v. Blassingame

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 11, 2021

2021COA11

No. 16CA2200, People v. Blassingame — Juries — Challenges
for Cause — Juror Bias

The division considers the appropriate legal standard to be applied

in determining whether a prospective juror exhibits bias sufficient

to sustain a challenge for cause, and holds that the trial court erred

when it stated that a juror only evinces an excusable bias in favor of

a victim if she declares that she will believe the victim “no matter

what the rest of the evidence is.”
COLORADO COURT OF APPEALS 2021COA11

Court of Appeals No. 16CA2200
City and County of Denver District Court No. 15CR4481
Honorable William D. Robbins, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Blassingame,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE GROVE
Fox and Harris, JJ., concur

Announced February 11, 2021

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffrey, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Daniel Blassingame, appeals the judgment entered

on a jury verdict finding him guilty of sexual assault — victim

incapable of appraising conduct. Because we conclude that the

trial court erroneously denied a challenge for cause to a juror who

sat on the jury, we reverse the conviction and remand the case for a

new trial.

I. Background

¶2 Blassingame and the alleged victim, C.A., both testified at

trial. According to C.A., she attended a party with a friend, B.H.,

and Blassingame, whom she had not previously met. Blassingame,

C.A., and B.H. got to the party — at the apartment of another friend

of B.H. — around 10 p.m., and there were about fifteen people in

attendance. C.A. hung out at the kitchen island for most of the

night, drinking alcohol with other women. According to C.A., the

last thing she remembered was “taking shots at this island,”

explaining that “I guess I got too drunk. I don’t remember anything

else.” C.A. guessed that this was probably “an hour, hour and a

half into [the party].”

¶3 The next thing C.A. remembered was waking up, still feeling a

little drunk, with no pants on. When she woke up, Blassingame

1
had his penis exposed and was attempting to have sex with her.

C.A. told Blassingame “no” and proceeded to get dressed “as fast as

[she] possibly could.” C.A. also noted that when she woke up she

felt soreness between her legs and “just didn’t feel right.”

¶4 Blassingame testified that, after arriving at the party, he drank

five or six beers and had occasional “friendly” interactions with C.A.

When the party wound down around 2 a.m., while preparing to

sleep in the living room, he noticed that a bathroom light was on

and went to turn it off. At that point he saw C.A. standing in the

bathroom “just looking at herself” in the mirror. Blassingame

testified that he and C.A. talked for about ten minutes, after which

he “ask[ed] her if she wanted to make out for a bit,” to which she

responded “sure.” After a few minutes of kissing Blassingame “felt

like there was another moment,” when he “decided to ask [C.A.] if

she wanted to have sex,” to which C.A. again responded “sure.”

Blassingame testified that she was not slurring her words or losing

her balance, her eyes were not glazed over, and she did not smell

like vomit.

¶5 Blassingame proceeded to have sexual intercourse with C.A.

for “five to ten minutes,” after which he realized the condom had

2
broken. He and C.A. then had a conversation about the emergency

contraceptive Plan B before falling asleep on the bathroom floor.

When they woke up, Blassingame asked C.A. if she wanted to have

sex again, to which she responded “no.” He put his clothes on and

left the bathroom, while C.A. stayed behind and dressed herself.

¶6 A friend of C.A.’s urged her to make a report to the police and

undergo an examination. She went to the hospital the evening after

the party, where a sexual assault nurse examiner completed a rape

kit and interviewed her about the incident. C.A. talked to a police

officer but elected not to go forward with charges at that time.

¶7 Three years later, C.A. contacted Detective Brian Slay of the

Denver Police Department about pressing charges. Blassingame

was arrested and charged with two counts of sexual assault, one

under section 18-3-402(1)(b), (2), C.R.S. 2020 (victim incapable of

appraising conduct, a class 4 felony), and the other under section

18-3-402(1)(h), C.R.S. 2020 (victim physically helpless, a class 3

felony). Following a three-day trial, a jury found him guilty of

sexual assault under section 18-3-402(1)(b) and acquitted him of

the other charge. The trial court imposed a sentence of two years to

3
life in the custody of the Department of Corrections. Blassingame

now appeals.

