Richardson v. People

481 P.3d 1

Gary Val RICHARDSON, Petitioner

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

Supreme Court Case No. 18SC686

Supreme Court of Colorado.

June 1, 2020

Attorneys for Petitioner: MS&M Law Office, Nicole M. Mooney, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 The defendant, Gary Val Richardson, was found guilty of multiple crimes by a jury that included the trial judge's wife ("Juror 25"). Making matters more peculiar, the judge at times casually tossed a spotlight on his relationship to Juror 25. He joked about what was for dinner and forcing his wife to spend more time with him. He also told counsel that he thought his wife would be a "fine juror" and at another point asked them to "[b]e nice" to her. However well-intentioned, all the fanfare around Juror 25 created fairly predictable questions on appeal: Had the judge at least inadvertently conferred a special status on his wife to which defense counsel and the other jurors were expected to defer? Should the judge have excused his wife or himself, even without being asked to do so?

¶2 We conclude that by failing to object, Richardson waived his challenge to Juror 25. We also conclude that the trial judge did not have a duty to excuse Juror 25 from the jury or recuse himself in the absence of any contemporaneous objection. While the trial judge could have handled this unusual situation in a more restrained manner, his failure to do so did not create reversible error.

¶3 Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶4 While hiding in a basement crawl space, Richardson allegedly fired one or two shots in the direction of a group of law enforcement officers. As a result, he was charged with ten counts of attempted extreme indifference murder (one per officer), ten counts of attempted second degree assault (one per officer), one count of possession of a controlled substance, one count of violation of bail bond conditions, and one count of possession of a weapon by a previous offender.

¶5 Because of actions taken by the trial court, the case ultimately proceeded to trial on eight counts of attempted second degree assault, along with the possession of a controlled substance, bail, and weapon charges. At trial, Richardson did not have to defend against any attempted murder charges.

¶6 During the jury selection process, one of the prospective jurors disclosed on her juror questionnaire that her husband was the trial judge. This was Juror L.E., also known as Juror 25.

¶7 Aware that his wife was one of the prospective jurors, the trial judge told the prosecutor and defense counsel, before the prospective jurors entered the courtroom, to "[b]e nice to Juror 25. My dinner is on the line."

¶8 When it was the prosecutor's turn to question the prospective jurors, he engaged in the following colloquy with Juror 25:

[PROSECUTOR]: Do any of you know each other? ... One time I asked that question and some guy said that's my wife. There was a husband and a wife on a jury. I kind of bring that up because Ms. [E.], [the trial judge] is your husband?

[JUROR 25]: Yes.

THE COURT: Lucky you.

[PROSECTUOR]: I never had that one before. I had my boss's wife on a jury once for a little bit. Ms. [E.], good morning. Is there any reason that you don't think you could be fair if you ended up on this jury?

[JUROR 25]: No.

[PROSECUTOR]: Have you ever been on a jury before?

[JUROR 25]: Yes, I have.

[PROSECUTOR]: In Adams County?

[JUROR 25]: No. It was in Jefferson County.

[PROSECUTOR]: I know you mentioned on your questionnaire—it says [the trial judge's name] on the top. You'd be worried about a possible distraction. Just like anyone, the main purpose is to be able to pay attention to the evidence and to make your decision based on that without any distractions. If you are selected to be on this jury, are you worried you'd be distracted or would you be able to give your full attention to the case?

[JUROR 25]: I would give my full attention to the case.

[PROSECUTOR]: Okay. Thank you.

¶9 After the prosecutor finished questioning the prospective jurors, it was defense counsel's turn. But he did not ask Juror 25 any questions.

¶10 Defense counsel then challenged several jurors for cause. But he did not challenge Juror 25. Nor did either party exercise a peremptory challenge to excuse Juror 25. Before defense counsel exercised his fifth peremptory challenge, the trial judge stated, "[Juror 25]? We have the defendant's fifth peremptory challenge to the panel. I need you to make a call." In response, defense counsel excused a different juror.

¶11 Following peremptory challenges, the jury was sworn and excused for a brief recess. Outside the presence of the jury, the trial judge addressed the issue of his wife sitting on the jury in the following exchange with defense counsel:

THE COURT: Quite frankly, I don't know that I've ever heard of a sitting judge having a spouse or family member on the jury. There's nothing wrong with it. I think she'll be a fine juror. I have not spoken to her about this case.

