The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 8, 2024
2024COA11
No. 20CA0727, People v. Torrez — Criminal Law — Jury Instructions — Introductory Remarks, Juror Qualifications, and Jury Selection — Empanelment Oath; Appeals — Standard of Review — Plain Error
As a matter of first impression, a division of this court of
appeals concludes that when a district court does not administer an
oath to the empaneled jury in a criminal matter, no party objects,
and the jury renders a verdict, the error is not structural requiring
automatic reversal, but instead the issue is reviewed for plain error. COLORADO COURT OF APPEALS 2024COA11
Court of Appeals No. 20CA0727 Jefferson County District Court No. 18CR1985 Honorable Christie A. Bachmeyer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Toni Theresa Torrez,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE JOHNSON Navarro and Welling, JJ., concur
Announced February 8, 2024
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 ¶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.
1 We acknowledge that county courts also administer oaths to
prospective and empaneled jurors. We use the term district court because this is the forum in which Torrez was tried and convicted.
1 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.
I. Background
¶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.
2 ¶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.
II. The Unsworn Jury
A. The Colorado Oath
¶6 Neither party disputes that the bailiff was sworn in before
lunch and that the jurors took an oath before voir dire.2 The
2 The voir dire oath says, “Do you solemnly swear or affirm under
penalty of law to answer truthfully the questions asked by the Court or counsel concerning your service as a juror in this case?” COLJI-Crim. B:01 (2022).
3 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
4 365, 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
5 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 (relying on Hollis in holding that there was no “possible
prejudice” to the defendant when the jury was sworn in after two of
the prosecution’s witnesses had testified).
¶ 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.
6 B. Applicable Law on Structural Error
¶ 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; see also
People v. Novotny, 2014 CO 18, ¶ 2 (“[R]eversal of a criminal
conviction for other than structural error, in the absence of express
legislative mandate or an appropriate case specific, outcome-
determinative analysis, can no longer be sustained . . . .”).
¶ 12 Adhering to the general rule that not all federal constitutional
errors require automatic reversal, Chapman v. California, 386 U.S.
18, 22 (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 (1991) (collecting
cases).
¶ 13 Structural error is confined to errors “which require automatic
reversal without individualized analysis of how the error impairs the
7 reliability of the judgment of conviction.” Hagos v. People, 2012 CO
63, ¶ 10. 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 (1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 630
(1993)), and “defy analysis by ‘harmless error’ standards,” id. at 7
(quoting Fulminante, 499 U.S. at 309). 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.
¶ 14 Therefore, structural error only applies to those constitutional
rights 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 (1986)); see People v. Barajas, 2021 COA 98, ¶ 11 n.1 (“[W]e note
that ‘structural error’ is a constitutional standard, not a statutory
one.” (quoting Abu-Nantambu-El, ¶¶ 21-25)). The Supreme Court
has described its jurisprudence on structural error as follows: “[W]e
have found an error to be ‘structural,’ and thus subject to
automatic reversal, only in a ‘very limited class of cases.’” Neder,
527 U.S. at 8 (quoting Johnson v. United States, 520 U.S. 461, 468
8 (1997)); see also People v. Richardson, 2018 COA 120, ¶ 40(“We
recognize that the ‘class of error to which bright-line rules of
reversal’ apply has greatly narrowed.” (quoting Novotny, ¶ 21)),
aff’d, 2020 CO 46.3
¶ 15 Most errors, even of constitutional dimension, may be treated
by reviewing courts as trial error, meaning it is an “error which
occurred during the presentation of the case to the jury, and which
may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether its admission was
harmless.” Fulminante, 499 U.S. at 307-08; see also James v.
People, 2018 CO 72, ¶ 15 (reversing Colorado precedent that had
previously held the presence of an alternate juror in the jury room
3 The limited class of errors that the United States Supreme Court
has found to be structural are: the total lack of defense counsel at trial, see Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963); the lack of an impartial judge, see Tumey v. Ohio, 273 U.S. 510, 535 (1927); racial discrimination in selection of a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 255-56 (1986); denial of self- representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 177- 78 (1984); the denial of a public trial, see Waller v. Georgia, 467 U.S. 39, 49 (1984); a defective reasonable doubt instruction, see Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993); the total denial of a defendant’s right to counsel of choice, see United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006); and a defendant’s right of autonomy to proclaim his innocence contrary to counsel’s advice, see McCoy v. Louisiana, 584 U.S. 414, 422 (2018).
