People v. Luman, 96CA1561.

• Decision Date: 15 April 1999
• Docket Number: No. 96CA1561.,96CA1561.
• Citation: 994 P.2d 432
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gregory LUMAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

994 P.2d 432

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gregory LUMAN, Defendant-Appellant.

No. 96CA1561.

Colorado Court of Appeals, Div. III.

April 15, 1999.

As Modified on Denial of Rehearing August 5, 1999.

Certiorari Denied March 13, 2000.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, H. Michael Steinberg, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Gregory Luman, appeals from the judgment of conviction entered on jury verdicts finding him guilty of one count of sexual assault on a child, one count of sexual assault on a child by a person in a position of trust, and one count of sexual assault on a child as part of a pattern of sexual abuse. We reverse and remand for a new trial.

The defendant resided with his sister and her four children and contributed to the household expenses. According to the prosecution's evidence, between the dates of October 1, 1985, and August 31, 1992, defendant sexually assaulted the victim, his niece, on almost a daily basis when she was between the ages of five and twelve.

The principal evidence came from the testimony of the victim and from a recorded telephone conversation in which the victim confronted defendant after she had moved out of the house and taken up residence with her father in Michigan.

I.

Defendant first contends that the trial court committed reversible error by denying his challenge for cause of a prospective juror. We agree.

A defendant in a criminal proceeding has a fundamental right to a trial by fair and impartial jurors. People v. Abbott, 690 P.2d 1263 (Colo.1984). The ultimate test for determining whether a prospective juror should be disqualified for bias is whether that person will render a fair and impartial verdict according to the law and the evidence presented at trial. See § 16-10-103(1)(j), C.R.S.1998; see also People v. Fuller, 791 P.2d 702 (Colo.1990)

; People v. Ned, 923 P.2d 271 (Colo.App.1996).

A trial court should sustain a challenge for cause if there exists a state of mind in a juror evincing enmity or bias toward a defendant or the prosecution. People v. Sandoval, 733 P.2d 319 (Colo.1987). Additionally, if a trial court has genuine doubt about the juror's ability to be impartial, it should resolve the doubt by sustaining the challenge and excusing the juror. People v. Russo, 713 P.2d 356 (Colo.1986).

The trial court is in the best position to assess fully the state of mind of a potential juror. People v. Sandoval, supra.

Thus, 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. Carrillo v. People, 974 P.2d 478 (Colo.1999).

However, despite the wide discretion accorded the trial court, see People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976),

appellate courts must not "abdicate their responsibility to ensure that the requirements of fairness are fulfilled." Morgan v. People, 624 P.2d 1331, 1332 (Colo.1981).

A court abuses its discretion when it renders a decision that is manifestly arbitrary, unreasonable, or unfair. People v. Milton, 732 P.2d 1199 (Colo.1987).

In conducting our review of a denial of a challenge for cause, we must consider the entire voir dire examination of a juror. People v. Abbott, 690 P.2d 1263 (Colo.1984); People v. Schmidt, 885 P.2d 312 (Colo.App.1994). That voir dire examination, which occurred in chambers in response to a jury questionnaire, is set forth in its entirety in the Appendix.

The challenged prospective juror was an unlicensed psychotherapist who specialized in treating victims of abuse with some emphasis on sexual abuse. In addition, the prospective juror had been the victim of a sexual assault by a stranger when she was a child and her family history contained several instances of sexual abuse. Throughout the questioning, the prospective juror indicated that her personal, professional, and family history and experience would make it difficult, if not impossible, to view the evidence in the case in an objective and unbiased manner.

In denying defense counsel's challenge for cause, the trial court made the following findings:

Although [juror] certainly has a history tied to sexual assault of — this particular assault against her to her professional life to her unusual family history, first of all, that history is neutral. In some sense, she has sexual abusers and sexual victims on both sides of that issue in her family. She's clearly interested in the concept in general of sexual abuse. She deals with sexual abuse survivors. She has been sexually abused.

