Peo v. Hatcher

23CA0668 Peo v Hatcher 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0668
El Paso County District Court No. 18CR1683
Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ontony Andrew Hatcher,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE GOMEZ
Dunn and Navarro, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 7, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Westerhorstmann Law, LLC, Kristin Westerhorstmann, Grand Junction,
Colorado, for Defendant-Appellant
¶1 Defendant, Ontony Andrew Hatcher, appeals the judgment of

conviction entered on a jury verdict finding him guilty of third

degree assault. We affirm.

I. Background

¶2 While Hatcher was housed in a ward of the El Paso County

Jail, a floor deputy escorted a nurse into the ward to perform health

and welfare checks on the inmates. At one point, the deputy

opened the door to Hatcher’s cell to retrieve a dinner tray. Hatcher

pushed past him, screaming, “Help, help, help!” Hatcher ran

toward the nurse, grabbed her by the shoulders, and shook her. As

the deputy attempted to pull Hatcher off the nurse, they all fell to

the floor. Hatcher eventually let go of the nurse when he was tased

by another deputy. The video surveillance system in the jail

recorded the incident.

¶3 The prosecution charged Hatcher with second degree assault

and third degree assault based on the incident.

¶4 The case proceeded to a jury trial. After the close of the

prosecution’s case, the trial court granted Hatcher’s motion for

judgment of acquittal on the second degree assault charge on the

basis that the prosecution hadn’t established the necessary element

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that the nurse was an emergency medical service provider. The

jury returned a verdict finding Hatcher guilty of the remaining

charge of third degree assault.

¶5 In this direct appeal, Hatcher contends that the trial court

reversibly erred by (1) denying his for cause challenge to a juror,

(2) instructing the jury on the absence of an impaired mental

condition defense, (3) failing to instruct the jury that one of the

charges had been dismissed, and (4) allowing the jury to have

unfettered access to a DVD containing the video footage of the

incident. We consider each contention in turn.

II. For Cause Juror Challenge

¶6 Hatcher first contends that the trial court erred by denying his

for cause challenge to Juror C. We disagree.

¶7 Defendants have a constitutional right to a fair and impartial

jury, and that right may be violated if a biased juror sits on the

jury. People v. Abu-Nantambu-El, 2019 CO 106, ¶ 14. In

furtherance of this right, section 16-10-103(1)(j), C.R.S. 2024,

requires a trial court to grant a challenge for cause to a prospective

juror who “evinc[es] enmity or bias toward the defendant or the

state” unless the court is “satisfied” that the juror “will render an

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impartial verdict according to the law and the evidence submitted to

the jury at the trial.” See also Abu-Nantambu-El, ¶ 16. Moreover, a

prospective juror should be excused if it appears doubtful that they

will be governed by the court’s instructions. Morgan v. People, 624

P.2d 1331, 1332 (Colo. 1981).

¶8 We review a trial court’s ruling on a for cause juror challenge

for an abuse of discretion. Vigil v. People, 2019 CO 105, ¶ 14.

A court abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair or is contrary to law. See id. “We consider

the entire voir dire of the prospective juror, 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 [their] state of mind.”

People v. Blassingame, 2021 COA 11, ¶ 9 (first alteration in original)

(citation omitted) (quoting Carrillo 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. (quoting

Carrillo, 974 P.2d at 487).

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¶9 During voir dire, Juror C indicated multiple times that he

would likely assume that a defendant with prior felony convictions

was guilty of the charged offenses. For instance, he stated:

[Juror C]: [I]f I knew that guy right here was,
as they say, a lifetime criminal, you know, like
he’s had three armed robberies, 10 break-ins,
and he’s been convicted of all that, then . . .
[t]hat’s guilty. I mean, regardless of this case,
knowing his history of his crimes,
automatically I would say, oh, hell — excuse
me — oh, yeah, he’s guilty. You know what
I’m saying? Because I automatically assume,
three armed robberies, two break-ins, all guilty
on all charges, yeah, you bet he’s guilty.

