People v. Rael, No. 76-723

Docket NºNo. 76-723
Citation40 Colo.App. 374, 578 P.2d 1067
Case DateFebruary 09, 1978
CourtCourt of Appeals of Colorado

Page 1067

578 P.2d 1067
40 Colo.App. 374
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Ruben RAEL, Defendant-Appellant.
No. 76-723.
Colorado Court of Appeals, Div. III.
Feb. 9, 1978.
Rehearing Denied March 2, 1978.
Certiorari Denied May 15, 1978.

Page 1068

J. D. MacFarlane, Colorado State Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Sharon S. Metcalf, Asst. Atty. Gen., Denver, for plaintiff-appellee.

[40 Colo.App. 375] Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

KELLY, Judge.

The defendant, Ruben Rael, appeals his conviction for second-degree burglary contending that juror misconduct requires that he be granted a new trial; that a transcript of testimony from his preliminary hearing was improperly admitted; and that the evidence is insufficient to sustain the conviction. We agree that juror misconduct requires a new trial.

During voir dire, the court inquired whether any of the prospective jurors had ever participated in a criminal case as a defendant. There was no affirmative response to this routine question. After the trial, defense counsel was informed that the foreman of the jury had been incarcerated at the state reformatory after pleading guilty to a charge of burglary. The juror submitted affidavits admitting the conviction, but denying that it had affected his deliberation in any manner.

The People do not contend, and there is no evidence, that either the defendant or his attorney knew of the juror's conviction until after the trial had ended. Rather, the People characterize the juror's failure to answer the questions candidly as a "reasonable misunderstanding" and argue that, in any event, the defendant is not entitled to a new trial for the reason that he has failed to demonstrate that he was prejudiced. The principal argument made by Rael for reversal is that the juror's answer denied him the use of a peremptory challenge thereby depriving him of a fair trial.

The juror's nondisclosure of his burglary conviction (coincidentally the very crime with which the defendant was charged), whether or not the result of a misunderstanding, was nonetheless misconduct.

"A juror who misrepresents or conceals material and relevant matters is guilty of misconduct, and it may be prejudicial to either or both parties because it impairs the...

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12 practice notes
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ...that question truthfully, the court may grant a new trial. People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980) ; see People v. Rael, 40 Colo.App. 374, 375–76, 578 P.2d 1067, 1068 (1978). However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific ques......
  • People v. Kriho, No. 97CA0700.
    • United States
    • 29 Abril 1999
    ...long continued use of psychoactive drugs was a basis for setting aside defendant's convictions and ordering new trial); People v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978) (juror's nondisclosure of his burglary conviction was misconduct and denied defendant right to exercise a peremptory......
  • People ex rel. D.F.A.E., Court of Appeals No. 17CA0042
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Junio 2020
    ...such right." Id. at ¶ 25.¶ 26 Thus, to the extent pre- Vigil cases (like Christopher , Dunoyair , Borrelli , or People v. Rael , 40 Colo. App. 374, 578 P.2d 1067 (1978) ) can be read to require reversal for the denial of the right to exercise a peremptory challenge alone, we conclude N......
  • People v. Dunoyair, No. 81SA516
    • United States
    • Colorado Supreme Court of Colorado
    • 14 Marzo 1983
    ...towards the defendant, a new trial might well be necessary. See People v. Borrelli, 624 P.2d 900 (Colo.App.1980); People v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978). In such instances the juror's deliberate misrepresentation or knowing concealment is itself evidence that the juror was l......
  • Request a trial to view additional results
12 cases
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ...that question truthfully, the court may grant a new trial. People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980) ; see People v. Rael, 40 Colo.App. 374, 375–76, 578 P.2d 1067, 1068 (1978). However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific ques......
  • People v. Kriho, No. 97CA0700.
    • United States
    • 29 Abril 1999
    ...long continued use of psychoactive drugs was a basis for setting aside defendant's convictions and ordering new trial); People v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978) (juror's nondisclosure of his burglary conviction was misconduct and denied defendant right to exercise a peremptory......
  • People ex rel. D.F.A.E., Court of Appeals No. 17CA0042
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Junio 2020
    ...such right." Id. at ¶ 25.¶ 26 Thus, to the extent pre- Vigil cases (like Christopher , Dunoyair , Borrelli , or People v. Rael , 40 Colo. App. 374, 578 P.2d 1067 (1978) ) can be read to require reversal for the denial of the right to exercise a peremptory challenge alone, we conclude N......
  • People v. Dunoyair, No. 81SA516
    • United States
    • Colorado Supreme Court of Colorado
    • 14 Marzo 1983
    ...towards the defendant, a new trial might well be necessary. See People v. Borrelli, 624 P.2d 900 (Colo.App.1980); People v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978). In such instances the juror's deliberate misrepresentation or knowing concealment is itself evidence that the juror was l......
  • Request a trial to view additional results

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