People v. Cerrone

• Decision Date: 07 June 1993
• Docket Number: Nos. 91SC760,92SC245,s. 91SC760
• Citation: 854 P.2d 178
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John CERRONE, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Lawrence GOETZ, Respondent.
• Court: Colorado Supreme Court

Page 178

854 P.2d 178

62 USLW 2047

The PEOPLE of the State of Colorado, Petitioner, v. John CERRONE, Respondent.

The PEOPLE of the State of Colorado, Petitioner, v. Lawrence GOETZ, Respondent.

Nos. 91SC760, 92SC245.

Supreme Court of Colorado,

En Banc.

June 7, 1993.

Rehearing Denied July 6, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Denver, for petitioners.

Neil MacFarlane, Westminster, for respondent in No. 91SC760.

David F. Vela, State Public Defender, James A. Henderson, Sp. Deputy Public Defender, Denver, for respondent in No. 92SC245.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari in order to determine whether the Colorado Court of Appeals in People v. Cerrone, 829 P.2d 468 (Colo.App.1991), and People v. Goetz, No. 90CA0514 (Colo.App. Feb. 13, 1991), applied the proper legal standards in concluding under the Equal Protection Clause of the Fourteenth Amendment that there had been racial discrimination in the selection of the 1985-86 Colorado statewide grand jury ("1985-86 grand jury"). We hold that the legal standards applied in Cerrone and Goetz are partially incorrect and that the opposite result is reached when only the correct standards are applied. We therefore reverse the judgments of the court of appeals and remand with directions that it conduct further proceedings to resolve the other issues remaining in the cases. ¹

I

A

On March 12, 1986, the 1985-86 grand jury indicted John Cerrone and Lawrence Goetz ("defendants") in a single indictment which was filed in Jefferson County District Court. ² Goetz moved to quash the indictment on the ground, among others, that the 1985-86 grand jury was illegally constituted in violation of his rights to equal protection. Thereafter, Cerrone filed a similar motion. On September 26 and October 30, 1986, the district court conducted hearings on the motions in which the defendants presented evidence of discrimination in the selection of the 1985-86 grand jury. On December 5, 1986, the district court issued a written order in which it found that the defendants had established a prima facie case of discrimination based on "race, national origin or economic status." On January 30, 1987, the district court conducted a hearing in which the prosecution attempted to rebut the defendants' prima facie showing of discrimination.

Evidence introduced at the September 26 and October 30, 1986, hearings established that Chief Judge Clifton A. Flowers of the Denver District Court ("Chief Judge Flowers" or the "chief judge") was the judicial officer in charge of selecting the 1985-86 grand jury. As a consequence, on January 30, 1987, the People called as witnesses on their behalf a deputy attorney general and one assistant attorney general who assisted and advised the chief judge in selecting the 1985-86 grand jury, and two other assistant attorneys general who assisted Chief Judge Flowers in selecting statewide grand juries in other years. However, Chief Judge Flowers did not testify, and the trial court excluded an affidavit from him offered by the People on the ground that its admission would violate the defendants' rights under the Confrontation Clause of the Sixth Amendment.

Following testimony by the People's last witness on January 30, 1987, the trial court gave the defendants an opportunity to present additional evidence if they desired. The defendants declined to do so. After legal argument and a brief recess the trial court orally delivered its final decision on the issue. It found that during the course of selecting the 1985-86 grand jury, deliberate attempts were made to select persons with college educations or occupations that would help them to understand complicated cases that were to be presented that year to the grand jury and that deliberate attempts were also made to select persons whose jobs and family commitments would allow them most easily to be away from work or home nearly every Friday for one year when the grand jury met. The trial court ultimately found that "what happened in this case was not discrimination" against Spanish-surnamed people and therefore denied the defendants' motions to quash the indictment. ³

