The PEOPLE of the State of Colorado, Respondent, v. David Hung MA, Petitioner.
No. 04SC570
Supreme Court of Colorado, En Banc.
Oct. 11, 2005.
121 P.3d 205
The second group of e-mail messages contains those types of private communications the General Assembly intended to protect as private and fall outside the “public records” definition. These messages were sent and received in furtherance of the personal relationship between Baker and Sale and do not address the performance of their public functions. Most of the remaining messages fall into this group.
The third group-e-mail messages that contain both public and private communications-cause some difficulty as the competing policy interests for and against disclosure are equally present within the same message. Requiring disclosure of the entire e-mail message under the circumstances would contravene the General Assembly‘s intent to protect such communications and make what is otherwise a private communication a public communication simply because it was sent in the same message. In reaching such a conclusion, not only would we “discourage public service, we would create an arena of gossip and scandal instead of facilitating a forum of open and frank discussion about issues concerning public officials and the citizenry they serve.” Wick, 31 P.3d at 365-66. In contrast, were we to prohibit disclosure of the messages altogether, we would be limiting access to public business and deprive the citizens of Colorado of what the General Assembly has deemed a necessity to our democratic government. Additionally, such a conclusion would serve to encourage public employees and public officials to include private communications in e-mail messages to shield public communications from the provisions of CORA.
We see no problem, however, requiring that such messages be redacted by the district court to exclude from disclosure those communications within the messages that do not address the performance of public functions.13 CORA does not mandate that e-mail records be disclosed in complete form or not at all. Nor do we believe that it is practical, given the widespread use of e-mail for private and business uses inside and out of government, to require public officials and public employees to maintain a distinction each time a message is sent or, equally as important, when an e-mail message is received. Accordingly, we believe this resolution best balances the competing interests involved and is consistent with the General Assembly‘s intent to do the same.
In applying our analysis to the messages at issue here, we believe the privacy interests involved are protected consistent with the intent of the General Assembly. In addition, we believe our analysis eliminates the constitutional privacy concerns raised by Baker and Sale and contested by DPC in this appeal. Messages, or portions of messages, that are found to be “public records” pursuant to our analysis as applied by the district court on remand are not likely to give rise to any argument that they are entitled to constitutional privacy protection.
III. Conclusion
We conclude that the court of appeals and the district court did not correctly interpret and apply CORA‘s “public records” definition. Accordingly, we reverse in part, affirm in part, and remand with directions.
John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Respondent.
BENDER, Justice.
I. Introduction
In this appeal we construe the term “law enforcement agency” as it is used in section
We construe the term “law enforcement agency” to mean a police-like division or subdivision of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals. The common definition of the word “agency” is a division or subdivision of government. The common understanding of the phrase “law enforcement” is the detection and punishment of criminal violations of the law by the police or other police-like agencies. The Army Military Police Corps is a subdivision of government that detects and punishes criminal violations of the law by performing police-like functions such as arresting suspected criminals, investigating crimes, and detaining prisoners. Hence, we hold that the Army Military Police Corps is a law enforcement agency for the purpose of section
Under the facts presented here, we hold that the trial court should have granted Ma‘s challenge for cause. For these reasons, we reverse the judgment of the court of appeals and return this case to that court with instructions to remand it to the trial court for a new trial.
II. Facts and Proceedings Below
During jury selection, the trial court asked whether any of the prospective jurors was an employee of a law enforcement agency. One prospective juror told the trial court that he serves as a platoon leader in the Army Military Police Reserves. He explained that he works one weekend a month and participates in military police combat and site security missions.
The trial court then called counsel to the bench and stated, “Just when you think the
Later, the trial court asked the prospective juror whether he had ever testified in court. The prospective juror explained that he had testified as a military police officer in cases involving petty theft, drunk and disorderly conduct, and domestic disputes. When it was the defense‘s turn to question the prospective juror, defense counsel clarified that the prospective juror was a military police officer who had testified in a police capacity in criminal cases like this one. Defense counsel then challenged the prospective juror for cause under section
The trial court denied the challenge, ruling that defense counsel had waived Ma‘s right to make such a challenge when he first declined the opportunity to do so.2 As a result of that ruling, defense counsel used one of Ma‘s peremptory challenges to excuse the prospective juror and ultimately exercised all of Ma‘s peremptory challenges. The jury found Ma guilty of criminal mischief and menacing.
