People v. Cerrone, 88CA1319

• Citation: 867 P.2d 143
• Decision Date: 21 October 1993
• Docket Number: No. 88CA1319,88CA1319
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John CERRONE, Defendant-Appellant. . III
• Court: Court of Appeals of Colorado

Page 143

867 P.2d 143

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John CERRONE, Defendant-Appellant.

No. 88CA1319.

Colorado Court of Appeals Div. III.

Oct. 21, 1993.

Rehearing Denied Dec. 16, 1993.

Certiorari GRANTED July 11, 1994 (94SC150).

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Neil MacFarlane, Westminster, for defendant-appellant.

Opinion by Judge MARQUEZ.

This case is before us pursuant to mandate from our supreme court in People v. Cerrone, 854 P.2d 178 (Colo.1993), reversing our holding in People v. Cerrone, 829 P.2d 468 (Colo.App.1991) that there had been racial discrimination in the selection of the 1985-86 grand jury, and remanding for consideration of issues not addressed in our earlier opinion. Upon such consideration, we affirm the judgment of conviction.

Defendant, John Cerrone, was found guilty by a jury of four counts of violating the Colorado Organized Crime Control Act (COCCA), § 18-17-101, et seq., C.R.S. (1986 Repl.Vol. 8B), and one count of pandering. Such charges arose from indictments issued by a state grand jury sitting in the City and County of Denver.

I.

A.

Initially, defendant argues that the trial court should have dismissed the indictment because a state grand jury should not have been impaneled. We do not agree.

Section 13-73-101, C.R.S. (1987 Repl.Vol. 6A), regarding the impaneling of statewide grand juries, provides that:

When the attorney general deems it to be in the public interest to convene a grand jury which has jurisdiction extending beyond the boundaries of any single county, he may petition the chief judge of any district court for an order in accordance with the provisions of this article. Said chief judge may, for good cause shown, order the impaneling of a state grand jury which shall have statewide jurisdiction. In making his determination as to the need for impaneling a state grand jury, the judge shall require a showing that the matter cannot be effectively handled by a grand jury impaneled pursuant to article 72 of this title, such a grand jury being referred to in this article as a "county grand jury."

On January 28, 1985, the chief judge of the Denver District Court reviewed a verified petition for an order impaneling a statewide grand jury presented by the attorney general. The chief judge found that the attorney general had made a showing of good cause. Specifically, he found that the matters in this case could not be effectively handled by a county grand jury, and it was in the public interest to convene a statewide grand jury. Thus, the impaneling of the statewide grand jury was proper.

B.

Second, although in its reversal of our earlier holding, our supreme court found no constitutional violation in the selection of the 1985-86 grand jury, defendant has also challenged the grand jury selection on the basis of racial and economic discrimination in violation of Colorado statutory law. We find no statutory violation.

Section 13-71-103, C.R.S. (1987 Repl.Vol. 6A), in effect at the time at issue here, provides:

A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status.

This provision should be read in the context of the broader legislative policy that is presented in § 13-71-102, C.R.S. (1987 Repl.Vol. 6A) also in effect at the time at issue here. That provision states:

It is the policy of this state that all persons selected for jury service shall be selected at random from a fair cross section of the population of the area served by the court and that all qualified citizens shall have the opportunity in accordance with the provisions of this article to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.

Some discretion, however, remains in the jury selection process as § 13-73-103, C.R.S. (1987 Repl.Vol. 6A) provides that:

[M]embers of the state grand jury shall be selected by the chief judge with the advice of the attorney general and shall serve for one year following selection unless discharged sooner by the chief judge.

Defendant claimed discrimination based on the fact that no persons with Spanish surnames were on the grand jury and that the government struck from the list of prospective grand jurors persons who appeared to work for an hourly wage.