....

[Defense counsel]: We live in America and
there are rules and laws we have to follow.
The judge is going to read you the rules that
this jury has to follow. One of those rules is
that if you hear that someone has felony
convictions, you can’t use that in determining
whether or not they committed another one.
The only thing you can use that for is whether
or not they’re telling the truth. . . . [I]f the
judge reads you that rule, that doesn’t sound
like a rule you would be able to follow?

[Juror C]: No, I don’t think I could. Not —
knowing he’s a career criminal, no, I couldn’t
follow that law.

¶ 10 However, Juror C also made the following statements while

being questioned by the prosecutor:

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[Prosecutor]: You’ve heard that this case
involves somebody in custody?

[Juror C]: Right.

[Prosecutor]: And if you’re seated as a juror on
this case, you are to base your verdict based
off of the testimony in this case only.

[Juror C]: Right.

[Prosecutor]: Does that make sense?

[Juror C]: Yes.

[Prosecutor]: That the defendant has the right
to be tried for this case and this case only?

[Juror C]: Yes.

[Prosecutor]: So, [Juror C], hearing that, oh,
the defendant was at the county jail, are you
going to hold that against him sitting as a
juror in this case?

[Juror C]: What — no. No, not — the reason
he’s in there is not my problem. The reason he
attacked that woman — I take it it’s a woman
that he attacked. If they have proof that he
did that, guilty.

[Prosecutor]: Okay. So you’ll base your
verdict —

[Juror C]: On the evidence.

¶ 11 Further, the trial court had the following exchange with

Juror C:

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[The Court]: In our country, we don’t try people
based upon their backgrounds, we try people
based upon evidence presented in the course
of the trial. So if you hear about a felony
conviction, it’s only for that limited purpose
[regarding credibility] that you may use it. You
may not use it to say, well, he’s got a felony
conviction or two, therefore, it’s more likely
that he committed this crime. That’s not how
we do things here.

So, [Juror C], with that explanation, can you
follow that rule or not?

[Juror C]: Yes, sir, I can. I’m not going to hold
it against him. Understand, you prove that he
committed this crime, it’s not a problem. You
prove it.

¶ 12 Defense counsel challenged Juror C for cause, but the court

denied the challenge, explaining that “he . . . stated he would follow

the instruction on the applicable law when I told him what the

instruction was.” Defense counsel later removed Juror C using a

peremptory challenge. Defense counsel used all the defense’s

peremptory challenges at trial.

¶ 13 In a similar case, a prospective juror made statements during

voir dire suggesting that, as a result of her experience working for

the Department of Corrections, “she would struggle to impartially

judge [the defendant’s] credibility due to his status as an inmate.”

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People v. Oliver, 2020 COA 97, ¶ 16. However, in other exchanges,

she “indicated that she could judge [the defendant] fairly even

though he was incarcerated.” Id. A division of this court, in

“reviewing the entire voir dire of [the juror],” determined that “the

record support[ed] that she could render an impartial verdict

notwithstanding her professional experience.” Id. Accordingly, the

division concluded that “[t]he trial court’s decision to deny the

challenge for cause . . . was not manifestly arbitrary, unreasonable,

or unfair, nor was it contrary to law.” Id.

¶ 14 Similarly, here, Juror C made statements suggesting that he

would have difficulty setting aside Hatcher’s prior convictions in

evaluating whether Hatcher was guilty of the charged offenses, but

he also made other statements indicating that he would be able to

follow the court’s instructions to use evidence of prior convictions

only to evaluate Hatcher’s credibility and not as evidence that

Hatcher was guilty of the charged offenses. As in Oliver, the record

of Juror C’s voir dire as a whole supports the trial court’s

conclusion that, notwithstanding some of his contradictory

statements, he would be able to render an impartial verdict in

accordance with the court’s instructions. See id.