On appeal, the court of appeals held that the trial court properly denied Ma‘s challenge for cause. Ma, 104 P.3d at 277-78. But instead of concluding, as the trial court had, that defense counsel waived Ma‘s right to make the challenge, the court of appeals concluded that such a challenge was invalid. Id. It reasoned that the prospective juror was not within the reach of section
We granted Ma‘s petition for certiorari on the question of whether the trial court should have granted Ma‘s challenge for cause in order to address the particular issue of what the term “law enforcement agency” means as it is used in section
A. Waiver of the Challenge for Cause
As a threshold matter, we address whether defense counsel waived Ma‘s right to challenge the prospective juror for cause by declining an initial opportunity to do so.
Ma maintains that defense counsel was uninformed and unaware that his initial refusal to challenge the prospective juror would preclude him from making such a challenge after further questioning. In contrast, the People argue that defense counsel waived Ma‘s right to make the challenge by failing to pursue the matter when the grounds for making the challenge were first raised.
A challenge for cause is waived if counsel fails to use reasonable diligence during jury selection to determine whether the grounds for such a challenge exist. People v. Lewis, 180 Colo. 423, 428, 506 P.2d 125, 127 (1973). The test for reasonable diligence is whether counsel took the opportunity to adequately question a prospective juror. Brown v. People, 20 Colo. 161, 165, 36 P. 1040, 1042 (1894).
Although the determination that a waiver was valid is largely within the discretion of the trial court, see People ex rel. Peters v. District Court, 951 P.2d 926, 931 (Colo.1998), the record in this case lacks the information necessary for us to find a waiver.
After the prospective juror stated that he was an Army military police reservist, the trial court commented that the term “law enforcement agency” is unclear. It then asked whether either party wanted to make a challenge for cause. It did not ask if either party wanted to question the prospective juror further. Nor did it state that this was the parties’ only chance to make such a challenge.
In response to the trial court‘s question, the prosecutor said that he did not want to make a challenge “at this time.” Defense counsel replied that he did not want to make a challenge either. Eventually, when it was the defense‘s turn to question the prospective juror, defense counsel asked him about his job as an Army military police reservist. It was at that time that defense counsel challenged the prospective juror for cause.
It is clear that defense counsel initially declined the opportunity to challenge the prospective juror for cause. It is unclear, however, that defense counsel‘s decision constituted a waiver. When the grounds for making the challenge were first raised, defense counsel did not ask the prospective juror any questions. But, when it was defense counsel‘s turn to question the prospective juror, defense counsel raised the issue again.
Because defense counsel eventually questioned the prospective juror regarding the grounds for making the challenge, we cannot conclude that defense counsel failed to use reasonable diligence unless the record is clear that defense counsel was aware that his initial opportunity to challenge the prospective juror would be his only opportunity to do so. The record is unclear on this point. Hence, we hold that the record is insufficient to support the conclusion that defense counsel waived Ma‘s right to challenge the prospective juror for cause under section
B. Merits of the Challenge for Cause
We next address the issue of whether the trial court should have granted Ma‘s challenge for cause to a prospective juror who is an Army military police reservist.
Ma argues that the Army Military Police Corps is a law enforcement agency because it is the law enforcement arm of the Army, just as a city‘s police department is the law enforcement arm of that city. The People, on the other hand, contend that the Army Military Police Corps is not a law enforcement agency because it is a subdivision of the Department of Defense, which is not a law enforcement agency.
Before we begin our analysis of this issue, we note that the rationale underlying a challenge for cause to a compensated employee
Because a criminal defendant has the constitutional right to a fair trial by an impartial jury, see
1. The Term “Law Enforcement Agency”
We now begin our analysis of this issue, which requires us to construe the definition of the term “law enforcement agency” as it is used in section
The term “law enforcement agency” is not defined by section
The word “agency” is defined as a “division of government.” American Heritage Dictionary of the English Language 32, (4th ed.2000).
The phrase “law enforcement” is defined as “the detection and punishment of violations of the law.” Black‘s Law Dictionary 891 (7th ed.1999). Detecting and punishing violations of law is commonly understood to be the job of the police or other police-like agencies. See American Heritage Dictionary of the English Language, supra at 1358 (defining the word “police” as “the governmental department . . . established to maintain order, enforce the law, and prevent and detect crime“). Police officers are responsible for enforcing criminal laws. They do this by investigating crimes, and arresting, detaining, and assisting in the prosecution of suspected criminals. See, e.g., Denver Police Dep‘t, Denver Police Dep‘t Operations Manual (2004). Therefore, the common understanding of the phrase “law enforcement” conjures up images of police officers carrying out typical police functions in order to enforce criminal laws.