9 required automatic reversal because Colorado has “largely come to
accept” the Supreme Court’s view that most errors involving a
constitutional right are reviewed under the constitutional harmless
error analysis). And preserved trial errors are reviewed under
constitutional harmless error or nonconstitutional harmless error
standards, which “differ by the degree to which they require that
the error impair the reliability of the judgment of conviction.”
Hagos, ¶ 9.4
¶ 16 This is why Colorado courts “review all other [nonstructural]
errors, constitutional and nonconstitutional, that were not
preserved by objection for plain error.” Id. at ¶ 14; cf. Howard-
Walker v. People, 2019 CO 69, ¶ 25 (distinguishing structural error
from cumulative error, the latter of which requires that a reviewing
court “identify multiple errors that collectively prejudice the
substantial rights of the defendant, even if any single error does
not”).
4 Constitutional harmless error analysis requires reversal of a
conviction unless a court is “able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
10 ¶ 17 As recognized in Abu-Nantambu-El, ¶ 21, automatic reversal
may also be required “for violation of an express legislative
mandate” when a statute dictates reversal as the remedy. See also
Novotny, ¶ 26 (noting that the only circumstance requiring
automatic reversal besides structural error is when there exists an
“express legislative mandate”).
¶ 18 Abu-Nantambu-El, ¶ 24, dealt with whether a violation of
section 16-10-103(1)(k), C.R.S. 2023 — when a district court denies
a defendant’s challenge for cause to an impliedly biased juror who
ultimately sits on the jury — requires automatic reversal because of
an express legislative mandate. In holding that section 16-10-
103(1)(k) is not an example of an express legislative mandate
requiring automatic reversal, the court said the statutory provision
is “silent on the remedy for a violation” because the language does
not contain “any indication that the statute dictates a particular
remedy.” Abu-Nantambu-El, ¶ 25.
¶ 19 Both Abu-Nantambu-El and Novotny, however, pointed to
Colorado’s speedy trial statute, section 18-1-405(1), C.R.S. 2023, as
an example of an express legislative mandate dictating a particular
remedy. That provision states that if a defendant is not brought to
11 trial “within six months from the date of the entry of a plea of not
guilty, he shall be discharged from custody . . . , the pending
charges shall be dismissed, and the defendant shall not again be
indicted, informed against, or committed for the same offense.” § 18-
1-405(1).
C. Analysis
¶ 20 We must first decide whether having a sworn jury is (1) a
federal constitutional right, the denial of which should be included
in the very limited class of errors deemed structural error; or (2) a
requirement of an express statutory provision that mandates
automatic reversal as a remedy for its violation.5 Because we
5 Although Torrez references Colorado Constitution article II,
sections 16 and 23, in her briefing to us, she has made no argument as to how the right to a fair and impartial jury under our state constitution differs from the analogous right protected by the federal constitution. See, e.g., Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 943 (Colo. 1985) (although the parties cited the Colorado Constitution’s search and seizure provision, the court declined to analyze a separate standard under the state provision when the parties raised no argument as to how the state provision differed from the federal one); People v. Landis, 2021 COA 92, ¶ 36 (concluding that when the parties have not identified a conceptual difference between the state constitutional right analysis and federal constitutional framework, we rely on the U.S. Constitution); see also Sanchez v. Indus. Claim Appeals Off., 2017 COA 71, ¶ 41 (appellate courts do not address conclusory and underdeveloped
12 conclude that the right to a sworn jury satisfies neither of these
criteria, we reject Torrez’s claim that the court’s failure to
administer to the jury the empanelment oath requires automatic
reversal of her conviction. Instead, we review her contention for
plain error.
