Clark v. People

553 P.3d 215

2024 CO 55

Reginald Keith CLARK, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 22SC313

Supreme Court of Colorado.

July 1, 2024

Rehearing Denied August 19, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 19CA340

Attorneys for Petitioner: Megan A. Ring, Public Defender, Casey Mark Klekas, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Amici Curiae Colorado Hispanic Bar Association, Asian Pacific American Bar Association, South Asian Bar Association of Colorado, and Sam Cary Bar Association: Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Tyler J. Owen, Denver, Colorado

Attorneys for Amici Curiae Colorado-Montana-Wyoming Area Conference of the National Association for the Advancement of Colored People and American Civil Liberties

Union of Colorado: Martina Tiku, Anna Kathryn Barnes, Baltimore, Maryland

Timothy R. Macdonald, Anna I. Kurtz, Denver, Colorado

Attorneys for Amicus Curiae Mountain States Legal Foundation: William E. Trachman James, L. Kerwin, Lakewood, Colorado

Attorneys for Amici Curiae Office of the Alternate Defense Counsel and Colorado Criminal Defense Bar: Law Offices of Ann M. Roan, LLC, Ann M. Roan, Boulder, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

[1] ¶1 Racial discrimination, while detestable in any context, is "especially pernicious" in the criminal justice system. Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). "[S]uch discrimination ‘not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.’" Id. at 556, 99 S.Ct. 2993 (quoting Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940)). Criminal defendants have the right to an impartial jury, U.S. Const. amend. VI; Colo. Const. art. II, § 16, which includes the right to be tried by jurors who can consider the case without the influence of racial animus, Georgia v. McCollum, 505 U.S. 42, 58, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The jury, after all, is meant to be "a criminal defendant’s fundamental ‘protection of life and liberty against rac[ial] … prejudice.’ " Peña-Rodriguez v. Colorado, 580 U.S. 206, 223, 137 S.Ct. 855, 197 L.Ed.2d 107 (2017) (quoting McCleskey v. Kemp, 481 U.S. 279, 310, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)).

[2, 3] ¶2 Procedures for preventing biased jurors from serving are critical to the protection of the defendant’s right to an impartial jury. McCollum, 505 U.S. at 58, 112 S.Ct. 2348. In Colorado, judges must dismiss for cause jurors who "evinc[e] enmity or bias toward the defendant or the state." § 16-10-103(1)(j), C.R.S. (2023). Where a trial court’s erroneous denial of a challenge for cause results in seating a juror who is biased against the defendant, the defendant’s Sixth Amendment right to an impartial jury is violated, and the conviction must be reversed. People v. Abu-Nantambu-El, 2019 CO 106, ¶ 29, 454 P.3d 1044, 1050.

[4] ¶3 If, however, a juror evinces racial bias during voir dire but does not ultimately serve on the jury, no Sixth Amendment violation has occurred. These are the circumstances we are presented with today.

¶4 Reginald Keith Clark, a Black man, was charged with multiple crimes arising from his alleged sexual assault of A.B., a white woman. He faced trial in Gilpin County, an area that is predominantly white.¹ During voir dire, a venire member made comments that Clark believed evinced racial bias. Clark moved to strike the juror for cause, but the trial court denied the challenge, concluding that the juror’s statements expressed a political view and did not indicate that he could not be fair. Clark later removed the juror using a peremptory challenge. Thus, the juror did not sit on the jury. Clark was convicted and appealed on multiple grounds.

¶5 In a divided opinion, the court of appeals affirmed Clark’s conviction. People v. Clark, 2022 COA 33, ¶1, 512 P.3d 1074, 1076. In its discussion of the trial court’s ruling on the challenge for cause, the division’s lead opinion focused its analysis on the Sixth Amendment. Id. at ¶¶ 22032, 512 P.3d at 1079–80. Judge Sehutz’s partial dissent included a discussion of the Equal Protection Clause, particularly within the context of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny.

