People v. Sepeda, 27880

• Decision Date: 26 June 1978
• Docket Number: No. 27880,27880
• Citation: 196 Colo. 13,581 P.2d 723
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Martinez SEPEDA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 723

581 P.2d 723

196 Colo. 13

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Martinez SEPEDA, Defendant-Appellant.

No. 27880.

Supreme Court of Colorado,En Banc.

June 26, 1978.

Rehearing Denied July 17, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Linda Palmieri Rigsby, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Thomas M. Van Cleave III, Deputy State Public Defenders, Denver, for defendant-appellant.

LEE, Justice.

Defendant-appellant John Martinez Sepeda, Jr. was convicted, by jury, of second-degree murder, ¹ attempted second-degree murder (two counts), ² reckless endangerment (two counts), ³ and third-degree assault (two counts), ⁴ in the District Court of Weld County. Defendant appeals his conviction and urges seven separate grounds that he contends individually and collectively warrant reversal. We find that none of defendant's claims warrant reversal and affirm his conviction.

During the evening of June 28, and into the early morning hours of June 29, 1975, John Sepeda (defendant), Blas Calderon (John's cousin), Gloria Ortega (John's girl friend) and three of their friends were drinking beer on the porch of defendant's house in Greeley. Although it is not clear whether defendant and his friends were intoxicated, they had been driving around the town of Estes Park and drinking for most of the day.

At about 1:30 a. m., Blas Calderon went across the street to buy a package of cigarettes at the "Taco Bell" restaurant. He met Ken Griego, Thomas Griego and John Korgan in the restaurant's parking lot, and accompanied them into the restaurant where he met Jerry Lujan, David Lujan and Jose Maestas. Words were exchanged and Blas was told to leave. As he started across the street, he turned and shouted an obscenity at the group. All six jumped up from their tables and began to chase Blas.

Defendant and his friends on the porch saw Blas being chased and ran to his aid. A gang-fight ensued, with the six men from Taco Bell apparently getting the better of defendant, Blas, and their two friends.

There was conflicting testimony as to whether members of either group had weapons. A single-edged razor blade was found at the scene. There was also conflicting testimony as to how long the fight lasted. It is undisputed, however, that soon after the fight began defendant ran into his house and got a .22-caliber pistol. He came out and fired a warning shot. A bullet was later recovered, embedded high in a sign one-half block from the house.

There was testimony that when the first shot was fired the fight ended and the participants began to run away. Defendant testified to the contrary, however, stating that when the fight did not cease after the warning shot he fired into the crowd to try to break up the fray. Defendant related that from this point on he had no memory of what happened.

The evidence showed that defendant fired at least three shots into the crowd, hitting Jose Maestas, David Lujan and Jerry Lujan. It is undisputed that the fight was over at this point. Defendant then approached Jerry Lujan, who was standing by a fence, and shot him again. Witnesses placed defendant somewhere between three and six feet from Lujan at the time the final shots were fired. The testimony was in conflict as to how long defendant faced Lujan before firing again and whether any words were exchanged between them. Lujan died of these wounds.

Defendant left the scene of the fight and drove to the home of a friend, Apolonio Gueroz. Gueroz drove defendant and Gloria Ortega to the home of another friend, Moise Acquirre. According to Gueroz and Ms. Ortega, defendant made several incriminating statements during this period and seemed extremely frightened.

Acquirre drove defendant to New Mexico, where he stayed for a few days before voluntarily surrendering to police.

I.

Appellant's first argument for reversal is that the method of jury selection used in Weld County systematically excluded Spanish-surnamed persons who comprised 15.4% of the population of Weld County, according to the 1970 census. ⁵ We do not agree. The record does not support such a contention.

The first step in the jury selection procedure was to obtain voter registration and driver- and chauffeur-license lists for Weld County. The lists were then combined and duplicate names were eliminated. The resulting list contained 82,000 names. Each name of this list was assigned a random number and, using a key number system, the number of names was reduced to 5,489. This list was called the "Master List." It contained only 569 or 10.4% Spanish-surnamed persons.