1. No Federal Constitutional Right
¶ 21 To even reach the question of structural error, we must first
determine whether a sworn jury is a recognized federal
constitutional right. And then, even if such a right exists, because
not all federal constitutional errors require automatic reversal,
Chapman, 386 U.S. at 22, we would then need to apply the factors
identified in Weaver v. Massachusetts, 582 U.S. 286, 295 (2017), to
assess whether a violation of the constitutional right is structural
error. Weaver identified at least three rationales that the United
States Supreme Court has relied on to include a particular
constitutional error among the “very limited class of cases,” Neder,
527 U.S. at 8 (quoting Johnson, 520 U.S. at 468), requiring
arguments). Therefore, our analysis is solely confined to whether there is a federal constitutional right to a sworn jury and, if so, whether violation of that right is structural error.
13 automatic reversal. Weaver, 582 U.S. at 295-96. First, an error is
structural “in some instances if the right at issue is not designed to
protect the defendant from erroneous conviction but instead
protects some other interest.” Id. at 295. Second, structural error
has been applied to cases when “the effects of the error are simply
too hard to measure.” Id. And third, structural error may exist
when the “error always results in fundamental unfairness.” Id. at
296 (emphasis added).6
¶ 22 Torrez urges us to recognize a constitutional right to a sworn
jury as it protects the right to a fair and impartial jury as
6 Because Weaver v. Massachusetts, 582 U.S. 286, 295 (2017), was
decided relatively recently, there is little Colorado case law applying its three categories. To date, it appears that no Colorado appellate court has applied Weaver to recognize a new federal constitutional error requiring automatic reversal. See People v. Carter, 2021 COA 29, ¶¶ 46-47 (applying Weaver categories to conclude that a constructive amendment is not structural error); People v. Richardson, 2018 COA 120, ¶ 40 (applying Weaver categories to conclude that the presence of the presiding judge’s spouse on the jury did not constitute structural error). But see Richardson v. People, 2020 CO 46, ¶ 72 (Gabriel, J., dissenting) (relying on the second Weaver category — the error defies a harmless error analysis — to conclude that a defendant’s right to a fair trial was violated when the presiding judge’s wife sat on the jury because the defendant “could never show that the judge’s conduct, in fact, caused the other jurors to defer to his wife” or “establish that the judge’s conduct improperly influenced the independence of the jury”).
14 guaranteed by the United States Constitution. U.S. Const. amends.
V, VI, XIV. We decline to do so. Torrez has not cited, and we are
not aware of, any controlling authority holding that a sworn jury is
part of the federally protected right to a fair and impartial jury.
¶ 23 The United States Supreme Court has not recognized that a
sworn jury is part of the constitutional right to a fair and impartial
jury, although it has suggested that a sworn jury is relevant to that
right. In Lockhart v. McCree, 476 U.S. 162, 165 (1986), the issue
was whether a juror needed to be struck for cause due to the juror’s
opposition to the death penalty. In that context, the Court observed
that “the Constitution presupposes that a jury selected from a fair
cross section of the community is impartial . . . so long as the jurors
can conscientiously and properly carry out their sworn duty to
apply the law to the facts of the particular case.” Id. at 184
(emphasis added).
¶ 24 And no federal court has recognized a constitutional right to a
sworn jury. In United States v. Turrietta, 696 F.3d 972, 973 (10th
Cir. 2012) — relied on by the Attorney General — the Tenth Circuit
dealt with a situation in which defense counsel failed to raise an
objection to the unsworn jury until after the guilty verdict was
15 reached. Defense counsel admitted that he was aware the jury was
unsworn, and his strategy was to wait for the verdict to decide
whether to object. Id. at 973 n.1.
¶ 25 Applying plain error review, the Tenth Circuit noted that it
found no binding authority, “whether in the form of a constitutional
provision, statute, rule, or judicial decision, addressing whether the
Sixth Amendment right to trial by jury necessarily requires the jury
be sworn.” Id. at 981. And it concluded that “[n]o federal court in
the history of American jurisprudence has held the constitutional
guarantee of trial by jury to necessarily include trial by sworn jury.”
Id. at 982.
¶ 26 In so ruling, the court in Turrietta reasoned that the handful of
federal courts that have suggested the failure to swear in the jury
would amount to an error do not agree as to the source of the error.
