People ex rel. Faulk v. District Court of Eleventh Judicial Dist. of Colorado, 83SA231

• Decision Date: 22 August 1983
• Docket Number: No. 83SA231,83SA231
• Citation: 667 P.2d 1384
• Parties: The PEOPLE of the State of Colorado, ex rel. Dennis E. FAULK, District Attorney In and For the Eleventh Judicial District, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT OF COLORADO and the Honorable Paul J. Keohane, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 1384

667 P.2d 1384

The PEOPLE of the State of Colorado, ex rel. Dennis E FAULK, District Attorney In and For the Eleventh Judicial District, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT OF COLORADO and the Honorable Paul J. Keohane, One of the Judges Thereof, Respondents.

No. 83SA231.

Supreme Court of Colorado En Banc.

Aug. 22, 1983.

Dennis E. Faulk, Dist. Atty., Canon City, pro se.

Steven B. Rich, Deputy Dist. Atty., Fairplay, for petitioner.

Paul J. Keohane, District Judge, pro se.

David F. Vela, Colorado State Public Defender, Kenneth M. Plotz, Philip L. Dubois, Deputy State Public Defenders, Salida, Leonard Campbell, Marla K. Thoe, Montrose, for respondents.

QUINN, Justice.

In this original proceeding the People seek an order requiring the respondent court to sequester a jury in a first degree murder trial and another order prohibiting the court from admitting into evidence at trial the deposition testimony of a defense witness. We issued a rule to show cause and now make the rule absolute.

I.

A brief review of this case is necessary in order to place the issues in proper focus. Mary Williams, the defendant in the pending trial, is charged with first degree murder after deliberation, ¹ committed against her late husband, Clint Williams, on January 27, 1981, in Chaffee County, Colorado. The indictment was originally returned in the District Court of Chaffee County, but venue was later changed to Fremont County, where the matter is now awaiting trial. Before the change of venue, the District Court of Chaffee County granted the defendant's motion to take the deposition of a witness, John C. Howlett, who was in poor health. Mr. Howlett's deposition was not taken in the presence of the court, but instead was taken in the defense attorney's office at Buena Vista, Colorado, with the district attorney present.

On May 26, 1983, after venue had been changed to the District Court of Fremont County, the case came up for hearing in that court on two matters. The court first considered the defendant's motion to admit into evidence the deposition of Mr. Howlett at the upcoming trial scheduled for June 6, 1983. The respondent court ruled that because the judge was not present at the deposition, the deposition would not be admitted. ² The defendant then requested permission to retake the deposition of Mr. Howlett in the presence of a judge and presented testimony from Mr. Howlett's physician, Dr. Michael L. Dennington, relating to the witness's physical condition. Dr. Dennington testified that Mr. Howlett's larynx had been surgically removed three years previously due to laryngeal carcinoma. Mr. Howlett used a voice box to communicate and, according to Dr. Dennington, would experience some stress in testifying since he also had emphysema. The doctor, however, could not state that Mr. Howlett was presently suffering from cancer. It was also the doctor's view that Mr. Howlett, although experiencing intermittent good and bad days, might well be able to testify at the upcoming trial, but had planned a vacation to Alaska and would be greatly inconvenienced if he would be required to forego his vacation at this time. At the conclusion of the hearing the court ruled that no showing had been made of the witness's present inability to testify at trial. The court, however, granted the defendant's motion to take Mr. Howlett's deposition in court on the following day. ³

On May 27, 1983, Mr. Howlett was deposed in the presence of the court. Although Mr. Howlett's wife was sworn in as an interpreter for the purpose of translating any testimony that might not be readily understandable, Mr. Howlett was able to effectively communicate during a rather lengthy deposition and there was practically no need for the services of an interpreter. Mr. Howlett's testimony related basically to his acquaintance with the victim and to three conversations which he had with the victim approximately three months prior to the homicide. On two separate occasions he spoke to the victim on a road outside Buena Vista. The victim, who appeared frightened on both occasions, told Mr. Howlett that he had received threatening phone calls at his home from some man whose voice he was unable to recognize. A few days after his second conversation with the victim, Mr. Howlett again encountered him on the road in a highly emotional state. The victim on this occasion told Mr. Howlett that as he was driving to work some man in a truck had tried to run him off the road. ⁴ At the conclusion of the deposition the court ruled that it would be admitted at trial because, in the court's view, there was a significant probability that Mr. Howlett would be unable to testify at trial due to his various ailments.

