People v. Veloz, 95CA1740

• Decision Date: 20 February 1997
• Docket Number: No. 95CA1740,95CA1740
• Citation: 946 P.2d 525
• Parties: 21 Colorado Journal 252 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul J. VELOZ, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 525

946 P.2d 525

21 Colorado Journal 252

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul J. VELOZ, Defendant-Appellant.

No. 95CA1740.

Colorado Court of Appeals,

Div. I.

Feb. 20, 1997.

Rehearing Denied April 10, 1997.

Certiorari Denied Nov. 3, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Sandra K. Mills, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Paul Veloz, appeals the judgment of conviction entered upon jury verdicts finding him guilty of driving under the influence (DUI) and being an habitual traffic offender. We affirm. During voir dire, one of the panel members related that, in addition to being employed as a server at a restaurant, she also worked approximately 30 hours per week as an unpaid reserve police officer on a volunteer basis. She indicated that she was not currently being paid for her work as a reserve police officer, but that she would be employed and compensated as a full-time police officer within a few weeks. She further indicated that, as a reserve officer, she had been trained in "DUI enforcement" and that she did "everything a paid officer does."

The prospective juror told the court that "all of [her] friends [were] in law enforcement," and that she had many friends who worked for the county in which the case was being prosecuted and who were present at the trial. However, she indicated that she did not know any of the officers who were listed as witnesses for defendant's trial.

The People challenged this panel member for cause without specifying the reason for the challenge. The court denied the challenge, concluding that she could be fair in spite of her "life experiences."

Upon further examination by defense counsel, the prospective juror reiterated that she performed her work as a reserve police officer for free and denied receiving any form of compensation for her efforts. She indicated that she was compensated for "off-duty jobs as a police officer," but not by the police department.

She related that she had received the same training that a compensated police officer receives and indicated that "there is no difference between [her] and a regular police officer other than the fact that [she was] not being paid." She suggested that she had opinions about "the proper way to investigate a case" and that it would be hard for her not to "be thinking about what would I do, what would I have done" concerning the investigation of the case but said, "I'm sure I could be fair and impartial." Relying on § 16-10-103(1)(k), C.R.S. (1986 Repl.Vol. 8A), defendant challenged the juror for cause, contending that she was a compensated employee of a public law enforcement agency. The court denied the challenge, concluding that, under § 13-71-104, C.R.S. (1996 Cum.Supp.), a prospective juror may not be disqualified on the basis of his or her occupation, and that by enacting § 13-71-104, the General Assembly had "eliminated" § 16-10-103(1)(k).

Defendant then challenged the panel member for cause based on an alleged inability to be fair and impartial. The trial court denied the challenge and defendant used one of his peremptory challenges to excuse the juror. After exhausting all of his statutory peremptory challenges, defendant requested an extra peremptory challenge, but the trial court declined to exercise its power to allow an additional challenge pursuant to Crim. P. 24(d)(3).

I.

Defendant first contends that the trial court erred by refusing to excuse the juror for cause. We disagree.

At the outset, we note that prejudice is shown if, as here, the defendant exhausts all of his peremptory challenges and if, as is alleged here, one of those challenges is expended on a juror who should have been removed for cause. People v. Macrander, 828 P.2d 234 (Colo.1992); People v. Prator, 833 P.2d 819 (Colo.App.1992), aff'd, 856 P.2d 837 (Colo.1993).

A.

Defendant maintains that the trial court erred in denying his statutory challenge for cause under § 16-10-103(1)(k) because the prospective juror was an employee of a public law enforcement agency. We disagree.

As pertinent here, § 16-10-103(1)(k) provides that a court must grant a challenge for cause if "the juror is ... a compensated employee of a public law enforcement agency." Initially, we hold that the trial court erroneously concluded that, by enactment of § 13-71-104, which generally prohibits discrimination against prospective jurors based on their occupation and other impermissible factors, the General Assembly "eliminated" the more specific provision in § 16-10-103(1)(k) requiring trial courts to sustain challenges for cause based on a juror's compensated employment with a law enforcement agency.