II. Challenge For Cause

¶8 Blassingame contends that the trial court erroneously denied

his challenge for cause to Juror S.1 We agree.

A. Standard of Review

¶9 We review a trial court’s ruling on a challenge for cause for an

abuse of discretion. People v. Oliver, 2020 COA 97, ¶ 7. A court

abuses its discretion when it issues a ruling that is manifestly

arbitrary, unreasonable, or unfair, or when it misconstrues or

misapplies the law. Id. We consider the entire voir dire of the

prospective juror, People v. Wilson, 114 P.3d 19, 22 (Colo. App.

2004), but because the trial court is uniquely able to “evaluat[e] . . .

demeanor and body language,” we generally defer to the trial court’s

assessment of a juror’s credibility and sincerity in explaining her

1 Blassingame also contends that the trial court committed several
unpreserved evidentiary errors, that there was prosecutorial
misconduct during closing arguments, that the cumulative effect of
these errors requires reversal, and that, if his conviction is affirmed,
the mittimus should be corrected. Because we hold that
Blassingame is entitled to a new trial, we do not address either of
his contentions of trial error or his assertion that the mittimus is
incorrect.

4
state of mind. Carillo v. People, 974 P.2d 478, 485-86 (Colo. 1999).

This deference extends to statements that “may appear to be

inconsistent or self-contradictory.” Id. at 487 (quoting People v.

Sandoval, 733 P.2d 319, 321 (Colo. 1987)).

B. Applicable Law

¶ 10 The right to challenge jurors for cause stems from a

defendant’s right to due process and to a trial before a fair and

impartial jury. Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). A

defendant’s right to an impartial jury is violated if the trial court

fails to remove a juror biased against the defendant. See Nailor v.

People, 200 Colo. 30, 32, 612 P.2d 79, 80 (1980) (“To insure that [a

defendant’s right to an impartial jury] is protected, the trial court

must excuse prejudiced or biased persons from the jury.”).

¶ 11 To this end, section 16-10-103(1)(j), C.R.S. 2020, requires a

trial court to sustain a challenge for cause if a juror’s state of mind

evinces “enmity or bias toward the defendant or the state.”

Similarly, Crim. P. 24(b)(1)(X) requires disqualification of a juror if

his or her state of mind “manifest[s] a bias for or against the

defendant, or for or against the prosecution, or the

acknowledgement of a previously formed or expressed opinion

5
regarding the guilt or innocence of the defendant,” unless “the court

is satisfied that the juror will render an impartial verdict based

solely upon the evidence and instructions of the court.”

¶ 12 The purpose of challenges for cause, as relevant here, is not to

remove jurors who simply enter the courtroom with a

misunderstanding of the law. See § 16-10-103(1). Those jurors

should not be removed for cause if, after explanation and

rehabilitative efforts, the court believes that they can render a fair

and impartial verdict based on the instructions given by the judge

and the evidence presented at trial. People v. Clemens, 2017 CO

89, ¶ 16.

C. Relevant Facts

¶ 13 Juror S disclosed on her questionnaire that she had been

molested by a family member when she was a young child and,

during individual voir dire, revealed that her father had not believed

her allegation. The court inquired further:

COURT: Is [the molestation] something you
think about a whole lot?

JUROR S: Yeah, I do. Especially now that I
have my own daughters.

6
COURT: What do you think that means in
terms of being a juror on this case?

JUROR S: I’m not really sure. I haven’t heard
any of the facts of the case. I think that I
could try to be impartial, like I said in there.
Do my best. But, you know . . .

COURT: A serious question: As you sit here
right now, do you think Mr. Blassingame must
be guilty?

JUROR S: I don’t know.

COURT: You heard me read the instruction
this morning about the presumption of
innocence and the burden of proof.

JUROR S: Correct.

COURT: Do you think you can follow those
things?

JUROR S: I could try. I suppose, from the two
events that I listed there, in both cases, when
my aunt and uncle were murdered, they never
found the people who did it. You know, my
dad’s cousin, no one ever said anything to him
or did anything about it. I guess my thought
is that people just get away with things, and –

COURT: So here’s the real question: Are you
going to -- is there any reason why you think
that you would put yourself in the position to
be sure that Mr. Blassingame didn’t get away
with something?

