People v. Fleischacker
| Decision Date | 17 January 2013 |
| Docket Number | No. 09CA2533.,09CA2533. |
| Citation | 411 P.3d 20 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Turk Alan FLEISCHACKER, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge MILLER.
¶ 1 Defendant, Turk Alan Fleischacker, appeals the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child—position of trust, sexual assault on a child—pattern of abuse, and sexual assault on a child.
¶ 2 Defendant contends that (1) the trial court improperly denied his challenges for cause regarding two jurors and (2) the jury violated his right to be free from double jeopardy by issuing two convictions on identical elements and factual bases. We affirm and as a matter of first impression hold that section 16–10–103(1)(b), C.R.S.2012, does not require the disqualification of a prospective juror related within the third degree to a paralegal working in a district attorney's office.
¶ 3 When she was ten years old, the victim told her mother that defendant, her stepfather, had been touching her inappropriately. Her mother questioned her about the details. After the victim told her mother that defendant had pinched her breasts and "had her sitting on his lap and was moving her around," the mother went to confront defendant while he was at work. When she asked him whether the accusations were true, he responded, "Yeah, but it doesn't really matter, I'm not her dad." The mother then reported the accusations to the police.
¶ 5 A jury convicted defendant of the three counts of sexual assault on a child described above.
¶ 6 Defendant contends that the trial court erred in denying his challenges for cause against Jurors G. and J. We disagree.
¶ 7 We review a trial court's denial of a challenge for cause for an abuse of discretion. Carrillo v. People, 974 P.2d 478, 485 (Colo.1999) ; People v. Hancock, 220 P.3d 1015, 1016 (Colo.App.2009). The trial court has broad discretion over challenges for cause because it is in the best position to assess a potential juror's demeanor, credibility, and sincerity. Dunlap v. People, 173 P.3d 1054, 1082 (Colo.2007) ; People v. Shover, 217 P.3d 901, 907 (Colo.App.2009) (). "A court abuses its discretion when it renders a decision that is manifestly arbitrary, unreasonable, or unfair." People v. Luman, 994 P.2d 432, 435 (Colo.App.1999). Where a trial court errs in denying a challenge for cause and the defendant exhausts his or her peremptory challenges, reversal is required without any further demonstration of prejudice. Morrison v. People, 19 P.3d 668, 671 (Colo.2000) ; People v. Hancock, 220 P.3d 1015, 1016 (Colo.App.2009).
¶ 8 During voir dire, Juror G. asked to speak with the court and the attorneys in private. In chambers, Juror G. told the court that he had previously worked in law enforcement for four and one-half years, his daughter was an employee at the district attorney's office, his son worked for the Denver sheriff's office, and his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter's wedding the previous month. Upon questioning, Juror G. added that his daughter was a certified paralegal and had worked for two and one-half years as "a legal assistant and paralegal" for the same district attorney's office prosecuting defendant's case. He said that he sometimes talked to his daughter about her work and would occasionally go to her office to "swap[ ] keys and things along those lines."
¶ 9 After disclosing this information, Juror G. said, "I don't know that I would be the best for your case." In response to questions, however, Juror G. expressly said he "could be fair to both sides." He also told the court that he could listen to the evidence and decide whether the prosecutor had proved the charges beyond a reasonable doubt.
¶ 10 Defendant challenged Juror G. for cause on the basis of his relationship with the prosecution and law enforcement, explicitly referring to his daughter's employment with the district attorney's office. The trial court denied the challenge. The court said that it "had an opportunity to observe him and observe his answers" and that his visits to the district attorney's office were "limited to doing personal things with his daughter instead of interacting with office personnel."
¶ 11 Defendant used a peremptory challenge to remove Juror G. and exhausted all of his peremptory challenges.
¶ 12 Defendant first contends that the trial court erred when it did not find implied bias on the part of Juror G., as a matter of law, under section 16–10–103(1)(b). We disagree.
¶ 13 In determining the meaning of a statute, our central task is to ascertain and give effect to the intent of the General Assembly. Robbins v. People, 107 P.3d 384, 387 (Colo.2005). We begin by looking to the express language of the statute, construing words and phrases according to their plain and ordinary meaning. Id.; see § 2–4–101, C.R.S.2012. If, after review of the statute's language, we conclude that the statute is unambiguous and the intent appears with reasonable certainty, our analysis is complete. People v. Darlington, 105 P.3d 230, 234 (Colo.2005).
¶ 14 Section 16–10–103(1)(b) provides that a trial court shall sustain a challenge for cause when a juror has a "[r]elationship within the third degree, by blood, adoption, or marriage, to a defendant or to any attorney of record or attorney engaged in the trial of the case." The supreme court held in People v. Macrander, 828 P.2d 234, 241 (Colo.1992), that when an elected district attorney is the attorney of record, a challenge for cause should be sustained under section 16–10–103(1)(b) based on a juror's relationship not only to the district attorney, but also to the assistant district attorney, the chief deputy district attorney, and all deputy district attorneys in that office.
¶ 15 Juror G. was related within the third degree to his daughter, a paralegal in the district attorney's office. Defendant argues Macrander 's holding includes paralegals employed by the district attorney's office under the definition of "attorney of record." On its face, however, Macrander does not apply to paralegals, and we decline to expand its holding beyond deputy district attorneys employed by an elected district attorney. We do so for several reasons:
To continue reading
Request your trial
-
People v. Marciano
...during voir dire, such concerns and beliefs do not automatically disqualify them from service. People v. Fleischacker, 2013 COA 2, ¶ 27, 411 P.3d 20. The trial court or the prosecutor can rehabilitate a potential juror. Id. If the potential juror indicates that she can set aside those belie......
-
People v. Garcia, Court of Appeals No. 16CA1134
...long has he has expressed a belief that he can be fair and has made a commitment to try do so. People v. Fleischacker , 2013 COA 2, ¶ 27, 411 P.3d 20.¶ 23 Second, J.P. repeatedly explained that many of his misgivings stemmed from the fact that he had never been on a jury before and that he ......