In order to resolve defendant's statutory claims, we must first construe the statutes. The primary goal of statutory construction is to effect the intent of the General Assembly. Section 2-4-212, C.R.S. (1985 Repl.Vol. 1B). Courts should assume the General Assembly intended a just and reasonable result. Section 2-4-201(1)(c), C.R.S. (1980 Repl.Vol. 1B). Also, a statute should be construed to accomplish the purpose for which it was enacted. Perlmutter v. Blessing, 706 P.2d 772 (Colo.1985).

In ascertaining the legislative purpose, we look first at the statutory language employed by the General Assembly and give words their commonly accepted and understood meaning. Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990).

Here, § 13-71-102 provides that all qualified citizens shall have the opportunity to be considered for jury service. Section 13-71-103 provides that a citizen "shall not be excluded ... on account of" race or economic status. The latter statute does not explicitly provide that the act of discrimination be intentional or purposeful.

However, "on account of" is defined as for the sake of, by reason of, or because of. Websters 3rd New International Dictionary 13 (1986). In our view, these terms imply affirmative conduct, and we thus conclude that the statute prohibits purposeful exclusion from the jury based on an impermissible factor, i.e., race or economic status cannot be the reason for exclusion. Further, although not specifically required by statute, we conclude that the three-step process utilized by our supreme court in People v. Cerrone, supra, for evaluating claims of racial discrimination in jury selection under the Equal Protection Clause is also appropriate here.

Our supreme court noted that defendant had not challenged the manner in which the original pool of 375 prospective jurors was selected. People v. Cerrone, supra.

Considering both the factors used to exclude potential jurors and the reasoning behind the use of those factors, our supreme court in People v. Cerrone, supra, determined that the People succeeded in offering a race-neutral explanation for the jury selection process.

In denying defendant's constitutional claim, the supreme court also held "that the trial court did not err when it found as a matter of historical fact that the defendants did not sustain their burden of proving purposeful racial discrimination under the Fourteenth Amendment." People v. Cerrone, supra, 854 P.2d at 193. We conclude that the supreme court's analysis applies equally well to defendant's statutory claims based on racial discrimination. Thus, those claims are denied.

Defendant's claims based on economic status, however, pose a different question, and our supreme court expressed no opinion with respect to economic status.

The prosecution concedes that testimony established that, since the cases brought before the grand jury were often complicated and highly technical, those involved in the selection process looked for potential candidates who were better educated and had some sort of specialized training or experience in accounting, finance, or medicine. They also sought persons who would be able to attend the meetings approximately one day per week for 40 weeks.

The deputy attorney general admitted that being an hourly wage earner was one factor, among several, that goes to the question of creating a substantial hardship on a grand juror. The deputy attorney general explained that the purpose of applying this factor was to impanel a jury that could consistently attend each Friday throughout the lengthy grand jury session. Based on experience, the attorney general had determined that hourly wage earners were more likely to claim an economic hardship in sitting on the grand jury even though they might not so indicate on the initial juror questionnaire. See § 13-71-112(2), C.R.S. (1987 Repl.Vol. 6A) (court, on its own initiative, may excuse juror for undue hardship); People v. Reese, 670 P.2d 11 (Colo.App.1983) (what constitutes undue hardship lies with the discretion of the trial court and includes one for whom jury service would impose an undue financial burden).

Based on these facts, the trial court determined that: "By making a deliberate attempt to get certain kinds of people on the jury, the result was that persons of lower income may not have been included." The court found, however, that the criteria used were racially and economically neutral and that: "[T]here was no deliberate effort to exclude persons on the basis of their economic status." We affirm because the evidence was sufficient to support these findings.

The trial court did not, however, discuss whether being an hourly wage earner equated to having a certain economic status and, if so, whether that made the status of being an hourly wage earner an impermissible factor to use in deciding which jurors should be excused. As the trial court noted, "the problem of economic status and what economic status means under our statute has never been clearly articulated." We hold that, under the circumstances here, there was no violation of the statute. As long as the reasons for excluding are of an economically neutral character, the use of hourly wage earner status as one factor in trying to impanel grand jurors who would consistently attend the scheduled sessions during the year was not error.

C.

Defendant next contends that the indictment should have been dismissed because of violations of ...