People v. Garcia
| Decision Date | 03 September 1998 |
| Docket Number | No. 96CA1516,96CA1516 |
| Citation | 964 P.2d 619 |
| Parties | 98 CJ C.A.R. 4612 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eileen C. GARCIA, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Lauren A. Edelstein, Assistant Attorney General, Denver, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for Defendant-Appellant.
Opinion by Judge DAVIDSON.
Defendant, Eileen C. Garcia, appeals from the judgment of conviction entered upon a jury verdict finding her guilty of child abuse resulting in death. She also appeals the sentence imposed. We affirm.
On the day of the victim's death, the victim's mother brought the victim, a 19-month old child, and her brother to defendant's house for child care. Shortly thereafter, the victim's mother received a telephone call informing her that the victim had been injured in a fall from a playground slide. She died at the hospital several hours later. An autopsy determined the cause of death to be blunt force blows to the victim's head. Evidence of retinal hemorrhaging, consistent with shaken baby syndrome, also was present.
Defendant was charged with the offense at issue, but she continued to maintain that the injury to the victim's head was the result either of a fall from the slide earlier that day or accidental injuries suffered a few days before.
During the jury's deliberations, several notes were sent to the trial court, some of which stated that one juror had commented on deliberations before the close of the trial, would not follow the court's instructions, and had refused to deliberate.
The trial court, after a hearing in chambers, discharged the juror and replaced him with an alternate juror. The conviction at issue here followed.
Defendant contends that the trial court erred in dismissing the juror after the jury had begun its deliberations. She argues that the trial court did not follow the required procedure to dismiss the juror, improperly interviewed the jury foreperson in taking such action, and erroneously denied defendant's motion for a mistrial following the juror's dismissal. We disagree.
Under § 16-10-106, C.R.S.1997, a trial court has authority to remove a juror who "by reason of illness or other cause becomes unable to continue until a verdict is reached." Section 16-10-105, C.R.S.1997, allows the court to use alternate jurors to replace those jurors who become "unable or disqualified to perform their duties." See also Crim. P. 24(e). Compare People v. Carrillo, 946 P.2d 544 (Colo.App.1997) (cert. granted November 24, 1997) (both § 16-10-105 and Crim. P. 24(e) permit a trial court to replace a juror with an alternate after jury deliberations have commenced) with People v. Montoya, 942 P.2d 1287 (Colo.App.1996) ().
Defendant does not challenge the authority of the trial court to remove a juror for illness or other cause and replace him or her with an alternate juror after deliberations have begun. Instead, defendant contends that, because the prosecutor did not move for a mistrial under § 16-10-103(3), C.R.S.1997, the juror was improperly dismissed. We disagree.
Section 16-10-103(3) provides:
If either party desires to introduce evidence of the incompetency, disqualification, or prejudice of any prospective juror who upon the voir dire examination appears to be qualified, competent, and unprejudiced, such evidence shall be heard, and the competency of the juror shall be determined, by the court, out of the presence of the other jurors, but this action cannot be taken after the jury has been sworn to try the case except upon a motion for mistrial. (emphasis added)
According to its plain language, § 16-10-103(3) governs a challenge for cause--by either the prosecutor or the defendant--to a prospective juror. This provision assumes that if a juror is disqualified because of evidence later discovered by a party to the case, because such challenge may arise after the jury has been sworn, a mistrial may be required. In that regard, such action raises double jeopardy concerns. See People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (); Maddox v. State, 230 Ind. 92, 102 N.E.2d 225 (1951) ().
These concerns are alleviated by the requirement that a party seeking to present evidence that a juror is disqualified to serve must move for mistrial. If evidence supporting a juror's disqualification is offered as part of a motion for mistrial, a defendant is afforded protection against bad faith conduct by the prosecution because the court is required to determine if good cause exists to discharge the juror and to declare a mistrial if manifest necessity requires it to do so. See People v. Schwartz, 678 P.2d 1000 (Colo.1984) (). Similarly, if such challenge is brought by the defendant in the same manner, the defendant waives his or her double jeopardy protection and cannot force a mistrial to avoid prosecution. See People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977) (). Thus, this statute ensures that double jeopardy concerns do not prevent a retrial if circumstances presented by either party necessitate the removal of a juror for cause.
However, here, neither the prosecutor nor the defendant challenged the juror's presence on the panel during the selection process or during the jury's deliberations. Indeed, because of the secret nature of deliberations, evidence of the juror's alleged misconduct was not discovered, nor was it discoverable, by either party. Therefore, since neither party brought the juror's misconduct to the court's attention, the double jeopardy concerns reflected in § 16-10-103(3) were not implicated, and the statute was not applicable. Thus, the prosecution was not required to move for mistrial before the court could consider whether to dismiss the juror.
Similarly, we disagree with defendant that the court did not conduct a proper inquiry to determine whether the juror was unable to follow the court's instructions. She argues that, under Crim. P. 24(b)(2), a trial court, in determining a challenge for cause, may interview only the challenged juror and that, therefore, the court's dismissal of the juror based on its inquiry of the jury foreperson was improper.
Crim. P. 24(b)(2) provides, in pertinent part, that:
If either party desires to introduce evidence, other than the sworn responses of the prospective juror, for the purpose of establishing grounds to disqualify or challenge the juror for cause, such evidence shall be heard and all issues related thereto shall be determined by the court out of the presence of the other prospective jurors. (emphasis added)
Thus, and similar to § 16-10-103(3), this rule is applicable only when a party desires to introduce extrinsic evidence in support of its challenge for cause to a prospective juror. Accordingly, even if we were to assume that this rule would preclude an interview with anyone other than the challenged juror, here, the challenge to the juror was not initiated by either the prosecutor or the defendant. Thus, the trial court's inquiry was not improper.
Defendant argues that the court did not have sufficient grounds to dismiss the juror because the juror had not demonstrated an inability to follow the court's instructions. We disagree.
A defendant is not entitled to a particular juror. Rather, he or she is entitled to a trial by a fair and impartial jury. People v. Evans, 674 P.2d 975 (Colo.App.1983).
As discussed, once the jury is sworn, a juror subsequently may be dismissed if he or she becomes unable or disqualified to perform his or her duties. Sections 16-10-106 & 16-10-105; Crim. P. 24(e). The trial court is in the best position to evaluate whether a juror is unable to serve, and its decision to excuse a juror will not be disturbed absent a gross abuse of its discretion. People v. Christopher, 896 P.2d 876 (Colo.1995).
The trial here occurred prior to the effective dates of extensive rules changes concerning jury reform. Accordingly, under the rules in effect here, the court instructed the prospective jurors at the beginning of voir dire that they were not to speculate about the case or discuss it in any way. When the panel was sworn, the court again instructed them that they were not to discuss the case among themselves during the course of the trial and were to reach their decision only through their final deliberations.
Shortly after the jury began its deliberations, the court received a note stating that one juror was refusing to accept the expert testimony as evidence and had stated that he would not follow the court's instructions. The court responded by instructing the jury to review the instructions.
The jury later sent two notes requesting certain items, not relevant here. The requests were denied.
Subsequently, the jury sent a note stating that the same juror who had refused to accept the expert testimony had told several jurors, beginning two or three days into the trial, that he felt there would be a hung jury. The court decided that it was necessary to hold a hearing to determine whether the juror had refused to follow the court's instructions by commenting on deliberations prior to the close of the case. The court acknowledged the possibility that the situation could be that of a deadlocked jury for which the jury would be...
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