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ADVANCE SHEET HEADNOTE June 1, 2020
2020 CO 46
No. 18SC686, Richardson v. People—Waiver—Juror Qualification— Disqualification of a Judge.
The supreme court considers whether a trial judge reversibly erred by
permitting his wife (“Juror 25”) to serve on a jury in a criminal case over which he
presided.
Because the defendant did not object to Juror 25 sitting on the jury, the
supreme court concludes that he waived his challenge to Juror 25. The supreme
court also concludes that in the absence of a contemporaneous objection, the trial
judge did not have a duty to excuse Juror 25 on his own or to disqualify himself.
Accordingly, the supreme court affirms the judgment of the court of appeals. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 18SC686 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA526
Petitioner:
Gary Val Richardson,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed en banc June 1, 2020
Attorneys for Petitioner: MS&M Law Office Nicole M. Mooney Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General Paul Koehler, First Assistant Attorney General Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court. JUSTICE GABRIEL dissents. ¶1 The defendant, Gary Val Richardson, was found guilty of multiple crimes
by a jury that included the trial judge’s wife (“Juror 25”). Making matters more
peculiar, the judge at times casually tossed a spotlight on his relationship to Juror
25. He joked about what was for dinner and forcing his wife to spend more time
with him. He also told counsel that he thought his wife would be a “fine juror”
and at another point asked them to “[b]e nice” to her. However well-intentioned,
all the fanfare around Juror 25 created fairly predictable questions on appeal: Had
the judge at least inadvertently conferred a special status on his wife to which
defense counsel and the other jurors were expected to defer? Should the judge
have excused his wife or himself, even without being asked to do so?
¶2 We conclude that by failing to object, Richardson waived his challenge to
Juror 25. We also conclude that the trial judge did not have a duty to excuse Juror
25 from the jury or recuse himself in the absence of any contemporaneous
objection. While the trial judge could have handled this unusual situation in a
more restrained manner, his failure to do so did not create reversible error.
¶3 Accordingly, we affirm the judgment of the court of appeals.
I. Facts and Procedural History
¶4 While hiding in a basement crawl space, Richardson allegedly fired one or
two shots in the direction of a group of law enforcement officers. As a result, he
was charged with ten counts of attempted extreme indifference murder (one per
2 officer), ten counts of attempted second degree assault (one per officer), one count
of possession of a controlled substance, one count of violation of bail bond
conditions, and one count of possession of a weapon by a previous offender.
¶5 Because of actions taken by the trial court, the case ultimately proceeded to
trial on eight counts of attempted second degree assault, along with the possession
of a controlled substance, bail, and weapon charges. At trial, Richardson did not
have to defend against any attempted murder charges.
¶6 During the jury selection process, one of the prospective jurors disclosed on
her juror questionnaire that her husband was the trial judge. This was Juror L.E.,
also known as Juror 25.
¶7 Aware that his wife was one of the prospective jurors, the trial judge told
the prosecutor and defense counsel, before the prospective jurors entered the
courtroom, to “[b]e nice to Juror 25. My dinner is on the line.”
¶8 When it was the prosecutor’s turn to question the prospective jurors, he
engaged in the following colloquy with Juror 25:
[PROSECUTOR]: Do any of you know each other? . . . One time I asked that question and some guy said that’s my wife. There was a husband and a wife on a jury. I kind of bring that up because Ms. [E.], [the trial judge] is your husband?
[JUROR 25]: Yes.
THE COURT: Lucky you.
3 [PROSECTUOR]: I never had that one before. I had my boss’s wife on a jury once for a little bit. Ms. [E.], good morning. Is there any reason that you don’t think you could be fair if you ended up on this jury?
[JUROR 25]: No.
[PROSECUTOR]: Have you ever been on a jury before?
[JUROR 25]: Yes, I have.
[PROSECUTOR]: In Adams County?
[JUROR 25]: No. It was in Jefferson County.
[PROSECUTOR]: I know you mentioned on your questionnaire—it says [the trial judge’s name] on the top. You’d be worried about a possible distraction. Just like anyone, the main purpose is to be able to pay attention to the evidence and to make your decision based on that without any distractions. If you are selected to be on this jury, are you worried you’d be distracted or would you be able to give your full attention to the case?
[JUROR 25]: I would give my full attention to the case.
[PROSECUTOR]: Okay. Thank you.
¶9 After the prosecutor finished questioning the prospective jurors, it was
defense counsel’s turn. But he did not ask Juror 25 any questions.
¶10 Defense counsel then challenged several jurors for cause. But he did not
challenge Juror 25. Nor did either party exercise a peremptory challenge to excuse
Juror 25. Before defense counsel exercised his fifth peremptory challenge, the trial
judge stated, “[Juror 25]? We have the defendant’s fifth peremptory challenge to
4 the panel. I need you to make a call.” In response, defense counsel excused a
different juror.
