People v. Torrez
| Docket Number | Court of Appeals No. 20CA0727 |
| Decision Date | 08 February 2024 |
| Citation | 548 P.3d 685,2024 COA 11 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Toni Theresa TORREZ, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Jefferson County District Court No. 18CR1985, Honorable Christie A. Bachmeyer, Judge
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE JOHNSON
¶ 1 Jurors in Colorado take two oaths. In the first, administered by the district court to prospective jurors, they vow to tell the truth during voir dire. In the second, administered by the district court to the empaneled jurors, they attest that they will decide the case based on the evidence presented at trial and on the law the court gives them (empanelment oath).1 We address for the first time in Colorado whether structural error applies when a district court does not administer the empanelment oath to the jury and the jury renders a verdict. We conclude that the district court’s failure to administer the empanelment oath, when not objected to, is reviewed for plain error.
¶ 2 Defendant, Toni Theresa Torrez (Torrez), appeals her judgment of conviction entered by the district court on jury verdicts finding her guilty of two counts of first degree burglary, one count of attempted first degree assault, and one count of second degree assault. The empaneled jurors never took the empanelment oath, and neither party brought this oversight to the court’s attention. But the overall trial record shows that the jury was otherwise properly instructed on the law and understood the gravity of the task before it. Accordingly, while we assume the error is obvious, it did not substantially undermine the proceedings so as to cast serious doubt on the reliability of the judgment. But we conclude that Torrez’s convictions must merge into a single conviction of first degree burglary. Therefore, we affirm the judgment in part, vacate it in part, and remand the case to the district court to amend the mittimus.
¶ 3 Beginning late one night, Torrez and the victim — Torrez’s friend Ramona Gilpin (Gilpin) — hung around various parts of town with some other friends. By early morning, Torrez and Gilpin had returned to Gilpin's apartment, and Gilpin had asked Torrez to leave. According to Gilpin, Torrez refused, and in the course of Gilpin’s attempt to oust Torrez from the apartment, Torrez knocked Gilpin down and stabbed her repeatedly with a knife. Torrez was arrested and charged with two counts of first degree burglary, one count of attempted first degree assault, and one count of second degree assault.
¶ 4 The trial lasted two days. Before voir dire, the court administered the first oath, and the entire venire swore to answer truthfully all the questions to assess juror qualifications. Once the jury was empaneled, the court broke for lunch, saying "I’ll swear the jury in when I get back." But when the court reconvened the trial after lunch, it welcomed the jury back, gave it some orienting instructions, and proceeded to opening statements without swearing in the jury. The court and parties never raised the issue of the court’s failure to administer the empanelment oath following the lunch break or at any time thereafter.
¶ 5 The jury found Torrez guilty as charged and also determined that she had used a weapon during the crime. The court sentenced Torrez to ten years in the custody of the Department of Corrections.
¶ 6 Neither party disputes that the bailiff was sworn in before lunch and that the jurors took an oath before voir dire.2 The suggested language that a district court should use when administering the empanelment oath is included in the recommended script for opening remarks in the model jury instructions. See COLJI-Crim. B:01 (2022). The empanelment oath, as set forth in Instruction B:01, states:
Ladies and gentlemen, you have been selected as the jurors to try the case of "The People of the State of Colorado versus [ ]." You now have duties in addition to your obligation to answer our questions truthfully, so I must now administer an additional oath to you. Please stand and raise your right hands:
Do you solemnly swear or affirm under penalty of law that you will well and truly try the matter before the court, and render a true verdict, according to the evidence and the law as I instruct you? If so, please say, "I do."
¶ 7 On appeal, the parties agree that (1) the empaneled jury did not take this oath anytime during the trial or before deliberations and rendering its verdict, and (2) no Colorado case has directly dealt with this circumstance.
¶ 8 The closest that Colorado courts have come to addressing the circumstance we now face are situations in which the jury was sworn in — belatedly — after some evidence had been presented but before deliberations commenced. See People v. Smith, 848 P.2d 365, 371 (Colo. 1993); Hollis v. People, 630 P.2d 68, 69 (Colo. 1981); People v. Clouse, 859 P.2d 228, 233 (Colo. App. 1992). In Hollis, our supreme court said that "[w]hile there is no explicit statute or rule requiring the administration of an oath to a jury in this state, the need for such an oath [has] been judicially recognized," 630 P.2d at 69. Hollis held that the late administration of the empanelment oath — after the prosecution’s first witness had testified — did not constitute plain error. Id. at 70. In reaching this conclusion, the court in Hollis relied on United States v. Hopkins, 458 F.2d 1353 (5th Cir. 1972), which held that it was harmless error for the jury to be sworn in after the prosecution’s case had been presented but before jury deliberations. Hollis, 630 P.2d at 69-70.
¶ 9 Twelve years later, our supreme court reaffirmed that the empanelment oath was "judicially recognized." Smith, 848 P.2d at 371. The venire in Smith took two oaths: one to answer the jury selection questions truthfully, which was given before voir dire, and one to "truly try the case," which was given after jurors were excused for challenges for cause but before the prosecution and defense counsel had exercised their peremptory challenges. Id. The court in Smith noted that Colorado case law had "not articulated any guidelines as to when [the empanelment oath] must be administered." Id. Although noting that it is the "better practice" to swear in only the jurors who will hear the case, the court concluded that "the administration of the oath to the panel of jurors accepted for cause before the exercise of peremptory challenges d[id] not constitute reversible error." Id. at 372; see also Clouse, 859 P.2d at 233 ().
¶ 10 At minimum, the practice of swearing in the empaneled jury is "judicially recognized," Hollis, 630 P.2d at 69, which means that the court’s failure to do so during Torrez’s trial was error. The question then becomes what is the standard of reversal when reviewing such an error? Torrez acknowledges that she did not contemporaneously object to the court’s failure to swear in the jury, but she argues that such an error "requires reversal even absent an objection" because the error is structural. Not surprisingly, the Attorney General contends that reversal is warranted only if the error is plain. We agree with the Attorney General.
¶ 11 Our supreme court has identified three standards of reversal applicable to criminal convictions: "(1) structural error requiring automatic reversal; (2) error requiring reversal for violation of an express legislative mandate; and (3) trial error requiring reversal under an outcome-determinative analysis only if the error was not harmless." People v. Abu-Nantambu-El, 2019 CO 106, ¶ 21, 454 P.3d 1044; see also People v. Novotny, 2014 CO 18, ¶ 2, 320 P.3d 1194 ().
¶ 12 Adhering to the general rule that not all federal constitutional errors require automatic reversal, Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court has applied a harmless error standard to a "wide range of errors and has recognized that most constitutional errors can be harmless," Arizona v. Fulminante, 499 U.S. 279, 305-06, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (collecting cases).
[1–3] ¶ 13 Structural error is confined to errors "which require automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction." Hagos v. People, 2012 CO 63, ¶ 10, 288 P.3d 116. In other words, for there to be structural error, the error must "infect the entire trial process," Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)), and "defy analysis by ‘harmless error’ standards," id. at 7, 119 S.Ct. 1827 (quoting Fulminante, 499 U.S. at 309, 111 S.Ct. 1246). A structural defect "affect[s] the framework within which the trial proceeds, [it is not] simply an error in the trial process itself." Fulminante, 499 U.S. at 310, 111 S.Ct. 1246.
[4] ¶ 14 Therefore, structural error only applies to those constitutional lights that "[w]ithout th[o]se basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Id. (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106...
To continue reading
Request your trial