People v. Brian Paul Vergari

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
August 25, 2022

2022COA95

No. 19CA1317, People v. Vergari — Juries — Challenges for
Cause — Peremptory Challenges

As a matter of first impression, a division of the court of

appeals holds that a defendant waives a claim of error arising from

the denial of a challenge for cause to a juror when the defendant

declines to excuse that juror with a peremptory challenge and does

not exhaust their peremptory challenges.
COLORADO COURT OF APPEALS 2022COA95

Court of Appeals No. 19CA1317
Jefferson County District Court No. 18CR3024
Honorable Christopher C. Zenisek, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Paul Vergari,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur

Announced August 25, 2022

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

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Brian Paul Vergari appeals the judgment of conviction entered

on a jury verdict finding him guilty of second degree assault. This

appeal requires us to answer the following question left open by the

Colorado Supreme Court in People v. Abu-Nantambu-El, 2019 CO

106: Does a defendant waive a claim of error arising from the denial

of a challenge for cause to a juror when the defendant declines to

excuse that juror with a peremptory challenge and does not exhaust

their peremptory challenges? See id. at ¶ 38 n.7. Because we

answer that question in the affirmative, we decline to address

Vergari’s challenge to the makeup of the jury. And because we

reject Vergari’s other contentions, we affirm the judgment.

I. Background

¶2 The following evidence was presented at trial.

¶3 Vergari was involved in a road rage incident with Ruben

Miscles. Miscles pulled into a Home Depot parking lot, and Vergari

followed. Miscles stopped his truck in the middle of an aisle in the

lot, and both men got out of their vehicles and began yelling at each

other. When Miscles turned around to get back into his truck,

Vergari lunged at him and hit him in the head with a wrench.

Home Depot’s video surveillance captured the incident.

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¶4 When interviewed by the police afterward, Vergari claimed that

Miscles had pushed him, and then he “blacked out.” According to

the officer,

[Vergari] said that after that, the other driver
was walking away from him heading back to
his truck, and . . . that he was not moving fast
enough for him, so Mr. Vergari pushed him
from behind, and he realized that he had hit
him in the back of the head with a wrench.

¶5 Vergari was charged with second degree assault as a crime of

violence. He was convicted of the charge following a jury trial.

II. Denial of Challenge for Cause

¶6 Vergari contends that the trial court erred by denying his

challenge for cause to a juror. We conclude that Vergari waived this

contention.

¶7 During defense counsel’s voir dire, Juror F.M. expressed

hesitation with affording Vergari the presumption of innocence.

Specifically, he said that he had not “heard enough of the case to

decide” if Vergari was presumed innocent, and that “at this point”

in the case, he could not presume Vergari was innocent. Based on

these statements, defense counsel challenged Juror F.M. for cause.

The trial court then spoke further with Juror F.M., explaining that

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the burden of proof rested entirely on the prosecution, and that if

that burden was not met, Vergari “must be found not guilty.” Juror

F.M. eventually agreed that if the prosecution failed to meet its

burden, then he would find Vergari not guilty. The trial court then

denied defense counsel’s challenge for cause.

¶8 The trial court explained that “each side has the right to

excuse up to five of the jurors without stating a reason.” The

prosecutor chose not to exercise any peremptory challenges.

Defense counsel excused Juror I.G. The following exchange then

occurred:

[TRIAL] COURT: [Counsel], do you have a
second peremptory challenge as to jurors one
through thirteen?

[DEFENSE COUNSEL]: I apologize. One
moment, Your Honor. Your Honor, I will
accept the jury as seated.

[TRIAL] COURT: All right. So, does the defense
then waive any further peremptory challenges
as to jurors one through thirteen?

[DEFENSE COUNSEL]: Yes.

Notably, defense counsel did not use any of the remaining

peremptory challenges to remove Juror F.M. from the jury.

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¶9 Vergari argues that the trial court abused its discretion by

failing to grant his challenge for cause to Juror F.M. The People

respond that, because Vergari chose not to exercise his available

peremptory challenges to excuse Juror F.M., he waived his claim

that his right to a fair and impartial jury was violated. As noted,

this raises the question our supreme court previously left

unresolved. Abu-Nantambu-El, ¶ 38 n.7.1

¶ 10 Waiver is the intentional relinquishment of a known right or

privilege. People v. Rediger, 2018 CO 32, ¶ 39. Waiver may be

either express or implied. People v. Carter, 2021 COA 29, ¶ 27. A

waived claim of error presents nothing for an appellate court to

review. Id. at ¶ 40.

