Court Opinions: Colorado Supreme Court Rules Juror Substitution Midway Through Criminal Trial Didn’t Warrant Reversal

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Clark v. People

Reginald Keith Clark was charged with multiple crimes arising from his alleged sexual assault of A.B. During voir dire, a venire member made comments that Clark believed evinced racial bias. Clark moved to strike the juror for cause, but the trial court denied the challenge, concluding that the juror’s statements expressed a political view and didn’t indicate that he couldn’t be fair. Clark later removed the juror using a peremptory challenge and the juror didn’t sit on the jury. Clark was convicted and appealed on multiple grounds.

In a divided opinion, the Colorado Court of Appeals affirmed Clark’s conviction in 2022. In its discussion of the trial court’s ruling on the challenge for cause, the division’s lead opinion focused its analysis on the Sixth Amendment. Judge Timothy Schutz’s partial dissent included a discussion of the equal protection clause, particularly within the context of Batson v. Kentucky and its progeny.

In this case, the Colorado Supreme Court addressed whether a trial court’s erroneous denial of a defendant’s challenge for cause of a potential juror who expressed racial bias constitutes structural error. Following its 2015 decision in People v. Novotny, and its 2019 decision in Vigil v. People, the court held that when the trial court’s erroneous denial of a challenge for cause is made in good faith and doesn’t result in the juror actually serving on the jury, the error isn’t structural and is subject to harmless error review. 

The court concluded that any error here was harmless. It also concluded that the trial court’s error didn’t violate the defendant’s right to equal protection. 

Separately, the court held that a juror’s comment recalling that during her previous jury service, the judge told the jury it must deliberate until it reached a unanimous verdict wasn’t “extraneous prejudicial information” under Colorado Rule of Evidence 606(b). 

The state Supreme Court affirmed the judgment of the Colorado Court of Appeals. 

Castro v. People

In this case, a juror became incapacitated after deliberating for approximately nine hours on felony charges brought against Ricardo Castro. To salvage the trial, the court replaced the unavailable juror with an alternate juror. Although it acknowledged that mid-deliberations juror substitution raises a presumption of prejudice to the defendant, it explained that such a presumption may be overcome by taking the thorough precautions developed in People v. Burnette and Carrillo v. People. 

After applying such precautions, the trial court instructed the reconstituted jury to begin deliberations anew.

The reconstituted jury deliberated for five and a half hours and then returned a guilty verdict. Castro appealed, arguing that the trial court had reversibly erred by replacing a regular juror with an alternate juror. But a division of the Colorado Court of Appeals upheld the trial court’s actions.

The Colorado Supreme Court concluded that Section 16-10-105 of the Colorado Revised Statutes is ambiguous as to whether a trial court has the authority to replace a regular juror with an alternate juror during deliberations. But the Supreme Court also concluded that, regardless of whether substituting a regular juror with an alternate juror during deliberations is error, it’s potentially prejudicial to the defendant. 

Instead of delving into the appropriate standard of review to ascertain whether an error occurred in this mid-deliberations juror-substitution case, the state’s high court wrote it presumed that a mid-deliberation substitution of a regular juror with an alternate juror always prejudices the defendant. 

The Supreme Court wrote it follows that the only relevant inquiry on review then, is whether reversal is warranted. 

The court explained that the question turns on whether the precautions employed by the trial court, when considered in light of the surrounding circumstances, overcome the presumption of prejudice to the defendant.

The state Supreme Court pointed to the principle it first articulated in Burnette in 1989 and then reinforced Carrillo in 1999: Substitution of a regular juror with an alternate juror during deliberations raises a presumption of prejudice to the defendant’s right to a fair trial, but that presumption may be overcome by taking the precautions delineated in those cases. 

Here, the Supreme Court concluded that the trial court complied with the precautions laid out in Burnette and Carrillo. 

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