¶11 Following peremptory challenges, the jury was sworn and excused for a
brief recess. Outside the presence of the jury, the trial judge addressed the issue
of his wife sitting on the jury in the following exchange with defense counsel:
THE COURT: Quite frankly, I don’t know that I’ve ever heard of a sitting judge having a spouse or family member on the jury. There’s nothing wrong with it. I think she’ll be a fine juror. I have not spoken to her about this case.
I will call my son who lives with us and I will tell him that. I will also tell him that he can’t make any comments to his mother about being on this jury. I don’t want them to have any discussion. Anything else?
[DEFENSE COUNSEL]: I think we’re both afraid to challenge her.
THE COURT: That wasn’t a stupid idea. Thank you. I appreciate it.
[DEFENSE COUNSEL]: Thank you.
¶12 At no point did Richardson’s counsel ask the trial judge to recuse himself.
¶13 The trial proceeded over four days. During this time, the trial judge made
a comment to or regarding Juror 25 on four more occasions:
• Following the last witness’s testimony on the first day of trial, Juror 25 stated
that she had a question. The judge responded, “After both sides have had
the opportunity to ask all questions, then you can ask that.” After Juror 25
indicated she understood, the judge remarked, “I said no to my wife.”
5 • Then, immediately before dismissing the jury on the first day, the trial judge
asked Juror 25, “What are we having for dinner?” Juror 25 responded,
“Chicken from last night,” to which the judge replied, “Sounds good.”
• On the third day of trial, defense counsel alluded to Juror 25 in his closing
argument: “We didn’t bring you here but this has taken you away from your
work. It’s taken you away from your families and your children. It’s taken
you away from your spouses. Not everyone has been taken away.” This
prompted Juror 25 to state, “I’ve spent more time with him this week than
usual.” The trial judge responded, “You forced her to spend more time with
me which is worse.” Before continuing with his closing argument, defense
counsel commented, “That is unique in jurisprudence in Colorado.”
• Immediately before dismissing the jury on the third day, the trial judge
again asked Juror 25 about their dinner plans:
THE COURT: What am I getting tonight? We’ll get the teriyaki.
[JUROR 25]: Chicken.
THE COURT: I’m getting chicken again? Oh God. Get back here at 8:30 and be ready to roll. I’m sorry to have kept you so late. Questions? Thank you. Drive carefully on the way home. Wear your seatbelts.
¶14 The jury ultimately found Richardson guilty of two counts of attempted
second degree assault, three counts of attempted third degree assault (as lesser
included offenses), one count of violation of bail bond conditions, and one count 6 of possession of a controlled substance. The trial court granted Richardson’s
motion for judgment of acquittal on three counts of attempted second degree
assault, and the jury acquitted Richardson of possession of a weapon by a previous
offender.
¶15 Finding that Richardson had five prior felony convictions, the court
sentenced him to sixteen years for each attempted second degree assault
conviction, six months for each attempted third degree assault conviction, six
years for the violation of bail bond conditions conviction, and one year for the
possession of a controlled substance conviction. But the court exercised its
discretion and ordered Richardson’s sentences to run concurrently. In other
words, Richardson received sixteen years total.
¶16 Richardson appealed, contending among other things that Juror 25’s
participation on the jury violated his constitutional right to a fair trial before an
impartial jury and was therefore structural error mandating reversal.
¶17 In a split decision, a division of the court of appeals disagreed. People v.
Richardson, 2018 COA 120, __ P.3d __. The majority reasoned that Richardson at
least forfeited his challenge to Juror 25. Id. at ¶ 31. It then concluded that the trial
judge’s failure to excuse Juror 25 or himself from the trial did not require reversal
under a plain error standard of review. Id. at ¶¶ 33, 47. The majority emphasized
that the record reflected “no suggestion of juror bias, and no evidence of prejudice
7 to Richardson.” Id. at ¶ 47. Still, the majority observed that it would have been
prudent for the trial judge to excuse his wife or himself from the trial and that the
trial judge’s comments to and about his wife “affected the solemnity of the
proceedings and were ill-advised.” Id. at ¶¶ 45, 47.
¶18 Judge Furman dissented in part. In his view, Juror 25’s participation created
an appearance of impropriety and affected the structure of the trial. Id. at ¶ 84
(Furman, J., concurring in part and dissenting in part). Accordingly, he concluded
that the judge committed reversible error by permitting his wife to serve on the
jury. Id. at ¶ 124.
¶19 Richardson then petitioned this court for certiorari review.1
II. Analysis
¶20 After identifying the standard of review, we consider whether Richardson
waived his challenge to Juror 25. Concluding that he did, we then consider
whether the trial judge had a duty to sua sponte excuse Juror 25 or recuse himself
from the trial. On the facts before us, we conclude that the trial judge had no such
duty.
1 We granted certiorari to review the following issue: [REFRAMED] Whether the trial judge reversibly erred by permitting his wife to serve on a jury in a criminal case over which he presided.
8 A. Standard of Review
¶21 We must first determine whether Richardson waived his challenge to Juror
25. Whether a claim is waived is a question of law we review de novo.
Stackhouse v. People, 2015 CO 48, ¶ 4, 386 P.3d 440, 442.