JUROR S: If I feel that he’s guilty, I want to
make sure he doesn’t get away with it. But I

7
probably wouldn’t say he’s guilty without
hearing the case.

¶ 14 The prosecution then attempted to rehabilitate Juror S by

asking a series of leading questions regarding the relevant legal

standards:

PROSECUTOR: Are you fine following the
presumption of innocence and burden of
proof? You’re going to hold me to my burden
of proof to prove beyond a reasonable doubt?

JUROR S: Yeah.

PROSECUTOR: Okay, and if I don’t, you can
find [him] not guilty even with the charges?

JUROR S: Yeah.

PROSECUTOR: If I don’t meet that burden?

JUROR S: Yes.

PROSECUTOR: Okay. And if I do, then you
can find him guilty? If you find that I’ve met
my burden, you can find him guilty?

JUROR S: Yep.

¶ 15 But, as the prosecutor pressed on, Juror S began wavering

once again.

PROSECUTOR: Okay. And you can follow
those instructions regardless of what else
happened in your life?

JUROR S: I hope so.

8
PROSECUTOR: Well, it’s important to know if
you can. If you’re instructed to by the judge
that you only find guilty if I proved my case,
every element, beyond a reasonable doubt. All
right?

JUROR S: Uh-huh. I’ve got to tell you, when
the judge talked about what the case was
going to be, my heart just went from here to
here (indicating). Anything but that, you
know. Anything but sexual assault. But I feel
like I can. I think I can. I can be impartial.

PROSECUTOR: Okay. Everyone hates sexual
assault. Everybody feels that way, as well as
murders. And what happened to your aunt
and uncle, it’s horrible. But it’s important that
you listen to the evidence and apply it to the
law. Do you think you can do that?

JUROR S: Uh-huh.

¶ 16 Defense counsel took this opportunity to dive more deeply into

Juror S’s apprehension with a series of open-ended questions:

DEFENSE COUNSEL: When you heard those
charges being read, what was your emotional
reaction?

JUROR S: It just felt like – I don’t know if I
would want to listen to it. I don’t want to
listen to what happened. I don’t want other
people to look at it as a victim not being
believed again, you know. That’s part of – I
don’t know. It just – it’s not really that
straightforward of a train of thought.

DEFENSE COUNSEL: Right.

9
JUROR S: It’s more of a feeling.

DEFENSE COUNSEL: Can you put that feeling
into words though? I mean, the -- so you said
-- anxiety or emotional turmoil? Does that
make sense?

JUROR S: Right. Yeah.

DEFENSE COUNSEL: So in your situation,
when you were not believed, would that impact
your ability to see the evidence, and would you
be more willing to believe a witness who is the
-- who is the alleged victim?

JUROR S: I guess that’s my main concern is
that I might be more apt to believe, especially
since I was told that I just was wanting
attention is why I was telling people about it
10 years or 12 years later, you know, after it
happened.

DEFENSE COUNSEL: And so if there are a
number of witnesses, and everything else being
equal, you would believe the victim more
readily than another witness?

JUROR S: I’m not saying that I would. I’m
saying I’m afraid that I would.

¶ 17 The voir dire of Juror S ended there, as it began, with Juror S

unsure of her own ability to be a fair and impartial juror. Defense

counsel challenged Juror S for cause, expressing concern over “her

emotional state as it pertains to her own experiences and how she

would more readily identify with the victim and believe the victim

10
over other witnesses, all things being equal, that’s not the burden,

and that’s not the standard.”

¶ 18 The trial court denied the challenge for cause, ruling as

follows.

I’m not going to strike her. I think the
overriding -- well, at least for me, what came
out is that she understands the burden of
proof and she could abide by that.

So the other thing about believing the victim
more, I think it has to be more definite than
that. I think the way the case law reads, it has
to be something to the effect of no matter what
the rest of the evidence is -- not all things
being equal, but no matter what the rest of the
evidence is, I’m going to believe the victim.
And I don’t think she rises to that level. So
she stays. The challenge is denied.