Specifically, the Turrietta court cited case law in which some courts
pointed to the Sixth Amendment, see Cooper v. Campbell, 597 F.2d
628, 629 (8th Cir. 1979); others to the Fifth Amendment’s Double
Jeopardy Clause, see United States v. Little Dog, 398 F.3d 1032,
1036-37 (8th Cir. 2005); or still others to the “dignity or
effectiveness which should attend federal court trials,” United States
16 v. Martin, 740 F.2d 1352, 1358 (6th Cir. 1984). Turrietta, 696 F.3d
at 982; see also United States v. Pinero, 948 F.2d 698, 700 (11th
Cir. 1991) (“[I]t is not clear from the caselaw whether juries in the
federal court system are required to be sworn in.”).
¶ 27 Yet Torrez relies on Ramos v. Louisiana, 590 U.S. ___, 140 S.
Ct. 1390, 1397 (2020), to suggest that if the Supreme Court were
presented with the issue of whether the Sixth Amendment right to a
jury trial includes a right to a sworn jury, the Court would conclude
that it does. The basis for her argument is that because Ramos
concluded that the Sixth Amendment right to a jury trial requires a
unanimous verdict, the Supreme Court continues to recognize new
rights of a federal constitutional dimension.
¶ 28 But Torrez assumes that if the Supreme Court recognizes a
federal constitutional right, then the Supreme Court would likewise
determine that the denial of that right is part of the limited class of
errors warranting automatic reversal. Two aspects of Ramos’s
analysis cut against Torrez’s prediction. First, the opinion does not
contain the word “structural” or the phrase “automatic reversal.”
See id. Second, in recognizing that a right to a jury trial requires a
unanimous verdict, which the defendant’s was not, Ramos said that
17 “[n]o one before us suggests that the error was harmless.” Id. at
___, 140 S. Ct. at 1408. Given the Supreme Court’s reluctance to
identify new constitutional errors that require automatic reversal,
the omission of any mention of “structural error” is telling.7
¶ 29 Torrez also relies on a litany of out-of-state cases to suggest
that other jurisdictions have held that the failure to swear in the
jury requires automatic reversal. This is true. But those cases
were decided under either a state constitutional provision, see
People v. Moon, 2022 IL 125959, ¶¶ 62, 64, 215 N.E.3d 58, 80-81
(holding that, as the state’s highest court, it may depart from
federal structural error law, and that, given the “long and storied
history” of a sworn jury in the state’s constitution, structural error
applies because the “failure to swear the jury with a trial oath is an
error of such gravity that it threatens the integrity of the judicial
process”); case law involving the right to a fair trial in the context of
7 We struggle to imagine a scenario where the failure to swear in the
jury, even if a sworn jury were recognized as part of the Sixth Amendment right to a jury trial, would actually be reviewed for constitutional harmless error. This is because such review would only apply if the claimed error were preserved, and once a party objects to a court’s failure to administer the empanelment oath, it is implausible that a court would decline to administer it.
18 jury selection, see Barral v. State, 353 P.3d 1197, 1200 (Nev. 2015)
(holding that the failure to administer the oath to prospective jurors
constitutes structural error as it denies a criminal defendant their
due process rights); or a state statutory provision, see Spencer v.
State, 640 S.E.2d 267, 268 (Ga. 2007) (“[T]he failure to administer
th[e] oath [required by state statute] to the trial jury requires the
setting aside of any conviction based upon the decision of such an
unsworn body and that there be a subsequent retrial.”).
¶ 30 As primarily an error correction court, we are reluctant to
recognize a new federal constitutional right without a strong
indication that our supreme court is likely to recognize the possible
existence of such a right. See Richardson, 2018 COA 120, ¶ 40
(“[A]s a court of error correction, it is not our prerogative to declare
new classes of structural errors . . . .”). In declining to recognize a
federal constitutional right to a sworn jury, we do not suggest that
the empanelment oath is not important and should not be given to
the jurors who will decide the case. But identifying a “judicially
recognized” practice of swearing in a jury, as our supreme court did
in Hollis, is a far cry from proclaiming that a sworn jury is essential
to the federal constitutional right to a fair and impartial jury. Thus,
19 Torrez’s conviction cannot be automatically reversed based on
denial of a right that has not been given constitutional significance.8
2. No Statutory Right and Remedy
¶ 31 We further conclude that there is no express legislative
mandate that requires automatic reversal as the remedy for an
unsworn jury. Torrez has not cited, nor are we aware of, any
Colorado statute that recognizes a defendant’s right to a sworn jury,
much less any statutory provision that specifically mandates a jury
to take an oath and requires reversal of a conviction if the court
fails to administer one.