¶22 Whether the trial judge had a duty to excuse Juror 25 or recuse himself from
the trial is a question of law we review de novo. See People v. Julien, 47 P.3d 1194,
1197 (Colo. 2002).
B. Whether Richardson Waived His Challenge to Juror 25
¶23 Richardson contends that under the unique circumstances of this case, his
present challenge to Juror 25 is preserved for our review. The People, on the other
hand, contend that he waived this claim. Recall that the division majority met the
parties in the middle and concluded that Richardson at least forfeited any
challenge to Juror 25. Therefore, it reviewed for plain error. Faced with this
spectrum, we begin by discussing how we review unpreserved claims of error.
¶24 Constitutional and statutory rights can be waived or forfeited. Phillips v.
People, 2019 CO 72, ¶¶ 16, 17, 443 P.3d 1016, 1022. Waiver is “the intentional
relinquishment of a known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39,
416 P.3d 893, 902 (emphases omitted) (quoting Dep’t of Health v. Donahue, 690 P.2d
243, 247 (Colo. 1984)). In contrast, forfeiture is “the failure to make the timely
assertion of a right.” Id. at ¶ 40, 416 P.3d at 902 (quoting United States v. Olano,
9 507 U.S. 725, 733 (1993)). While we may review a forfeited error for plain error,
waiver extinguishes error and therefore any appellate review. Id.
¶25 Crim. P. 24(b)(2) instructs that “[a]ll matters pertaining to the qualifications
and competency of . . . prospective jurors shall be deemed waived by the parties if
not raised prior to the swearing in of the jury to try the case.” See also § 13-71-140,
C.R.S. (2019) (“The court shall not declare a mistrial or set aside a verdict based
upon allegations of any irregularity in selecting, summoning, and managing jurors
. . . unless the moving party objects to such irregularity or defect as soon as possible
after its discovery and demonstrates specific injury or prejudice.”). In other words,
defense counsel must “challenge an allegedly biased juror to preserve the issue for
appellate review.” People v. Abu-Nantambu-El, 2019 CO 106, ¶ 37, 454 P.3d 1044,
1052; see also People v. Russo, 713 P.2d 356, 361 (Colo. 1986) (“[I]t is incumbent upon
the challenging party to clearly state of record the particular ground on which a
challenge for cause is made.”). Counsel may also waive a challenge for cause to a
prospective juror by failing “to use reasonable diligence during jury selection to
determine whether the grounds for such a challenge exist. The test for reasonable
diligence is whether counsel took the opportunity to adequately question a
prospective juror.” Ma v. People, 121 P.3d 205, 209 (Colo. 2005) (citation omitted).
Ultimately, the decision of “what jurors to accept or strike” is a strategic decision
10 reserved for defense counsel. Arko v. People, 183 P.3d 555, 558 (Colo. 2008) (quoting
People v. Curtis, 681 P.2d 504, 511 (Colo. 1984)).
¶26 Richardson concedes that his counsel did not challenge Juror 25. While
defense counsel understood that Juror 25 was the trial judge’s wife, he did not ask
Juror 25 any questions, challenge Juror 25 for cause, or attempt to remove Juror 25
by peremptory challenge. The trial judge even seemed to invite defense counsel
to exercise a peremptory challenge as to Juror 25 when he stated, “[Juror 25]? We
have the defendant’s fifth peremptory challenge . . . . I need you to make a call.”
Defense counsel responded by excusing a different juror. Thus, Richardson,
through counsel, intentionally relinquished his right to challenge Juror 25.2
¶27 Still, Richardson urges us to consider his counsel’s failure to challenge Juror
25 as a forfeiture. He contends that the trial judge’s comments about his wife had
a chilling effect on the parties, pointing to defense counsel’s statement that the
prosecutor and he were “both afraid to challenge [Juror 25].” The record doesn’t
reveal whether this remark was genuine or playful. What we do know is that
2 Defense counsel could have had sound strategic reasons for this decision. See Rediger, ¶ 42, 416 P.3d at 902–03. After all, the jury found Richardson guilty of three lesser included offenses and acquitted him of one of the charges.
11 friendly banter seemed to occur at other points during the trial.3 The record also
reveals defense counsel zealously advocated for Richardson following jury
selection, belying any suggestion that counsel was afraid to incur the judge’s
wrath. Thus, assuming without deciding that alleged intimidation by a trial judge
can justify a forfeiture analysis, we see no chilling effect here that prompts us to
examine these facts through the lens of forfeiture.