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¶ 15 Moreover, the fact that Juror C in the end said he could put

his personal beliefs aside and follow the court’s instructions

distinguishes this case from People v. Clark, 2022 COA 33, aff’d,

2024 CO 55, on which Hatcher relies. In that case, the prospective

juror not only “expresse[d] a bias” but went on to “explicitly reject[]

the possibility of setting aside that bias.” Id. at ¶ 20.

¶ 16 More generally, a trial court is “in the best position to observe

[a] potential juror’s demeanor and credibility when assessing

whether the juror can follow the court’s instructions,” People v.

Gulyas, 2022 COA 34, ¶ 25, particularly where, as here, “the juror’s

answers are inconsistent or self-contradictory,” People v. Lopez, 97

P.3d 277, 279 (Colo. App. 2004); see also Blassingame, ¶ 9. In

such circumstances, we must affirm the trial court’s decision so

long as it “fell within a range of reasonable options.” Vigil, ¶ 14.

Given the record support for the trial court’s ruling, we conclude

that its decision was within that range of reasonable options.

¶ 17 Additionally, even if the trial court’s ruling was erroneous,

Hatcher hasn’t shown that it violated his right to an impartial jury.

“[T]he defendant’s right to an impartial jury can be adversely

affected by an erroneous denial of [a] challenge for cause only if that

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juror is not otherwise removed, as by a different challenge for cause

or a challenge exercised peremptorily.” Id. at ¶ 15. Any error in

denying a challenge for cause is harmless, and thus doesn’t serve

as a basis for reversal, if the challenged juror didn’t serve on the

jury, the defense was allowed to use their statutorily allotted

number of peremptory challenges, a biased juror didn’t otherwise

evade removal, and the trial court didn’t act in bad faith by

deliberately misapplying the law to force the defense to use up a

peremptory challenge. See Clark, 2024 CO 55, ¶¶ 43, 45, 61-63.

¶ 18 Here, the challenged juror didn’t serve on the jury; Hatcher

was able to use his statutorily allotted number of peremptory

challenges; Hatcher hasn’t shown that a biased juror actually sat

on the jury; and Hatcher hasn’t alleged or shown any bad faith by

the trial court. Hatcher argues only that “[i]n using a peremptory

challenge against Juror C, defense counsel was denied the

opportunity to use that peremptory challenge on other jurors who

expressed bias against Mr. Hatcher but were more effectively

rehabilitated by the trial court.” But he doesn’t identify any

particular sitting juror who was supposedly biased, nor does he

develop any argument regarding such bias. And, more generally,

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because there is no right “to shape the composition of the jury

through the use of peremptory challenges,” he “could not have been

harmed by the deprivation of any such right.” Vigil, ¶ 25.

¶ 19 Thus, Hatcher hasn’t shown that any error in denying his for

cause challenge was harmful.

III. Jury Instructions

¶ 20 Hatcher next contends that the trial court erred in two ways in

its instructions to the jury: (1) by giving an inaccurate instruction

regarding the lack of an impaired mental condition defense in this

case; and (2) by failing to instruct the jury that it had dismissed the

second degree assault charge.

A. Absence of an Impaired Mental Condition Defense

¶ 21 Hatcher argues that the language the trial court gave

indicating there was no impaired mental condition defense in this

case was outdated, inaccurate, and misleading. However, any error

in the language of this instruction was invited by Hatcher because

his counsel proposed the language he now challenges.

¶ 22 During the jury instruction conference, the court told the

parties that, because there had been some discussion of Hatcher’s

mental health issues, the court felt it would be appropriate to

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instruct the jury that Hatcher was not asserting a mental health

defense. When the parties returned the next day with proposed

instructions on this issue, defense counsel objected to the court

providing such an instruction at all. She argued that, while

Hatcher wasn’t arguing that he was not guilty by reason of insanity,

his mental condition was relevant to whether he had formed the

requisite mens rea. However, she asked that, if the court were to

give an instruction, it use the defense’s proposed instruction. The

court decided to use the defense’s proposal and thus advised the

jury that “there [wa]s no impaired mental condition defense” in the

case. Defense counsel also indicated, in response to the

prosecutor’s objection, that they could add a definition of “impaired

mental condition.” The court suggested such a definition, defense

counsel agreed to it, and it was included as part of the instruction.

