People ex rel. D.F.A.E.
| Decision Date | 11 June 2020 |
| Docket Number | Court of Appeals No. 17CA0042 |
| Citation | 482 P.3d 489 |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, In the INTEREST OF D.F.A.E., Juvenile-Appellant. |
| Court | Colorado Court of Appeals |
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
¶ 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.
¶ 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.
¶ 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.
¶ 10 Before voir dire, all prospective jurors completed a written questionnaire that included these questions, among others:
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:
¶ 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
¶ 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.
¶ 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) (). 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 material questions truthfully during voir dire may justify — but does not automatically require — the removal of that juror and replacement with an alternate. People v. Borrelli , 624 P.2d 900, 903 (Colo. App. 1980) ; see also Dunoyair , 660 P.2d at 895. In deciding whether it should dismiss and replace a juror under these circumstances, a court should consider: (1) the juror's assurance of impartiality; (2) the nature of the information withheld during voir dire; (3) whether the nondisclosure was deliberate; (4) any prejudicial effect the nondisclosed information would have had on either party, including the defendant's right to exercise peremptory challenges; and (5) the practical remedies available when the nondisclosure is revealed. Christopher , 896 P.2d at 879. Ultimately, however, removal is required if the court finds actual prejudice or bias. See People v....
To continue reading
Request your trial