D. Analysis

¶ 19 According to Blassingame, Juror S should have been excused

because she stated a “clear expression of doubt in her ability to

judge the credibility of that testimony in an impartial manner,” and

she was not adequately rehabilitated afterward. The People respond

that the trial court did not abuse its discretion because, despite her

initial apprehension, Juror S assured the court that she “could

judge the matter fairly and impartially.” In fact, the People assert

11
that Juror S did not evince any disqualifying bias during her voir

dire, and that her statements instead “simply reflect[ed] an honest

effort to express feelings and convictions about matters of

importance in an emotionally charged setting.” Sandoval, 733 P.2d

at 321. Thus, they argue, no rehabilitation was required at all.

¶ 20 As we have already noted, depending on how the questions

were framed, Juror S shifted back and forth between unambiguous

and equivocal answers throughout voir dire. When asked leading

questions by the prosecutor about her ability to impartially assess

the evidence, she generally confirmed that she would hold the

People to their burden of proof. But she wavered in her responses

to open-ended questions posed by both the court and defense

counsel (and to some extent, the prosecutor), repeatedly giving

answers like “I hope so,” and “I could try,” and expressing genuine

concern about whether her own traumatic experiences would color

her ability to evaluate the evidence without favoring the

prosecution.

¶ 21 Juror S’s candor was commendable, and the record makes

clear that, if selected for the jury, she would be willing to try to set

aside her preconceived notions about whether, and why, claims of

12
sexual assault should be credited. But the record does not clearly

demonstrate that Juror S’s efforts would be successful. For

example, when the court asked Juror S if she would be able to

“follow” the presumption of innocence and burden of proof if

selected as a juror, she replied that she “could try,” and that, “I

guess my thought is that people just get away with things.”

(Emphasis added.) In response to the court’s next question she

stated that she “probably wouldn’t say he’s guilty without hearing

the case.” (Emphasis added.) These answers, among others,

suggested that Juror S would struggle to follow the instructions and

evaluate the competing stories without relying on her preconceived

notions about the credibility of sexual assault victims. Accordingly,

some rehabilitation was needed before she could be deemed fit to

serve on the jury.

¶ 22 To be sure, the prosecution attempted to rehabilitate Juror S,

but it did so by asking general, leading questions2 focused on jury

instructions and the burden of proof. Juror S initially agreed that

2 “[A]nswers to leading questions are viewed with suspicion.” People
v. Merrow, 181 P.3d 319, 323 (Colo. App. 2007) (Webb, J., specially
concurring).

13
she could follow the instructions and hold the prosecution to its

burden, but when defense counsel followed up with more open-

ended questions, she returned to expressing fear that she “would be

more apt to believe” the victim given her prior experience. There

were thus very few answers to counterbalance Juror S’s

uncertainty. See People v. Merrow, 181 P.3d 319, 321 (Colo. App.

2007) (“[W]hen . . . a potential juror’s statements compel the

inference that he or she cannot decide crucial issues fairly, a

challenge for cause must be granted in the absence of rehabilitative

questioning or other counter-balancing information.”).

¶ 23 It is of course up to the trial court to decide whether it believes

a particular juror “can render a fair and impartial verdict based on

the instructions given by the judge and the evidence presented at

trial.” Clemens, ¶ 16. And because it can observe the dynamics of

the voir dire and personally evaluate the juror’s tone and demeanor

during the discussion, the trial court is uniquely positioned to make

that judgment. Thus, under the circumstances here, we do not

question the trial court’s conclusion that “what came out is that

[Juror S] understands the burden of proof and she could abide by

that.”

14
¶ 24 But that does not end our inquiry because, as the trial court

acknowledged, Blassingame’s challenge for cause cited two

concerns: (1) the burden of proof and (2) whether Juror S would

consider the evidence presented at trial without favoring one side

over the other. On the second issue, Blassingame contends that

the trial court “employed an incorrect legal standard for the

determination of bias sufficient to sustain a challenge for cause.”

And indeed, the second part of the trial court’s ruling misstated the

governing legal standard.