In the broadest sense, the phrase “law enforcement” means not only the enforcement of criminal laws but also the enforcement of civil regulations. Black‘s Law Dictionary, supra at 891. However, when a word can be defined in either a broad or a narrow sense, the definition that will best effectuate the General Assembly‘s intent should be applied. Fifteenth St. Inv. Co. v. People, 102 Colo. 571, 581, 81 P.2d 764, 769 (1938).
The broad meaning of the phrase “law enforcement” includes the enforcement of both criminal laws and civil regulations. But, to apply this meaning would enlarge the pool of dismissible jurors to a size that was not contemplated by the General Assembly. See People v. Simon, 100 P.3d 487, 491 (Colo. App.2004) (observing that the General Assembly did not intend for all employees of the EPA to be disqualified under the statute). The narrow meaning of the phrase “law enforcement” is limited to the enforcement of criminal laws. To apply this mean-
When we construe a statute, our goal is to ascertain and to give effect to the General Assembly‘s intent. People v. Guenther, 740 P.2d 971, 975 (Colo.1987). Thus, we construe the phrase “law enforcement” to mean the enforcement of criminal laws by the police or other police-like agencies.
In addition to reflecting the phrase‘s common definition and the General Assembly‘s intent, our construction of the phrase “law enforcement” finds support throughout Colorado statutory and case law. The statutes that define the term “law enforcement agency” also identify several types of law enforcement agencies, including: any police department, sheriff‘s department, or district attorney‘s office; the office of the state attorney general; the Colorado bureau of investigations; and the Colorado state patrol. §§
In a number of cases, the court of appeals has held that agencies responsible for enforcing civil regulations are not law enforcement agencies for the purpose of section
Combining the common meanings of the phrase “law enforcement” and the word “agency,” we reason that the term “law enforcement agency” means a division of government that detects and punishes criminal violations of the law by performing police-like duties such as investigating crimes and arresting, prosecuting, or detaining suspected criminals. Put in a less cumbersome way, a law enforcement agency is a police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals.
2. The Army Military Police Corps
Having construed what the term “law enforcement agency” means as it is used in section
As to the first question, the court of appeals determined that the Army Military Police Corps is not an agency in and of itself. Ma, 104 P.3d at 278. Because of this determination, the court of appeals did not analyze whether the Army Military Police Corps is a law enforcement agency, but instead analyzed whether the Department of Defense, which oversees the Army, is one. Id.
Contrary to the court of appeals, we see no reason why the Army Military Police Corps should not be considered an agency in and of itself. It is true that the Army Military Police Corps is a subdivision of the Army, which is overseen by the Department of Defense. See Dep‘t of the Army, Pamphlet 10-1, Organization of the U.S. Army 2, Fig. 1-1 (1994). And, it appears that the court of appeals correctly concluded that the Depart-
However, the common definition of the word “agency” is not bound by bureaucratic happenstance, and we should not construe the word so as to undermine the rationale behind section
As to the second question of whether the Army Military Police Corps is a law enforcement agency, the purpose of the Army Military Police Corps is to maintain law and order on Army military bases and installations by enforcing Army regulations and the Uniform Code of Military Justice. See Dep‘t of the Army, Pamphlet 600-3-31, Branch Code 31-Military Police (1987); Dep‘t of the Army, Field Manual No. 19-10, Military Police Law and Order Operations (1987). To carry out that purpose, military police officers-including reservists-are trained and authorized to arrest suspected criminals, to investigate crimes, and to detain prisoners. See id. Like civilian police officers, military police officers wear police uniforms, are armed with weapons, and patrol in marked police cars. See id.
Because the duties and responsibilities of a military police officer are analogous to those of a civilian police officer, whose job it is to detect and punish violations of the criminal law, we conclude that the Army Military Police Corps, just like a civilian police department, embodies the common understanding of the phrase “law enforcement.” Therefore, we hold that the Army Military Police Corps is a law enforcement agency for the purpose of section
IV. Application
Because Ma did not waive his right to make a challenge for cause to a prospective juror who told the court that he is an Army military police reservist, because the trial court should have granted this challenge, and because defense counsel used a peremptory challenge to excuse this prospective juror and subsequently exercised all of Ma‘s remaining peremptory challenges, we reverse Ma‘s conviction and order a new trial. The judgment of the court of appeals is reversed and the case is returned to that court with instructions to remand it to the trial court for retrial.