¶28 Richardson also contends that Juror 25’s presence on the jury amounted to
structural error because it violated his fundamental rights to a fair trial and to a
fair, impartial, and independent jury. See People v. Novotny, 2014 CO 18, ¶ 21,
320 P.3d 1194, 1201 (defining structural error as the limited class of errors
“affecting the framework within which the trial proceeds—errors that infect the
entire trial process and necessarily render a trial fundamentally unfair”). He
argues in part that Juror 25’s marriage to the trial judge produced an implied bias.4
3 After the trial judge informed defense counsel that counsel had run out of time for questioning the prospective jurors, counsel remarked during a bench conference, “You cut me off when it was getting interesting.” And in discussing jury instructions, defense counsel quipped, “The instruction I gave to you and not the provocation? I’m just joking.” The trial judge replied, “You’re a walking provocation.” 4Richardson further contends that Juror 25 should have been dismissed for cause under section 16-10-103(1)(b), C.R.S. (2019), which provides that a court must sustain a challenge for cause to a prospective juror if there is a “[r]elationship
12 But “even fundamental rights can be waived, regardless of whether the
deprivation thereof would otherwise constitute structural error.” Stackhouse, ¶ 8,
386 P.3d at 443; see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1910, 1911–12
(2017); Peretz v. United States, 501 U.S. 923, 936 (1991) (“The most basic rights of
criminal defendants are similarly subject to waiver.”); Phillips, ¶ 16, 443 P.3d at
1022 (noting that “even fundamental rights can be waived”). Thus, while “the
erroneous seating of an impliedly biased juror is . . . structural error,” defense
counsel must nevertheless challenge an allegedly biased juror as a prerequisite to
appellate review. Abu-Nantambu-El, ¶¶ 2, 37, 454 P.3d at 1045, 1052. Because we
conclude that defense counsel waived any challenge to Juror 25, we do not review
Richardson’s present challenge, even for structural error.
¶29 Richardson primarily relies on three out-of-state cases for the proposition
that Juror 25’s sitting on the jury required automatic reversal: Elmore v. State,
144 S.W.3d 278 (Ark. 2004); People v. Hartson, 553 N.Y.S.2d 537 (N.Y. App. Div.
1990); and State v. Tody, 764 N.W.2d 737 (Wis. 2009), abrogated by State v. Sellhausen,
within the third degree, by blood, adoption, or marriage, to a defendant or to any attorney of record or attorney engaged in the trial of the case.” But defense counsel did not challenge Juror 25 on this ground. See Abu-Nantambu-El, ¶ 37, 454 P.3d at 1052; Russo, 713 P.2d at 361. In any event, we are not persuaded that a trial judge is either an “attorney of record,” or an “attorney engaged in the trial of the case.” See Crim. P. 24(a)(2), (b)(1)(II) (separately identifying a “judge” and an “attorney”).
13 809 N.W.2d 14 (Wis. 2012). But in Elmore and Tody, defense counsel challenged
the trial judge’s wife, 144 S.W.3d at 279, or mother, 764 N.W.2d at 741, for cause.
And in Hartson, the defendant moved to set aside the verdict on the ground that
he was denied a fair trial because the trial judge’s wife sat on the jury. 553 N.Y.S.2d
at 538. In all three cases, the trial judge denied the challenges. Elmore, 144 S.W.3d
at 279; Hartson, 553 N.Y.2d at 538; Tody, 764 N.W.2d at 742. Thus, unlike this case,
this issue was raised and ruled upon in the trial court.
¶30 We conclude that Richardson waived his challenge to Juror 25.
C. Whether the Trial Judge Had a Duty to Sua Sponte Excuse Juror 25 or to Recuse Himself
¶31 Richardson further contends that the trial judge had a duty to act even
without objection—either by excusing Juror 25 on his own or by stepping away
from the trial and finding another judge. We address these contentions in turn.
¶32 Regarding Juror 25, “a trial judge is not required to excuse a prospective
juror sua sponte.” Abu-Nantambu-El, ¶ 37, 454 P.3d at 1052 (citing People v. Coney,
98 P.3d 930, 934 (Colo. App. 2004) (noting “we are aware of no authority that
requires the trial court” to excuse a juror sua sponte)); cf. People v. Metcalfe,
782 N.E.2d 263, 272 (Ill. 2002) (“[A]lthough a trial court certainly has the discretion
to remove a juror sua sponte for cause, a trial court does not have a duty to do so.”
(citation omitted)). Thus, the trial judge had no duty to excuse Juror 25 without
the benefit of an objection. 14 ¶33 Regarding the trial judge, Richardson’s counsel did not ask the judge to
recuse even though the law afforded him the opportunity to do so. C.R.C.P. 97
(outlining the procedure for a party seeking a change of judge); Crim. P. 57(b)
(noting the Colorado Rules of Civil Procedure apply in the absence of a governing
Rule of Criminal Procedure); see also People in Interest of A.G., 262 P.3d 646, 652
(Colo. 2011) (noting that “[i]f grounds for disqualification [of a judge] are known
and not promptly raised, it may constitute waiver”).
¶34 While the failure to make such a request no doubt invites speculation about
whether counsel was intimidated, speculation is a two-way street. At a
preliminary hearing, the trial judge forced an election that prompted the
prosecution to abandon the attempted murder charges in favor of the attempted
second degree assault charges. The judge also dismissed two counts of attempted
second degree assault. And, midtrial, he granted Richardson’s motion for
judgment of acquittal regarding three additional counts of attempted second
degree assault. Was defense counsel cowed? Or was he simply making a strategic
choice? The record leaves us only to surmise.
