Ma v. People, 04SC570.

• Decision Date: 11 October 2005
• Docket Number: No. 04SC570.,04SC570.
• Citation: 121 P.3d 205
• Parties: David Hung MA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

121 P.3d 205

David Hung MA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 04SC570.

Supreme Court of Colorado, En Banc.

October 11, 2005.

COPYRIGHT MATERIAL OMITTED

David S. Kaplan, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, for Petitioner.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Respondent.

BENDER, Justice.

I. Introduction

In this appeal we construe the term "law enforcement agency" as it is used in section 16-10-103(1)(k), C.R.S. (2005), which requires a trial court in a criminal case to grant a challenge for cause to a prospective juror who is a compensated employee of a public law enforcement agency.¹ We review the court of appeals' decision in People v. Ma, 104 P.3d 273 (Colo.App.2004), which held that the trial court properly denied Ma's challenge for cause to a prospective juror who is an Army military police reservist and affirmed Ma's criminal convictions for criminal mischief and menacing. It reasoned that the Army Military Police Corps is a subdivision of the Department of Defense, which is not a law enforcement agency.

We construe the term "law enforcement agency" to mean a police-like division or subdivision of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals. The common definition of the word "agency" is a division or subdivision of government. The common understanding of the phrase "law enforcement" is the detection and punishment of criminal violations of the law by the police or other police-like agencies. The Army Military Police Corps is a subdivision of government that detects and punishes criminal violations of the law by performing police-like functions such as arresting suspected criminals, investigating crimes, and detaining prisoners. Hence, we hold that the Army Military Police Corps is a law enforcement agency for the purpose of section 16-10-103(1)(k).

Under the facts presented here, we hold that the trial court should have granted Ma's challenge for cause. For these reasons, we reverse the judgment of the court of appeals and return this case to that court with instructions to remand it to the trial court for a new trial.

II. Facts and Proceedings Below

During jury selection, the trial court asked whether any of the prospective jurors was an employee of a law enforcement agency. One prospective juror told the trial court that he serves as a platoon leader in the Army Military Police Reserves. He explained that he works one weekend a month and participates in military police combat and site security missions.

The trial court then called counsel to the bench and stated, "Just when you think the phrase `law enforcement agency' is clear, the world intrudes on your language." The trial court then asked if either party wanted to challenge the prospective juror for cause. In response to this question, the prosecutor said, "I don't at this point." And, defense counsel replied, "I don't."

Later, the trial court asked the prospective juror whether he had ever testified in court. The prospective juror explained that he had testified as a military police officer in cases involving petty theft, drunk and disorderly conduct, and domestic disputes. When it was the defense's turn to question the prospective juror, defense counsel clarified that the prospective juror was a military police officer who had testified in a police capacity in criminal cases like this one. Defense counsel then challenged the prospective juror for cause under section 16-10-103(1)(k).

The trial court denied the challenge, ruling that defense counsel had waived Ma's right to make such a challenge when he first declined the opportunity to do so.² As a result of that ruling, defense counsel used one of Ma's peremptory challenges to excuse the prospective juror and ultimately exercised all of Ma's peremptory challenges. The jury found Ma guilty of criminal mischief and menacing.

On appeal, the court of appeals held that the trial court properly denied Ma's challenge for cause. Ma, 104 P.3d at 277-78. But instead of concluding, as the trial court had, that defense counsel waived Ma's right to make the challenge, the court of appeals concluded that such a challenge was invalid. Id. It reasoned that the prospective juror was not within the reach of section 16-10-103(1)(k) because the Army Military Police Corps is not a law enforcement agency, but rather is a subdivision of the Department of Defense, which is not a law enforcement agency. Id.

We granted Ma's petition for certiorari on the question of whether the trial court should have granted Ma's challenge for cause in order to address the particular issue of what the term "law enforcement agency" means as it is used in section 16-10-103(1)(k).³

III. Analysis

A. Waiver of the Challenge for Cause

As a threshold matter, we address whether defense counsel waived Ma's right to challenge the prospective juror for cause by declining an initial opportunity to do so.