Justice COATS dissents, and Justice KOURLIS and Justice RICE join in the dissent.
Justice COATS, dissenting.
The majority reverses the defendant‘s domestic violence convictions for criminal mischief and menacing his wife, on the grounds that the trial court erred by forcing the defense to expend one of its peremptory challenges on a military police reservist, rather than simply removing him from the jury panel for cause. I respectfully dissent from that holding because I do not believe the trial court was obliged to permit the defendant to revisit the matter, once his counsel declined the court‘s invitation to challenge the venireman as a compensated employee of a public law enforcement agency. Even if defense counsel had been entitled to challenge the prospective juror for cause as he did, however, I believe that the majority‘s conclusion is premised upon a misconstruction of controlling Colorado law and a fundamental misunderstanding of the organization and command structure of the United States Army.
Initially, the majority confuses a failure to object with an affirmative choice not to object, and in doing so I believe it unjustifiably
The trial court in this case made clear to both counsel from the outset its practice of dealing with juror qualifications and challenges for cause, prior to general questioning by counsel, in order to permit the dismissal of affected prospective jurors, without unnecessary inconvenience or delay. It therefore proceeded down the list of statutory challenges for cause, in sequence, requiring prospective jurors to respond affirmatively to any applicable ground. When the court asked whether any prospective juror was an employee of a law-enforcement agency or the public defender‘s office, as enumerated in §
While evidence of a prospective juror‘s incompetency, disqualification, or prejudice must be offered and the matter resolved, before the jury is impaneled, see
Whether a trial court abuses its discretion by refusing to reopen a matter for changed circumstances or other good cause will always be subject to judicial review. But in this case, there is no suggestion of the prospective juror‘s recanting or modifying his earlier statement. Even if defense counsel were not obliged to seek clarification before committing to the court‘s demand for challenges, his subsequent questioning of the prospective juror in no way altered the circumstances of his employment. Defense counsel simply reacted to the extent of the prospective juror‘s past experience with domestic law enforcement and his attitude about the trustworthiness of law enforcement officers in general. While these matters may have provided some support for a challenge based on actual enmity or bias toward the defendant, or an inability to follow the instructions of the court, they did not alter (or even amplify) the prospective juror‘s employment status.
To elevate tactical trial decisions to the level of constitutional rights by holding, as the majority apparently does today, that courts may not rely on counsel‘s explicit representations-including an explicit waiver of an objection or challenge-in the absence of a warning that he will not be permitted to change his position at some later time, is not only an unjustified infringement on the authority of trial courts, but also a formula for disaster in the day-to-day conduct of courtroom proceedings. I would therefore approve the trial court‘s ruling without addressing the merits of the defendant‘s challenge.
As the court of appeals has recognized on a number of occasions, the specific challenge for cause defined at §
The subdivision of government referred to as a public law-enforcement agency in the statute therefore includes only subdivisions with the authority to hire and fire the prospective juror. The performance of law-enforcement related functions on behalf of a governmental unit that cannot itself be fairly characterized as a law-enforcement agency does not, standing alone, establish cause, nor can assignment by a non-law-enforcement governmental employer to one of its subdivisions performing law-enforcement related functions. See People v. Simon, 100 P.3d 487 (Colo.App.2004) (finding employee of Environmental Protection Agency could not be challenged under the statute since the EPA is an investigating and rule making body, not a law-enforcement agency). The statutory provision applies, by its own terms, only to employees of, and compensated by, public law-enforcement agencies, and only then is the rationale for its existence satisfied.
The majority should therefore have addressed the question whether the Department of the Army, rather than the military police corps, is a public law-enforcement agency, just as the court of appeals did. The published law of this jurisdiction has long answered that question in the negative. People v. Urrutia, 833 P.2d 1338, 1346 (Colo.App.1994) (“That the functions of the Department of Defense require it to maintain security measures at its facilities, and to hire civil security guards who conduct investigations and searches, does not transform the Army and its various installations into a law enforcement arm of the government.“).
Even if, however, a non-employing subdivision of government could qualify as a law-enforcement agency within the meaning of the statute, merely by right of its members having the authority to perform law-enforcement functions, I believe the majority opinion betrays a fundamental lack of appreciation for military organization and command structure by classifying the military police corps, or branch, as such an agency. Apart from considerations of esprit, branch designation in the military appears to be little more than an organizational tool for personnel management, indicative of occupational specialty, or classes of occupational specialties, and career development. While branch designation may apparently indicate the kind of training and determine the nature of the units and missions to which its members have been or will be assigned, nothing in the pamphlets or training manuals cited by the majority even remotely suggests that a branch of the service is a tactical or administrative unit of organization; or that branch designation imbues anyone with authority to act.
