People v. Vergari

• Court: Colorado Court of Appeals
• Writing for the Court: Opinion by JUDGE TOW
• Citation: People v. Vergari, 2022 COA 95, 521 P.3d 391 (Colo. App. 2022)
• Decision Date: 25 August 2022
• Docket Number: Court of Appeals No. 19CA1317
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Paul VERGARI, Defendant-Appellant.

521 P.3d 391

2022 COA 95

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Brian Paul VERGARI, Defendant-Appellant.

Court of Appeals No. 19CA1317

Colorado Court of Appeals, Division I.

Announced August 25, 2022

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Brian Paul Vergari appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault. This appeal requires us to answer the following question left open by the Colorado Supreme Court in People v. Abu-Nantambu-El , 2019 CO 106, 454 P.3d 1044 : Does a defendant waive a claim of error arising from the denial of a challenge for cause to a juror when the defendant declines to excuse that juror with a peremptory challenge and does not exhaust their peremptory challenges? See id. at ¶ 38 n.7. Because we answer that question in the affirmative, we decline to address Vergari's challenge to the makeup of the jury. And because we reject Vergari's other contentions, we affirm the judgment.

I. Background

¶ 2 The following evidence was presented at trial.

¶ 3 Vergari was involved in a road rage incident with Ruben Miscles. Miscles pulled into a Home Depot parking lot, and Vergari followed. Miscles stopped his truck in the middle of an aisle in the lot, and both men got out of their vehicles and began yelling at each other. When Miscles turned around to get back into his truck, Vergari lunged at him and hit him in the head with a wrench. Home Depot's video surveillance captured the incident.

¶ 4 When interviewed by the police afterward, Vergari claimed that Miscles had pushed him, and then he "blacked out." According to the officer,

[Vergari] said that after that, the other driver was walking away from him heading back to his truck, and ... that he was not moving fast enough for him, so Mr. Vergari pushed him from behind, and he realized that he had hit him in the back of the head with a wrench.

¶ 5 Vergari was charged with second degree assault as a crime of violence. He was convicted of the charge following a jury trial.

II. Denial of Challenge for Cause

¶ 6 Vergari contends that the trial court erred by denying his challenge for cause to a juror. We conclude that Vergari waived this contention.

¶ 7 During defense counsel's voir dire, Juror F.M. expressed hesitation with affording Vergari the presumption of innocence. Specifically, he said that he had not "heard enough of the case to decide" if Vergari was presumed innocent, and that "at this point" in the case, he could not presume Vergari was innocent. Based on these statements, defense counsel challenged Juror F.M. for cause. The trial court then spoke further with Juror F.M., explaining that the burden of proof rested entirely on the prosecution, and that if that burden was not met, Vergari "must be found not guilty." Juror F.M. eventually agreed that if the prosecution failed to meet its burden, then he would find Vergari not guilty. The trial court then denied defense counsel's challenge for cause.

¶ 8 The trial court explained that "each side has the right to excuse up to five of the jurors without stating a reason." The prosecutor chose not to exercise any peremptory challenges. Defense counsel excused Juror I.G. The following exchange then occurred:

[TRIAL] COURT: [Counsel], do you have a second peremptory challenge as to jurors one through thirteen?

[DEFENSE COUNSEL]: I apologize. One moment, Your Honor. Your Honor, I will accept the jury as seated.

[TRIAL] COURT: All right. So, does the defense then waive any further peremptory challenges as to jurors one through thirteen?

[DEFENSE COUNSEL]: Yes.

Notably, defense counsel did not use any of the remaining peremptory challenges to remove Juror F.M. from the jury.

¶ 9 Vergari argues that the trial court abused its discretion by failing to grant his challenge for cause to Juror F.M. The People respond that, because Vergari chose not to exercise his available peremptory challenges to excuse Juror F.M., he waived his claim that his right to a fair and impartial jury was violated. As noted, this raises the question our supreme court previously left unresolved. Abu-Nantambu-El , ¶ 38 n.7.¹

¶ 10 Waiver is the intentional relinquishment of a known right or privilege. People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893. Waiver may be either express or implied. People v. Carter , 2021 COA 29, ¶ 27, 486 P.3d 473. A waived claim of error presents nothing for an appellate court to review. Id. at ¶ 40.

