People v. Russo
| Decision Date | 21 January 1986 |
| Docket Number | No. 83SC389,83SC389 |
| Citation | 713 P.2d 356 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Robert John RUSSO, a/k/a Andres Antonio Valdez, Respondent. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and John Daniel Dailey, Asst. Atty. Gen. Denver, for petitioner.
David F. Vela, Colorado State Public Defender, and Linda Hotes, Deputy State Public Defender, Brighton, for respondent.
We granted certiorari to review the decision of the court of appeals in People v. Russo, 677 P.2d 386 (Colo.App.1983), which reversed the defendant's conviction for second degree kidnapping, and first degree sexual assault, the jury's special finding that the defendant committed a crime of violence, and the judgment and life sentence imposed for habitual criminality. In ordering a new trial, the court of appeals held that the trial court abused its discretion in denying the defendant's challenge for cause of a prospective juror and also erred in failing to instruct the jury on the elements and burden of proof applicable to the crime of violence charge. We conclude that the court of appeals erred in holding that the trial court abused its discretion in denying the defendant's causal challenge to the juror. We are also satisfied that, although the trial court erred in failing to correctly instruct the jury on the crime of violence charge, the error was harmless under the circumstances of this case and does not affect the adjudication of the defendant as a habitual criminal or the life sentence imposed pursuant to that adjudication. We therefore reverse the judgment of the court of appeals.
The defendant, Robert John Russo, was charged with three counts of second degree kidnapping involving three separate women, 1 one count of first degree sexual assault committed against one of the kidnapped victims, 2 the commission of a crime of violence by using a deadly weapon during the commission of the kidnapping and sexual assault crimes, 3 and habitual criminality based on three prior felony convictions. 4 The charges arose out of an incident in Pueblo, Colorado on August 12, 1979, in which the defendant ordered three women at gun point into their car as they were leaving a discotheque where they had been dancing and, after compelling them to drive to a parking lot, committed first degree sexual assault against one of the victims.
During jury selection the defendant challenged for cause a prospective juror who worked as a part-time reporter for a Pueblo newspaper. The juror stated that he had written a story about the incident based on a police report, but remembered very little about the matter. He further stated that his prior reading of the police report was limited to ascertaining whether, in response to a complaint by the discotheque manager about the newspaper's reporting of the matter, the incident had begun inside rather than outside the discotheque. The juror stated the following in response to defense counsel's question about what he knew of the prior story:
I don't recall the story at all; all I can remember about it is that there were three women who claim that they were kidnapped and sexually assaulted. The problem I had with the manager of the disco, is that in my original story I said the incident began inside the disco and the gentleman said that if there was an incident it began in the parking lot or outside somewhere, and so I went back to the original police report and an officer said it began inside the disco. That's all I remember. I wracked my brains and I just can't remember any more about the incident.
The juror also stated that he knew several sheriff's officers listed as prosecution witnesses but would not tend to treat their testimony any differently than the testimony of any other witness. Defense counsel nonetheless challenged the juror for cause, stating to the court as follows: "Your Honor, on the basis of his unusual position, in that the other jurors would not have access to information he had access to, we would challenge this juror for cause."
Prior to ruling on the challenge for cause, the court conducted the following questioning of the juror:
The court thereupon denied the defendant's challenge for cause. Although the defendant had one peremptory challenge remaining, he elected to exercise his remaining challenge not against the newspaper reporter but against another prospective juror, with the result that the newspaper reporter remained on the jury.
At the close of the evidence, the court instructed the jury on second degree kidnapping and first degree sexual assault and submitted guilty and not guilty verdict forms for the three counts of second degree kidnapping and the one count of first degree sexual assault. As part of the guilty verdict forms, the court included a special finding, pursuant to the provisions of the crime of violence statute, 5 that required the jury to determine whether the defendant did or did not use a deadly weapon during the commission of the substantive crime in question. The court, however, did not submit a separate instruction to the jury outlining the elements of a crime of violence, nor did the court instruct the jury that these elements had to be proven beyond a reasonable doubt.
The jury returned guilty verdicts on the three counts of second degree kidnapping and the one count of first degree sexual assault and further found that the defendant had used a deadly weapon during the commission of these crimes. After the return of these verdicts the court conducted a separate proceeding before the jury on the habitual criminal counts. The jury returned verdicts finding that the defendant had been previously convicted of three prior felonies as charged. The court ultimately sentenced the defendant to life imprisonment as a habitual criminal.
The court of appeals reversed the defendant's convictions and ordered a new trial. Stating that " '[j]ustice would have been served by excusing this potential juror,' " Russo, 677 P.2d at 388, the court of appeals concluded that the trial court's denial of the defendant's causal challenge was reversible error. Because the resolution of the jury selection issue required a new trial on all charges, the court of appeals elected to address the separate issue of whether the trial court properly instructed the jury on the crime of violence charge. With respect to this issue, the court of appeals held that the trial court erred in not separately instructing the jury on the essential elements of a crime of violence and on the prosecution's burden to prove these elements beyond a reasonable doubt. We granted the People's petition to review the court of appeals' resolution of these two issues.
The People claim that the court of appeals erred in concluding that the trial court's denial of the defendant's causal challenge of the juror who worked as a part-time journalist constituted reversible error. We agree with the People's claim.
A criminally accused has a right to a fair trial by a panel of impartial jurors. E.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); People v. Gurule, 628 P.2d 99 (Colo.1981). To implement this right, section 16-10-103(1), 8 C.R.S. (1978), provides as follows:
(1) The court shall sustain a challenge for cause on one or more of the following grounds:
(a) Absence of any qualification prescribed by statute to render a person competent as a juror; 6 (b) Relationship within the third degree, by blood, adoption, or marriage, to a defendant or to any attorney of record or attorney engaged in the trial of the case;
(c) Standing in the relation of guardian and ward, employer and employee, landlord and tenant, debtor and creditor, or principal and agent to, or being a member of the household of, or a partner in business with, or surety on any bond or obligation for any defendant;
(d) The juror is or has been a party adverse to the defendant in a civil action or has complained against or been accused by him in a criminal prosecution;
(e) The juror has served on the grand jury which returned the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information, or on any other investigatory body which inquired into the facts of the crime charged;
(f) The juror was a juror at a former trial arising out of the same factual situation or involving the same defendant;
(g) The juror was a juror in a civil action against the defendant arising out of the act charged as a crime;
(h) The juror was a witness to any matter related to the crime or its prosecution;
(i) The juror occupies a...
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...and to render a fair and impartial verdict based upon the evidence admitted at trial and the court's instructions. See People v. Russo, 713 P.2d 356, 360-61 (Colo.1986). To this end, section 16-10-103 requires a trial court to sustain a challenge for cause if a prospective juror's state of ......
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