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People v. Toro-Ospina.

2023 COA 45. No. 20CA2145. Juries—Peremptory Strikes—Juror Questionnaires—Implicit Bias Instructions—Character Evidence—Prosecutorial Misconduct—Cumulative Error.

June 1, 2023

Toro-Ospina, who is originally from Colombia, lived with his wife and three children in an apartment complex. Toro-Ospina had a permit to own a firearm and carried a gun to protect himself and his family because he believed the surrounding neighborhood was dangerous. One morning, while Toro-Ospina and his children were sleeping inside their apartment, he awoke to the repeated slamming of the apartment complex’s back door. Maintenance workers Granados and Oliver were fixing the door and picking up trash with a metal pole that had a claw attached to the end. Toro-Ospina, armed with his gun, approached Oliver to inquire about the slamming door. During the encounter, Oliver raised the metal pole with the claw into the air and, in response, Toro-Ospina pulled out his gun and fired it three times into the air. A jury convicted Toro-Ospina of two counts of felony menacing.

On appeal, Toro-Ospina contended that the prosecutor’s peremptory strikes of prospective Jurors R and V were based on their race, and he maintained that the trial court erred by denying his challenges to those strikes under Batson v. Kentucky, 476 U.S. 79 (1986). Here, when the prosecutor exercised peremptory challenges to excuse Juror R and Juror V, defense counsel raised Batson challenges, explaining that Juror R appeared to be a Black man and Juror V appeared to be a Latina. When a Batson challenge is raised, the trial court must (1) determine if the objecting party made a prima facie showing that the peremptory strike was based on race; (2) if the objecting party makes this prima facie showing, the striking party must offer a race-neutral reason for removing the prospective juror; and (3) the court must determine whether the objecting party showed by a preponderance of evidence that the strike was purposefully discriminatory on the basis of race. Toro-Ospina argued the trial court erred in conducting the second step with respect to Juror R. However, Juror R’s recent adverse experience with law enforcement and his acknowledged skepticism about their trustworthiness was a race-neutral explanation for the challenge, so the court did not err by denying this Batson challenge. Juror V stated that the use of a gun would be appropriate to protect her home and sleeping children, which Toro-Ospina argued was contrary to the events that precipitated his altercation. However, the suggestion that the use of a gun is an appropriate means to protect a person’s sleeping children closely aligned with Toro-Ospina’s explanation for why he carried a firearm. And on the morning of the altercation, Toro-Ospina’s children were sleeping in the apartment, and the confrontation with Oliver took place just outside the apartment complex’s door. Based on this record, the trial court did not clearly err by determining that the prosecutor’s reasons for striking Juror V were not discriminatory.

Toro-Ospina also argued that the trial court erred by denying his request to inquire about race and ethnicity on a questionnaire that was distributed to prospective jurors before jury selection. However, CRS § 13-71-115(1), concerning the use of standard juror questionnaires, does not require or address whether a prospective juror may be requested to indicate their racial or ethnic identity; and under Crim. P. 24(a)(3), whether to use jury questions is within the trial court’s discretion. Accordingly, the trial court did not abuse its discretion by declining to include the requested race/ethnicity question on the jury questionnaire.

Toro-Ospina further contended that the trial court abused its discretion by not giving the jury his proposed instruction discussing the need to protect against implicit biases in the deliberative process, which was derived from a standard instruction adopted by federal courts in the Western District of Washington. Toro-Ospina maintained that this instruction was warranted because of the potential language barrier between himself and the jury, which could have triggered implicit biases against him. Here, although the trial court did not provide the implicit bias instruction, it allowed Toro-Ospina’s counsel to explore the topic during juror questioning, and the exchange between counsel and Juror B articulated the inherent risks of implicit bias and the need to be mindful of those concerns in the deliberative process. Further, while the pattern instruction that the court gave did not adequately inform the jury about the concept of implicit bias, the court’s decision not to give the requested instruction does not require reversal because no statute or caselaw mandates giving an implicit bias instruction.

Toro-Ospina additionally asserted that the trial court erred by not allowing him to introduce evidence of Oliver’s character to support his self-defense claim. Here, defense counsel tried to elicit testimony from Toro-Ospina that he had witnessed Oliver participate in drug deals in and around the apartment complex. The trial court properly ruled that evidence of Oliver’s alleged drug dealing was improper character evidence and was therefore irrelevant absent specific evidence linking Oliver to past instances of violent conduct.

Toro-Ospina also argued that the prosecutor committed misconduct by (1) telling the jury, in rebuttal closing argument, that he lied during his testimony and thus denigrating him; (2) misstating the law and the evidence; and (3) misstating witness Granados’s testimony and thereby undermining the fundamental fairness of the trial. First, the prosecutor did not state that Toro-Ospina lied but stated that he would not admit that the victim was holding a pole with a trash collection claw at the end of it. This was an important aspect of the prosecution’s case that was based on the evidence and was intended to challenge Toro-Ospina’s credibility. Second, the prosecutor did not misstate the law in her attempt to redirect the jury back to the testimony of the three individuals involved. Third, the prosecutor’s misstatement of Granados’s testimony did not rise to the level of improper conduct. Accordingly, there was no prosecutorial misconduct.

Lastly, Toro-Ospina argued for reversal based on cumulative error. However, multiple errors were not committed, so cumulative error did not exist.

The judgment of conviction was affirmed.

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

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