¶ 11 Several other jurisdictions have concluded that a party waives

their claim of error when they fail to use peremptory challenges to

correct a denial of a challenge for cause. See, e.g., State v.

Patriarca, 308 A.2d 300, 309 (R.I. 1973) (“While we find no error in

the refusal to disqualify the challenged jurors, any objection is

1 In People v. Abu-Nantambu-El, 2019 CO 106, ¶ 36, the Colorado
Supreme Court held that the erroneous denial of a challenge for
cause requires reversal if the challenged juror sits on a defendant’s
jury.

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deemed waived where defendant’s peremptory challenges remain

unexhausted.”); Hammond v. Peden, 278 S.W.2d 96, 98 (Ark. 1955)

(“[I]f a litigant fails to exhaust his peremptory challenges he waives

any error committe[d] by the court in failing to excuse a challenged

juror.”); cf. Jordan v. United States, 295 F.2d 355, 356 (10th Cir.

1961) (“By his failure to exercise any challenge for cause and by his

use of only half of his peremptory challenges, the defendant has

waived the right to complain that he was not tried by an impartial

jury.”); Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d

1232, 1235 (Ind. 2002) (concluding that, in a case where the

defendant exhausted her peremptory challenges, “a claim of error

arising from denial of a challenge for cause is waived unless the

appellant used any remaining peremptory challenges to remove the

challenged juror or jurors”).

¶ 12 Notably, the supreme court in Abu-Nantambu-El did not

consider whether the error was waived or invited, apparently

because the People did not pursue either theory. 2019 CO 106,

¶ 38 n.7. In his dissent, however, Justice Samour opined that

when a defendant unsuccessfully challenges a juror for cause, and

then chooses not to excuse that juror with a peremptory challenge,

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“a classic example of waiver or invited error” arises. Id. at ¶¶ 40, 44

(Samour, J., dissenting). Justice Samour said that

Abu-Nantambu-El should have been “precluded from obtaining

relief on appeal” when he “argu[ed] that [a juror] was biased and

should not be allowed to serve,” and then “turned around and

elected not to excuse her with one of his twelve peremptory

challenges.” Id. at ¶¶ 44, 50.

¶ 13 Here, the People argue that Vergari waived his claim. We find

the above authorities, along with Justice Samour’s analysis,

persuasive. Vergari unsuccessfully challenged Juror F.M. for

cause. But despite having five peremptory challenges, he exercised

only one and chose to leave Juror F.M. on the jury. Vergari now

complains that he was deprived of his right to a fair and impartial

jury because Juror F.M., who was allegedly biased against him,

served on his jury. But Vergari and his counsel undeniably knew

that Juror F.M. — who they believed was biased — was in a

position to serve on the jury. Yet, despite having five chances to

remove Juror F.M., they made the strategic decision to not exercise

four of those challenges and, instead, allowed Juror F.M. to serve.

We conclude that to have these opportunities and to strategically

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decide not to exercise them constitutes a “classic example” of an

intentional relinquishment of a known right. See id.; see also

Rediger, ¶ 39. Thus, we hold that by failing to remove Juror F.M.

while not exhausting his peremptory challenges, Vergari waived his

claim that the trial court erred by denying his challenge for cause.2

We therefore decline to review it.

III. Witness’s Narration of Videos

¶ 14 Vergari next argues that the trial court reversibly erred by

permitting a witness to narrate two video exhibits. We discern no

basis for reversal.

¶ 15 At trial, the People called Craig Janson, a video forensics

technician, to testify as an expert in forensic imaging. Before

testifying, Janson cropped and enlarged a section of the Home

Depot surveillance video to create two videos focusing on the

altercation between Vergari and Miscles. The videos were admitted

2 We note that our holding is limited to the factual situation before
us: where Vergari did not exhaust his peremptory challenges. We
do not address whether a defendant waives a claim that they did
not receive a fair and impartial jury when they do exhaust all their
peremptory challenges but choose not to exercise one to excuse the
challenged juror (to the extent such an argument — if raised by the
facts and presented by the People — might survive
Abu-Nantambu-El).