¶35 Sidestepping these concerns, Richardson instead argues that the judge
should have recused himself sua sponte. In assessing the force of his argument,
we turn first to the statute that tells us when a judge has such an obligation. Under
this statute, a trial judge must, “on his own motion, disqualify himself” when he
15 “knows of circumstances which disqualify him in a case.” § 16-6-201(2), C.R.S.
(2019); accord Crim. P. 21(b)(2). A trial judge must disqualify himself if (1) “[h]e is
related to the defendant or to any attorney of record or attorney otherwise engaged
in the case”; (2) “[t]he offense charged is alleged to have been committed against
the person or property of the judge or of some person related to him”; (3) “[h]e has
been of counsel in the case”; or (4) “[h]e is in any way interested or prejudiced with
respect to the case, the parties, or counsel.” § 16-6-201(1); accord Crim. P. 21(b)(1).
¶36 Likewise, the Colorado Code of Judicial Conduct (“Code”) requires a judge
to “disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned.” C.J.C. 2.11(A). As relevant here,
circumstances that might reasonably call into question a judge’s impartiality
include, but are not limited to, the following:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding.
C.J.C. 2.11(A)(1)–(2).
16 ¶37 Significantly, neither a statute nor the Code expressly requires a judge to
sua sponte disqualify himself when he is related to a juror. Moreover, Richardson
does not contend that the trial judge was biased or prejudiced toward a party or
counsel, and nothing in the record reasonably calls into question the judge’s
impartiality toward the parties. See Estep v. Hardeman, 705 P.2d 523, 526 (Colo.
1985) (“[E]ither actual prejudice on the part of the trial judge or its mere
appearance can require the disqualification of that judge.”); Smith v. Dist. Court,
629 P.2d 1055, 1056 (Colo. 1981) (“Unless a reasonable person could infer that the
judge would in all probability be prejudiced against [a party], the judge’s duty is
to sit on the case.”).
¶38 Still, Richardson points to broader canons of judicial ethics that should have
prompted recusal. For example, C.J.C. 1.2 states, “A judge shall act at all times in
a manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” And C.J.C. 2.4(B) states, “A judge shall not permit family, social,
political, financial, or other interests or relationships to influence the judge’s
judicial conduct or judgment.” He contends that the trial judge’s failure to recuse
himself created at least the appearance of impropriety and that the judge’s
comments to and about Juror 25 reflected Juror 25’s influence on the judge’s
conduct.
17 ¶39 But these ethical rules are “intended to protect public confidence in the
judiciary rather than to protect the individual rights of litigants.” A.G., 262 P.3d
at 650; see also C.J.C. Scope 7 (noting the Code is not “intended to be the basis for
litigants to seek collateral remedies against each other”); People v. Gallegos, 251 P.3d
1056, 1063 (Colo. 2011) (recognizing that “rules of judicial ethics ‘are designed not
to protect individual defendants, but to protect the judiciary from charges of
partiality’” (quoting State v. Fremont, 749 N.W.2d 234, 242 (Iowa 2008))). Thus, in
the absence of evidence demonstrating actual judicial bias or prejudice, a trial
judge’s potential violation of these rules does not mandate reversal. See A.G.,
262 P.3d at 651 (“In contrast to judicial canons seeking to prevent the appearance
of impropriety, laws requiring disqualification of a biased or prejudiced judge are
designed to ensure that litigants receive a fair, impartial trial.”); see also id. at 650
(“Because the concern is the reputation of the judiciary rather than protection of
the parties, litigants may waive disqualification when the disqualification is not
for reasons of actual bias or prejudice.” (citing C.J.C. 2.11(C))); cf. Hagos v. People,
2012 CO 63, ¶ 10, 288 P.3d 116, 119 (noting “trial before a biased judge” is
structural error).
¶40 Even if the Code might have prompted other judges, in exercising their
discretion, to recuse, we discern no reversible error on the facts before us here.
18 III. Conclusion
¶41 We affirm the judgment of the court of appeals.
JUSTICE GABRIEL dissents.
19 JUSTICE GABRIEL, dissenting.
¶42 The majority principally construes the issue before us as a question of juror
qualification and concludes that defendant Gary Val Richardson waived any
challenge to the trial judge’s wife’s serving as a juror in this case. Maj. op. ¶¶ 2,
23–30. In my view, the majority asks the wrong question and arrives at the wrong
answer. Unlike my colleagues, I do not see the question before us as a juror
qualification issue. Rather, to me, the question is whether Richardson was denied
a fair trial when the trial judge sat on a case in which his wife served as a juror and
in which the judge told everyone in the courtroom to “be nice” to his wife and then
repeatedly reminded everyone of his relationship with her.
