People v. Prator, No. 92SC244

Docket NºNo. 92SC244
Citation856 P.2d 837
Case DateJuly 26, 1993
CourtSupreme Court of Colorado

Page 837

856 P.2d 837
The PEOPLE of the State of Colorado, Petitioner,
v.
Reo Shane PRATOR, Respondent.
No. 92SC244.
Supreme Court of Colorado,
En Banc.
July 26, 1993.

Page 838

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for petitioner.

Jeanne Winer, Boulder, for respondent.

Justice SCOTT delivered the Opinion of the Court.

In this appeal we are called upon to determine whether a criminal defendant who exhausts all of his peremptory challenges and uses one of those challenges to exclude a juror the trial court erroneously failed to excuse for bias is unduly prejudiced and, on conviction, entitled to a new trial. We conclude that he is. Accordingly, we affirm the court of appeals opinion reversing the jury verdict and granting a new trial.

I.

The facts are not in dispute. The defendant, Reo Shane Prator, was arrested and charged with second-degree murder. 1 A jury trial was held in the district court of Mesa County. During the prosecution's voir dire, prospective juror, Betty Steele, disclosed that her son was employed as a law enforcement officer in Alaska. When asked if that fact might cause her to give greater weight to a law officer's testimony, Steele said, "I would like to tell you no," then revealed that both her husband and her father-in-law formerly worked as police officers and that she, herself, was acquainted with a "good deal" of the police officers in the town.

Subsequently, when questioned by defense counsel, Steele admitted she would give greater weight to the testimony of a law enforcement officer than to the testimony of an individual not connected with law enforcement. The relevant exchange occurred as follows:

Counsel: Yesterday when [the prosecutor] was speaking with you, I think he had asked something to the effect, and I don't want to put any words in your mouth--or his mouth, so correct me if I misunderstood, I think he was asking you something to the effect of because of your close association with law enforcement, because of your husband, father-in-law and your son, would there be some inclination on your part to perhaps regard the word of a law enforcement officer perhaps a little stronger than a lay person or another citizen; and as I recall you said something to the effect of I would like to tell you no, but I'm not certain that I could. Did I understand that right?

Steele: That's correct; and I did spent [sic] some time thinking about it last night, and I would like to think that I would be a fair and honest person, but if you put two people side by side, and one

Page 839

has a police officer's uniform, I would be prone to listen to the police officer. I'm sorry about that, that's just the way I am.

Counsel: [G]iven this type of case, do you feel in your own mind that perhaps you have some doubt as to whether you could set aside your personal feelings because of your experience, and set that aside when you listen to the testimony? Do you have a doubt in your mind that you could do that?

Steele: I really do. I really do.

Counsel: Do you think perhaps you might be more comfortable sitting on another type of a jury, perhaps one that didn't involve the word of a law enforcement officer versus the word of someone else?

Steele: In all fairness to this court, I think that that would be the proper thing to do. I think I would end up--maybe not meaning to, but I think I would end up being biased, I really do.

Following this examination, defense counsel asked that Steele be removed for cause because Steele "expressed a doubt that she would be able to give equal weight to the testimony of say, a law enforcement officer and a person who is not," and "when there is doubt expressed by a juror, it would be appropriate that she be excused for cause on this type of case." Although the prosecutor did not object, the district court denied the challenge for cause. The district court explained

[Steele] has not expressed doubt that she could render an impartial verdict, according to the law and evidence submitted to the jury during trial, and she has expressed that she'd be uncomfortable; but comfort is not--to a juror is not the standard for determining whether they could be impartial.

The district court then allowed defense counsel another opportunity to question Steele to attempt to establish bias. During this examination, Steele stated that she was a law abiding citizen who believed in justice, but she could not judge "whether or not [she] would be the prime pick for a juror...." Steele concluded by stating her belief that the court, including the defendant, could trust her. Defense counsel then ended her questioning without renewing the challenge for cause and later used a peremptory challenge to excuse Steele.

After defense counsel used each of her seven peremptory challenges, the court and defense counsel engaged in the following colloquy:

The Court: Any challenges for cause, Ms. Lake?

Counsel: No, your Honor.

The Court: The Court--do you feel you have any other peremptory challenges, Ms. Lake?

Counsel: I have seven, your Honor; I've done seven.

The Court: I count that you've exercised seven.

Counsel: Well, your Honor, given that's the limit, we would not request any further peremptories at this time.

There was no further discussion of this matter and the court subsequently swore the impaneled jurors for trial. The jury ultimately returned a verdict of guilt on the charge of second-degree murder, and Prator was sentenced to twenty years imprisonment.

