; Nailor v. People , 200 Colo. 30, 31-32, 612 P.2d 79, 79-80 (1980). However, in light of our supreme court's recent opinion in Vigil v. People , 2019 CO 105, 455 P.3d 332, we decline to follow that standard. See id. at ¶ 40 (Hood, J., specially concurring) (). Instead, we follow the plain language of section 16-10-103(1)(j). See id. at ¶ 41 (Hood, J., specially concurring) ().
¶ 11 In determining whether a potential juror can set aside any preconceived notions and render an impartial verdict, the trial court may consider a juror's assurances that he or she can serve fairly and impartially. People v. Gilbert , 12 P.3d 331, 334 (Colo. App. 2000). If the court is reasonably satisfied that the prospective juror can render an impartial verdict, the juror should not be disqualified. Id. Hence, "[i]f the potential juror indicates that she can set aside [preconceived] beliefs and make a decision based on the evidence and the court's instructions on the law, she may still sit on the jury." Marciano , ¶ 8.
¶ 12 Oliver contends that the trial court erred by denying his challenges for cause to the following four prospective jurors. We address each in turn.
¶ 13 During voir dire, Juror T.W. relayed that she had previously worked for the Department of Corrections (DOC) — including for thirteen years at the facility where Oliver was incarcerated. She also noted that she was currently working for the American Correctional Association. As pertinent here, the following exchange then occurred between defense counsel and Juror T.W.:
¶ 14 Defense counsel also asked the full venire if anyone wondered why the defendant was already in prison. When counsel turned to Juror T.W., this exchange followed:
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