¶ 23 Under the doctrine of invited error, a party may not

“complain[] on appeal of an error that [they] invited or injected into

the case; the party must abide the consequences of [their] acts.”

People v. Rediger, 2018 CO 32, ¶ 34. “Invited error is a narrow

doctrine and applies to errors in trial strategy but not to errors that

result from oversight.” Id. Accordingly, “a party invites an error in

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a jury instruction when that party drafted or tendered the

erroneous instruction.” Id.

¶ 24 Hatcher now argues that the instruction shouldn’t have made

any reference to an “impaired mental condition defense,” as such a

defense doesn’t apply to any offenses committed on or after July 1,

1995. See § 16-8-102(2.7)(b), C.R.S. 2024; § 18-1-803(4), C.R.S.

2024; see also People v. Rosas, 2020 CO 22, ¶ 2 (“[W]hat used to be

the defense of ‘impaired mental condition’ is now subsumed within

the defense of insanity.”). Thus, Hatcher argues, the reference to

the defense inaccurately and misleadingly suggested to the jury that

such a defense might’ve been available, but he didn’t qualify for it.

¶ 25 Because defense counsel not only didn’t object to this

language but actually proposed it, the defense invited any error in

including this language in the jury instruction. Accordingly, we

conclude that the doctrine of invited error precludes our review of

this issue. See Rediger, ¶ 34.1

1 In his reply brief, Hatcher asserts a different argument — that the

court erred in giving any instruction on the issue at all. Because he
didn’t develop this argument until his reply brief, we don’t consider
it. See People v. Archer, 2022 COA 71, ¶ 32 n.3; Peña v. Am. Fam.
Mut. Ins. Co., 2018 COA 56, ¶ 21 n.4.

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B. Judgment of Acquittal on Second Degree Assault Charge

¶ 26 Hatcher next argues that the trial court erred by failing to

provide a jury instruction explaining that it had dismissed the

second degree assault charge. We disagree.

¶ 27 After the court granted the motion for judgment of acquittal as

to the second degree assault charge, it solicited the parties’

positions on what, if anything, it should tell the jury about the

dismissal of one of the two charges the court had referenced at the

outset of the case. The court suggested two potential options: (1) it

could tell the jury to only be concerned with the final instructions,

and “leave it at that”; or (2) it could explain to the jury what

happened, though that option “seem[ed] to [it] to be dangerous.”

The prosecutor requested option one. Defense counsel requested

option two — specifically, “inform[ing] the jury that the charge was

dismissed” — and argued that the jurors otherwise might be

“confused or think that they’re missing something in their

instructions.”

¶ 28 The court didn’t expressly rule on the parties’ arguments, but

it ultimately chose the first option, instructing the jury as follows:

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The instructions that I have given to you right
now are the final instructions. To the extent
that there may be a difference between what I
said in the beginning and what I’m saying now,
these instructions control. Specifically, when
we started the case, there were two counts.
You are to be concerned only with the count
that I have addressed here in these final
instructions.

¶ 29 “The trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions.” People v. Lopez, 2018 COA 119, ¶ 35. But

because a trial court has broad discretion to fashion the form and

style of instructions, we review for an abuse of discretion a trial

court’s decision whether to give a particular instruction. Suydam v.

LFI Fort Pierce, Inc., 2020 COA 144M, ¶ 10.

¶ 30 We discern no abuse of discretion in the instruction the court

chose to give. Contrary to Hatcher’s argument, the instruction gave

jurors sufficient explanation as to why they had initially been told

there were two charges but were then only being instructed on one.