So the other thing about believing the victim
more, I think it has to be more definite than
that. I think the way the case law reads, it has
to be something to the effect of no matter what
the rest of the evidence is . . . I’m going to
believe the victim. And I don’t think she rises
to that level.

¶ 25 As we understand it, the trial court ruled that in order for

Juror S to have evinced excusable bias in favor of the prosecution,

she would have needed to be unwavering in her resolve to believe

the victim over any other witness. Or, put another way, the trial

court concluded that Juror S should not be removed unless she

would credit the victim no matter what the rest of the evidence

established. That is incorrect, see, e.g., People v. Prator, 833 P.2d

15
819, 820-21 (Colo. App. 1992), aff’d, 856 P.2d 837 (Colo. 1993),

and on appeal, the People neither defend this characterization of

the governing standard nor cite any authority that would support it.

Instead, the People assert that, rather than demonstrating

disqualifying bias, Juror S’s voir dire instead reflects her honest

effort to express her feelings and convictions. See Sandoval, 733

P.2d at 321.

¶ 26 Juror S’s sincerity, however, is beside the point. Rather, the

key question is whether, as a matter of law, the trial court

adequately accounted for Juror S’s repeated suggestions that her

own past trauma would adversely impact her ability to fairly

evaluate the evidence. A prospective juror does not need to

unequivocally state her partiality for one side to be deemed unfit to

serve on a jury. See, e.g., Nailor, 200 Colo. at 32, 612 P.2d at 80,

(holding that challenge for cause should have been granted because

“the fact that the juror doubted she could be fair because of her

recent ‘bad experience’” was a “clear expression of bias”); Merrow,

181 P.3d at 321 (holding that prospective juror should have been

excused where “the record contain[ed] nothing to support an

inference that [the juror] would be able to resolve credibility fairly,

16
given her views about drug usage”); People v. Luman, 994 P.2d 432,

434-36 (Colo. App. 1999) (holding that challenge for cause should

have been granted where juror made equivocal statements about

her ability to be fair and then was inadequately rehabilitated). And

here, despite the prosecutor’s attempts at rehabilitation, Juror S’s

equivocation quickly reappeared once defense counsel began to

pose open-ended questions.

¶ 27 We acknowledge the trial court’s broad discretion, guided by

section 16-10-103(1)(j) and Crim. P. 24(b)(1)(X), to determine if a

juror can be fair and impartial. But the appropriate exercise of that

discretion depends on an accurate articulation of the governing

standard. Thus, although the trial court found that Juror S could

hold the prosecution to its burden of proof, its consideration of

whether Juror S could fairly weigh the alleged victim’s testimony

was fatally flawed. The combination of (1) Juror S’s uncertain

answers, which established bias sufficient to require rehabilitation,

(2) her return to equivocation after the prosecutor’s attempt to

rehabilitate her via leading questions, and (3) the trial court’s

incorrect statement of law concerning the degree of bias necessary

17
to sustain a challenge for cause demonstrates that the trial court

did not properly evaluate the issue before it.

¶ 28 When it comes to challenges for cause, we may not “abdicate

[our] responsibility to ensure that the requirements of fairness are

fulfilled.” Morgan v. People, 624 P.2d 1331, 1332 (Colo. 1981).

Juror S’s last statement (“I’m not saying that I would [believe the

victim more readily than another witness]. I’m saying I’m afraid I

would.”), which was consistent with much of what she had already

said, leaves us with considerable uncertainty that she could abide

by the requirement to decide crucial issues fairly. See Nailor, 200

Colo. at 31, 612 P.2d at 80 (error to deny challenge for cause where

juror’s “final position was that there was a serious doubt in her own

mind about her ability to be fair and impartial”). And because that

uncertainty is heightened by the trial court’s inaccurate recitation

of the governing standard, we conclude that Juror S’s equivocation

required the court to grant the challenge for cause. Because Juror

S sat on the jury, reversal is required. See People v. Abu-Nantambu-

El, 2019 CO 106, ¶¶ 28-30.

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III. Conclusion

¶ 29 The judgment of conviction is reversed and the case is

remanded for a new trial.

JUDGE FOX and JUDGE HARRIS concur.

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