¶ 32 We acknowledge that there are statutory provisions — none of
which the parties cite — that imply that a jury must take an oath.
See § 16-10-105, C.R.S. 2023 (“Alternate jurors shall be drawn in
the same manner, shall have the same qualifications, shall be
subject to the same examination and challenges, shall take the
same oath, and shall have the same functions, powers, facilities,
and privileges as the regular jurors.”) (emphasis added); cf. § 13-72-
8 Because we conclude that there is no federal constitutional right
to a sworn jury, we need not address whether any of the structural error categories from Weaver, 582 U.S. at 295, apply.
20 105, C.R.S. 2023 (governing the swearing in of a grand jury
foreperson and grand jury members before service commences).
¶ 33 But even if these provisions could be read as establishing a
statutory right to a sworn jury — which they do not — the statutes
do not contain an express legislative mandate that requires
automatic reversal if the statute is violated. See Abu-Nantambu-El,
¶ 25.
¶ 34 Torrez also points us to the rules of criminal procedure to
support her contention that there is a right to a sworn jury. True,
Hollis recognized that such an empanelment oath requirement is
implied in those rules. 630 P.2d at 69; see Crim. P. 23(a)(7) (“In any
case in which a jury has been sworn to try a case, and any juror by
reason of illness or other cause becomes unable to continue until a
verdict is reached, the court may excuse such juror.”); Crim. P.
24(b)(2) (“If either party desires to introduce evidence, other than
the sworn responses of the prospective juror, for the purpose of
establishing grounds to disqualify or challenge the juror for cause,
such evidence shall be heard and all issues related thereto shall be
determined by the court out of the presence of the other prospective
21 jurors.”); Crim. P. 24(e) (using the same language about alternate
jurors as set forth in section 16-10-105).
¶ 35 But again, those rules do not mandate automatic reversal if
violated and, regardless, those rules are not express legislative
mandates as described by Abu-Nantambu-El, ¶ 25.
¶ 36 We acknowledge that other state legislatures have passed laws
specifically mandating that jurors must be sworn in once they are
empaneled.9 Our General Assembly is free to enact such a
statutory requirement and even expressly provide for automatic
reversal of a criminal conviction if such a right is violated. But we
are not free to establish such a right or remedy simply because
other states’ legislatures have done so. See People v. Diaz, 2015 CO
28, ¶ 15 (“[I]n interpreting a statute, we must accept the General
9 Examples include Arizona and Mississippi. Ariz. Rev. Stat. Ann. § 22-224 (2023) (“When the jury has been selected, the justice of the peace shall administer to it substantially the following oath: ‘Do you swear or affirm that you will give careful attention to the proceedings, abide by the court’s instructions and render a verdict in accordance with the law and evidence presented to you, so help you God.’”); Miss. Code Ann. § 13-5-71 (West 2023) (“Petit jurors shall be sworn in the following form: ‘You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.’”).
22 Assembly’s choice of language and not add or imply words that
simply are not there.” (quoting People v. Benavidez, 222 P.3d 391,
393-94 (Colo. App. 2009))); Scoggins v. Unigard Ins. Co., 869 P.2d
202, 205 (Colo. 1994) (noting that a court “will not judicially
legislate by reading a statute to accomplish something the plain
language does not suggest”).
¶ 37 And some state courts have declined to apply structural error
even when that state has a statute mandating a sworn jury. In
such cases, those courts have reviewed the issue for plain error
when no objection was raised at trial. See, e.g., State v. Vogh, 41
P.3d 421, 428 (Or. Ct. App. 2002) (Even though Oregon has a state
statute requiring the jury to take an oath, “[t]he oath does not stand
alone as the sole procedure that guarantees that the jury will try
the case based on the admissible evidence and applicable law. To
the contrary, numerous additional mechanisms serve the same
purpose . . . .”); People v. Cruz, 113 Cal. Rptr. 2d 86, 89 (Ct. App.
