*1 source, testify concerning a water neer to a certified accountant. addition, had re- although Westminster March,
ports dating August, and October
1989, experts had studied the from other who building, it problems chose
structural Rather, experts. it indicated
not to list those 1991, 11, February could
that as experts in the
designate additional areas distress due to soils movement.
structural view, compel- offers no my Westminster certify justification for failure to wit-
ling its promptly after the
nesses from firms 1990, disqualify- order
court’s December belief, or for its after the
ing Reins continued
order, disqualification that Reins’ would be Foam, Inc., Rapco See Daniels v.
reversed. (late expert an
supra endorsement of witness explanation
denied in the absence of expert pre- party’s failure use witness endorsed).
viously that no reversible
I thus conclude would allowing in not late
error was committed expert of new witnesses. Ac-
certification judgment
cordingly I would affirm the and remand for
favor of MOA reverse
new trial as Carrier/Parker. Colorado,
The PEOPLE the State
Plaintiff-Appellee, CERRONE, Defendant-Appellant.
John
No. 88CA1319. Appeals, Court of
Colorado III.
Div.
Oct. 1993.
Rehearing Dec. 1993. Denied
145 *2 court for an in accordance
district
order
provisions
with the
of this article. Said
shown,
judge may, for good
chief
cause
impaneling
order the
of a state
jurisdiction.
shall have
statewide
*3
making his
the need
determination as to
impaneling
grand jury,
a
the
state
judge
require
showing
shall
the
a
Norton,
Gen., Raymond T.
Atty.
A.
Gale
by
effectively
matter cannot be
handled
a
Gen.,
Atty.
Timothy
Slaughter,
Deputy
Chief
jury impaneled
grand
pursuant
to article
Gen.,
Tymkovieh,
P. Adkis-
M.
Sol.
Catherine
title,
jury being
grand
72 of this
such a
Gen.,
son,
Denver,
Atty.
plaintiff-
Asst.
“county
in
referred to
this article as a
appellee.
jury.”
grand
MacFarlane, Westminster, for defen-
Neil
28, 1985,
January
judge
On
the chief
dant-appellant.
of the Denver District Court reviewed a veri
petition
impaneling
fied
for an order
a state
by Judge MARQUEZ.
Opinion
grand jury presented by
attorney
wide
the
general.
judge
The chief
the
found
pursuant
is before
to mandate
This case
us
attorney
showing
good
general had
of
made
Cerrone,
supreme
from our
court in
he
Specifically,
cause.
found that the mat
(Colo.1993),reversing
ment of conviction. Second, although in of our Defendant, its reversal Cerrone, John found supreme holding, our found no earlier court jury violating by a of four counts of violation in of the constitutional the selection Organized Act Colorado Crime Control jury, (1986 grand chal- 1985-86 defendant has also (COCCA), 18-17-101, seq., et C.R.S. jury lenged grand on the basis 8B), selection Repl.Vol. pandering. one count and economic in viola- of racial discrimination charges arose from indictments Such issued statutory find no tion Colorado law. We grand jury City in sitting a state statutory violation. County of Denver. 13-71-103, (1987 Repl.Vol. C.R.S. Section
I. 6A), here, in effect at the time at issue provides: A. jury shall not be excluded from A citizen Initially, argues race, the trial in this state service on account sex, have indictment color, origin court should dismissed the eco- religion, national not have because a state should nomic status. agree. impaneled. We do not
been
provision should
read in the con
This
13-73-101,
legislative policy that is
of the broader
text
6A),
13-71-102,
regarding
impaneling
Repl.
of statewide
in
presented
6A)
juries, provides
in effect
time at issue
grand
that:
also
at the
Vol.
