Summary
holding that the Department of Corrections is a law enforcement agency because some of the agency's personnel have the power to arrest
Summary of this case from Ma v. PeopleOpinion
No. 76-886
Decided May 11, 1978. Rehearing denied June 8, 1978. Certiorari denied August 28, 1978.
Convicted of introducing contraband in the first degree, penitentiary inmate appealed on the basis that challenges for cause should have been allowed as to certain jurors that worked or had worked at the penitentiary.
Reversed
1. CRIMINAL LAW — Jury — Penitentiary — Public Law Enforcement Agency — All Employees — Subject — Challenge for Cause. The statutory grant of law enforcement authority to supervisory penitentiary personnel considered together with the penitentiary's extensive involvement with law enforcement functions serves to bring the institution within the meaning of the term "public law enforcement agency" as that term is used in the jury selection statute and rule, and therefore, under that statute and rule, all present employees of the penitentiary, of whatever function, are subject to challenge for cause.
2. Jury — Penitentiary — Former Employees — Not Subject — Challenge for Cause — Statute and Rule — Challenge — Retired Guard — Properly Denied. Although under jury selection statute and rule, present employees of state penitentiary are subject to challenge for cause, former employees thereof are not so disqualified, and thus defendant's challenge for cause of retired penitentiary guard was properly denied.
3. Jury — Challenges for Cause — Penitentiary's Employees — Improperly Denied — All Peremptory Challenges — Used — One Employee — Not Disqualified — Prejudice Shown. Since defendant's challenges for cause of several penitentiary employees were improperly denied, and since defendant exercised all his peremptory challenges, but failed to disqualify one of the penitentiary employees by peremptory challenge, prejudice from denial of his challenges for cause has been established and entitles defendant to reversal of his conviction.
Appeal from the District Court of Fremont County, Honorable Max C. Wilson, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, for defendant-appellant.
Defendant, William R. Scott, was convicted by a jury of introducing contraband in the first degree in violation of § 18-8-203, C.R.S. 1973. At the time of the alleged offense defendant was an inmate of the Colorado State Penitentiary. On appeal he contends that the trial court erred in denying his challenges for cause of four prospective jurors and in refusing to grant him a new trial on the basis of certain remarks of the prosecutor in closing argument. We reverse.
Three members of the jury panel worked or had worked at the penitentiary; one was a counselor, one was a baker, and one was a retired guard. Defendant challenged these prospective jurors for cause on the basis of their being present or former compensated employees of a public law enforcement agency. The challenges were denied.
Although defendant challenged the counselor on the additional ground of alleged bias, and also challenged for cause a fourth prospective juror stationed at the penitentiary, the denials of these challenges were not assigned as error in the motion for a new trial, and accordingly, we limit our consideration to the challenges for cause detailed above. Crim. P. 33(a); Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971).
Except for the baker, who served on the jury, these prospective jurors were excused on defendant's peremptory challenges. Defendant exercised the ten peremptory challenges permitted by statute and, apparently through inadvertence, was permitted one additional peremptory challenge, which he also exercised.
Defendant urges that the trial court's denial of his challenges for cause to the penitentiary employees violated statutory provisions and court rules relating to jury selection, § 16-10-103(1)(i) and (k), C.R.S. 1973, and Crim. P. 24(b)(1)(IX) and (XII), and in the context of the trial of a penitentiary inmate, abridged his constitutional right to an impartial jury as construed in Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952). We agree that the denial of defendant's challenges for cause was reversible error.
Section 16-10-103(1)(k), C.R.S. 1973, and Crim. P. 24(b)(1)(XII), provide:
"The court shall sustain a challenge for cause on one or more of the following grounds:
. . . .
"The juror is . . . a compensated employee of a public law enforcement agency."
The People contend that the penitentiary, as a state "institution" within the Department of Institutions, see §§ 27-1-104 and 27-20-101, C.R.S. 1973, is not a law enforcement agency within the meaning of the above-quoted statute. We disagree.
The penitentiary is now a state institution managed, supervised and controlled by the department of corrections. See Colo. Sess. Laws 1977, ch. 223, 17-1-104(1)(a) at 905 and 17-20-101 at 917.
Section 27-20-103, C.R.S. 1973 (1976 Cum. Supp.) (now Colo. Sess. Laws 1977, ch. 223, 17-20-103 at 918), authorizes specified personnel of the penitentiary to perform law enforcement functions, as follows:
"The superintendents of the state penitentiary and their assistants, the guards and keepers, shall be conservators of the peace and as such have the power to arrest or cause to be arrested, with or without process, upon any grounds owned or leased by this state and used by the state penitentiary, all persons who break the peace or are found upon said grounds violating any criminal law of this state and to take such persons before any court of competent jurisdiction for trial."
See also § 18-1-901(3)(1), C.R.S. 1973 (1976 Cum. Supp.).
[1] In our view, this grant of law enforcement authority to supervisory penitentiary personnel considered together with the penitentiary's extensive involvement with law enforcement functions serves to bring the institution within the meaning of the term "public law enforcement agency" as that term is used in the jury selection statute and rule. Accordingly, since that statute and rule do not discriminate on the basis of the particular function served by the challenged employee, but mandate that all present employees of law enforcement agencies shall be excused from jury service, we conclude that defendant's challenges for cause of the counselor and the baker should have been sustained.
[2] As the jury selection statute and rule do not purport to disqualify former employees of a public law enforcement agency challenged for cause, defendant's challenge of the retired guard member of the jury panel was properly denied. See also Annot., 72 A.L.R.3d 958 (1976).
[3] Since defendant exercised all of his peremptory challenges and failed to disqualify one of the penitentiary employees by peremptory challenge, we conclude that prejudice from denial of his challenges for cause has been established. See Skeels v. People, 145 Colo. 281, 358 P.2d 605 (1961).
In view of our disposition here, we need not address defendant's alternative contentions with regard to the denial of his challenges for cause, or his remaining assignment of error concerning the prosecutor's closing argument.
The judgment is reversed and the cause is remanded for a new trial.
JUDGE ENOCH concurs.
JUDGE VAN CISE dissents.