People ex rel. D.F.A.E., Court of Appeals No. 17CA0042

Docket NºCourt of Appeals No. 17CA0042
Citation482 P.3d 489
Case DateJune 11, 2020
CourtCourt of Appeals of Colorado

482 P.3d 489

The PEOPLE of the State of Colorado, Petitioner-Appellee,

In the INTEREST OF D.F.A.E., Juvenile-Appellant.

Court of Appeals No. 17CA0042

Colorado Court of Appeals, Division VI.

Announced June 11, 2020
As Modified on Denial of Rehearing July 23, 2020

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

Opinion by JUDGE DUNN

482 P.3d 492

¶ 1 D.F.A.E. (D.E.) and the victim had a sexual encounter. He said it was consensual. She said it wasn't. The jury agreed with the victim on this point, and the juvenile court adjudicated D.E. delinquent for acts that, if committed by an adult, would constitute sexual assault and enticement of a child.

¶ 2 Appealing his adjudication, D.E. challenges several of the juvenile court's discretionary decisions. Among those, he concentrates on the decision to retain a juror who, he contends, intentionally withheld material information during voir dire. He insists that this requires reversal, in part because it cost him the ability to challenge the juror for cause or, in the alternative, exercise a peremptory challenge.

¶ 3 Because the record supports the juvenile court's findings that the juror didn't intentionally withhold information and that she could be fair and impartial, we can't conclude either that a biased juror sat on the jury or that the juvenile court abused its discretion by retaining the juror. And in light of the shift in precedent that now no longer presumes prejudice from the loss of a peremptory challenge, we also can't agree with D.E. that the loss of such a challenge requires reversal.

¶ 4 As to D.E.’s remaining contentions, because they challenge rulings that were either within the juvenile court's discretion or harmless, we reject those as well. Therefore, we affirm the adjudication.

I. Background

¶ 5 Late one night in the summer of 2015, the victim asked D.E., who went to school with the victim's sister, for a ride to a friend's house. D.E. agreed, and while en route, he allegedly threatened the victim with a pocketknife and forced her to perform oral sex. He then told her to take off her clothes, sexually assaulted her, and again forced her to perform oral sex. After this, D.E. drove the victim back to her home, where she reported the assault to friends and family. The victim's mother took her to a hospital for a sexual assault examination, and the police were contacted.

¶ 6 The prosecution charged D.E. as a delinquent with one count of sexual assault (deadly weapon), one count of sexual assault, one count of enticement of a child, one count of menacing, and two sentence enhancers.

¶ 7 At trial, D.E. defended on the theory that the entire encounter was consensual and that he never used a deadly weapon. The jury rejected his consent defense and found him guilty of enticement and one sexual assault count. But the jury acquitted him of both counts requiring proof of a deadly weapon.

¶ 8 The juvenile court adjudicated D.E. delinquent and sentenced him to six months in jail on the sexual assault count and six years of sex offender intensive supervision probation on the enticement count.

II. Juror Removal

¶ 9 D.E. first argues that the juvenile court committed reversible error by not excusing a juror who, he alleges, intentionally withheld material information during voir dire. We are not persuaded.

A. Additional Facts

¶ 10 Before voir dire, all prospective jurors completed a written questionnaire that included these questions, among others:

[Question 3:] Have you (or anyone you are close to) ever been the victim of a crime? What type of crime? Was the crime related to sexual assault, sexual contact, or rape? In what jurisdiction? When? Were charges ever filed?


[Question 6:] Have you ever been involved in providing any type of care or services
482 P.3d 493
for alleged victims of sexual assault[,] sexual contact, or rape?

If a prospective juror answered Question 3 "yes," that juror was then asked to "describe how this has affected your feelings about sexual assault, sexual contact, or rape?" The questionnaire also provided each prospective juror the option to discuss his or her answers "in a private place, outside the presence of other potential jurors."

¶ 11 Juror N answered "no" to both questions and did not check the box to indicate that she wanted to privately discuss her answers. Neither the prosecution nor the defense questioned Juror N much during voir dire, and Juror N was ultimately selected to serve on the jury.

