People v. Romero

• Decision Date: 30 October 2008
• Docket Number: No. 07CA1652.,07CA1652.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph ROMERO, Defendant-Appellant.
• Court: Colorado Court of Appeals

197 P.3d 302

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph ROMERO, Defendant-Appellant.

No. 07CA1652.

Colorado Court of Appeals, Div. VI.

October 30, 2008.

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, Joseph Romero, appeals the judgment of conviction entered on a jury verdict finding him guilty of escape. We reverse and remand for a new trial because we conclude the district court erred by denying defendant's challenge for cause to a juror who worked as a security specialist at a community corrections facility.

On October 10, 2006, defendant was convicted of violating his probation in another criminal case and sentenced to sixty days in the Denver County Jail, with an assignment to work release which allowed him to check out of the jail every day to go to work. On November 1, 2006, defendant checked out of the jail and did not return, even though he had not completed his sentence.

The People charged defendant with escape, in violation of section 18-8-208(2), C.R.S.2008. A jury found defendant guilty. The district court sentenced defendant to four years in the custody of the Department of Corrections (DOC), to be followed by a period of mandatory parole.

I. Challenge for Cause of Prospective Juror

Defendant contends that the trial court erred by denying his challenges for cause of two prospective jurors. We agree with respect to one, J.M-S., and therefore need not address defendant's contention regarding the other.

A. Preservation of the Issue

As an initial matter, we address and reject the People's contention that defendant did not preserve his challenge of J.M-S. for appellate review. The People argue that defendant waived any challenge for cause with respect to J.M-S. because his counsel did not make a timely challenge and did not question J.M-S. adequately.

Unless a party is aware that his initial opportunity to challenge a prospective juror will be his only opportunity to do so, a party need not make his objections to a juror's qualifications and competency when the court initially questions the juror. Ma v. People, 121 P.3d 205, 209 (Colo.2005). To preserve the issue for appeal, a party need only raise the objection before the jurors are sworn in. See Crim. P. 24(b)(2). The challenge is waived, however, if it is not made before the jurors are sworn in. Id.

A defendant may also waive a challenge for cause if counsel does not use reasonable diligence during jury selection to determine whether grounds for such a challenge exist. Ma, 121 P.3d at 209; People v. Asberry, 172 P.3d 927, 930 (Colo.App.2007); see Crim. P. 24(b)(2). Counsel is reasonably diligent if counsel takes the opportunity to question a prospective juror adequately. Ma, 121 P.3d at 209.

Applying these principles, the supreme court and divisions of this court have found waivers in a number of cases. See, e.g., People v. Lewis, 180 Colo. 423, 427-28, 506 P.2d 125, 127 (1973) (the defendant waived a statutory objection to a juror who had previously been convicted of a felony, which he did not raise until after trial, because during voir dire counsel failed to inquire into the criminal records of the prospective jurors); People v. Cevallos-Acosta, 140 P.3d 116, 121 (Colo.App.2005) (the defendant did not preserve the issue whether a volunteer reserve officer qualified as an employee of a public law enforcement agency, because that was not the basis of his challenge for cause); People v. Crespin, 635 P.2d 918, 920-21 (Colo.App.1981) (the defendant waived his objection to a prospective juror where his counsel failed to question the juror during voir dire and failed to make a challenge for cause). In this case, however, the record does not present circumstances similar to those in cases in which waivers have been found.

During voir dire, J.M-S. said that she worked as a security specialist at a community corrections facility. In response to the court's questioning, J.M-S. said that her job responsibilities included conducting head counts at the facility, administering urine and blood tests, and generally maintaining order. Defense counsel did not ask J.M-S. any additional questions about her job responsibilities, but subsequently challenged her for cause, before the jurors were sworn in, arguing that she should be dismissed because she "works for a law enforcement agency." Defense counsel did not waive the challenge for cause because he made a timely and appropriate challenge and, when he made the challenge, had information sufficient to support it, thus rendering additional questioning to determine the basis or validity of the challenge unnecessary.

B. Merits

The district court denied counsel's challenge for cause to J.M-S. because "she's not a compensated law enforcement officer related to law." She remained on the jury after defendant exhausted his peremptory challenges.