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into evidence and played for the jury. As they played, the

prosecutor asked Janson — who was not present during the

altercation — to describe what was occurring in the videos. Defense

counsel objected, arguing that the jurors could determine for

themselves what the videos depicted. The trial court found that

Janson could describe what the videos showed as “it’s often

necessary that the witness make a record as to what the exhibit is

showing.”

¶ 16 We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Meils, 2019 COA 180, ¶ 11. A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or based on a misapplication or

misunderstanding of the law. People v. Elmarr, 2015 CO 53, ¶ 20.

¶ 17 “[W]e review nonconstitutional trial errors that were preserved

by objection for harmless error.” Hagos v. People, 2012 CO 63,

¶ 12. “[W]e reverse if the error ‘substantially influenced the verdict

or affected the fairness of the trial proceedings.’” Id. (quoting Tevlin

v. People, 715 P.2d 338, 342 (Colo. 1986)). “[A]n objected-to trial

error is harmless if there is no reasonable possibility that it

8
contributed to the defendant’s conviction.” Pernell v. People, 2018

CO 13, ¶ 22.

¶ 18 Under CRE 701, a lay witness may testify to opinions or

inferences if they are (a) rationally based on the witness’s

perception; (b) helpful to a clear understanding of the witness’s

testimony or the determination of a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of CRE 702. Lay opinion testimony is permitted under Rule

701 because “it has the effect of describing something that the

jurors could not otherwise experience for themselves by drawing

upon the witness’s sensory and experiential observations that were

made as a firsthand witness to a particular event.” People v. McFee,

2016 COA 97, ¶ 76 (quoting United States v. Freeman, 730 F.3d

590, 595 (6th Cir. 2013)). “A witness, lay or expert, may not form

conclusions for jurors that they are competent to reach on their

own.” Id.

¶ 19 In these circumstances, it was improper for Janson to opine

on the events shown in the recordings. He did not witness what

occurred in the videos firsthand, have any personal knowledge

about the video recordings or what they depicted, or provide a

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unique or more informed perspective or understanding because of

his expertise in forensic imaging. He was simply asked to narrate

what the jurors themselves were contemporaneously viewing. In

other words, he was in the same position as the jurors when it

came to discerning what these videos depicted. He therefore should

not have been permitted to provide any opinion about what the

videos showed. See id. Instead, it was for the jurors to watch the

videos and reach their own conclusion about what the videos

depicted.3

¶ 20 Nevertheless, we conclude that any error was harmless. First,

although Vergari argues that Janson’s statements constituted

expert testimony as to whether Vergari acted in self-defense,

Janson’s testimony was limited to simple and brief descriptions of

what he observed in the videos. He provided no opinions about

Vergari’s actions or motivations during the altercation. Second, the

jury watched the videos during Janson’s testimony and had access

3 The trial court found that his narration was necessary to “make a
record” about what the videos showed. But this finding was
misplaced; the videos were admitted and thus they — and what
they showed — became part of the record. A narration simply for
the sake of making a record was unnecessary.

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to them during deliberations. And third, the trial court explained

that the “[t]he jury can view [the videos] and draw their own

conclusions from [them].” Thus, even though it was improper for

Janson to narrate the videos as they played, the jury was free to

disregard this opinion and come to its own conclusions, as the trial

court explained. See id. at ¶¶ 78-79 (concluding that, although a

detective’s opinion testimony about recordings was improper, “the

jury had no reason to accept his opinion and could evaluate [the

evidence] for itself” because “[t]he jury listened to both recordings

and was instructed to come to its own conclusion” about what the

recordings contained); People v. Rodriguez, 2021 COA 38M, ¶ 12

(reversible error did not occur where an officer testified about what

he heard in a recording, but the jury “listened to each portion of the

recording as the officer testified to what he heard, meaning the

jurors could decide for themselves whether the officer’s

interpretation was accurate”).

IV. Preclusion of Impeachment on Cross-Examination

¶ 21 Vergari also contends that the trial court reversibly erred by

precluding cross-examination of a witness about Miscles’s

aggressive character traits. We disagree.