Questionnaires were then sent to the people whose names were on the Master List. Two thousand seven hundred forty-nine persons returned these questionnaires and of these 259 or 8.7% were Spanish-surnamed. From this list, 350 names were selected for the jury list. The jury list contained 30, or 8.6%, Spanish-surnamed persons. The jury at defendant's trial contained a single Spanish-surnamed person, who sat as a second alternate.

A city and county directory is published for Weld County, and defendant contends that, if this were used to select the jury pool, the disparity between 15.4% and 10.4% would not exist. The directory was not used because it was not produced in the computer media used by the state judicial department in its jury selection procedures. It was determined by the judicial administrator and the chief judge of the judicial district that the conversion could not be accomplished by reason of a lack of funding.

Appellant asserts that this system creates a jury array that violates his Fifth and Sixth Amendment rights and the terms of Colorado's Uniform Jury Selection and Service Act, section 13-71-101, et seq., C.R.S.1973. We first address defendant's constitutional claims.

The Supreme Court of the United States has stated time and again that the constitutional guarantees of due process and a trial by jury mandate that juries be selected from a representative cross-section of the community. E. g., Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Strouder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. There is no requirement, however, that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs. Taylor v. Louisiana, supra; Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536.

The jury selection procedure here involved differs in three significant aspects from many dealt with by the United States Supreme Court. First, there is no showing of any opportunity in the process for any human bias or prejudice to operate to alter the ethnic proportions in the jury pool. Cf. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (jury pools selected by jury commissioners); Alexander v. Louisiana, supra (jurors picked from questionnaires returned; each questionnaire had a space marked for race); Whitus v. Georgia, supra. We point out that in the instant case, after the lists to be used are selected, the process is completely random and no personal discretion is involved.

Second, we do not have a disparity between the proportions of Spanish-surnamed persons in the community and those in the jury pool so great as to present a prima facie case of discrimination. Compare Castaneda v. Partida, supra (county was 79% Mexican-American, jury list was 39% Mexican-American), with Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (25% of county is Black, only 10 to 15% of juries are Black; no discrimination shown by this statistic alone). We have here, at most, a 6.8% disparity.

Third, there has been no showing here of total exclusion or a mere token representation of a particular ethnic group. Cf. Alexander v. Louisiana, supra; Whitus v. Georgia, supra.

Ultimately, then, the issue presented is essentially this: Is it constitutionally permissible to use only the voter registration and driver- and chauffeur-license lists, and not the Weld County directory, in assembling the list of names for the Weld County jury pool?

In addressing this issue, we adopt the test inferred from Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, and by the Tenth Circuit Court of Appeals in United States v. Test, 10th Cir., 550 F.2d 577. That test consists of three factors, all of which must be established by the defendant in order to make out a prima facie case of discrimination in jury selection procedures. The three factors are: (1) that a distinctive and cognizable group exists; (2) that the group is systematically excluded from the jury selection process; and (3) that the resulting jury pool fails to be reasonably representative of the community. United States v. Test, supra.

We assume, without deciding, that Spanish-surnamed persons represent a cognizable class of people. Thus, for the purposes of this case, the crucial prong of the test is the second one. From a reading of the United States Supreme Court cases in this area, it is clear that systematic exclusion will be found only when there is evidence, direct or inferred, of purposeful racial discrimination over a period of time by a government agency. ⁶ As we noted above, there is no evidence of purposeful discrimination in the instant case. To the contrary, efforts were made specifically to increase the proportion of Spanish-surnamed persons on the jury lists. Attempts to obtain welfare and income tax lists failed. (These are confidential and protected by statute from disclosure in Colorado.) Other sources of names were considered and rejected as sex-biased (i. e., telephone books, utility company lists). Finally, an attempt was made...