On appeal, the court of appeals reversed Prator's conviction and remanded for a new trial. People v. Prator, 833 P.2d 819 (Colo.App.1992). The court of appeals initially found that Prator's challenge for cause was erroneously rejected: Steele "indicated a clear expression of bias in favor of law enforcement witnesses, and thus, the trial court could not properly conclude that the juror would render an impartial verdict." Prator, 833 P.2d at 820-21. The court then rejected the People's contention that the district court's failure to excuse Ms. Steele was not prejudicial: "Prejudice is shown if, as here, the defendant exhausts all of his peremptory challenges, and one of those challenges is expended on a juror who should have been removed for cause." Id. at 821. The court of appeals concluded that a defendant is not required to request an extra peremptory challenge in order to

Page 840

preserve the issue for appeal, despite a trial court's power to allow additional peremptory challenges pursuant to Crim.P. 24(d)(3). 2 Id.

We granted the People's petition for certiorari to determine whether the court of appeals erred in holding that prejudice is shown if a defendant exhausts all of his peremptory challenges and expends one on a juror who should have been removed for cause. 3

II.

The only issue before us is whether the trial court's error in refusing to grant the challenge for cause prejudiced the defendant below, Reo Shane Prator. 4 The court of appeals held that Prator was prejudiced because he used all of his peremptory challenges and was forced to exercise one of his challenges on a juror who should have been removed for cause. The People contend that Prator failed to show prejudice because he did not ask the district court to grant another peremptory challenge in addition to those allowed by statute, to take the place of the challenge erroneously rejected by the court. Alternatively, the People argue that Prator cannot claim prejudice since he indicated he was satisfied with the composition of the jury by declining to request an additional peremptory in response to the district court's inquiry. Before addressing these arguments, we will briefly examine the source and the purpose of a criminal defendant's right to peremptory challenge.

Peremptory challenges serve "to eliminate extremes of partiality on both sides" and "to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise." Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1964). "The peremptory challenge serves the purpose of providing both the defense and the prosecution with a greater opportunity to secure a balanced and impartial jury by rejecting 'a limited number of prospective jurors without cause.' " People v. Macrander, 828 P.2d 234, 242 (1992) (quoting ABA Standards for Criminal Justice, Trial By Jury, § 15-2.6, commentary at 62 (1986)). Although not recognized by the federal constitution, the Supreme Court has characterized the right to peremptory...

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20 practice notes
  • State v. Ramos, No. 94-3036-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 1997
    ...to dismiss a juror for cause, even if the challenged juror does not participate in the final decision. See, e.g., People v. Prator, 856 P.2d 837 (Colo.1993); Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993), cert. denied, 510 U.S. 1177, 114 S.Ct. 1218, 127 L.Ed.2d 564 (1994); State v. Cross......
  • People v. Harris,
    • United States
    • New York Court of Appeals
    • July 9, 2002
    ...630 So 2d 1278, 1280-1281 (1994); Garcia v State, 887 SW2d 846, 852 (Tex 1994) (en banc), cert denied 514 US 1005 (1995); People v Prator, 856 P2d 837, 842 (Colo 1993) (en banc); People v Johnson, 3 Cal 4th 1183, 1210-1211, 842 P2d 1, 12 (1992), cert denied 510 US 836 (1993); People v Macra......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...("The factors of credibility and appearance which are determinative of bias are best observed at the trial court level."), aff'd, 856 P.2d 837 (Colo.1993). And, having reviewed the record, we conclude that the juror's responses indicated that she had seriously reflected on her duties as a j......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...of prospective jurors without cause." Id. at 242 (internal quotation marks, citation and footnotes omitted); see also People v. Prator, 856 P.2d 837, 840 (Colo.1993) ("Peremptory challenges serve to `eliminate extremes of partiality on both sides' and `to assure the parties that the jurors ......
  • Request a trial to view additional results
20 cases
  • State v. Ramos, No. 94-3036-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 1997
    ...to dismiss a juror for cause, even if the challenged juror does not participate in the final decision. See, e.g., People v. Prator, 856 P.2d 837 (Colo.1993); Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993), cert. denied, 510 U.S. 1177, 114 S.Ct. 1218, 127 L.Ed.2d 564 (1994); State v. Cross......
  • People v. Harris,
    • United States
    • New York Court of Appeals
    • July 9, 2002
    ...630 So 2d 1278, 1280-1281 (1994); Garcia v State, 887 SW2d 846, 852 (Tex 1994) (en banc), cert denied 514 US 1005 (1995); People v Prator, 856 P2d 837, 842 (Colo 1993) (en banc); People v Johnson, 3 Cal 4th 1183, 1210-1211, 842 P2d 1, 12 (1992), cert denied 510 US 836 (1993); People v Macra......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...("The factors of credibility and appearance which are determinative of bias are best observed at the trial court level."), aff'd, 856 P.2d 837 (Colo.1993). And, having reviewed the record, we conclude that the juror's responses indicated that she had seriously reflected on her duties as a j......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...of prospective jurors without cause." Id. at 242 (internal quotation marks, citation and footnotes omitted); see also People v. Prator, 856 P.2d 837, 840 (Colo.1993) ("Peremptory challenges serve to `eliminate extremes of partiality on both sides' and `to assure the parties that the jurors ......
  • Request a trial to view additional results

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