People v. Carrillo, 95CA0299

Decision Date20 March 1997
Docket NumberNo. 95CA0299,95CA0299
Citation946 P.2d 544
Parties21 Colorado Journal 390 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Richard CARRILLO, Defendant-Appellant. . III
CourtColorado Court of Appeals

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Richard E. Mishkin, Lakewood, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, David Richard Carrillo, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder, conspiracy to commit first degree murder, and contributing to the delinquency of a minor. Defendant contends the trial court erred by rejecting his challenges for cause to several prospective jurors, removing a juror during deliberations, and denying several pre-trial motions. We affirm.

Defendant was accused of participating in a gang killing. Although he did not fire the shot that killed the victim, the evidence showed he was one of several complicitors. Defendant was tried jointly with a co-defendant, and both were convicted.

I.

Defendant contends the trial court abused its discretion in rejecting his challenges for cause to several prospective jurors. We disagree.

Even if a potential juror expresses some prejudice or predisposition, a disqualification for cause is not required if the trial court is reasonably satisfied that the prospective juror is willing to be fair and to follow instructions. People v. Schmidt, 885 P.2d 312 (Colo.App.1994). In making its determination, the trial court may give considerable weight to a potential juror's statement that the juror can fairly and impartially serve on the case. People v. Sandoval, 733 P.2d 319 (Colo.1987).

The trial court is in the best position to assess by personal observation the attitudes and states of mind of a potential juror. People v. Fuller, 791 P.2d 702 (Colo.1990); People v. Schmidt, supra. This includes evaluating what may appear to be inconsistent responses to difficult questions. See People v. Veloz, 946 P.2d 525 (Colo.App.1997). Hence, a trial court's denial of a challenge for cause will be set aside only if the record discloses a clear abuse of discretion. People v. Fuller, supra; People v. Schmidt, supra.

Here, defendant contends the court should have removed five prospective jurors because two initially stated they would expect the defendant to testify on his own behalf, and three others expressed some doubt about the presumption that defendant was innocent. Defendant exercised peremptory challenges on all five prospective jurors.

Defendant raises the issue with respect to one of these five jurors for the first time on appeal in his reply brief. His contentions regarding that juror will therefore not be considered. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

One of the remaining four knew the victim's father and on one occasion had worked with him. However, the juror had not met the victim and had not spoken with the victim's father since the killing. While the juror expressed the opinion that, if he were the defendant, he would not like to have himself on the jury, he also stated that he would listen and base his verdict on what he heard.

With respect to the other three jurors, the record reveals that, after further questioning, all three agreed they would set aside any contrary personal beliefs, follow the court's instructions, not judge defendant adversely should he not testify, and make their decisions based upon the law and the evidence adduced at trial. In addition, one of the three, separately challenged because of his heavy work schedule, stated he would attempt to give the proceedings his full attention.

None of the jurors' responses reveals an unyielding belief that the defendant was guilty or an unwillingness to make their decision based upon the law and evidence adduced at trial. In these circumstances, regardless of whether we might have reached a contrary result, we perceive no clear abuse of discretion by the trial court in refusing to dismiss these jurors for cause. See People v. Sandoval, supra; People v. Ferrero, 874 P.2d 468 (Colo.App.1993).

II.

Defendant next asserts the trial court's removal of a juror and substitution of an alternate during deliberations violated his constitutional right to a fair trial. We are not persuaded.

A.

Crim. P. 24(e) provides that an alternate juror "shall not be discharged until the jury renders its verdict or until such time as determined by the court." (emphasis added) That language arguably conflicts with the present language in § 16-10-105, C.R.S. (1996 Cum.Supp.), which provides that an alternate juror "shall be discharged when the jury retires to consider its verdict or at such time as determined by the court." (emphasis added) We nevertheless conclude that the trial court had the authority under both the rule and the statute to replace the juror with an alternate during jury deliberations.

In People v. Burnette, 775 P.2d 583 (Colo.1989), the supreme court addressed a situation in which the replacement of a juror with an alternate during deliberations violated both Crim. P. 24(e) and § 16-10-105, C.R.S. (1986 Repl.Vol. 8A), because at that time both required the court to discharge the alternate at the time the jury retired to consider its verdict. The court held the violation raised a presumption of prejudice that, if not rebutted, required reversal of any conviction obtained as a result of a verdict rendered by the improperly constituted jury. See People v. Patterson, 832 P.2d 1083 (Colo.App.1992).

In response, the General Assembly in 1990 amended § 16-10-105 to provide that an alternate juror "shall not be discharged until the time the jury renders its verdict or until such time as determined by the court." Colo. Sess. Laws 1990, ch. 117 at 924. Crim. P. 24(e) was then amended to be consistent with the statute.