provision
here. That
states:
attorney general
it to be
deems
When
policy of this
that all
It is the
state
interest to convene
jury
be selected
jurisdiction extending be-
selected for
service shall
jury which has
county,
from a fair cross section
any single
at random
yond the boundaries of
court,
by the
of the area
may
judge
population
served
petition the chief
he
view,
terms
nary 13
In our
shall have the
qualified
that all
citizens
conduct,
thus con-
provi-
imply affirmative
and we
with the
opportunity in accordance
prohibits purposeful
the statute
considered for
clude
of this article to be
sions
imper-
jury
on an
obligation exclusion from
based
jury
state and an
service
this
ie.,
factor,
race or economic status
that missible
summoned for
to serve as
when
Further,
for exclusion.
cannot be the reason
purpose.
statute,
required by
although
specifically
discretion, however,
remains
Some
three-step process
uti-
we conclude that
process
as
selection
supreme
court in
v. Cer-
lized
our
6A)
provides that:
rone,
evaluating
of racial
supra, for
claims
[Mjembers
grand jury shall be
of the state
selection under
discrimination
judge with the advice
by the chief
selected
*4
appropriate
Equal
is also
Protection Clause
for
attorney general and shall serve
here.
following
unless dis-
year
one
selection
supreme court noted that defendant
Our
judge.
chief
charged sooner
challenged the manner in which the
had not
on
claimed discrimination based
jurors
pool
prospective
original
of 375
persons
Spanish sur-
the fact that no
with
Cerrone,
People
supra.
v.
selected.
grand jury
that the
on the
names were
Considering
the factors used to ex-
both
prospec-
government
from the list of
struck
jurors
potential
reasoning
and the
be-
clude
appeared to
grand
persons who
tive
factors,
supreme
our
hind the use of those
hourly wage.
work for
Cerrone,
supra,
deter-
court
v.
In
to resolve defendant’s statu
order
offering
that the
succeeded
mined
claims,
tory
must first construe the stat
we
explanation
a race-neutral
selec-
statutory
goal
con
primary
utes. The
process.
tion
intent of the General
struction is to effect the
denying
In
defendant’s
constitutional
Assembly. Section
claim,
supreme court also held “that the
1B).
should assume
Courts
it
trial court did not err when
found as
just
Assembly intended a
and rea
General
matter of historical fact that the defendants
2-4-201(1)(c), C.R.S.
sonable result. Section
proving pur
did not sustain their burden of
1B).
Also,
a statute should
poseful racial discrimination under the Four
accomplish
purpose
construed to
be
Cerrone,
People v.
su
teenth Amendment.”
enacted. Perlmutter v. Bless
which was
pra,
P.2d at 193. We conclude that the
854
(Colo.1985).
ing,
trial court II. impose an undue financial bur service would that he was de- Defendant also contends den). by right speedy guaranteed trial nied his to 8B). facts, these the trial court deter- We Based on “By making attempt disagree. a deliberate mined that: people jury, on the get to certain kinds of 18-1-405(1), Repl.Vol. may persons of lower income result was 8B) provides that: found, The court not have been included.” provided in this sec- Except as otherwise however, racially the criteria used were tion, brought if is not to trial a defendant “[Tjhere economically and that: neutral by complaint, in- raised on the issues no deliberate effort to exclude
was formation, months or indictment within six of their economic status.” We on the basis entry plea of not the date of the of a from was sufficient to affirm because the evidence pending charges be guilty ... shall support findings. dismissed.... not, however, did discuss The trial court general exception An to this rule is found hourly wage equat- being an earner whether 8B), §in and, if having a certain economic status ed to that: which states so, being an that made the status whether court, by the If has been fixed a trial date factor hourly wage impermissible earner an requests and the defendant and thereafter jurors deciding should be to use in trial, peri- granted a continuance is noted, prob- trial court “the excused. As the had is which the trial shall be od within status and what economic lem of economic pe- an additional six months’ extended for never under our statute has status means upon which the continu- from the date riod that, clearly hold un- articulated.” We been granted. ance was here, there was no the circumstances der right long initially As as the rea- his of the statute. waived violation economically arraigned excluding an speedy are of trial. He then was sons for to a 2, character, hourly wage July 1987. The pled the use of not on neutral trial date trying subsequently to im- set defendant’s one factor court earner status as 4, the last consistently January This date was 1988. panel grand who would speedy trial day six-month during the of the mandated the scheduled sessions attend period. year was not error. 2, Subsequently, February 24, 1987, speedy trial.” on the State because
On November pay represent in excess appointed not fees counsel was to Public Defender would new by guidelines issued the Colorado Su- defendant, trial date was set. new Court, court-appointed at- preme defendant’s April defendant’s motion to dis- torney allowed to withdraw. speedy trial was denied. miss for denial object to the withdrawal and did did not ruling the trial court found on this motion speedy trial. Fur- about voice concerns competent “desire for coun- that defendant’s court, ther, by the defen- after advisement necessarily right impliedly and waived his sel any potential conflict and indi- dant waived Any delay to speedy to trial. is attributable defender’s cated that he wanted defendant, by the withdrawal of represent him. The trial caused appointed to office the State Public Defender court then ordered his counsel.” attorney represent provide an to defen- to
dant.