Ordinarily, we review a district court's resolution of a challenge for cause for an abuse of discretion. People v. Young, 16 P.3d 821, 824 (Colo.2001); Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999). In this case, however, the issue is whether the district court misconstrued a statute and a substantially similar rule of criminal procedure. Construction of such provisions presents a question of law. Therefore, we review the district court's decision de novo. Hernandez v. People, 176 P.3d 746, 751 (Colo.2008); People v. Robinson, 187 P.3d 1166, 1177 (Colo. App.2008); see People v. Macrander, 828 P.2d 234, 239-40 (Colo.1992).

A defendant in a criminal case has a constitutional right to an impartial jury. Ma, 121 P.3d at 210; see U.S. Const. amend. VI; Colo. Const. art. II, § 16. Accordingly, "the ... court must excuse prejudiced or biased persons from the jury." Nailor v. People, 200 Colo. 30, 32, 612 P.2d 79, 80 (1980). Section 16-10-103, C.R.S.2008, sets forth circumstances where a juror may be challenged for cause based on actual or implied bias. See also Crim. P. 24(b). Where a statutory basis of implied bias exists, the court has no discretion to deny a timely and clear challenge for cause on that basis. See Macrander, 828 P.2d at 240.

Pursuant to section 16-10-103(1)(k), C.R.S. 2008, a court must sustain a challenge for cause where "[t]he juror is a compensated employee of a public law enforcement agency." Accord Crim. P. 24(b)(1)(XII). The supreme court has defined "public law enforcement agency" as a "police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals." Ma, 121 P.3d at 211.

Community corrections programs were created to provide the courts, the DOC, and the State Board of Parole with more flexibility and a broader range of correctional options for offenders under their respective jurisdictions. § 17-27-101, C.R.S.2008. A community corrections program is "a community-based or community-oriented program that provides supervision of offenders. ..." § 17-27-102(3), C.R.S.2008. A sentence to community corrections is "more severe than probation, but not as harsh as incarceration." People ex rel. Van Meveren v. Dist. Court, 195 Colo. 34, 36, 575 P.2d 4, 6 (1978) (interpreting former § 27-27-101, C.R.S.1973 (1976 Supp.)), abrogated on other grounds by Keller v. People, 29 P.3d 290 (Colo.2000). A person sentenced to community corrections is considered to be "in custody" and subject to the authority of the court. People v. Lucero, 654 P.2d 835, 836 (Colo. 1982); People v. Brown, 695 P.2d 776, 777 (Colo.App.1984); see also § 17-27-106, C.R.S.2008 (a person who fails timely to return to a community corrections facility shall be deemed to have escaped from custody and may be prosecuted for escape and sentenced under § 18-8-208, C.R.S.2008).

The executive director of the DOC must designate staff to maintain jurisdiction over offenders placed in community corrections. § 17-27-105.5(2), C.R.S.2008. Such staff may include community corrections program agents. Id. These agents are "peace officers" within the meaning of sections 16-2.5-101 and-136, C.R.S.2008. § 17-27-102(3.5), C.R.S.2008. They are authorized to, among other things, supervise offenders; investigate, detect, and prevent crime involving offenders; issue warrants for the arrest of offenders; and arrest offenders. § 17-27-105.5(3), C.R.S.2008. They may also "seek out and arrest any fugitive from a correctional facility when called upon" by other agencies. § 17-27-105.5(6), C.R.S.2008. In addition, "[t]he director of community corrections or any community corrections program agent may arrest any offender when any offense under the laws of this state has been or is being committed by the offender" under specified circumstances. § 17-27-105.5(4), C.R.S.2008.

In People v. Scott, 41 Colo.App. 66, 583 P.2d 939 (1978), a division of this court held that a state prison is a public law enforcement agency for purposes of section 16-10-103(1)(k) and Crim. P. 24(b)(1)(XII). The division relied on the fact that certain prison employees are statutorily authorized to make arrests of persons who break criminal laws, as well as the prisons' "extensive involvement with law enforcement functions. ..." Id. at 67-68, 583 P.2d at 941; see also Ma, 121 P.3d at 211 (recognizing that decisional law holds that the DOC is a public law enforcement agency for juror disqualification purposes); People v. Urrutia, 893 P.2d 1338, 1345 (Colo. App.1994) (same).

We see no basis to distinguish community corrections from the DOC in this context. Personnel of both have the authority to detain suspected offenders and to arrest persons who commit crimes. Both have extensive involvement with law enforcement functions. A person who is sentenced to either is considered to be in the custody of law enforcement authority. Ac...