After ruling on the deposition, the court addressed the motion for a sequestered jury. The district attorney, although not intending to qualify the jury for the death penalty, concurred in the defendant's request for sequestration and advised the court that Colorado case law mandated a sequestered jury in a first degree murder trial. The respondent court, however, being of the opinion that sequestration was unnecessary unless the jury was death-qualified, ruled that the jury would not be sequestered. The district attorney thereafter commenced an original proceeding in this court.

II.

We first consider the respondent court's refusal to sequester the jury. Crim.P. 24(f) provides that the sequestration of the jury in noncapital cases shall only be upon express order of court for good cause shown, but in capital cases "jurors shall remain in the bailiff's custody during all recesses from the time the jury is selected until discharged by the court." The issue before us, therefore, is whether the trial of a first degree murder charge is a capital case for purposes of Crim.P. 24(f), even though the district attorney does not intend to qualify the jury for consideration of the death penalty or to seek the imposition of the death penalty in the event of a conviction. ⁵

In Tribe v. District Court, 197 Colo. 433, 593 P.2d 1369 (1979), we considered the meaning of a "capital case" for purposes of jury sequestration under Crim.P. 24(f). In that case Tribe was charged with first degree murder and moved to sequester the jury. The trial court denied the request because the death penalty could not at that time have been constitutionally imposed in the event of a conviction. Tribe then sought prohibitory relief in this court. Drawing on the analogous authority of People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972) (per curiam), which held that a first degree murder charge is a capital offense for purposes of bail even though, under the state of the law existing at that time, the death penalty could not be constitutionally imposed, and People v. Haines, 37 Colo.App. 302, 549 P.2d 786 (1976), which similarly held that a first degree murder case, regardless of the constitutional status of capital punishment, was a capital case for purposes of the number of peremptory challenges available to an accused, this court in a unanimous opinion held that "Crim.P. 24(f) continues to require sequestration of jurors in a first-degree murder case unless the requirement is waived by the accused." 197 Colo. at 435, 593 P.2d at 1371. Our decision in Tribe is controlling on the issue raised here. A capital case for purposes of jury sequestration under Crim.P. 24(f) includes those offenses which by reason of their gravity have been classified as class 1 felonies and by statute carry the most serious penalty authorized by law, life imprisonment or death. Murder in the first degree is such an offense. ⁶ Sections 18-3-102(3), C.R.S.1973 (1978 Repl.Vol. 8) and 18-1-105(1), C.R.S.1973 (1982 Supp.).

Notwithstanding the clear holding of Tribe, the respondent court argues that any error in not sequestering the jury would be harmless unless the defendant could demonstrate prejudice from the nonsequestration. The short answer to this argument is that it is not the function of a trial court in passing upon the sequestration motion to indulge in a speculative forecast about the harmless character of any error in denying what is in all respects a meritorious motion. The obligation of the court was to apply the pertinent decisional law in resolving the motion before it, and that decisional law mandated that the motion be granted under the circumstances of this case.

The respondent court also argues that an order of sequestration will result in excluding from the jury large segments of the community except the unemployed, the retired, homemakers, and those persons whose employment provides them compensation during jury duty. We are unpersuaded by the respondent's claim. The policy of this state, as expressed in the Uniform Jury Selection and Service Act, section 13-71-101, et seq., C.R.S.1973 and 1982 Supp., is that all qualified citizens should be accorded the opportunity to be considered for jury service and that these citizens have an obligation to serve as jurors when summoned for that purpose. Section 13-71-102, C.R.S.1973. In keeping with this policy, no person who is otherwise qualified for jury service is "exempt." Section 13-71- 111, C.R.S.1973. While the court is authorized to "excuse" a person not disqualified upon a showing of "undue hardship, extreme inconvenience, or public necessity," the excuse runs only for that period of time deemed necessary by the court, at the conclusion of which the person must reappear for jury service in accordance with the court's direction. Section 13-71-112(2), C.R.S.1973. Jury service being an obligation of citizenship, the court should not excuse a person otherwise qualified for jury service for any reason short of the statutory criteria of "undue hardship, extreme inconvenience, or public necessity" set out in section 13-71-112(2), C.R.S.1973. To the extent that the respondent's argument assumes that it...