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People v. Torrez.

2024 COA 11. No. 20CA0727. Jury Instructions—Empanelment Oath—Standard of Review—Plain Error.

February 8, 2024

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. The case proceeded to trial, and before voir dire, the entire venire was sworn to answer truthfully the questions to assess juror qualifications. Once the jury was empaneled, the court broke for lunch, but after reconvening, it proceeded to opening statements without swearing in the jury. Neither the court nor the parties ever raised the issue of the court’s failure to administer the empanelment oath. The jury found Torrez guilty as charged and also determined that she had used a weapon during the crime. The court sentenced Torrez to 10 years in the custody of the Department of Corrections.

On appeal, Torrez argued that the trial court erred in failing to administer the empanelment oath. Torrez acknowledged that she did not contemporaneously object to the court’s failure to swear in the jury but argued that such an error is structural and thus requires reversal even absent an objection. As a matter of first impression, the court of appeals decided that having a sworn jury is not a federal constitutional right, so a court’s failure to issue an empanelment oath is not structural error; and there is no express legislative mandate that requires automatic reversal as the remedy for an unsworn jury. Therefore, the trial court’s failure to administer the empanelment oath to the jury does not require automatic reversal of Torrez’s conviction, and the court reviewed her contention for plain error. Here, the record shows that the trial court otherwise properly instructed the jury on the law and that the jury understood the gravity of its task. Accordingly, while the trial court’s error was obvious, it did not substantially undermine the proceedings so as to cast serious doubt on the reliability of the judgment.

Torrez also contended, and the attorney general conceded, that Torrez’s convictions should merge into one count of first-degree burglary. Here, 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. Accordingly, even though the district court noted that the sentences for all four convictions would run concurrently with each other, the multiple convictions and sentences violate double jeopardy because the mittimus should reflect a single conviction of first-degree burglary and a single sentence for that conviction.

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 were vacated and merged into a single conviction of first-degree burglary. The remaining first-degree burglary conviction was affirmed. The case was remanded to the district court to amend the mittimus consistent with this opinion.

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

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