Ma maintains that defense counsel was uninformed and unaware that his initial refusal to challenge the prospective juror would preclude him from making such a challenge after further questioning. In contrast, the People argue that defense counsel waived Ma's right to make the challenge by failing to pursue the matter when the grounds for making the challenge were first raised.

A challenge for cause is waived if counsel fails to use reasonable diligence during jury selection to determine whether the grounds for such a challenge exist. People v. Lewis, 180 Colo. 423, 428, 506 P.2d 125, 127 (1973). The test for reasonable diligence is whether counsel took the opportunity to adequately question a prospective juror. Brown v. People, 20 Colo. 161, 165, 36 P. 1040, 1042 (1894).

Although the determination that a waiver was valid is largely within the discretion of the trial court, see People ex rel. Peters v. District Court, 951 P.2d 926, 931 (Colo.1998), the record in this case lacks the information necessary for us to find a waiver.

After the prospective juror stated that he was an Army military police reservist, the trial court commented that the term "law enforcement agency" is unclear. It then asked whether either party wanted to make a challenge for cause. It did not ask if either party wanted to question the potential juror further. Nor did it state that this was the parties' only chance to make such a challenge.

In response to the trial court's question, the prosecutor said that he did not want to make a challenge "at this time." Defense counsel replied that he did not want to make a challenge either. Eventually, when it was the defense's turn to question the prospective juror, defense counsel asked him about his job as an Army military police reservist. It was at that time that defense counsel challenged the prospective juror for cause.

It is clear that defense counsel initially declined the opportunity to challenge the prospective juror for cause. It is unclear, however, that defense counsel's decision constituted a waiver. When the grounds for making the challenge were first raised, defense counsel did not ask the prospective juror any questions. But, when it was defense counsel's turn to question the prospective juror, defense counsel raised the issue again.

Because defense counsel eventually questioned the prospective juror regarding the grounds for making the challenge, we cannot conclude that defense counsel failed to use reasonable diligence unless the record is clear that defense counsel was aware that his initial opportunity to challenge the prospective juror would be his only opportunity to do so. The record is unclear on this point. Hence, we hold that the record is insufficient to support the conclusion that defense counsel waived Ma's right to challenge the prospective juror for cause under section 16-10-103(1)(k).

B. Merits of the Challenge for Cause

We next address the issue of whether the trial court should have granted Ma's challenge for cause to a prospective juror who is an Army military police reservist.

Ma argues that the Army Military Police Corps is a law enforcement agency because it is the law enforcement arm of the Army, just as a city's police department is the law enforcement arm of that city. The People, on the other hand, contend that the Army Military Police Corps is not a law enforcement agency because it is a subdivision of the Department of Defense, which is not a law enforcement agency.

Before we begin our analysis of this issue, we note that the rationale underlying a challenge for cause to a compensated employee of a public law enforcement agency is to ensure that the jury in a criminal case remains impartial in both fact and appearance. People in the Interest of R.A.D., 196 Colo. 430, 432, 586 P.2d 46, 47 (1978); see Tate v. People, 125 Colo. 527, 538-540, 247 P.2d 665, 670-71 (1952). The concern is that one who is employed by a law enforcement agency will favor, or will be perceived to favor, the prosecution side of a criminal case. People in the Interest of R.A.D., 196 Colo. at 432, 586 P.2d at 47.

Because a criminal defendant has the constitutional right to a fair trial by an impartial jury, see U.S. Const. amend. VI; Colo. Const. art. II, § 16, a trial court in a criminal case must grant all valid challenges for cause, see § 16-10-103; Carrillo v. People, 974 P.2d 478, 486-87 (Colo.1999). Even so, a trial court's failure to grant a valid challenge for cause requires retrial only if the defendant used a peremptory challenge to excuse the prospective juror and then exercised all available peremptory challenges.⁴ Carrillo, 974 P.2d at 486-87.

1. The Term "Law Enforcement Agency"

We now begin our analysis of this issue, which requires us to construe the definition of the term "law enforcement agency" as it is used in ...