Cerrone v. People

• Decision Date: 30 June 1995
• Docket Number: 94SC351,Nos. 94SC150,s. 94SC150
• Citation: 900 P.2d 45
• Parties: John CERRONE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Lawrence GOETZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 45

900 P.2d 45

John CERRONE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Lawrence GOETZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 94SC150, 94SC351.

Supreme Court of Colorado En Banc.

June 30, 1995.

Rehearing Denied (Goetz) July 31, 1995.

Rehearing Denied (Cerrone) Aug. 28, 1995.

Neil MacFarlane, Westminster, CO, for petitioner John Cerrone.

James A. Henderson, Denver, CO, for petitioner Lawrence Goetz.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Crim. Enforcement Section, Denver, CO, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari and consolidated for argument and decision People v. Cerrone, 867 P.2d 143 (Colo.App.1993) (Cerrone III) and People v. Goetz, No. 90CA0514 (Colo.App. Apr. 14, 1994) (not selected for publication) (Goetz II). ¹ In Cerrone III, the court of appeals found the trial court did not deliberately exclude persons from the 1985-86 Colorado state grand jury on the basis of economic status and held that "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." Cerrone III, 867 P.2d at 147. The court of appeals adopted the same reasoning in Goetz II. In contrast to the court of appeals analysis, we conclude that the state's asserted reasons for excluding hourly wage earners are inherently discriminatory and violate the mandate of section 13-71-103, 6A C.R.S. (1987). ² We hold however, that this violation does not require that the defendants' convictions be overturned. We therefore affirm the judgments of the court of appeals, while not subscribing to the reasoning that led to those judgments.

I Procedural History

The petitioners, Cerrone and Goetz (defendants) were indicted by the 1985-86 state grand jury. ³ The defendants filed several pre-trial motions challenging the composition of the grand jury. Following hearings, those challenges were rejected by the trial court. The defendants' cases were severed for trial. Each defendant was convicted of one count of pandering and several violations of the Colorado Organized Crime Control Act. On separate appeals, each defendant raised various issues, including an alleged Fourteenth Amendment equal protection violation based on racial discrimination in the selection of the 1985-86 state grand jury.

In People v. Cerrone, 829 P.2d 468, 472 (Colo.App.1991) (Cerrone I), the court of appeals found "there was no evidence from which the trial court could conclude that the showing of discrimination had been rebutted." The court reversed Cerrone's convictions and did not address the other issues raised on appeal. Id. Several months later, the court of appeals reversed Goetz' conviction based on Cerrone I. People v. Goetz, No. 90CA0514 (Colo.App. Feb. 13, 1992) (not selected for publication) (Goetz I ).

The state appealed both decisions to this court, which joined the cases for argument and opinion. In People v. Cerrone, 854 P.2d 178 (Colo.1993) (Cerrone II ), we reversed Cerrone I. We concluded "that the trial court did not err when it found ... that the defendants did not sustain their burden of proving purposeful racial discrimination under the Fourteenth Amendment." Id. at 193-94. Both cases were remanded to the court of appeals to address the remaining issues raised on appeal, including the allegations of discrimination in the grand jury selection based on economic status. See id. at 194.

In Cerrone III, 867 P.2d 143 (Colo.App.1993), the court of appeals upheld Cerrone's conviction. The court found that during the selection of the state grand jury there was no discrimination on the basis of economic status. The Goetz II panel adopted the reasoning of Cerrone III and affirmed Goetz' convictions. Goetz II, No. 90CA0514 (Colo.App. Apr. 14, 1994) (not selected for publication). The judgments should be affirmed in both cases although for different reasons than articulated by the court of appeals.

