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People v. Vergari.

2022 COA 95. No. 19CA1317. Jurors—Challenge for Cause—Peremptory Challenges—Opinion Testimony—CRE 403—Prosecutorial Misconduct.

August 25, 2022

Defendant was involved in a road rage incident with Miscles and was charged with second degree assault. During voir dire, Juror F.M. expressed hesitation about applying defendant’s presumption of innocence, and defense counsel challenged him for cause. The trial court explained to Juror F.M. that the prosecution had the burden of proof and that if it failed to meet that burden, defendant “must be found not guilty.” Juror F.M. ultimately agreed that if the prosecution failed to meet its burden, he would find defendant not guilty. The trial court then denied defense counsel’s challenge for cause. Defense counsel did not use his remaining peremptory challenges to remove Juror F.M. from the jury. Defendant was convicted as charged.

On appeal, defendant argued that the trial court abused its discretion by failing to grant his challenge for cause to Juror F.M. A party waives a claim of error by failing to use peremptory challenges to correct a denial of a challenge for cause. Defendant made the strategic decision to not exercise a peremptory challenge as to Juror F.M. and therefore waived his claim that the trial court erred by denying his challenge for cause.

Defendant also argued that the trial court reversibly erred by allowing a witness to narrate two video exhibits. Here, it was improper for the witness to opine on events in the video recordings because he did not witness the events firsthand, had no personal knowledge about the video recordings or what they depicted, and did not provide a more informed perspective or understanding based on his expertise in forensic imaging. However, any error was harmless because the trial court explained to the jurors that they could view the videos and draw their own conclusions from them. Therefore, the jury was free to disregard the witness’s opinion and reach its own conclusions. Accordingly, the trial court did not err.

Defendant also contended that the trial court reversibly erred by precluding cross-examination of a witness about Miscles’s aggressive character traits. Here, under CRE 403, the trial court precluded defense counsel from rebutting the witness’s statement that Miscles “is not an aggressive person.” Assuming, without deciding, that the trial court abused its discretion by precluding cross-examination, any error was harmless because it did not substantially influence the verdict or affect the fairness of the trial proceedings.

Lastly, defendant argued that the prosecutor committed reversible misconduct during closing argument by making statements that were not based on facts in evidence and by referring to improper character evidence. Here, while some of the prosecutor’s statements were improper, they were not flagrantly so, and they did not cast serious doubt on the reliability of the jury’s verdict. Accordingly, there was no reversible error.

The judgment was affirmed.

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

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