Cerrone and Goetz were tried separately. Each was convicted on several counts of violating the Colorado Organized Crime Control Act and on one count of pandering. Each pursued separately an appeal in the court of appeals, raising as one issue among others an alleged Fourteenth Amendment equal protection violation based on racial discrimination in the selection of the 1985-86 grand jury. A decision in Cerrone's appeal was issued first. A panel of the court of appeals held that "there was no evidence from which the trial court could conclude that the [defendant's] showing of discrimination had been rebutted." Cerrone, 829 P.2d at 472. The court reversed the judgment of conviction entered against Cerrone and remanded with directions to quash the indictment. Id. at 473. Several months later, a different panel of the court of appeals held in the Goetz appeal that because Cerrone and Goetz were indicted by the same grand jury in the same indictment, the equal protection claim raised on appeal by Goetz was identical to the claim decided in Cerrone. See Goetz, slip op. at 1-2. Cerrone was therefore dispositive, and the court in Goetz reversed the judgment of conviction entered against Goetz and remanded with directions to quash the indictment. Id., slip op. at 2.

B

The selection of the 1985-86 grand jury was initiated on January 28, 1985, when the Attorney General petitioned the chief judge for an order empaneling a state grand jury. ⁴ Chief Judge Flowers granted the petition and ordered that the 1985-86 grand jury consist of twelve jurors to be selected from the counties of Denver Adams, Arapahoe, Boulder, and Jefferson. ⁵ The State Court Administrator's office thereupon compiled a list of 375 prospective grand jurors, 75 from each of the five counties specified by the chief judge. ⁶ Each of the 375 prospective grand jurors was mailed a summons to appear in court on March 15, 1985, and each was mailed a "Juror Selection Questionnaire" that he or she was instructed to fill out and to return to the court immediately. The questionnaire asked for information regarding the prospective juror, including date of birth, present home address, present and past employment, educational background, record of criminal convictions, and prior participation in other judicial proceedings. The questionnaire asked about the age and occupation of immediate family members living with the prospective juror and whether the prospective juror had close friends or relatives practicing criminal law or employed in law enforcement work. Additionally, the questionnaire stated: "The Grand Jury generally meets one full day per week for a year. Allowances will be made for vacations, illnesses, and essential business trips. Do you have any problems, including health problems, that would interfere with your serving on the Grand Jury? Yes __ No __ If yes, please describe." The questionnaire did not inquire about the race or national origin of the prospective juror.

Most of the 375 questionnaires were returned to the court during February and in early March. Based on answers to the questionnaires and with advice from Deputy Attorney General Gregory G. Smith and several assistant attorneys general, the chief judge settled on a list of 41 prospective jurors whom he required to appear in court on March 15, 1985, for a day of oral voir dire at the close of which the 12-member 1985-86 grand jury was to be empaneled. Those persons who returned questionnaires to the court but who were not chosen to appear for voir dire on the empanelment date received letters from the court notifying them that they were no longer required to appear in court on March 15. A small number of prospective jurors who failed to return their questionnaires also were present in court on March 15. The chief judge asked each of them to fill out a questionnaire at that time and subsequently excused all but one of them. This meant that the original pool of 375 prospective jurors had been narrowed down to 42 for the purpose of oral voir dire and empanelment on March 15, 1985.

The defendants have not challenged and do not now challenge the manner in which the original pool of 375 prospective jurors was selected. Instead, the defendants' claim is that persons with Spanish surnames were unconstitutionally excluded from the venire of 42 prospective jurors chosen to appear for oral voir dire on the empanelment date. ⁷ The defendants established that no Spanish-surnamed persons were chosen for the venire. ⁸ In addition, there was testimony that indicated that the chief judge relied on a coded numbering system for recording on a prospective juror's questionnaire the reason for excluding that prospective juror from the venire. For example, if a questionnaire was marked with the number "12," it meant that there was a medical reason for excluding that prospective juror, while the number "8" meant that the prospective juror was excluded because he or she no longer resided in Colorado. Approximately 68 questionnaires were marked with the number "11," and this apparently meant that the person who returned that questionnaire was being excluded by the chief judge from the venire for some unspecified "other" reason. Of that group of 68, approximately 50 answered "No" to the question "Do you have any problems, including health problems, that would interfere with your serving on the Grand Jury?" Of this latter group of 50, the defendants originally claimed that 7 had Spanish surnames. Whether 7 is the correct number has been the subject of some dispute, ⁹ but all parties agree that at least 5 ¹⁰ Spanish-surnamed...