And it was reasonable for the court to be concerned that saying too

much to the jurors about its legal ruling could be “dangerous.”

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IV. Unfettered Access to Video Evidence

¶ 31 Finally, Hatcher contends that the trial court abused its

discretion by allowing the jury unfettered access to the DVD

containing the surveillance video.

¶ 32 During deliberations, the jury was given access to the

surveillance video footage of the incident. Defense counsel asked

that the jury only be able to watch the footage two times. But the

court rejected counsel’s argument and allowed the jury to have

unfettered access to the DVD containing the footage.

¶ 33 Hatcher makes two arguments on appeal regarding the jury’s

access to the video evidence. We are not persuaded by either.

A. Video Label

¶ 34 Hatcher primarily argues that the label of the video file —

“Staff Assault-1” — was “an inflammatory, conclusory statement

that [went] to an ultimate issue” in the case. However, Hatcher did

not preserve this argument, and we conclude that any error doesn’t

rise to the level of plain error.

¶ 35 We don’t require the use of “talismanic language” to preserve

an issue for appeal. Rael v. People, 2017 CO 67, ¶ 17 (quoting

People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)). But an

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objection must “draw the trial court’s attention to the asserted

error, thus allowing the court ‘a meaningful chance to prevent or

correct the error’ and creating a record for appellate review.” Id.

(quoting Martinez v. People, 2015 CO 16, ¶ 14).

¶ 36 Hatcher didn’t preserve any argument relating to the video file

label, as his counsel made no reference to the label or its potentially

prejudicial title in the discussions in the trial court about the video.

¶ 37 We therefore review this issue for plain error. See People v.

Snelling, 2022 COA 116M, ¶ 33. Plain error is error that is both

obvious, meaning that it “contravene[s] a clear statutory command,

a well-settled legal principle, or Colorado case law,” and substantial,

meaning that it “so undermine[s] the fundamental fairness of the

trial itself as to cast serious doubt on the reliability of the judgment

of conviction.” People v. Buckner, 2022 COA 14, ¶ 43.

¶ 38 Any potential error in allowing the jury unfettered access to

the video file label doesn’t warrant reversal under this standard

because it wasn’t obvious. There are statutes, settled legal

principles, and case law that govern the contents of video evidence.

See generally CRE 1001-1004; Rael, ¶¶ 21-35. But Hatcher hasn’t

cited, and we haven’t found, any statutory commands, settled legal

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principles, or case law that clearly relate to how video evidence

must be labeled. Therefore, if allowing the jury unfettered access to

the label of the video here was an error, it can’t be said that such

an error would have been obvious to the trial court.

B. Video Contents

¶ 39 To the extent that Hatcher also challenges the jury’s

unfettered access to the video’s contents, this argument also fails.

¶ 40 Control over the use of exhibits during jury deliberations is an

issue “firmly within the discretion of the trial court.” DeBella v.

People, 233 P.3d 664, 666 (Colo. 2010). Thus, we won’t reverse a

trial court’s ruling on the issue absent an abuse of discretion. Id.

¶ 41 Our supreme court has held that a trial court shouldn’t give a

jury unfettered access to videos containing testimonial evidence,

based on a concern that jurors might give undue weight to video

statements that they could view repeatedly, as compared to live

testimony that they heard only once. Id. at 668-69; see also Rael,

¶ 22. On the other hand, the supreme court also held that this

concern doesn’t apply to nontestimonial evidence like crime scene

videos, and thus it has upheld unfettered juror access to such

evidence. Rael, ¶¶ 21-24.

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¶ 42 The video in this case squarely falls into the latter category. In

this case, as in Rael, “we discern no abuse of discretion in the trial

court’s decision to grant the jury unfettered access to the crime

scene video during its deliberations.” Id. at ¶ 24.

V. Disposition

¶ 43 The judgment is affirmed.

JUDGE DUNN and JUDGE NAVARRO concur.

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