On the other hand, depending upon their particular assignments, soldiers and officers other than the military police are clearly responsible for carrying out traditional law-enforcement functions in their units, including maintaining order, arresting suspected criminals, conducting investigations, and temporarily detaining prisoners. See id. at 212. The quasi-military trappings of civilian police forces, which set them apart in appearance from the rest of civilian society, are definitionally present in the military itself, without regard to particular domestic law-enforcement responsibilities. Bearing arms, wearing uniforms, and being subject to a military command structure, however, was never intended to support a challenge for cause.
By ignoring the statute‘s clear limitation to prospective jurors, in criminal trials, who are employed by public law enforcement agencies, the majority loses sight of the rationale supporting this per se rule of exclusion and finds itself attempting to define the term “agency,” as well as the concept of “law enforcement,” virtually without context. Its journey in search of legislative intent is therefore, not surprisingly, unsatisfying. To add insult to injury, the majority then attempts to apply its newly minted, global definition to a military organization, structured for purposes and governed by authority vastly different from the civilian society for which the term was written. Because the defendant expressly waived his right to assert a challenge for cause arising from this provision, I consider it unnecessary to construe the statute, even as it would apply to this context, much less to define “public law-enforcement agency” for all contexts.
Because I would affirm the judgment of the court of appeals, I respectfully dissent. I am authorized to state that Justice KOURLIS and Justice RICE join in this dissent.
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Guadalupe SOLIS-MARTINEZ, Defendant-Appellant.
No. 03CA1365.
Colorado Court of Appeals, Div. I.
Sept. 9, 2004.
Rehearing Denied Dec. 16, 2004.
Certiorari Granted Oct. 11, 2005.
Notes
(1) The court shall sustain a challenge for cause on one or more of the following grounds:
(k) The juror is a compensated employee of a public law enforcement agency or a public defender‘s office.
Peace Officers Standards and Training Board, §[DEFENSE COUNSEL]: Judge, I challenge [the prospective juror] for statutory cause. I know we talked about this, and I don‘t think there‘s exact case law, but the statute says if he‘s a compensated employee of a public law enforcement agency, which he exactly is. He works for a public agency, the United States government, as a police officer. There‘s nothing in the statute or anything in the case law that says full time or part time. He‘s a police officer, and I would challenge him pursuant to
16-10-103 .[PROSECUTOR]: Judge, I don‘t think he comes within that statute. And I know that we‘ve been through this before, and the law is unclear, just like the Court said, just when we thought that we were being clear about what law enforcement is. He is more of a military man than law enforcement.
[TRIAL COURT]: Let me tell you what my concern is. I thought what I intended to be doing when I asked you to approach the bench when [the prospective juror] first said that he was a reservist and was an MP in the reserve was to find out from either of you whether you had a challenge for cause based on his status. What both of you said was, “We don‘t have a challenge at this time.” I took that to mean you don‘t have a challenge based on what you‘ve heard so far but that you obviously wanted to keep your options open in case he said something that would disqualify him for other reasons. So I have concerns about whether this challenge has not been waived. And maybe we just had a miscommunication, but the last thing I wanted to do was to have [the prospective juror] sit around here for five hours and then find out from defense counsel that they now think an MP in the reserves is a member of a law enforcement agency.
[DEFENSE COUNSEL]: Well, Judge, I‘d ask the Court to read the record back because I know that that is what [the prosecutor] said. I‘m not sure what I said, but I don‘t think I said that. That was not my understanding.
[TRIAL COURT]: Well, did you say you had a challenge for cause to [the prospective juror]?
[DEFENSE COUNSEL]: To be honest, I can‘t remember exactly what I said. I think the record can speak for itself.
[TRIAL COURT]: Well, you didn‘t raise the challenge for cause, did you? And I don‘t care about the exact language that was used. I brought you up here [earlier] to find out if either of you had a challenge for cause to [the prospective juror] based on his status as an MP, and neither of you did. . . . The challenge is denied as waived.
Whether the court of appeals erroneously concluded that the trial court properly denied Mr. Ma‘s statutory challenge for cause to a juror that regularly testified as a military police officer in various cases, including “domestic situations,” without addressing the propriety of the trial court‘s finding that Mr. Ma waived the challenge.