People v. Wise

• Decision Date: 03 July 2014
• Docket Number: Court of Appeals No. 10CA0832
• Citation: 2014 COA 83,348 P.3d 482
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Christopher Douglas WISE, Defendant–Appellant.
• Court: Colorado Court of Appeals

348 P.3d 482

2014 COA 83

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Christopher Douglas WISE, Defendant–Appellant.

Court of Appeals No. 10CA0832

Colorado Court of Appeals, Div. I.

Announced July 3, 2014

John W. Suthers, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE J. JONES

¶ 1 A jury found defendant, Christopher Douglas Wise, guilty of several offenses, including two felonies, arising out of his theft of a car and subsequent robbery and assault of an elderly woman. The district court adjudicated him a habitual criminal and subsequently imposed lengthy prison sentences which, as relevant here, included consecutive forty-eight year terms on the felony convictions.

¶ 2 In People v. Wise, (Colo.App. No. 10CA0832, 2012 WL 3854633, Sept. 6, 2012 ) (not published pursuant to C.A.R. 35(f) ), a division of this court determined that the district court had erroneously denied defendant's challenge for cause to a prospective juror. Following then-applicable supreme court precedent,¹ the division reversed the judgment of conviction and remanded the case for a new trial. The People petitioned the supreme court for a writ of certiorari.

¶ 3 The supreme court granted the People's petition, vacated the division's decision, and remanded the case to this court “for reconsideration in light of People v. Novotny, 10SC377, 2014 CO ¶ 18.” In Novotny, the court abrogated the automatic reversal rule on which the prior division had relied, holding that reversal is required for a district court's deprivation of a defendant's peremptory challenge only where the error was not “harmless under the proper outcome-determinative test.” 2014 CO 18, ¶ 27, 320 P.3d 1194.

¶ 4 On remand to this court, defendant filed a motion arguing that applying the holding of Novotny to this case would be an unconstitutionally retrospective application of the law, and, alternatively, that he should be allowed an opportunity to present evidence and argument in the district court so that the district court can determine whether the error was harmless. The People opposed that motion, and defendant subsequently filed a reply in support. This court ordered the motion deferred to the merits division, and ordered the parties to submit supplemental briefs addressing whether, under the existing record, the district court's error was harmless.

¶ 5 Having considered the parties' original briefs, their supplemental briefs, defendant's motion, the People's response thereto, and defendant's reply, we hold as follows: (1) we must apply Novotny 's holding to this case on the existing record, and may do so without violating defendant's right to due process; (2) remanding the case to the district court for an evidentiary hearing and findings is not warranted; (3) the district court's error resulting in defendant's loss of a peremptory challenge was harmless because defendant has not shown that a biased or incompetent juror participated in deciding his guilt; and (4) the district court did not abuse its discretion in imposing consecutive sentences. Because the prior division rejected defendant's other contentions of error, we accordingly affirm the judgment and sentence.

I. Denial of Challenge for Cause

¶ 6 The district court denied defendant's challenge for cause to prospective juror K. Defendant used one of his peremptory challenges to excuse prospective juror K and eventually used all of his peremptory challenges. On appeal, defendant contended that the district court abused its discretion in denying his challenge to prospective juror K, but he did not assert any other error with respect to the composition of the jury. The prior division held that the district court had erred in denying the challenge for cause to prospective juror K, and we assume that the district court erred for purposes of our analysis.

A. We Must Apply Novotny

¶ 7 Defendant contends in his motion and supplemental brief that applying the holding of Novotny to this case would violate his right to due process because he did not have fair warning of Novotny 's change in the law. We reject this contention, for two reasons.

¶ 8 First, we are bound by the “mandate rule” to apply the holding of Novotny . That rule requires that we follow the supreme court's mandate. See In re Marriage of Balanson, 107 P.3d 1037, 1043 (Colo.App.2004) ; People v. Gurule, 699 P.2d 9, 10 (Colo.App.1984) ; see also Briggs v. Penn. R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948) (a lower court “has no power or authority to deviate from the mandate issued by an appellate court”); Phares v. Don Carlos, 74 Colo. 356, 357, 221 P. 883, 883 (1923) (following a remand, “[t]he court below cannot do otherwise than follow the decision of this court as announced in the former opinion”); People v. Allen, 111 P.3d 518, 520 (Colo.App.2004) (the court of appeals is bound by decisions of the supreme court).