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¶ 22 Miscles’s wife, Rhonda John (who was a passenger in his truck

during the altercation), testified at trial. During direct examination,

the following exchange occurred:

PROSECUTOR: Looking at your husband’s
actions, was there anything that he did that
would cause the other driver, from your
perspective, to be concerned for their safety?

JOHN: No.

PROSECUTOR: Why not?

JOHN: I mean, just knowing [Miscles] is not an
aggressive person.

PROSECUTOR: Okay. But from what you saw,
let’s say you didn’t know [Miscles]. What you
saw between the two men, did [Miscles] do
anything physically or verbally that would
have put the other driver in fear of his safety?

JOHN: No. I mean, I don’t believe so. I mean,
he didn’t have anything in his hand. He
wasn’t balling up his fist or coming at him
aggressively. He was — he didn’t charge at the
other driver.

¶ 23 Based on John’s statement that Miscles “is not an aggressive

person,” Vergari’s defense counsel told the trial court that she

wished to cross-examine John about the fact that a coworker had

allegedly accused Miscles of sexual and physical assault. The trial

court precluded this inquiry, finding that the prosecutor’s question

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“did not elicit that kind of response,” and “under [CRE] 403, going

into any other acts of violence committed by the victim here is of

virtually no probative value, and the danger of unfair prejudice . . .

would be great.”

¶ 24 “[W]e will not disturb a trial court’s ruling on the scope and

limits of cross-examination absent an abuse of discretion.” People

v. Margerum, 2018 COA 52, ¶ 30, aff’d on other grounds, 2019 CO

100. But even assuming, without deciding, that the trial court

abused its discretion by precluding the inquiry, we conclude that

any error was harmless.4

¶ 25 After John’s brief comment, the prosecutor immediately

redirected her testimony to focus on what John witnessed in the

altercation between Vergari and Miscles. And at no point

throughout the trial did the prosecutor argue that Miscles did not

have an aggressive character.5 Furthermore, during the trial, the

4 Vergari does not argue that this minimal restriction on the scope
of his cross-examination of John interfered with his right to
confront witnesses or would otherwise be subject to a constitutional
harmlessness review.
5 In both the opening and reply briefs, Vergari’s appellate counsel

claims that “the prosecution argued that Mr. Miscles was not
aggressive.” This is a misstatement of the record. Instead, the

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prosecution presented overwhelming evidence of Vergari’s guilt

including Miscles’s and John’s testimony, Vergari’s statements to

police, and the surveillance videos depicting the altercation. We

therefore conclude that any error the trial court may have

committed by precluding defense counsel from rebutting John’s

statement that Miscles “is not an aggressive person” did not

substantially influence the verdict or affect the fairness of the trial

proceedings. See Hagos, ¶ 12.

V. Prosecutorial Misconduct

¶ 26 Finally, Vergari argues that the prosecutor committed

reversible misconduct during closing argument. While we agree

that some of the prosecutor’s arguments were improper, we

conclude that they do not warrant reversal.

¶ 27 During closing argument, the prosecutor made the following

comments:

 “[Mr. Miscles] is over this. But of course Mr. Vergari is

not, because . . . he is the unreasonable person that we

prosecutor permissibly argued, in direct response to Vergari’s
affirmative defense of self-defense, that Miscles “was not the initial
aggressor.”

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talked about in jury selection. He’s angry. He wants to

prove his point. If we asked the question, is it more

important in life to be kind or right, Mr. Vergari would

say right.”

 “Mr. Vergari has to be right. He is that unreasonable

person who has to be right and show [Mr.] Miscles that

he is the one who is going to make — who is going to do

what he’s going to do, regardless. He wants to be right.”

¶ 28 After the first comment, Vergari’s counsel objected, arguing

that “[t]here is no evidence of that, and that’s an unfair inference to

speculate what my client would say.” The trial court neither

expressly sustained nor overruled the objection but reminded the

jury that “this is argument.” Trial counsel did not object to the

second comment.

¶ 29 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the conduct was

improper based on the totality of the circumstances. Id. In doing

so, we evaluate claims of improper argument in the context of the

argument as a whole and in light of the evidence before the jury.

15
People v. Conyac, 2014 COA 8M, ¶ 132. Next, we consider whether

such actions warrant reversal under the applicable standard of

review. Wend, 235 P.3d at 1096.