2001) (stating that although the jury did not take the whole oath,
that failure did not require automatic reversal because the jury
“was not unmindful of its duty” and it was expressly instructed that
23 it must “render a verdict according to the instructions of the trial
court,” which the trial court said was its “duty”).
¶ 38 Indeed, People v. Cain, 869 N.W.2d 829 (Mich. 2015) — a case
neither party cited in their briefs — has similar facts to this case.
The jurors in Cain were sworn in before voir dire to truthfully
answer all questions about their qualifications to serve as jurors in
the case, but they were never given the empanelment oath, as
required by Michigan statute. Id. at 837-38. The Michigan Court of
Appeals applied structural error, but the Michigan Supreme Court
reversed, reviewing the issue for plain error and holding that the
record “reveals that the error of failing to properly swear the jury
did not undermine the proceedings with respect to the broader
pursuits and values that the oath seeks to advance.” Id. at 836.
¶ 39 In reaching this conclusion, Cain relied on the fact that the
district court had instructed the jury on reasonable doubt,
explained to the jurors their duties and responsibilities, and
reminded the jurors to “[r]emember that [they] have taken an oath
to return a true and just verdict based only on the evidence and
[the court’s] instructions on the law.” Id. at 837. The Cain court
acknowledged that these statements and instructions were not a
24 substitute for the oath, but it concluded the record showed that the
trial court had been “vigilant” to remind the jury to act fairly and
impartially. Id. at 838. In other words, the repeated instructions,
although not an oath, indicated “that the jurors were conscious of
the gravity of the task before them and the manner in which that
task was to be carried out.” Id. at 839.
¶ 40 Regardless of out-of-state authority, though, Abu-Nantambu-
El, ¶ 25, governs, and because there is no Colorado statutory
provision that mandates automatic reversal as a remedy when a
defendant is found guilty by an unsworn jury, we do not apply
structural error to Torrez’s claim. Instead, we will review her
contention for plain error.
D. Plain Error Review
¶ 41 Plain error is error that is obvious and substantial. Hagos,
¶ 14. “In general, to be plain, an error must ‘be so obvious’ at the
time it is made ‘that a trial judge should be able to avoid it without
the benefit of an objection.’” Cardman v. People, 2019 CO 73, ¶ 34
(quoting Scott v. People, 2017 CO 16, ¶ 16). For an error to be
obvious, the action challenged on appeal ordinarily “must
contravene (1) a clear statutory command; (2) a well-settled legal
25 principle; or (3) Colorado case law.” Id. (quoting Scott, ¶ 16). The
substantiality prong of plain error review requires the obvious error
to “so undermine[] the fundamental fairness of the trial itself so as
to cast serious doubt on the reliability of the judgment of
conviction.” Id. at ¶ 39 (quoting Hagos, ¶ 14).
¶ 42 We assume, without deciding, that the error was obvious, as
our supreme court in Hollis said that “the need for such an
[empanelment] oath ha[s] been judicially recognized.” 630 P.2d at
69.
¶ 43 But was the obvious error substantial? The courts in Cruz,
Cain, and Vogh — the out-of-state cases in which the courts applied
plain error review to the failure to follow a state law requiring a
sworn jury — looked at the trial records to discern whether, in the
absence of the timely empanelment oath, (1) the district court
provided sufficient instructions to the jury; (2) the instructions
conveyed the gravity and seriousness of the jury’s task; and (3) the
record lacked any evidence of juror misconduct or other issues that
would suggest the jury was acting contrary to the requirements set
forth in the empanelment oath.
26 ¶ 44 The record here shows that the district court, despite not
administering the empanelment oath, provided substantial
comments, instructions, and guidance that secured the
fundamental fairness of Torrez’s trial; thus, the error did not cast
serious doubt on the reliability of the verdict. Such examples
include the following:
The court explained the prosecution’s burden of proof,
the reasonable doubt standard, and the presumption of
innocence at least six times. For example, the court said,
“The defendant is presumed to be innocent. Therefore,
the prosecution has the burden of proving the charges
beyond a reasonable doubt.”