As noted, the mandate in this case directs us to consider defendant's contention of error in light of Novotny . In Novotny itself, the court remanded for a determination whether the error was harmless under the “appropriate case specific, outcome-determinative analysis.” Novotny, ¶ 27. And in People v. Alfaro, 2014 CO ¶ 19, 320 P.3d 1191, a case decided the same day as Novotny and which also involved the appellate remedy for an erroneous impairment of a defendant's right to use peremptory challenges, the court remanded to this court “for reconsideration under the appropriate standard.” Id. at ¶ 9. It is therefore clear that we have been directed by the supreme court to determine whether the error was harmless under the appropriate outcome-determinative analysis. We cannot deviate from that mandate.

¶ 10 Second, in any event, we perceive no due process problem with applying the holding of Novotny to this case. We note initially that it is questionable whether the premise of defendant's due process argument—that applying the holding of Novotny to this case would be a retroactive application of a change in the law—is correct.

¶ 11 The holding in Novotny does not affect the process for challenging prospective jurors for cause, the standards applicable to the determination of any such challenge, or any matter relevant to the use of peremptory challenges. Nor does it make criminal that which was not, alter any burden of proof, affect the admissibility or weight of evidence, or enhance a defendant's punishment. See Novotny, ¶ 25 (“As a remedy for error rather than a rule involving duties or defenses, or defining error itself, the automatic reversal rule ... can be abandoned with little concern that by doing so we will unfairly upset settled expectations around which the behavior of defendants has been justifiably ordered.”). In short, it has no legal effect on proceedings in the district court, including both the determination of guilt and punishment. Rather, it changes only the framework for determining whether the appellate court must reverse a conviction because a defendant used a peremptory challenge to excuse a juror whom the defendant had unsuccessfully challenged for cause. Applying it here would not apply it to a prior appeal, but to a pending appeal as to which the appellate remedy is not yet final.²

¶ 12 Nonetheless, assuming that a retroactive application of a change in the law would result from applying the holding of Novotny to this case, we conclude that defendant's right to due process would not thereby be violated.

¶ 13 A contention that a judicial decision improperly operates retroactively “must be analyzed under the Due Process Clause and ‘in accordance with the more basic and general principle of fair warning.’ ” People v. LaRosa, 2013 CO 2, ¶ 44, 293 P.3d 567 (quoting in part Rogers v. Tennessee, 532 U.S. 451, 452, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) ). The due process requirement of fair warning is violated by retroactive application of a judicial decision “only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Rogers, 532 U.S. at 462, 121 S.Ct. 1693 (quoting in part Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ); accord LaRosa, ¶ 44. Applying the holding of Novotny to this case does not violate this fair warning requirement.

¶ 14 The automatic reversal rule was not definitively adopted in Colorado until the supreme court's decision in People v. Macrander, 828 P.2d 234 (Colo.1992), overruled by Novotny . See Novotny, ¶ 14 (noting that prior to Macrander the court's treatment of erroneous challenge-for-cause rulings had been inconsistent). After Macrander was decided (indeed, even before Macrander was decided), a series of United States Supreme Court and Colorado Supreme Court cases cast ever-growing doubt on the validity of the automatic reversal rule. Novotny, ¶¶ 15–23. In 2000, in People v. Lefebre, 5 P.3d 295 (Colo.2000), overruled by Novotny, the court, by a vote of four to one, with two justices not participating, reaffirmed the automatic reversal rule. In the past three decades, the automatic reversal rule has been disavowed in numerous jurisdictions which had previously embraced it. See People v. Roldan, ––– P.3d ––––, ––––, 2011 WL 174248 (Colo.App.2011) (Bernard, J., specially concurring), rev'd, 2014 CO ¶ 22, 322 P.3d 922. Indeed, by the time of defendant's trial, and certainly by the time of defendant's appeal, the tide had turned to a degree that only a small minority of states adhered to the automatic reversal rule. See id. And the federal courts had also rejected it. See United States v. Martinez–Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) ; Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The rule was under consistent attack by...