People v. Gilbert, 98CA2165.

• Decision Date: 13 April 2000
• Docket Number: No. 98CA2165.,98CA2165.
• Citation: 12 P.3d 331
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene GILBERT, Defendant-Appellant.
• Court: Colorado Court of Appeals

12 P.3d 331

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene GILBERT, Defendant-Appellant.

No. 98CA2165.

Colorado Court of Appeals, Div. IV.

April 13, 2000.

Certiorari Denied November 6, 2000.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Lindy Frolich, Special Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, Eugene Gilbert, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree felony murder, aggravated robbery, robbery of an at-risk adult, conspiracy, and theft. We affirm.

The victim, a 72-year-old man, and a woman companion were traveling on a road east of Denver. When they reached a dead end in the road, they turned around, but were blocked by another car occupied by a woman, who was driving, and three men. The woman from the second car stepped out and approached the victim's car asking for directions. One of the men from the second car also stepped out and demanded money from the victim. Although the woman companion did not see the victim with a gun, some occupants of the second car testified that the victim pointed a gun out the window and fired some shots. The man from the second car moved to the rear of the victim's car, shot the victim, and then forced the victim's woman companion to lie down next to the car. Another man, later identified as defendant, took money and jewelry from the victim.

Workers in a public service truck saw the second car as it was leaving the area. Although they found the victim and the companion and called 911, the victim ultimately bled to death.

Defendant was later arrested, tried, and convicted.

I.

Defendant contends that the trial court erred in not granting his challenges for cause to three jurors. We are not persuaded.

A defendant has the fundamental right to a fair trial by a panel of impartial jurors. However, a trial court has broad discretion in ruling on challenges for cause and its decision will not be reversed unless there is an abuse of discretion. A court abuses its discretion when it renders a decision that is manifestly arbitrary, unreasonable, or unfair. People v. Luman, 994 P.2d 432 (Colo.App.1999).

If the court is satisfied that the juror will be able to set aside any preconceived notion and render an impartial verdict according to the law and evidence admitted at trial, the juror should not be disqualified. People v. Drake, 748 P.2d 1237 (Colo.1988). In making this determination, the court may consider a juror's assurances that he or she can fairly and impartially serve on the case. People v. Ferrero, 874 P.2d 468 (Colo.App. 1993).

To determine whether the trial court abused its discretion in ruling on a challenge for cause, the entire voir dire of the prospective juror must be reviewed by the appellate court. Carrillo v. People, 974 P.2d 478 (Colo. 1999).

A.

Defendant asserts that a potential juror, who was a victim's advocate volunteer for the Adams County Sheriff's Department, was a public employee under Crim. P. 24(b)(1)(XII), and should have been excused for cause. We disagree.

In pertinent part, § 16-10-103(1)(k), C.R.S.1999, provides that a court shall sustain a challenge for cause when "[t]he juror is a compensated employee of a public law enforcement agency or a public defender's office." (emphasis added). Crim. P. 24(b)(1)(XII), provides that a court shall sustain a challenge for cause for a juror who "is an employee of a public law enforcement agency or public defender's office." (emphasis added). Unlike the statute, the rule does not include the term "compensated."

To be considered an "employee of a public law enforcement agency" under the statute, a necessary condition is that the individual agrees to perform certain services or tasks and to accept direction and control from an authorized representative of the employer in consideration for compensation. People v. Coleman, 844 P.2d 1215 (Colo.App. 1992).

Here, the potential juror stated that she had been a victim's advocate for approximately six months and had received approximately 40 hours of training. Most of the cases she had been involved in were domestic violence cases and included going to the scene and talking to victims. She was on call three times a month, and during the six months she had been a volunteer, she had gone on approximately six calls. She indicated that she spent her time with victims and little time with police officers, who would introduce her to the victims. Once she left a crime scene, she did not hear of the case again.

Although defendant acknowledged that the juror was not a compensated employee of a public law enforcement agency pursuant to § 16-10-103(1)(k), he maintained that she was an employee pursuant to Crim. P. 24(b)(1)(XII). Defense counsel argued that she was employed on a volunteer basis, had received training from law enforcement persons, was identified with victims, had been to the scene of alleged crimes, was on call at certain times, and had an association with the sheriff's department.