II Facts Regarding Alleged Discrimination Based On Economic Status

The selection of the 1985-86 state grand jury was initiated on January 28, 1985, when the Colorado Attorney General petitioned the Chief Judge of the Denver District Court for an order impaneling a state grand jury. ⁴ The chief judge granted the petition and ordered that the 1985-86 state grand jury consist of twelve jurors to be selected from the counties of Denver, Adams, Arapahoe, Boulder, and Jefferson. ⁵ The state court administrator's office compiled a list of 375 prospective grand jurors, seventy-five from each of the five counties specified by the chief judge. Each of the 375 prospective grand jurors was mailed a summons to appear in court, and each was mailed a "Juror Selection Questionnaire" that he or she was instructed to fill out and return to the court immediately. The questionnaire asked about the age and occupation of immediate family members living with the prospective juror and whether the prospective juror had close friends or relatives practicing criminal law or employed in law enforcement work. Additionally, the questionnaire stated: "The Grand Jury generally meets one full day per week for a year. Allowances will be made for vacations, illnesses, and essential business trips. Do you have any problems, including health problems, that would interfere with your serving on the Grand Jury? Yes __ No __ If yes, please describe."

Most of the 375 questionnaires were returned to the court during February and early March. Based on answers to the questionnaires and with advice from a deputy attorney general and several assistant attorneys general, the chief judge settled on a list of forty-one prospective jurors whom he required to appear in court on March 15, 1985, for a day of oral voir dire at the close of which the twelve-member 1985-86 grand jury was to be impaneled. Those persons who returned questionnaires to the court but who were not chosen to appear for voir dire on the impanelment date received letters from the court notifying them that they were no longer required to appear in court on March 15. A small number of prospective jurors who failed to return their questionnaires also were present on March 15. The chief judge asked each of them to fill out a questionnaire at that time and subsequently excused all but one of them. This meant that the original pool of 375 prospective jurors had been narrowed down to forty-two for the purpose of oral voir dire and impanelment on March 15, 1985.

The defendants have not challenged the manner in which the original pool of 375 prospective jurors was selected. Instead, the defendants claim that persons of low economic status were excluded from the venire ⁶ of forty-two prospective jurors chosen to appear for oral voir dire on the impanelment date. On September 26 and October 30, 1986, the trial court conducted hearings on the defendants' motions, which challenged, among other things, the exclusion of persons of low economic status from the venire.

Testimony from these hearings established that the chief judge relied on a coded numbering system. The code numbers corresponded to reasons for postponement or excusal from grand jury service. For example, if a questionnaire was marked with the number "12," it meant that there was a medical reason for excluding that prospective juror, while the number "8" meant that the prospective juror was excluded because he or she no longer resided in Colorado. The number "11" signified unspecified "other" reasons for excusal from the venire.

Approximately sixty-eight questionnaires were marked with the number "11" (category 11 jurors). Of that group of sixty-eight, approximately fifty answered "No" to the question "Do you have any problems, including health problems, that would interfere with your serving on the Grand Jury?" One defense witness testified that no category 11 juror without a high school education was allowed to be part of the venire. The same witness also testified that category 11 jurors tended to be laborers or wage earners and were not as well educated as those selected to the venire.

Further testimony was offered by another defense witness, who qualified as an expert in labor economics and statistics. The statistician compared the category 11 jurors with the venire. She found that 57% of the venire were college graduates, while college graduates constituted only 12% of category 11 jurors. Zero percent of the venire had less than a high school education compared to 20% in the category 11 group. The statistician concluded that the venire members were significantly better educated than category 11 jurors. The statistician also opined that there is a "very high correlation between income and education." Concluding the two groups were "distinctly different," the statistician stated with a 99.9% confidence level that "a systematic selection process ... caused the difference...." On December 5, 1986, the trial court issued a written order finding that the defendants established a prima facie case of discrimination based on "race, national origin or economic status."

On January 30, 1987, to rebut the defendants' prima facie case of discrimination based on economic status, the state called as witnesses a deputy attorney general and one assistant attorney general who advised the chief judge in selecting the 1985-86 state grand jury. The state also called two other assistant attorneys general who assisted the chief judge in selecting statewide grand juries in other years. ⁷ The state's primary response consisted of testimony describing the "screening process."

The deputy attorney general testified that members of the attorney general's staff divided the questionnaires into two stacks: ...