Clark, ¶¶ 89–102, 512 P.3d at 1089–92 (Schutz, J., concurring in part and dissenting in part). We granted Clark’s petition for certiorari review of two issues.²

¶6 First, we consider whether the trial court’s denial of Clark’s for-cause challenge may be analyzed for harmlessness or instead constitutes structural error requiring reversal. In light of Supreme Court and Colorado precedent, we conclude that, because any error by the trial court was made in good faith and because the juror never actually sat on the jury, Clark’s Sixth Amendment right to an impartial jury was not violated. Accordingly, the trial court’s erroneous denial of the challenge for cause in this case did not result in structural error and automatic reversal is not required. And because no state actor purposefully discriminated against Clark (or anyone else) on the basis of race, no equal protection violation occurred either.

¶7 Second, we separately conclude that a juror’s comment about her previous jury experience recalling a judge’s alleged statement that the jury must deliberate until it reached a unanimous verdict does not constitute "extraneous prejudicial information" under CRE 606(b).

¶8 Accordingly, we affirm the judgment of the court of appeals and uphold Clark’s conviction.

I. Facts and Procedural History

¶9 In November 2017, Clark approached A.B. in his car as she was walking through downtown Denver to catch a bus. Clark offered A.B. a ride. A.B., who recognized Clark, accepted. A.B. asked Clark to take her to a nearby location, but Clark instead drove into the mountains near Black Hawk.

¶10 During the drive, Clark stopped and sexually assaulted A.B. Shortly after this, A.B. ran away. Police officers later contacted her on the side of the road. A.B. told them about the assault and described her assailant. Soon after, the officers spotted Clark driving in the vicinity and arrested him.

¶11 Clark was charged in Gilpin County with second degree kidnapping, § 18-3-302(1), (3), C.R.S. (2023); sexual assault with a deadly weapon, § 18-3-402(1)(a), (5)(a)(III), C.R.S. (2023); sexual assault caused by threat of imminent harm, § 18-3-402(1)(a), (4)(b); and sexual assault achieved through the application of physical force, § 18-3-402(1)(a), (4)(a). The case proceeded to a jury trial.

A. Voir Dire

¶12 During voir dire, defense counsel raised the issue of race, noting that Clark was the only Black individual in the courtroom. One potential juror commented that if she were in Clark’s position, she might doubt the fairness of the trial and "would like to see a little more diversity" in the courtroom. Other potential jurors agreed that some people in Gilpin County might have stereotypes about Black men. Soon after, the conversation moved away from the topic of diversity. A few minutes later, defense counsel asked Juror K about his thoughts related to the presumption of innocence, inquiring whether he thought the prosecution "start[ed] off … with a little bit of a lead," given that Clark was charged with a crime. Juror K responded by returning to the topic of diversity, saying:

You’ve said a lot, and I’m trying to think through each thing. … I apologize for some of my thoughts. … The diversity and stuff, yes, it’s obvious there’s a [B]lack gentleman over there. This is Gilpin County. I moved to Gilpin County. I didn’t want diversity. I want to be diverse up on top of a hill. That’s—I hear the things, that diversity makes us stronger and things like that. I don’t quite believe it in life from what my personal experiences are. And I can’t change that. I can look and judge what is being said by your side and their side and be fair, but I can’t change that— when I walked in here seeing a [B]lackgentleman here. And I can’t say that the prosecutor has a leg up on this or something until I hear what’s happened.

¶13 At a bench conference, Clark challenged Juror K for cause. As Clark later explained,³ his basis for the challenge was that Juror K’s statements about diversity were unprompted and reflected "actual bias and prejudice." Following this challenge, the court asked Juror K additional questions:

Court: So here’s kind of the two-part bottom line .… If you’re chosen as a juror in this case, and if you’re back in the jury room and you think the prosecution hasn’t proven its case, would you have any trouble finding this defendant to be not guilty?

Juror K: Not at all.

Court: And the other side of that coin, what if you’re back there and you say that [the] prosecutor has proven his case, would you have any trouble finding the defendant to be guilty?

Juror K: Again, the same answer. Not at all.

¶14 The court denied the challenge, and later provided its reasoning that Juror K’s statements "that he didn’t think that diversity was a good thing" expressed "a political view" and did not "answer the question of whether he can be a fair juror." The judge observed that "a person can certainly have offensive views and still apply the law. Those two things are really separate in my mind."

¶15 After his challenge for cause was denied, Clark exercised all of his allotted peremptory strikes, using his first to remove Juror K. Juror K was excused and did not sit on the jury.

B. Statements Made During Jury Deliberations

¶16 After deliberating for approximately...