¶ 12 Right after the jury was sworn and the court was about to dismiss the jurors for the day, Juror N indicated she needed to speak to the court and counsel. She then stated:

I'm sorry that I haven't said anything sooner. I just felt like I didn't really have a chance. But I did say and I did swear and I believe innocent until proven guilty. I believe in a fair justice system and I'm in this all the way, but I'm just an emotional person.

About 27 years ago my daughter was date raped. She was 14 and she was seeing a boy 17, kind of without our permission. Anyway, we just (inaudible) said no. She did get pregnant, we gave the child up for adoption. We all grew from this. It was actually — we all grew from it. It was a good experience because it was a family and we have a beautiful — there's a wonderful woman out there now and she's living a wonderful life. That's all I wanted to say.

It doesn't — no honestly, Judge, it does not affect me because I have also raised four boys, and one of my sons when he was in college, one of the girls wanted to accuse him of getting her pregnant and he said, "Mother, I did not." And he had to have a patern[ity] test done to prove that. It was DNA to prove he was innocent and of course he was innocent, it was not his child.

So raising four boys and having a daughter, I understand both sides. I understand how teenagers think and the way they are. So this isn't going to affect this young man at all. I look to him as innocent until I receive all the — and that's just wanted [sic] to say. I apologize for not saying anything sooner.

¶ 13 In response to a question from the court, Juror N stated, "I absolutely still believe in a fair trial for this young man." Explaining her response to Question 3 on the questionnaire, she said that "we didn't press any charges," "we didn't prosecute him," and she "didn't look at it as a crime I guess."1 And when defense counsel asked why she hadn't disclosed this information earlier, she responded:

I guess because you didn't ask and you kept asking all these other people and I didn't want to raise my hand and be embarrassed and have everybody look at me like what is she going to stand up there for. So I was a little embarrassed.

Then, when responding to defense counsel's question whether she could be fair and presume D.E. innocent given her history, and whether as a parent she would want herself on the jury, she said that "[a]ny parent would be worried if that was their child," but reiterated that "it will not affect me, truthfully. Honestly."

¶ 14 After this exchange, the court said it would revisit the issue the next day but that Juror N was "still an active juror." The next morning, defense counsel asked for a mistrial or to replace Juror N with the alternate.

¶ 15 The court denied both requests, finding that Juror N was "very credible," didn't intentionally withhold information, and could "be a fair and very unbiased juror." The court also stated that because it saw no "bias" or "just cause" to dismiss Juror N, replacing her with an alternate would be "outside the scope" of the court's authority.

482 P.3d 494

B. Standard of Review and Governing Law

¶ 16 Because the juvenile court is in the best position to evaluate whether a juror is unable to serve, we review for an abuse of discretion the court's decision to not excuse a juror. People v. Christopher , 896 P.2d 876, 879 (Colo. 1995) ; People v. Drake , 841 P.2d 364, 367 (Colo. App. 1992). We will not disturb that decision unless it was manifestly arbitrary, unreasonable, or unfair, or misapplied the law. People v. Wadle , 97 P.3d 932, 936 (Colo. 2004).

¶ 17 "A new trial may be required where a juror deliberately misrepresents or knowingly conceals information relevant to a challenge for cause or a [peremptory] challenge." Christopher , 896 P.2d at 878 ; see People v. Dunoyair , 660 P.2d 890, 895 (Colo. 1983) ("[K]nowing concealment is itself evidence that the juror was likely incapable of rendering a fair and impartial verdict in the matter."). But if a juror's failure to disclose was inadvertent, the defendant must demonstrate that the undisclosed information "was such as to create an actual bias either in favor of the prosecution or against the defendant." Dunoyair , 660 P.2d at 896. Absent a showing that the juror was actually biased, we must assume that she followed the court's instructions and decided the case based solely on the evidence and the law. Christopher , 896 P.2d at 879.

¶ 18 A juror's failure to answer...

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