¶43 Because the judge’s conduct, however well-intentioned it may have been,
undermined the independence of the jury in this case and created an obvious
appearance of impropriety, and because the errors committed here defy any
showing of prejudice, I would conclude that the errors were structural, and I
would reverse the judgment and remand this case for a new trial.
¶44 Accordingly, I respectfully dissent.
I. Factual Background
¶45 The majority accurately lays out the material facts, and I will not repeat them
at length here. Instead, I note only those facts that are pertinent to my analysis.
1 ¶46 Although the People repeatedly refer to the comments of the trial judge and
defense counsel as “minor jokes,” this case was no “minor joke” to Richardson.
He was tried as a habitual criminal with possession of a controlled substance,
violation of bail bond conditions, five counts of attempted second degree assault
or attempted third degree assault, and possession of a weapon by a previous
offender. The jury ultimately convicted him of most of these charges, and the court
sentenced him to an effective term of sixteen years in the Department of
Corrections.
¶47 It is undisputed that Juror No. 25 in this case was the trial judge’s wife. It is
further undisputed that throughout the trial, the court repeatedly called attention
to this fact.
¶48 For example, at the very beginning of voir dire, the judge stated, in open
court, “Be nice to Juror 25. My dinner is on the line.”
¶49 Then, during voir dire, the prosecutor asked Juror No. 25, “[The] Judge . . .
is your husband?” Juror No. 25 confirmed in open court that he was, and the judge
responded, “Lucky you.”
¶50 After both parties had finished exercising their peremptory challenges and
the jury was empaneled, the judge and counsel had the following exchange
outside the jury’s presence:
THE COURT: Quite frankly, I don’t know that I’ve ever heard of a sitting judge having a spouse or family member on the jury. There’s 2 nothing wrong with it. I think she’ll be a fine juror. I have not spoken to her about this case.
[DEFENSE COUNSEL]: I think we’re both afraid to challenge her.
THE COURT: That wasn’t a stupid idea. Thank you. I appreciate it.
(Emphasis added.)
¶51 The trial proceeded, and throughout the trial and in front of the jury, the
judge made repeated comments toward and about his wife. For example, on
several occasions, the judge asked Juror No. 25, on the record, what they were
having for dinner. Similarly, the following dialogue took place on the record on
the third day of trial:
THE COURT: What am I getting tonight? We’ll get the teriyaki.
JUROR [No. 25]: Chicken.
THE COURT: I’m getting chicken again? Oh God.
¶52 And the following exchange took place at the beginning of defense counsel’s
closing argument:
[DEFENSE COUNSEL]: [This trial has] taken you away from your families and children. It’s taken you away from your spouses. Not everyone has been taken away.
JUROR [No. 25]: I’ve spent more time with him this week than usual.
THE COURT: You forced her to spend more time with me which is worse.
[DEFENSE COUNSEL]: That is unique in jurisprudence in Colorado.
3 ¶53 Although the People characterize these comments—and particularly
defense counsel’s statement that the lawyers were afraid to challenge the judge’s
wife—as minor jokes, it is not at all clear to me that they were. In particular, I
deem significant that after counsel noted that he thought the lawyers were afraid
to challenge the judge’s wife, the judge responded, “That wasn’t a stupid idea,”
and then he thanked counsel, apparently for the courtesy to him. Likewise,
although the People support their assertion that the above-quoted comments were
jokes by noting that defense counsel himself alluded in his closing argument to the
fact that the judge’s wife was sitting on the jury, to me, counsel’s comment was
just as likely an effort to make the most out of an uncomfortable situation or a tacit
acknowledgment of the wife’s special status as a juror.
¶54 I begin by addressing what I believe to be our applicable standard of review,
and I conclude that once error is established, our review should be for structural
error. I then address what I perceive to be the errors here, and I conclude that
these errors require reversal.
A. Standard of Review
¶55 The question of whether a jury’s deliberations have been subject to improper
influence is a question of law that we review de novo. See People v. Wadle, 97 P.3d
932, 938 (Colo. 2004) (“[T]he question whether there exists a reasonable possibility
4 that extraneous communications with a jury influenced its verdict is a matter of
law, to be resolved independently by a reviewing court.”). Likewise, whether a
trial court’s undisputed conduct improperly chilled an attorney’s right to advocate
on behalf of his or her client appears to be a question of law, and we therefore
review such a contention de novo. See People v. Vanness, 2020 CO 18, ¶ 16, 458 P.3d
901, 904 (“We review questions of law de novo.”); People v. Valdez, 969 P.2d 208,
211 (Colo. 1998) (“When the controlling facts are undisputed, the legal effect of
those facts constitutes a question of law which is subject to de novo review.”);
Camp Bird Colo., Inc. v. Bd. of Cty. Comm’rs, 215 P.3d 1277, 1281 (Colo. App. 2009)
(noting that appellate courts review de novo the application of law to undisputed
facts).