There are also at least six instances when the court
instructed the jury to decide the case based solely on the
evidence presented, not to talk with the other jurors
about the case until deliberations, and not to speak
about the case or try to investigate any facts other than
those presented in court. For example, the court said,
“You still don’t have all the evidence, and you haven’t
27 heard closing arguments, and you don’t know the
instructions, so please don’t discuss it.”
The court gave other instructions throughout, such as
those explaining the defendant’s right not to testify, that
the court would give the jury the law that it had to apply,
and that the verdict needed to be unanimous.
Specifically, at one point, the court said, “[I]t is my job to
decide what rules or law apply to the case. You must
follow all the rules as I explain them to you. You cannot
follow some and ignore others. Even if you disagree or do
not understand the reasons for some of the rules, you
must follow them.”
The court obtained acknowledgment from the jurors after
it said, “Everyone understand our civics lesson? Can
everybody follow those basic rules? Everybody is shaking
their head yes.”
¶ 45 Other factors that support our conclusion that the failure to
swear in the jury in this case was not plain error include: (1) the
trial was only two days long, so the number of jury instructions in
relation to the length of the trial is significant; (2) Torrez has not
28 raised any other trial error that would call into question the
reliability of the judgment; (3) the court thoroughly went through
the jury instructions with the parties and even asked if there were
any other instructions or objections to consider, to which defense
counsel said no; and (4) Jury Instruction No. 1 directed the jurors
to decide the case based on the evidence presented to them in court
and that their verdict had to be based solely on jury deliberations
and not outside individuals or materials. See Galvan v. People,
2020 CO 82, ¶ 29 (appellate courts must presume that the jury
followed the court’s instructions). On this record, we discern no
plain error resulting from the court’s failure to administer the
empanelment oath.
III. Merger
¶ 46 Torrez contends, the Attorney General concedes, and we agree
that Torrez’s convictions should merge into one count of first degree
burglary.
A. Standard of Review and Applicable Law
¶ 47 We review de novo a claim that a defendant’s conviction
violates her protection against double jeopardy. People v. Lowe,
2020 COA 116, ¶ 38.
29 ¶ 48 The double jeopardy clause protects defendants from
multiplicity, which “is the charging of multiple counts and the
imposition of multiple punishments for the same criminal conduct,”
unless the General Assembly authorizes it. Woellhaf v. People, 105
P.3d 209, 214 (Colo. 2005).
¶ 49 Multiple convictions not based on distinguishable acts must
merge. Id. at 220. But double jeopardy does not bar multiple
convictions under the same statute if the defendant committed the
offense more than once. See People v. Rock, 2017 CO 84, ¶ 17. A
defendant may be charged more than once under the same statute
when (1) “the unit of prosecution prescribed by the legislature
permits the charging of multiple offenses,” and (2) “the evidence in
support of each offense justifies the charging of distinct offenses.”
Quintano v. People, 105 P.3d 585, 590 (Colo. 2005); see People v.
Williams, 651 P.2d 899, 902-03 (Colo. 1982) (citing Sanabria v.
United States, 437 U.S. 54 (1978)).
B. Analysis
¶ 50 As mentioned previously, Torrez was convicted of two counts
of first degree burglary, one count of attempted first degree assault,
and one count of second degree assault. During the sentencing
30 hearing, the district court and parties agreed that both of Torrez’s
convictions for attempted first degree assault and second degree
assault should merge into the burglary convictions. We agree.
¶ 51 One element of first degree burglary requires proof that “the
person or another participant in the crime assault[ed] or menace[d]
any person.” § 18-4-202, C.R.S. 2023. There is no dispute that the
assault convictions arose from the same factual incident when
Torrez stabbed the victim with the knife. That is, both the
attempted first degree assault count and the second degree assault
count were based on Torrez’s causing bodily injury to the victim;
they differed only as to whether Torrez intended to cause serious
bodily injury or simply bodily injury. See § 18-3-202(1)(a), C.R.S.
