People v. Meis, 90CA1412
| Decision Date | 23 April 1992 |
| Docket Number | No. 90CA1412,90CA1412 |
| Citation | 837 P.2d 258 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary MEIS, Defendant-Appellant. . IV |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., 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 MARQUEZ.
Defendant, Gary Meis, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child by a person in a position of trust and first degree sexual assault. We remand for further findings.
Defendant first contends that the trial court erred by its refusal to replace a juror with an alternate when, after the presentation of evidence had begun, the juror advised the court that he was acquainted with a prosecution witness. Defendant essentially argues that, because personal acquaintance with a witness is a relevant and material factor in the exercise of a peremptory challenge, his right to exercise his peremptory challenges was impaired, and that the trial court employed an incorrect standard in denying his motion to replace the juror. We conclude that further findings are required.
If alternate jurors are seated, § 16-10-105, C.R.S. (1991 Cum.Supp.) requires that: "Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties."
The purpose of seating an alternate juror is to have available another juror when, through unforeseen circumstances, a juror is unable to continue to serve. 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 discretion. People v. Abbott, 690 P.2d 1263 (Colo.1984). See People v. Johnson, 757 P.2d 1098 (Colo.App.1988) ().
Here, after trial had commenced, the juror informed the trial court that he might know one of the prosecution's witnesses. This statement by the juror occurred prior to the time that that witness testified.
During an in camera hearing, at which both the prosecution and defense counsel were allowed to question the juror, the juror testified that, although he and the witness were both members of the same fraternal order, and had been at lodge functions together, they did not socialize with each other. When asked by the court whether his ability to be fair and impartial in this case would be affected, the juror responded negatively. The trial court determined that the fact that the juror knew the witness and was in the same lodge with him would not affect the juror's ability to weigh impartially the witness' credibility. However, the court made no specific finding regarding whether the juror was able or qualified to perform his duties.
Further, in deciding whether to replace a juror with an alternate juror, a court should consider not only the juror's assurance of impartiality, but also the nature of the information not disclosed, see People v. Borrelli, 624 P.2d 900 (Colo.App.1980), whether the non-disclosure was deliberate, see People v. Dunoyair, 660 P.2d 890 (Colo.1983), and any prejudicial effect the non-disclosed information would have had on either party including defendant's right to exercise peremptory challenges. See People v. Johnson, supra. A court must also consider the practical remedies available at that stage of the proceedings such as replacing the juror with the available alternate.
Because People v. Borrelli, supra, involved a juror's misrepresentation that was not discovered until a year after trial, we do not find that case to be dispositive. However, we are unable to determine from the record whether the trial court considered the factors set forth above and conclude that the cause should be remanded...
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Black v. Waterman, 02CA0172.
...or concealment was deliberate or inadvertent, and whether a new trial on compensatory damages is required. Cf. People v. Meis, 837 P.2d 258 (Colo.App.1992)(remand for findings whether juror was able or qualified to perform duties in light of uncertainty whether trial court considered necess......
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People v. Christopher
...right to exercise peremptory challenges, and the practical remedies available when the non-disclosure is revealed. People v. Meis, 837 P.2d 258 (Colo.App.1992). Prejudice may be presumed from the constraint placed on a defendant's right to exercise his allotted peremptory challenges as a re......
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Smit v. Anderson
...rights to exercise peremptory challenges; and (5) the practical remedies available when the nondisclosure is revealed. See People v. Meis, 837 P.2d 258 (Colo.App.1992). A trial court has broad discretion to decide whether to grant a mistrial, and its decision will not be overturned absent a......
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People v. Christopher
...of her acquaintance with Officer Moran during voir dire. Further, the People assert that the five factors articulated in People v. Meis, 837 P.2d 258 (Colo.App.), cert. denied, No. 92SC399 (Colo. Oct. 13, 1992), in determining whether a juror should be replaced with an alternate juror, were......