People v. Rhodus, 90CA1801
| Citation | 852 P.2d 1280 |
| Decision Date | 16 July 1992 |
| Docket Number | No. 90CA1801,90CA1801 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry RHODUS, Defendant-Appellant. . V |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Richard K. Rediger, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Sally S. Townshend, Sp. Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge RULAND.
Defendant, Larry Rhodus, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of possession of contraband in the first degree. We reverse and remand for a new trial.
While incarcerated in the Fremont Correctional Facility, defendant was charged with possession of contraband because a plastic jug of liquid containing ethanol was discovered in his cell.
During jury selection, and after defendant exercised his final peremptory challenge, the Fremont County Clerk and Recorder was called to the jury box.
She acknowledged that the district attorney's office, the prosecuting office in this case, was, by statute, her legal advisor. Further, she stated that she had consulted with the district attorney's office for legal opinions on four occasions during the preceding three years, and that she had conferred with the prosecuting attorney in this case on one or two prior occasions.
Throughout voir dire, however, the prospective juror maintained that her relationship with the district attorney's office and with the prosecuting attorney would not have any affect upon her ability to sit as a fair and impartial juror. Nevertheless, defense counsel asked the court to excuse the juror for cause, reasoning that there would be an "appearance of impropriety" if she were to sit as a juror.
The court denied counsel's request, ruling first that there was no specific provision in Crim.P. 24 authorizing a challenge for cause. The court then reasoned that in order to grant the challenge, it would have to presume some sort of bias on the part of the juror. The court concluded that since there was nothing in the record from which to base an inference of bias, there was no basis for a challenge.
Defense counsel subsequently asked the court for an additional peremptory challenge, but the court denied this request.
The clerk and recorder and the other members of the jury panel were sworn in, and then excused for recess. During the recess, the prosecuting attorney revealed that his office had previously represented the clerk and recorder in a recall election lawsuit. The prosecuting attorney advised the court that the lawsuit was concluded approximately one year prior to the date the information was filed in this case.
Defendant's sole contention is that the trial court improperly denied his challenge for cause to the clerk and recorder. The prosecution initially responds that we may not consider the merits of defendant's contention because defense counsel failed to cite the specific statutory authority upon which the challenge for cause was based. We find no merit in the prosecution's contention.
The questions posed and the answers given by the clerk and recorder sufficiently reveal the basis for the challenge. Accordingly, we will address whether the record establishes any grounds upon which the juror could be legitimately challenged for cause. See People v. Russo, 713 P.2d 356 (Colo.1986); see also People v. Coleman, 844 P.2d 1215 (Colo.App.1992) ().
We recognize that neither § 16-10-103, C.R.S. (1986 Repl.Vol. 8A) nor Crim.P. 24 authorize an automatic challenge for cause when a prospective juror is a county officer who is represented by the district attorney's office. The issue then is whether the juror's on-going professional relationship with the district attorney's office creates an appearance of partiality sufficient to constitute grounds for disqualification. We conclude that it does.
Early in the jurisprudence of this state, the need for trial of the accused before an impartial tribunal was emphasized as a matter of public policy. See People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915). It is now more often expressed as a concept of due process or fundamental fairness. See People v. Macrander, 828 P.2d 234 (Colo.1992); People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978).
The critical need for an impartial jury has focused the analysis of juror qualifications not only on bias in fact, but on the concept of implied bias as well. As stated by...
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People v. Rhodus
...Defender, Denver, for respondent. Justice ERICKSON delivered the Opinion of the Court. We granted certiorari to review People v. Rhodus, 852 P.2d 1280 (Colo.App.1992). In Rhodus, the court of appeals ordered a new trial because of the trial judge's decision to deny defense counsel's challen......