2023 (A person commits the crime of assault in the first degree if
“[w]ith intent to cause serious bodily injury to another person, [s]he
causes serious bodily injury to any person by means of a deadly
weapon.”); § 18-3-203(1)(b), C.R.S. 2023 (A person commits second
degree assault if “[w]ith intent to cause bodily injury to another
person, he or she causes such injury to any person by means of a
deadly weapon.”).
31 ¶ 52 Therefore, because one of Torrez’s first degree burglary
convictions was premised on this one assault, she necessarily
committed the lesser included offenses of attempted first degree
assault and second degree assault. The lesser included offenses
must merge into the greater. See Reyna-Abarca v. People, 2017 CO
15, ¶ 65 (double jeopardy is violated when a defendant is convicted
of both a greater offense and a lesser included offense for the same
conduct); Page v. People, 2017 CO 88, ¶ 9 (the conviction of the
lesser included offense must merge into the greater offense);
Litwinsky v. Zavares, 132 F. Supp. 2d 1316, 1319 (D. Colo. 2001)
(“Where assault is the predicate offense, the elements of first-degree
burglary necessarily include all of the elements of assault. Thus,
. . . assault is clearly a lesser-included offense of first-degree
burglary when assault is the predicate offense.”).
¶ 53 The parties at the sentencing hearing also agreed that Torrez’s
two first degree burglary convictions should merge into a single
conviction. The district court suggested that there might be
sufficient facts showing two distinct episodes of first degree
burglary. It said that the first episode could have occurred when
Torrez “came to the house, . . . was asked to leave, [but] she refused
32 to.” And the second incident the court surmised was when Torrez
was pushed outside, the victim tried to shut the door, and Torrez
reentered the apartment and began to stab the victim. But the
court also noted that the charges could be merged “because [it did
not] think there [were] two different criminal episodes here, even
though there’s two burglaries.”
¶ 54 We agree that Torrez’s two burglary convictions must also
merge into one single conviction. Jury Instruction Nos. 13 and 14
listed the two burglary counts as Burglary (Armed with a Deadly
Weapon) and Burglary (Assault), respectively. Torrez committed
first degree burglary when, in addition to committing the other
elements of the offense, she assaulted the victim with the knife,
which was considered a deadly weapon. Torrez’s initial refusal to
leave the victim’s apartment was not a distinct act of first degree
burglary from the first degree burglary when Torrez then assaulted
the victim with a deadly weapon (the knife). Both incidents
occurred within the same occupied structure, and the prosecution
did not treat the two burglary counts as factually distinct acts.
Rather, the two counts reflected alternative methods of committing
the same first degree burglary.
33 ¶ 55 The district court indicated that it would merge all of Torrez’s
convictions into one count of first degree burglary. But the
mittimus reflects four separate convictions and four separate
sentences. It also noted at that “ALL COUNTS RUN
CONCURRENTLY AND MERGE FOR PURPOSES OF SENTENCING.”
We agree with Torrez that, despite the district court noting that the
sentences for all four convictions run concurrently with each other,
the multiple convictions and sentences nonetheless violate double
jeopardy because the mittimus should reflect a single conviction of
first degree burglary and a single sentence for that conviction. See
Ball v. United States, 470 U.S. 856, 865 (1985) (recognizing that a
second conviction that should be merged is not remedied by a
concurrent sentence because the additional conviction could have
collateral consequences involving parole eligibility or impeachment
in a separate proceeding).
¶ 56 Therefore, on remand, the district court must amend Torrez’s
mittimus to reflect a single conviction of first degree burglary with
an imposed ten-year sentence in the custody of the Department of
Corrections.
34 IV. Conclusion
¶ 57 The judgment of conviction is affirmed in part and vacated in
part. The convictions for the second count of first degree burglary,
the one count of attempted first degree assault, and the one count
of second degree assault are vacated, as they are merged into a
single conviction of first degree burglary. The remaining first degree
burglary conviction is affirmed. The case is remanded to the
district court to amend the mittimus consistent with this opinion.
JUDGE NAVARRO and JUDGE WELLING concur.