Initially, the trial court took the matter under advisement, but later ruled that it would not excuse her for cause. Defendant exercised a peremptory challenge to have the potential juror excused and later exhausted all his peremptory challenges.

We conclude that under the circumstances here, the volunteer was not an employee under the rule or under the statute. Thus, we need not decide whether compensation is required under the rule.

An "employee" has been defined as one who renders labor or services to another for salary or wages. Colonial Insurance Company of California v. American Hardware Mutual Insurance Co., 969 P.2d 796 (Colo. App.1998); see Black's Law Dictionary 543 (7th ed.1999)(the term "employee" is normally used to describe a person who has been hired to work for another).

Conversely, the common definition of "volunteer" is a person who gives his or her services without any express or implied promise of remuneration. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo.1994).

A volunteer can be considered an employee if a statute so provides. See § 8-40-202(1)(a)(I)(A), C.R.S.1999; § 24-10-103(4)(a), C.R.S.1999.; People v. Veloz, 946 P.2d 525 (Colo.App.1997). However, neither § 16-10-103(1)(k) nor Crim. P. 24(b)(1)(XII) addresses the status of a volunteer.

In the present case, the prospective juror does not meet the normal definition of an employee. She volunteers to serve on an on-call basis to work with victims. At the time of trial, she had been an advocate for a brief period, had been called only approximately six times, and had only a casual limited time commitment. Her circumstances are in stark contrast to those of the potential juror whose challenge for cause under the statute was denied in People v. Veloz, supra. There, the potential juror worked approximately 30 hours per week as an unpaid reserve police officer on a volunteer basis and indicated she would be employed and compensated as a full-time police officer within a few weeks. She also related there was no difference between her and a regular police officer other than the fact she was not being paid. Yet, a division of this court upheld the denial of defendant's challenge for cause.

Accordingly, there is no basis for holding that the volunteer was an employee for purposes of Crim. P. 24(b)(1)(XII), and the court did not err in denying the challenge for cause.

We also reject defendant's contention that the victim's advocate volunteer could not be fair to the prosecution and the defense.

A challenge for cause must be sustained if there exists a state of mind in the juror evincing enmity or bias toward the defendant or the state. Section 16-10-103(1)(j), C.R.S.1999. Here, when the victim's advocate volunteer was asked if she could be fair, she replied, "I think I could be fair. I'm still pretty open minded. If it was a domestic violence case I might not; obviously, because my mother has been abused." The trial court was entitled to give considerable weight to these statements. See People v. Ferrero, supra.

Thus, we perceive no abuse of discretion.

B.

Defendant also contends that the trial court erred in not granting his challenge for cause to a juror who had attended the Citizen's Academy of Commerce City, had family members who were alcoholics, and had a niece who was the victim of sexual abuse. We are not persuaded.

In this case, the record reveals the juror had participated in the citizen's academy conducted by a police department about eight to ten years prior to the trial. The juror testified that the citizen's academy existed to inform taxpayers about what police do.

When asked if she could be a fair juror and give defendant a fair trial, the juror responded, "It's not a sexual case?" After being informed it was not, she replied, "I don't see why I couldn't." When discussing the sexual assault involving her niece, the prospective juror stated that the incident had occurred close to 20 years ago, but became emotional.

Defendant challenged the juror for cause on grounds that she demonstrated a "victim's-type empathy," but not because of the prospective juror's association with the citizen's academy. The trial court denied the challenge, and defendant later exercised a peremptory challenge to have the prospective juror excused.

Although the record indicates that the prospective juror preferred not to sit on a sexual assault case, she indicated that she could be fair. Consequently, the trial court's decision to deny the challenge for cause was not manifestly arbitrary, unreasonable, or unfair. See People v. Luman, supra.

C.

Defendant also challenged a prospective juror who had been the victim of a kidnapping and assault at the hands of her ex-husband. Defendant contends she possessed a very clear...