2013 COA 2
Colo. Ct. App.2013Background
- Defendant Turk Alan Fleischacker was convicted by a jury of three counts: sexual assault on a child-position of trust, sexual assault on a child-pattern of abuse, and sexual assault on a child.
- Defendant challenged for-cause removals of Jurors G. and J.; he also asserted a double jeopardy violation for two counts based on identical elements/factual bases.
- The court held that section 16-10-103(1)(b), C.R.S.2012, does not disqualify a prospective juror solely for a third-degree relation to a paralegal in the DA’s office.
- Juror G. was related to a DA office paralegal (his daughter); the court declined to apply Macrander to paralegals, distinguishing deputy DAs from paralegals.
- Juror J.’s daughter was sexually assaulted by Juror J.’s brother-in-law; the court denied the challenge for cause after balancing concerns and rehabilitative questioning.
- The court rejected the double jeopardy claim, concluding Counts Two and Three were factually distinct offenses and any clerical form confusion did not undermine fairness; the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in denying challenges for cause to Jurors G. and J. | Fleischacker asserts implied bias and conflict due to family ties and associations with law enforcement. | G. and J. were biased or would not be impartial due to relationships and events; cause challenges trusted to judge. | No abuse of discretion; court properly denied challenges for cause. |
| Whether the two counts (Counts Two and Three) violate double jeopardy. | Counts Two and Three are the same offense under the charging and verdict forms. | Clerical error and identicality of form could imply multiple punishments for the same act. | Not a double jeopardy violation; offenses were factually distinct actions. |
| Whether Macrander extends disqualification to paralegals. | Macrander’s rule extends to paralegals in the DA’s office. | Paralegals fall within the same disqualification scope as attorneys under 16-10-103(1)(b). | Macrander does not extend to paralegals; paralegals cannot trigger automatic disqualification under 16-10-103(1)(b). |
Key Cases Cited
- People v. Macrander, 828 P.2d 234 (Colo.1992) (limited to deputy district attorneys' relationship to the district attorney)
- People v. Roldan, 353 P.3d 387 (Colo.App.2011) (juror bias require more than general law-enforcement ties)
- People v. Prator, 833 P.2d 819 (Colo.App.1992) (rehabilitation can support denial of for-cause)
- People v. Shover, 217 P.3d 901 (Colo.App.2009) (deference to trial court on challenges for cause)
- People v. Blessett, 155 P.3d 388 (Colo.App.2006) (preliminary biases can be overcome by rehabilitation)
- People v. Luman, 994 P.2d 432 (Colo.App.1999) (deference to trial court on voir dire credibility)
- People v. Greer, 262 P.3d 920 (Colo.App.2011) (double jeopardy interpretation in multiple counts)
- People v. Tillery, 231 P.3d 36 (Colo.App.2009) (plain-error review standard for unpreserved claims)