¶ 11 Several other jurisdictions have concluded that a party waives their claim of error when they fail to use peremptory challenges to correct a denial of a challenge for cause. See, e.g. , State v. Patriarca , 112 R.I. 14, 308 A.2d 300, 309 (R.I. 1973) ("While we find no error in the refusal to disqualify the challenged jurors, any objection is deemed waived where defendant's peremptory challenges remain unexhausted."); Hammond v. Peden , 224 Ark. 1053, 278 S.W.2d 96, 98 (Ark. 1955) ("[I]f a litigant fails to exhaust his peremptory challenges he waives any error committe[d] by the court in failing to excuse a challenged juror."); cf. Jordan v. United States , 295 F.2d 355, 356 (10th Cir. 1961) ("By his failure to exercise any challenge for cause and by his use of only half of his peremptory challenges, the defendant has waived the right to complain that he was not tried by an impartial jury."); Merritt v. Evansville-Vanderburgh Sch. Corp. , 765 N.E.2d 1232, 1235 (Ind. 2002) (concluding that, in a case where the defendant exhausted her peremptory challenges, "a claim of error arising from denial of a challenge for cause is waived unless the appellant used any remaining peremptory challenges to remove the challenged juror or jurors").

¶ 12 Notably, the supreme court in Abu-Nantambu-El did not consider whether the error was waived or invited, apparently because the People did not pursue either theory. 2019 CO 106, ¶ 38 n.7, 454 P.3d 1044. In his dissent, however, Justice Samour opined that when a defendant unsuccessfully challenges a juror for cause, and then chooses not to excuse that juror with a peremptory challenge, "a classic example of waiver or invited error" arises. Id. at ¶¶ 40, 44 (Samour, J., dissenting). Justice Samour said that Abu-Nantambu-El should have been "precluded from obtaining relief on appeal" when he "argu[ed] that [a juror] was biased and should not be allowed to serve," and then "turned around and elected not to excuse her with one of his twelve peremptory challenges." Id. at ¶¶ 44, 50.

¶ 13 Here, the People argue that Vergari waived his claim. We find the above authorities, along with Justice Samour's analysis, persuasive. Vergari unsuccessfully challenged Juror F.M. for cause. But despite having five peremptory challenges, he exercised only one and chose to leave Juror F.M. on the jury. Vergari now complains that he was deprived of his right to a fair and impartial jury because Juror F.M., who was allegedly biased against him, served on his jury. But Vergari and his counsel undeniably knew that Juror F.M.—who they believed was biased—was in a position to serve on the jury. Yet, despite having five chances to remove Juror F.M., they made the strategic decision to not exercise four of those challenges and, instead, allowed Juror F.M. to serve. We conclude that to have these opportunities and to strategically decide not to exercise them constitutes a "classic example" of an intentional relinquishment of a known right. See id. ; see also Rediger , ¶ 39. Thus, we hold that by failing to remove Juror F.M. while not exhausting his peremptory challenges, Vergari waived his claim that the trial court erred by denying his challenge for cause.² We therefore decline to review it.

III. Witness's Narration of Videos

¶ 14 Vergari next argues that the trial court reversibly erred by permitting a witness to narrate two video exhibits. We discern no basis for reversal.

¶ 15 At trial, the People called Craig Janson, a video forensics technician, to testify as an expert in forensic imaging. Before testifying, Janson cropped and enlarged a section of the Home Depot surveillance video to create two videos focusing on the altercation between Vergari and Miscles. The videos were admitted into evidence and played for the jury. As they played, the prosecutor asked Janson—who was not present during the altercation—to describe what was occurring in the videos. Defense counsel objected, arguing that the jurors could determine for themselves what the videos depicted. The trial court found that Janson could describe what the videos showed as "it's often necessary that the witness make a record as to what the exhibit is showing."

¶ 16 We review the trial court's evidentiary rulings for an abuse of discretion. People v. Meils , 2019 COA 180, ¶ 11, 471 P.3d 1130. A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or based on a misapplication or misunderstanding of the law. People v. Elmarr , 2015 CO 53, ¶ 20, 351 P.3d 431.

¶ 17 "[W]e review nonconstitutional trial errors that were preserved by objection for harmless error." Hagos v. People , 2012 CO 63, ¶ 12, 288 P.3d 116. "[W]e reverse if the error ‘substantially influenced the verdict or affected the fairness of the trial proceedings.’ " Id. (quoting Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) ). "[A]n objected-to trial error is harmless if there is no reasonable possibility that it contributed to the defendant's conviction." Pernell v. People , 2018 CO 13, ¶ 22, 411 P.3d 669.

¶ 18 Under CRE 701, a lay witness may testify to opinions or inferences if they are (a) rationally based on the witness's perception; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue;...