The next year the General Assembly again amended § 16-10-105 to provide that an alternate juror "shall be discharged when the jury retires to consider its verdict or at such time as determined by the court." Colo. Sess. Laws 1991, ch. 80 at 429-30. This time, Crim. P. 24(e) was not amended to be consistent with the new statutory wording.

The end result of the two statutory amendments is that § 16-10-105 now provides, as it did before the amendments, that an alternate juror is to be discharged when the jury retires to consider its verdict, with one important addition: The trial court in its discretion may dismiss the alternate at a different time.

Thus, while a trial court will ordinarily dismiss an alternate juror when the jury retires to consider its verdict, nothing in the plain language of the current statute prevents the trial court from dismissing an alternate juror after, as well as before, the jury commences deliberations. Rather, § 16-10-105 now permits the trial court to delay the discharge of the alternate juror if, for example, facilities are available to segregate the alternate during deliberations and if, because of the length or complexity of the trial, or because of the court's concern with personal circumstances of a juror, or both, the court perceives a likelihood that a juror may have to be replaced during deliberations.

To the extent the current statute might be deemed to be ambiguous, we read the legislative history as supporting our construction of it. See Hearings on H.B. 1118 before the House Judiciary Committee, 57th General Assembly, Second Session (January 30, 1990); Hearings on H.B. 1118 before the Senate Judiciary Committee, 57th General Assembly, Second Session (February 26, 1990); Hearings on H.B. 1076 before the House Judiciary Committee, 58th General Assembly, First Session (January 17, 1991); Hearings on H.B. 1076 before the Senate Judiciary Committee, 58th General Assembly, First Session (February 25, 1991).

The 1990 amendment to § 16-10-105, as originally introduced, would have read: "An alternate juror shall not be discharged until the jury renders its verdict." The purpose was to have an alternate available if during deliberations a juror became incapacitated or otherwise unable to continue.

However, the annual procedural omnibus bill submitted by the Colorado District Attorney's Council included a recommended "amendment to the amendment" that added the following additional phrase at the end of the original proposed amendment: "or at such time as determined by the court." The explanation given at the time it was introduced was that this would give the court discretion to dismiss a juror before the jury rendered its verdict, contrary to the preceding phrase, which affirmatively prohibited the discharge of an alternate until the jury reached its verdict. It was suggested that such discretion might be exercised, for example, in a relatively simple case in which it appeared the jury deliberations would be sufficiently brief that no alternate juror would likely be needed. The bill, with the amendment, passed without further discussion.

The 1991 amendment changed the time for dismissal of an alternate back to when the jury retired to deliberate. It was once again part of the District Attorney's procedural omnibus bill. The stated need for the change was that, in some districts, no facilities were available for segregating the alternate juror during jury deliberations.

Of significance, the stated purpose of the 1991 amendment was to "go back to the way things were, and that is, allow it to be at the discretion of the court." This reflects the mistaken notion that the discretion had been present in the original version of the statute rather than having been added the year before. Nevertheless, it does not indicate the General Assembly had changed its intent to give the trial court...

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12 cases
  • Carrillo v. People, 97SC517
    • United States
    • Colorado Supreme Court
    • February 22, 1999
    ...whether the defendant's right to a fair jury trial was violated. We review the decision of the court of appeals in People v. Carrillo, 946 P.2d 544 (Colo.App.1997), which affirmed Carrillo's convictions. Concerning the first issue, the court of appeals held that the trial court did not abus......
  • People v. Chavez
    • United States
    • Colorado Court of Appeals
    • August 11, 2011
    ...reasonably satisfied that the prospective juror is willing to be fair and to follow the court's instructions. People v. Carrillo, 946 P.2d 544, 547 (Colo.App.1997)( Carrillo I),af'd, Carrillo II. Here, Chavez does not contend that Jurors M., R., and P. could not follow the court's instructi......
  • Carrillo v. Zupan, Civil Action No. 15-cv-00376-GPG
    • United States
    • U.S. District Court — District of Colorado
    • May 19, 2015
    ...of conviction and the sentence were affirmed by the Colorado Court of Appeals on direct appeal on March 20, 1997. See People v. Carrillo, 946 P.2d 544 (Colo. App. 1997) (ECF No. 12-3). On February 22, 1999, the Colorado SupremePage 3Court also affirmed his conviction. See People v. Carrillo......
  • State v. Krutilek
    • United States
    • Nebraska Supreme Court
    • February 20, 1998
    ...of the trial court when either a juror or potential juror is equivocal in his or her ability to be impartial. See, People v. Carrillo, 946 P.2d 544 (Colo.App.1997) (when none of jurors revealed unyielding belief that defendant was guilty or unwillingness to deliver verdict based on law and ......
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