by
If
the sub
the continuance caused
chargeable to defen
stitution of counsel was
repre-
attorney
appointed
was not
An
dant,
trial court
correct
then the
At
until December
1987.
sent defendant
newly appointed
extending
speedy
coun-
trial deadline.
that time defendant’s
(Colo.1988).
Scales,
enable him to
requested a continuance to
sel
“In
objected to
prepare for trial. Defendant
chargeable
to a
order for a continuance
ruling
request, and no
was made.
defendant,
caused
must have been
defendant,
by the
affirmative act of the
days
proceeding,
at the next
Four
later
express
to the continu
defendant’s
consent
newly appointed counsel advised
defendant’s
ance,
evincing
byor
other affirmative action
that defendant did not want the
Scales,
attorney
represent
possi-
him because of a
the defendant.”
consent
*6
attorneys
public
in the
conflict with other
ble
es
supra at 1047-48. This determination is
The court ruled that de-
defender’s office.
sentially
inquiry.
hoc
an ad
change
position
his
and
fendant could not
Here, defendant neither caused the contin-
trying
defendant
to
appeared
that it
was
by
expressly con-
uance
affirmative act nor
advantage.
to his tactical
use the situation
continuance.
for the
sented to the
unwilling
at that time
Because defendant was
defendant,
charged
delay to be
to
he must
any potential conflict in the
to waive
ac-
engaged in some “other affirmative
have
office,
newly appointed
his
counsel
defender’s
evincing
tion
consent.”
De-
allowed to withdraw. The Public
was
continuing
under
orders to
fender remained
(Colo.
Lewis,
v.
provide counsél for defendant but was unable
App.1987), a similar chain of events took
lawyer
pre-
provide him a
who would be
to
objection,
place. Over the defendant’s
January
pared
go to trial on
4th.
to
disqualified
attorney
trial court
defendant’s
questioned
regarding
The court
not
to de-
for an ethical conflict
attributable
The
speedy trial situation at that time.
newly appointed
The
fendant.
defendant’s
understanding
exchange reflects defendant’s
requested
then
a continuance in or-
counsel
obtaining
problem
competent
coun-
denying
prepare
for trial.
der
January 4th trial date
his desire
sel for a
and
claim,
speedy
panel
defendant’s
trial
a
of this
proceed to trial as scheduled.
court stated:
29th,
again
defendant was
On December
shows that the trial court coun-
The record
by
Defendant
questioned
the court.
length
the defendant at
as to his new
seled
go
he
to trial on
asked whether
wanted
continuance,
attorney’s request for a
represent
January 4th and
himself or wheth-
agreed
that the defendant understood and
competent counsel. He stated
er he wanted
for a continuance. The fact
with
need
attorney.