¶ 30 If the misconduct was objected to, but does not reach

constitutional magnitude, we review for harmless error. Id. at

1097. We reverse “only if we conclude that error occurred and that

there is a reasonable probability that the error contributed to the

guilty verdict.” People v. Gonzales, 2017 COA 62, ¶ 26.

¶ 31 If a defendant failed to object at trial, we review for plain error.

Wend, 235 P.3d at 1097. Plain error is error that is obvious and

that so undermined the fundamental fairness of the trial itself as to

cast serious doubt on the reliability of the judgment of conviction.

Hagos, ¶ 14. “Only prosecutorial misconduct which is ‘flagrantly,

glaringly, or tremendously improper’ warrants reversal” under the

plain error standard. Domingo-Gomez v. People, 125 P.3d 1043,

1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo.

App. 1997)).

¶ 32 In closing arguments, “[p]rosecutors may comment on the

evidence admitted at trial and the reasonable inferences that can be

drawn therefrom.” People v. Samson, 2012 COA 167, ¶ 31. But

16
prosecutors may not refer to facts not in evidence. People v.

Denhartog, 2019 COA 23, ¶ 58. And “[w]hile a prosecutor may

employ rhetorical devices and engage in oratorical embellishment

and metaphorical nuance, [she] may not thereby induce the jury to

determine guilt on the basis of passion or prejudice, attempt to

inject irrelevant issues into the case, or accomplish some other

improper purpose.” Id. at ¶ 61.

¶ 33 Vergari argues that the prosecutor’s comments were not based

on facts in evidence and referred to improper character evidence.

We agree that the repeated references to Vergari’s tendency to be

unreasonable or desire to be “right” were improper. While oratorical

embellishments are permissible, they still must be rooted in the

evidence that was presented at trial. These references were not

supported by such evidence. Nevertheless, the comments do not

warrant reversal.

¶ 34 To the extent that Vergari’s argument on appeal is that the

trial court impermissibly allowed the prosecutor to comment on

facts not in evidence, that contention was at least arguably

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preserved as to the first comment.6 We thus review for harmless

error. Here, there is no probability that the first statement

contributed to the guilty verdict. The comment was brief and not

overly inflammatory. After Vergari’s counsel objected, the trial

court reminded the jury that this was only argument. And given

the overwhelming evidence of guilt, it was unlikely to have had a

material role in Vergari’s conviction. See People v. Hogan, 114 P.3d

42, 55 (Colo. App. 2004) (Determining whether misconduct is

harmless requires a court to evaluate “the severity and frequency of

misconduct, any curative measures taken by the trial court to

alleviate the misconduct, and the likelihood that the misconduct

6 Though the People contend that Vergari failed to preserve his
claim that the prosecutor improperly urged the jury to convict
Vergari based on his bad character, they do not address whether
Vergari preserved his claim that the prosecutor improperly argued
facts not in evidence. It is not entirely clear that Vergari did
preserve this issue, as he objected but did not actually press for a
definitive ruling from the trial court. See People v. Douglas, 2015
COA 155, ¶ 40 (noting that the defendant’s counsel “declined to
request a ruling on her objection, which amounts either to no
objection at all, or, worse still, to an abandonment of the objection
and a waiver of any right to assert error on appeal”). Nevertheless,
because the People do not argue that Vergari waived or otherwise
failed to preserve this claim, we treat it as preserved.

18
constituted a material factor leading to the defendant’s

conviction.”).

¶ 35 Vergari’s remaining contentions — that, in the second

statement, the prosecutor argued facts not in evidence and that

both statements were an improper commentary on Vergari’s bad

character — were not preserved and are thus reviewed for plain

error. The statements, while improper, were not “flagrantly,

glaringly, or tremendously” so. Avila, 944 P.2d at 676 (quoting

People v. Vialpando, 804 P.2d 219, 224 (Colo. App. 1990)). Nor do

they “cast serious doubt on the reliability of the jury’s verdict.” See

Domingo-Gomez, 125 P.3d at 1053 (citing Miller, 113 P.3d at 750).

Therefore, we discern no reversible error.

VI. Disposition

¶ 36 The judgment is affirmed.

JUDGE DAILEY and JUDGE BERGER concur.

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