¶56 Once we determine that an error has occurred, we must apply the proper
standard for reversal, e.g., structural error, constitutional harmless error, harmless
error, or plain error. Hagos v. People, 2012 CO 63, ¶ 9, 288 P.3d 116, 118–19.
¶57 As pertinent here, structural errors require reversal without an
individualized analysis of how the errors impaired the reliability of the judgment
of conviction. Id. at ¶ 10, 288 P.3d at 119. Examples of this kind of error include
the complete deprivation of counsel, trial before a biased judge, the unlawful
exclusion of members of a defendant’s race from a grand jury, the denial of the
right to self-representation, and the denial of the right to a public trial. Id.
5 ¶58 “[T]he defining feature of a structural error is that it ‘affect[s] the framework
within which the trial proceeds,’ rather than being ‘simply an error in the trial
process itself.’” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting
Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). For this reason, structural errors
defy harmless error analysis. Id. at 1907–08.
¶59 The reasons vary as to why a particular error is not amenable to harmless
error analysis. Id. at 1908. An error is structural when the right at issue “is not
designed to protect the defendant from erroneous conviction but instead protects
some other interest,” as, for example, a defendant’s right to conduct his or her own
defense. Id. An error is also structural when “the effects of the error are simply
too hard to measure,” as, for example, when a defendant is denied the right to
select his or her own attorney. Id. In such a case, the precise effect of the violation
cannot be ascertained, thereby making it virtually impossible for the People to
prove that the error was harmless beyond a reasonable doubt. Id. As a result,
courts have determined that “the efficiency costs of letting the government try to
make the showing are unjustified.” Id. Finally, an error is structural when “the
error always results in fundamental unfairness,” as, for example, when an indigent
defendant is denied an attorney or the trial court fails to give a reasonable-doubt
instruction. Id. In my view, the errors alleged here fall into the second category,
that is, errors that are too difficult to measure.
6 B. The Trial Court’s Errors Here
¶60 “[C]ourts clearly have the responsibility to ensure that a criminal defendant
receives a fair trial.” People v. Frisco, 119 P.3d 1093, 1096 (Colo. 2005). This includes
ensuring that a defendant is provided a fair and impartial jury that is independent
and that can serve as an appropriate check on the trial judge’s power. See
Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 860 (2017) (“Whatever its imperfections
in a particular case, the jury is a necessary check on governmental power.”);
Nailor v. People, 612 P.2d 79, 80 (Colo. 1980) (“It is fundamental to the right to a fair
trial that a defendant be provided with an impartial jury.”); State v. Tody,
764 N.W.2d 737, 746 (Wis. 2009) (noting “the jury’s function as, in part, a check
upon the power of the judge”), abrogated in part by State v. Sellhausen, 809 N.W.2d
14, 28–29 (Wis. 2012) (Ziegler, J., concurring).
¶61 The court’s responsibility to provide a fair trial also includes ensuring that
all parties have a meaningful opportunity to be heard. Whiteside v. Smith, 67 P.3d
1240, 1248 (Colo. 2003) (“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). And trial judges must
“promote[] public confidence in the independence, integrity, and impartiality of
the judiciary” and “avoid impropriety and the appearance of impropriety.”
C.J.C. 1.2. In my view, the trial court erred in each of these regards.
7 ¶62 From the outset of this trial, the trial judge made clear, albeit assuredly
unintentionally, that his wife had special status as a juror. Thus, at the beginning
of voir dire, the judge told everyone in the courtroom to “[b]e nice to Juror 25.”
The court then reinforced his wife’s special status by repeatedly calling everyone’s
attention to her and reminding everyone that she was, in fact, his wife.
¶63 To me, this conduct likely ensured that the other jurors (and the parties and
counsel) would give deference to the judge’s wife throughout the trial, thereby
impairing the independence of the jury and creating an obvious appearance of
impropriety. Moreover, the court’s conduct necessarily chilled the lawyers’
advocacy. Indeed, as noted above, defense counsel made plain to the court, “I
think we’re both afraid to challenge her,” and, unlike the People, I am unwilling
to assume that this was just a “minor joke.”
¶64 Confronting the same or similar issues, a number of courts have discerned
error when a trial court has presided over a trial in which his or her spouse or a
close relative sat as a juror. For example, in Elmore v. State, 144 S.W.3d 278, 279–80
(Ark. 2004), the Arkansas Supreme Court reversed and remanded for a new trial
a defendant’s rape conviction on the ground that the trial court had erred in
denying the defendant’s motion to strike for cause the trial judge’s wife, who
ultimately served on the jury. The court reasoned that the trial court’s actions
“created an appearance of questionable propriety.” Id. at 280. In addition, the
8 court observed, “At the very least, the other jurors would likely give more
credence or weight to the judge’s wife’s views than the others on the panel.” Id.
¶65 Similarly, in People v. Hartson, 553 N.Y.S.2d 537, 538–39 (N.Y. App. Div.