I also found her credible when she said,... after obviously giving great thought to the question, she said, Yes, I think I could put all of these things aside and be fair. I believe her when she says that. I think the very fact that she has training in this area adds credence to her belief that she could set this aside, and the defendant's challenge for cause to [prospective juror] will be denied.

Contrary to the trial court's statement, at no point in the voir dire did the juror expressly or impliedly state that she could put aside her family history and professional experience and be fair. In making this central finding, the trial court may well have been relying on the following two exchanges:

THE COURT: Do you think you could be fair? What were you thinking of?

JUROR: What I was thinking of was that in my family there is a history of sexual abuse in my family, and working a lot with people who have been sexually abused or assaulted, I think I have opinions or thoughts that probably would keep me from being very unbiased.

....

PROSECUTOR: Do you think it would be the degree of empathy that you — that would work against Mr. Luman?

JUROR: That's a very hard question. No.

We read the juror's answer to the first exchange as an extended "no" and fail to perceive that it could reasonably be read in any other manner. It is the second exchange upon which the People argue the trial court relied in making its findings. At the outset, the juror was not asked if she could be fair but whether her empathy for the victim would work to the detriment of defendant. Reluctantly, and equivocally, she replied in the negative.

In addition, taking the voir dire as a whole, we conclude there is no support in the record for a finding or conclusion that this juror could be fair and impartial or that she ever expressly or impliedly said she could. See Carrillo v. People, supra. Nor can we say that the demeanor of the juror, however compelling, could overcome the clear implications of her responses and significant concerns over her inability to be fair contained in this record.

Our supreme court recently announced Carrillo v. People, supra,

in which it affirmed the defendant's first degree murder conviction and held that the standard of review with regard to a challenge for cause is whether the trial court abused it discretion. This standard is to be distinguished from a "clear abuse of discretion," a "gross abuse of discretion," or some other heightened abuse of discretion standard. See People v. Fuller, supra (standard stated as clear abuse of discretion).

In Carrillo, a prospective juror knew the victim's father, they both worked for the same employer, and they engaged in extended conversations about family though not about the murder. During voir dire, the prospective juror stated on more than one occasion that if he were the defendant, he would not like to have a person like himself on the jury. However, in Carrillo there was an extended rehabilitation by the prosecutor during which the prospective juror stated that he thought he would decide the case on the evidence presented. The supreme court concluded that he, therefore, did not "articulate a clear expression of bias requiring his dismissal." Carrillo v. People, supra, 974 P.2d at 488.

We have reviewed the entire voir dire and the trial court's finding, applied the applicable standard of review, and conclude that there is no support for the trial court's findings in this record. Unlike Carrillo, there was no rehabilitation of the prospective juror by the prosecution containing unequivocal statements by the juror of her commitment to fairness that might support the trial court's conclusion. As previously discussed, the prospective juror remained unsure of her ability to be fair and never stated otherwise. As such, we conclude that the trial court abused its discretion in denying defendant's challenge for cause.

After the trial court's ruling, defense counsel exercised a peremptory challenge and excused the potential juror, and used all its remaining peremptory challenges on other panel members. Accordingly, reversal is mandated. See People v. Maes, 43 Colo.App. 365, 609 P.2d 1105 (1979)

.

II.

Because it may arise on retrial, we address and agree with defendant's contention that because the information charged, and the evidence included episodes predating the June 1, 1989, enactment of the statute now codified as § 18-3-405(2)(d), C.R.S.1998, and the jury instructions did not require the jury to limit its inquiry to post-amendment conduct, his conviction for sexual assault on a child based upon a pattern of abuse cannot stand because it applies the statute in a manner so as to violate the prohibition against ex post facto laws.

When a law either imposes punishment for an act that was not a crime when it was committed or makes the punishment for a crime more onerous than the punishment when the crime was committed, it violates the constitutional prohibitions against ex post facto laws. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); People v. Grenemyer, 827...