It is significant that § 16-10-103(1)(k) was enacted prior to the passage of § 13-71-104. Consequently, we assume that the General Assembly was aware of the provisions of § 16-10-103(1)(k) when it enacted § 13-71-104. See Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993); Rodriquez v. Nurseries, Inc., 815 P.2d 1006 (Colo.App.1991).

Moreover, when two statutes address the same subject matter, courts must attempt to read them together and reconcile them so as to give effect to each statute. People v. Campbell, 885 P.2d 327 (Colo.App.1994); see also Colorado State Board of Medical Examiners v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979).

Finally, particular statutes prevail over general statutes, and, because statutory repeal by implication is not favored, a general statute will not be interpreted to repeal a conflicting special provision, unless the General Assembly clearly and unmistakably evinces its intent to do so. Uberoi v. University of Colorado, 686 P.2d 785 (Colo.1984); City of Colorado Springs v. Board of County Commissioners, 895 P.2d 1105 (Colo.App.1994), cert. denied, --- U.S. ----, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995).

Section 13-71-104 is part of the Uniform Jury Selection and Services Act that applies generally to all jury trials, whether civil or criminal. Section 16-10-103(1)(k), in contrast, is more specific and applies only in criminal trials. Thus, while § 13-71-104 generally prohibits the exclusion of individuals from jury service on the basis of their occupation, § 16-10-103(1)(k) requires a trial court to sustain a challenge for cause with respect to a particular group of people that the General Assembly has determined would be or, at least, appear to be biased in a criminal trial. See People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978) (discussing legislative purpose of § 16-10-103(1)(k)).

We perceive no inherent conflict between these two statutory provisions, and, because the General Assembly has not clearly and unmistakably indicated that it intended to repeal § 16-10-103(1)(k) when it enacted § 13-71-104, we must presume that both statutes remain in effect. See People ex rel. Iuppa v. District Court, 731 P.2d 720 (Colo.1987) (specific statute is to be given effect over subsequently enacted general statute in the absence of clear indication of legislative intent to repeal earlier provision).

Since we consider § 16-10-103(1)(k) as remaining in full force and effect, the dispositive issue becomes: Is a volunteer reserve police officer a "compensated employee of a public law enforcement agency" such that the officer is disqualified from jury service under the statute. We conclude that such an individual is not statutorily ineligible for jury service.

Our goal in construing any statute is to ascertain and give effect to the intent of the General Assembly. To determine legislative intent, we look first to the language of the statute itself, giving the words and phrases used their plain and ordinary meaning. People v. District Court, 713 P.2d 918 (Colo.1986).

When the statutory language is clear and unambiguous, it must be interpreted as written, without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

Courts may not impute "their own meaning to otherwise clear statutory language." J.D.C. v. District Court, 910 P.2d 684, 686 (Colo.1996). Nor may we assume a legislative intent that would vary the words used by the General Assembly. People v. Thomas, 867 P.2d 880 (Colo.1994).

According to the plain language of § 16-10-103(1)(k), only compensated employees of public law enforcement agencies are statutorily ineligible for jury service. See also People v. Coleman, 844 P.2d 1215, 1218 (Colo.App.1992) (to fall within the statute, the individual must agree to perform services for a law enforcement agency "in consideration for compensation").

Moreover, the word "is" in the statute connotes a determination of status of the prospective juror at the time of the juror's examination on voir dire. See Webster's Third New International Dictionary 1197 (1986).

Here, the panel member specifically indicated that she was a volunteer reserve police officer and that she received no compensation from the police department for her work. Thus, while she anticipated being a paid employee of the police force in the future, she was not such at the time of defendant's trial. See People v. Coleman, supra (retired security guard who is not currently employed by public law enforcement agency not disqualified from jury service on the basis of his previous employment).

Moreover, the fact that she was compensated by private employers for off-duty police work did not bring her within the reach of the statute. The statute applies to compensated employees of public law enforcement agencies, not volunteers for such entities who are compensated by private employers for work similar to that performed by paid police officers.

We may not assume the General Assembly...