1990), the New York appellate court reversed a defendant’s conviction for rape
and sodomy, concluding that the seating of the trial judge’s wife on the jury
required reversal of the conviction, even though the defendant did not raise a
timely challenge to her or show prejudice. In the court’s view, the juror’s service
gave “the unmistakable appearance of impropriety.” Id. at 538. Moreover, as
pertinent here, the court rejected the state’s assertion that the defendant had not
established prejudice because in the circumstances before the court, such proof
was “likely to be out of defendant’s reach.” Id. And the court observed that the
state’s argument overlooked the fact that it was the interest of the public at large,
and not merely that of the defendant, that was to be served. Id. The court thus
concluded:
Although an ethical violation involving the appearance of impropriety does not necessarily warrant reversal and a new trial, in our view, the right to the “fact and appearance” of a fair jury is so fundamental that the service of the spouse of the Trial Judge as a trial juror requires reversal of defendant’s conviction.
Id. at 538–39 (quoting People v. Shinkle, 415 N.E.2d 909, 911 (N.Y. 1980); other
citations omitted).
9 ¶66 Finally, in Tody, 764 N.W.2d at 740, the Wisconsin Supreme Court
concluded that the defendant was denied his constitutional right to be tried by an
impartial jury when the trial judge’s mother served as a juror. There, defense
counsel challenged the judge’s mother for cause, but the judge denied that
challenge. Id. at 741–42. Defense counsel did not, however, then use a peremptory
challenge to remove the judge’s mother from the jury. Id. at 742.
¶67 The court first concluded that the defendant’s failure to exercise a
peremptory challenge did not result in a waiver of his right to raise on appeal the
question of whether the juror’s inclusion violated his constitutional right to be
tried by an impartial jury. Id. After then discussing this constitutional right, the
court noted that although it generally defers to a trial court’s determination as to
whether to strike a juror, it would not follow that usual practice in the case before
it. Id. at 742–43. The court viewed appellate deference as “almost ludicrous” when
the court was going to rely on the trial court’s determination that a member of his
or her immediate family was objectively impartial. Id. at 743. In the court’s view,
the appearance of fairness and propriety would clearly be lost in this situation. Id.
Thus, the court stated:
[T]he mother’s presence may have a potential impact on the trial proceedings or the jury’s deliberations. Counsel may be reluctant to challenge the [trial] court’s adverse rulings with ordinary zeal if one of the jurors whom counsel needs to persuade happens to be an immediate family member of the presiding judge. The other jurors
10 may tend to give the deference to the judge’s mother that they are presumed to give to the judge.
Id. at 745.
¶68 I find the reasoning of these cases persuasive, and I would adopt that
reasoning here. Accordingly, I would conclude that the trial court erred in sitting
on a case in which his wife served as a juror and in which he told everyone in the
courtroom to “be nice” to his wife and then repeatedly reminded everyone in the
room of their relationship.
C. Structural Error
¶69 The question thus becomes whether the foregoing errors require reversal.
The majority concludes that they do not, perceiving the issue before us to be one
principally involving juror qualification and waiver. Maj. op. ¶¶ 2, 23–30. For the
reasons noted above, I do not view this case as presenting a juror qualification
issue. Rather, to me, the case concerns Richardson’s right to a fair trial free from
the taint that resulted from the judge’s conduct and the circumstances here.
¶70 Addressing that issue, I note, as a preliminary matter, that I perceive
nothing in the record that would allow me to conclude that Richardson
intentionally relinquished his right to a fair trial, including the right to a fair and
impartial jury. Cf. Tody, 764 N.W.2d at 742 (concluding that the defendant’s failure
to exercise a peremptory challenge did not result in a waiver of his constitutional
right to be tried by an impartial jury). 11 ¶71 Moreover, the question presented here is precisely the kind of issue that
defies any showing of prejudice by a defendant. Under CRE 606(b),
a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.
¶72 Thus, in circumstances like those present here, Richardson could never
show that the judge’s conduct, in fact, caused the other jurors to defer to his wife.
Nor could Richardson establish that the judge’s conduct improperly influenced
the independence of the jury.
¶73 Because these facts defy any showing of prejudice, I would conclude that
the errors here were structural. See Weaver, 137 S. Ct. at 1907–08. I therefore would
reverse the judgment of conviction and remand this case for a new trial.
III. Conclusion
¶74 Sometimes, judges’ duty to follow the law leads them to what are perhaps
counterintuitive results. I do not see this as such a case, and I would reach what I
perceive to be the intuitive result here, namely, that it was reversible error for the
trial judge to sit on a case in which his wife served as a juror and in which he
repeatedly called everyone’s attention to his relationship with her.
¶75 For the reasons set forth above, the trial judge’s conduct ensured special
status for his wife as a juror, likely undermined the independence of the jury,
12 chilled the lawyers’ advocacy, created an obvious appearance of impropriety, and
ultimately deprived Richardson of the fair trial that the United States and
Colorado Constitutions guarantee him.
¶76 I would therefore reverse Richardson’s judgment of conviction and remand
this case for a new trial.
¶77 Accordingly, and with respect, I dissent.