He
that he needed and wanted
ultimately
that the continuance was
occa-
you
put
that: “If
want to
it at
further stated
date,
before,
ruling
sioned
of the trial court dis-
like I said
a different
different
can,
date,
waiving
qualifying
attorneys
you
but I’m not
the defendant’s
does
later
entity,
in
18-1-405(3),
although
legal
not a
and shall
under
change the result
not
8B).
enterprises
as licit
clude illicit as well
governmental as well as other entities.
Lewis, supra,
three were businesses where help occupations cations or that would in offered to customers connec- rubs” were complicated cases that them to understand in a nude tion with a session a hot tub with year presented were to be that to the employee. female grand jury attempts and that deliberate presented persons to select whose
There was evidence
that
the
were also made
money
jobs
family
would allow
given
were
30% of the
the
and
commitments
businesses
(1)
required
to make
easily
away from work or
defendant is
first
most
to be
The
them
showing
prima
a
facie
that the
has
State
nearly every Friday
year
for
home
one
jurors
potential
[ed-
excluded
on account of
(emphasis sup-
the
met.
when
(2) If the
status].
ucation or economic
plied)
made,
requisite showing has been
the bur-
holding
split
in
decision that the
After
a
a ...
den shifts to the State to articulate
procedure
violate
followed did not
defen-
ju-
explanation
excluding
neutral
for
the
the
equal protection right under
feder-
dant’s
(3)
in
If
question.
rors
the
succeeds
State
constitution,
supreme
al
the
court then re-
articulating
explanation,
in
...
neutral
ruling
for our
on
versed
remanded
then
must
the trial court
determine wheth-
in
procedure
selecting
the
whether
followed
er the
has
carried his burden
13-71-103,
jury
the
violated
proving purposeful discrimination.
6A)
systematic
because
the
that defendant has established
on
of formal edu-
exclusions based
levels
prong
first
of the Batson test is irrefutable.
wage
hourly
status
cation and
as an
earner.
Although
have articulated
Cerrone,
fn.
supra,
3.
See
explanation
excluding potential
neutral
13-71-103, provides:
jurors on
basis
an educational and economic
A
shall
excluded from
citizen
not be
prong,
explanation
under
the second
race,
in this
on account of
service
state
not,
estimation,
my
in
to a success-
does
rise
color,
sex,
religion,
origin,
national
or eco-
of a neutral
How-
articulation
exclusion.
fill
nomic status.
ever,
explanation
even if I assume that the
is
6A)
carry
third
And,
sufficient to
the matter to the
People pur-
prong,
undisputed
is
provides:
posefully
deliberately
discriminated
policy of
that all
It is the
this state
against
probably majority seg-
large
shall be
selected
service
selected
population
formal
ment
with limited
at random from a fair cross section of the
hourly wage
education and
earner economic
court,
population of
area served
status.
qualified
and that all
citizens shall have the
Clearly,
rely upon a
cannot
provi-
opportunity
accordance with
of exclu-
neutral reason for
utilization
sions of this article to be considered for
deprives
public and
patently
sions which
obligation
jury service
this state and
jurors
at random
this defendant of
selected
to serve as
when summoned for that
population.
from a fair cross section of the
purpose.
103.
13-17-102 &
Hence, since the
of Colorado has ex-
State
to es-
There is no evidence
the record
opportu-
pressly extended
its citizens
are
intelligence
tablish that education
juries
obligations
on
nities and
to serve
be-
necessarily
nor is there evidence
coextensive
yond
specifically contained
the Unit-
those
wage
less
hourly
that an
earner would be
Constitutions,
States, Colorado
the su-
ed
though
People have
attentive.
only
preme
proper,
court’s remand was
explanation,
proffered
purported
neutral
necessary.
but
See Edmonson
Leesville
explanation
with the
is irreconcilable
Co.,
S.Ct.
Concrete
specific provisions of the
and which
statutes
(1991) (Right of the
ing the existence of discrimination here, standard, applicable That as
selection.