I will call my son who lives with us and I will tell him that. I will also tell him that he can't make any comments to his mother about being on this jury. I don't want them to have any discussion. Anything else?

[DEFENSE COUNSEL]: I think we're both afraid to challenge her.

THE COURT: That wasn't a stupid idea. Thank you. I appreciate it.

[DEFENSE COUNSEL]: Thank you.

¶12 At no point did Richardson's counsel ask the trial judge to recuse himself.

¶13 The trial proceeded over four days. During this time, the trial judge made a comment to or regarding Juror 25 on four more occasions:

• Following the last witness's testimony on the first day of trial, Juror 25 stated that she had a question. The judge responded, "After both sides have had the opportunity to ask all questions, then you can ask that." After Juror 25 indicated she understood, the judge remarked, "I said no to my wife."

• Then, immediately before dismissing the jury on the first day, the trial judge asked Juror 25, "What are we having for dinner?" Juror 25 responded, "Chicken from last night," to which the judge replied, "Sounds good."

• On the third day of trial, defense counsel alluded to Juror 25 in his closing argument: "We didn't bring you here but this has taken you away from your work. It's taken you away from your families and your children. It's taken you away from your spouses. Not everyone has been taken away." This prompted Juror 25 to state, "I've spent more time with him this week than usual." The trial judge responded, "You forced her to spend more time with me which is worse." Before continuing with his closing argument, defense counsel commented, "That is unique in jurisprudence in Colorado."

• Immediately before dismissing the jury on the third day, the trial judge again asked Juror 25 about their dinner plans:

THE COURT: What am I getting tonight? We'll get the teriyaki.

[JUROR 25]: Chicken.

THE COURT: I'm getting chicken again? Oh God. Get back here at 8:30 and be ready to roll. I'm sorry to have kept you so late. Questions? Thank you. Drive carefully on the way home. Wear your seatbelts.

¶14 The jury ultimately found Richardson guilty of two counts of attempted second degree assault, three counts of attempted third degree assault (as lesser included offenses), one count of violation of bail bond conditions, and one count of possession of a controlled substance. The trial court granted Richardson's motion for judgment of acquittal on three counts of attempted second degree assault, and the jury acquitted Richardson of possession of a weapon by a previous offender.

¶15 Finding that Richardson had five prior felony convictions, the court sentenced him to sixteen years for each attempted second degree assault conviction, six months for each attempted third degree assault conviction, six years for the violation of bail bond conditions conviction, and one year for the possession of a controlled substance conviction. But the court exercised its discretion and ordered Richardson's sentences to run concurrently. In other words, Richardson received sixteen years total.

¶16 Richardson appealed, contending among other things that Juror 25's participation on the jury violated his constitutional right to a fair trial before an impartial jury and was therefore structural error mandating reversal.

¶17 In a split decision, a division of the court of appeals disagreed. People v. Richardson , 2018 COA 120, ––– P.3d ––––. The majority reasoned that Richardson at least forfeited his challenge to Juror 25. Id. at ¶ 31. It then concluded that the trial judge's failure to excuse Juror 25 or himself from the trial did not require reversal under a plain error standard of review. Id. at ¶¶ 33, 47. The majority emphasized that the record reflected "no suggestion of juror bias, and no evidence of prejudice to Richardson." Id. at ¶ 47. Still, the majority observed that it would have been prudent for the trial judge to excuse his wife or himself from the trial and that the trial judge's comments to and about his wife "affected the solemnity of the proceedings and were ill-advised." Id. at ¶¶ 45, 47.

¶18 Judge Furman dissented in part. In his view, Juror 25's participation created an appearance of impropriety and affected the structure of the trial. Id. at ¶ 84 (Furman, J., concurring in part and dissenting in part). Accordingly, he concluded that the judge committed reversible error by permitting his wife to serve on the jury. Id. at ¶ 124.

¶19 Richardson then petitioned this court for certiorari review.¹

II. Analysis

¶20 After identifying the standard of review, we consider whether Richardson waived his challenge to Juror 25. Concluding that he did, we then consider whether the trial judge had a duty to sua sponte excuse Juror 25 or recuse himself from the trial. On the facts...