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People v. Garcia.

2022 COA 144. No. 20CA1697. Due Process—Right to an Impartial Jury—Voir Dire—Confrontation Clause—Public Policy Considerations—Trial Proceedings—COVID-19— Face Masks.

December 22, 2022

Garcia was charged with one count of theft from an at-risk person—$500 or more; one count of theft—$20,000–$100,000; and two counts of violating the pawnbroker act. His jury trial was held in July 2020 and was the first in-person trial in Denver after the COVID-19 pandemic began. The trial court consulted with health officials to create a safety plan that required everyone in the courtroom to wear face masks during the trial. The plan followed the governor’s statewide mask mandate and was approved by the chief justice. The impaneled jury was seated throughout the courtroom gallery to ensure social distancing, with some jurors sitting in line with or slightly behind Garcia, and the parties were seated at tables perpendicular to the judge on either side of the courtroom. Garcia filed a written objection to holding the jury trial in the early months of the pandemic, raising multiple concerns with the court’s COVID-19 safety protocols, and he moved for a mistrial during the hearing on his written objections. The court denied the motion and the objections, but after further consideration, the court permitted trial witnesses to use face shields instead of masks while testifying. Garcia was convicted as charged.

On appeal, Garcia argued the court violated his constitutional rights by (1) requiring prospective jurors to wear face masks during voir dire, which undermined the parties’ and the court’s ability to observe each juror’s demeanor and prevented defense counsel from effectively exercising challenges, and (2) requiring impaneled jurors to wear masks during the rest of the trial, which prevented defense counsel from assessing the jurors’ reactions and making effective strategic decisions. Whether requiring or permitting jurors to wear masks during trial violates a defendant’s constitutional rights appears to be a matter of first impression in Colorado. Here, the mask requirement reflected the court’s careful consideration of governing safety and health measures, and it was a reasonable exercise of the court’s discretion to manage voir dire in the face of the pandemic. Further, the relevant case law does not give constitutional significance to the ability to view a potential juror’s entire face; counsel and the court can still observe the jurors’ body language, tone of voice, eye contact, and other elements of their demeanor. And even if the prospective jurors’ masks made assessing their demeanor slightly more difficult, the defense and the prosecution were equally burdened by this challenge. Garcia’s claim that requiring the impaneled jury to wear masks violated his constitutional rights fails for similar reasons. Therefore, the court’s mask requirements did not violate Garcia’s constitutional rights.

Garcia also argued that seating the impaneled jurors in the gallery during trial violated his constitutional rights because some jurors could not see his face during the entire trial and some jurors were seated farther away from the witness stand than in a typical trial, reducing their ability to evaluate the witnesses’ demeanor. Assuming without deciding that a defendant’s confrontation right includes the right to have the jury observe the defendant’s demeanor, such a right is subject to exceptions in certain circumstances. Here, similar to the mask requirement, the court’s positioning of the jurors in the gallery furthered the important public policy of ensuring everyone’s safety in the courtroom. Further, this social distancing policy did not deprive Garcia of meaningful cross-examination because (1) the witnesses were not masked during their testimony, and Garcia did not allege that they could not hear the witnesses; and (2) the record shows that the trial court repeatedly asked jurors if they could see and hear the witnesses and no juror expressed any difficulties, so the extra distance did not impact the jurors’ ability to observe testifying witnesses. Accordingly, the court’s decision to seat the jury throughout the gallery presented, at most, a minimal limitation on the jurors’ ability to assess the demeanor of witnesses at trial, and there was no constitutional violation.

Garcia further contended that the trial court erred by not randomly seating potential jurors in the jury selection room, which violated his constitutional right to a fair and impartial jury representing a fair cross-section of the community and statutory mandates related to jury selection. However, the Colorado Uniform Jury Selection and Service Act does not dictate how a court must seat jurors after they check in for jury duty, so there was no statutory error. Further, Garcia cited no authority and developed no argument for his assertion that the jury selection process violated his constitutional rights.

Garcia also asserted that he was denied his right to be present for jury selection. However, the record shows that he was present for voir dire and other parts of the trial.

Garcia also contended that his convictions are not supported by sufficient evidence. Here, there was ample evidence to support the jury’s findings that Garcia took the victim’s property with the intent to permanently deprive her of it and that he gave false information to the pawnbrokers about that property, including his admission that he sold the victim’s items at the pawnshops. And the prosecution’s expert testified that the value of the property met the statutory thresholds.

Lastly, Garcia argued that the trial court erred by not addressing prosecutorial misconduct during voir dire, opening statements, and closing arguments. There was no error because (1) the prosecutor’s statement during voir dire that Garcia asked for a trial did not suggest that the jury should be biased against him, because the comment simply acknowledged that this case was one of the first jury trials conducted after the pandemic started; (2) the prosecutor’s reference in opening to the alleged victim as “our victim” was not misconduct in the context here; (3) the prosecutor did not improperly assert during closing that the jury would need to speculate to find him not guilty, because the prosecutor merely argued that the evidence did not support the defense’s theory; and (4) the prosecutor’s reference in closing argument to information that came into evidence through Garcia’s police interview was a comment on the evidence, which was not improper.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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