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People v. Sanders.

2022 COA 47. No. 18CA0525. Colorado Code of Judicial Conduct—Disqualification of Judge—Appearance of Bias—Jury—Batson Challenge—Prosecutorial Misconduct.

April 28, 2022

Defendant shot another motorist during a road rage incident. He was charged with first degree extreme indifference assault, illegal discharge of a firearm, and menacing. A district judge was assigned to his case, and at the close of the People’s voir dire about 10 months later, the judge disclosed that she had been shot at while driving. Defense counsel moved for her disqualification, for mistrial, and for leave to file a motion for a change of judge. The judge denied the motions. The jury convicted defendant as charged and made findings that supported crime of violence sentence enhancers.

On appeal, defendant argued that the judge should have granted the disqualification motion under C.J.C. 2.11(A), which prohibits a judge from participating when her involvement raises the appearance of bias, even if she has no actual bias. Defendant did not cite, and the Court of Appeals did not find, any Colorado precedent holding that an appearance of bias arises whenever a judge presiding over a criminal case has experienced criminal conduct similar to the conduct at issue. The necessity of disqualification depends on the remoteness of the prior incident and the degree of similarity between the prior incident and the charged conduct. Here, the record reflects that the judge was driving when shots were fired and at least one shot hit her car; she was not shot or injured in the prior incident, and there was no indication that she was the shooter’s target or that shots were fired due to road rage. In addition, the incident occurred three years earlier and did not result in charges or a trial. Given the remoteness of the incident and the material differences between the conduct charged here and the conduct the judge described, there is no appearance of partiality that would lead a reasonable observer to doubt the judge’s impartiality. Therefore, disqualification was not required.

Defendant also argued that the trial court committed structural error by (1) reseating Juror W after the Batson challenge was sustained rather than discharging the entire venire and restarting the jury selection process, and (2) proceeding without Juror W on the second day of trial. The appropriateness of either dismissing the venire or reseating the juror is left to the trial judge’s discretion. Here, the relevant discussion about Juror W’s strike occurred at a bench conference out of the jury’s hearing, so there is no reason to suspect the other jurors knew why Juror W was stricken and reseated. Accordingly, reseating Juror W was appropriate, and the court did not err.

Defendant also contended that the trial court abused its discretion by declining to give his instruction because it properly stated the law. A trial court is not obligated to give any jury instruction a defendant submits simply because it correctly states the law. Here, the witness’s absence was not the exclusive result of the People’s conduct, and the court was not required to give the proposed instruction. Further, the existing reasonable doubt instruction informed the jury it should consider a lack of evidence when rendering its verdict.

Lastly, defendant asserted that his trial was tainted by prosecutorial misconduct due to four statements made by the prosecutors. However, (1) the prosecutor’s hypothetical arguments were made in response to similar defense arguments, so it is clear that the prosecutor was not commenting on the right to confront adverse witnesses; (2) the prosecutor’s puzzle analogies did not trivialize the People’s burden of proof; (3) the prosecutor drew reasonable inferences regarding the credibility of witnesses based on the evidence; and (4) the prosecutor’s attempt to refocus the jury’s attention on favorable evidence in response to defense counsel’s closing argument was not improper. Therefore, the statements were not improper, and the trial court did not err.

The judgment was affirmed.

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

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