*1 On his appeal questions to this court the defendant has raised as to identification, competency his in-court of the radar operator unit, sufficiency testing determining and the the accu- procedure racy of the radar unit. City County of Denver has confessed error as to the in-court Therefore,
identification issue. we reverse and return the matter to the Su- Court for remand to the perior county court directions to dismiss the action.
Reversed and remanded with directions.
MR. JUSTICE HODGES does not participate.
No. 27880 The People of the State of Sepeda Colorado v. John Martinez
(581 723) P.2d Decided Rehearing June 1978. July denied 1978. *3 MacFarlane, General, J. D. Attorney E. Dubofsky, Jean Ed- Deputy, General, Donovan, Assistant, ward G. Rigsby, Solicitor Linda Palmieri for plaintiff-appellee. Dumas, Rogers, Defender, Jr.,
Rollie R. State Public F. James Chief Allen, Deputy, Mary III, G. Deputy, Thomas M. Van Deputy, Cleave defendant-appellant.
En Banc. MR. JUSTICE LEE delivered the opinion Court. Defendant-appellant convicted, John Martinez Sepeda, Jr. was murder,1 jury, second-degree (two attempted second-degree murder counts),2 endangerment (two counts),3 reckless and third-degree assault (two counts),4 in the County. District Court of Weld appeals Defendant urges his conviction and separate grounds seven that he contends individu- ally collectively warrant reversal. We find that none of defendant’s claims warrant reversal and his affirm conviction.
During the evening morning June and into the early hours 29, 1975, (defendant), June (John’s John Sepeda cousin), Bias Calderon *4 (John’s friend) Gloria Ortega girl three of their friends drinking were beer on the porch Greeley. Although of defendant’s house in it is not clear intoxicated, whether defendant and his friends were had they driving been drinking around the town of arid Estes Park for most of the day. a.m., At about 1:30 Bias Calderon buy went across the street to cigarettes package at the “Taco Bell” Griego, restaurant. He met Ken Korgan lot, Thomas Griego and John in the parking restaurant’s and ac- companied them into Jerry Lujan, the restaurant where he met David Lu- jan exchanged and Jose were Maestas. Words Bias was told to leave. street, As he started across the he turned and an obscenity shouted at the All group. jumped up began six from their tables and to chase Bias. 1 18-3-103, Section C.R.S. 1973. 18-2-101, Section C.R.S. 1973. 18-3-208, Section C.R.S. 1973. 18-3-204, Section C.R.S. 1973. being Defendant and his friends on the saw Bias porch chased and ensued, gang-fight ran to his aid. A with the six men from Taco Bell ap- defendant, getting Bias, parently the better of and their two friends. conflicting There was as to whether members of testimony either group single-edged had A weapons. razor blade was found at the scene. conflicting There was also testimony long fight as to how lasted. It is however, undisputed, fight began that soon after the defendant ran into his got house and a .22-caliber He pistol. warning came out and fired a shot. recovered, A bullet was later high sign embedded in a one-half from block the house.
There testimony was that when fight the first shot was fired the began ended and the participants away. to run Defendant testified to the however, contrary, stating fight that when the did not cease after the warning shot he fired into the crowd to break try up Defend- fray. ant related that from this point on he had no memory of what happened.
The evidence showed that defendant fired at least three shots into the crowd, hitting Maestas, Lujan Jose David Jerry Lujan. It is undis- puted fight was over at this point. Defendant then approached Jerry Lujan, fence, standing who was again. and shot him Witnesses placed defendant somewhere between three and Lujan six feet from at the time the final shots were fired. The testimony was conflict as to how long Lujan defendant faced before firing again and any whether words were exchanged Lujan between them. died of these wounds.
Defendant left fight the scene of the and drove to the home of a friend, Apolonio Gueroz. Gueroz drove defendant Ortega and Gloria friend, the home of another Moise Acquirre. According to Gueroz and Ms. Ortega, defendant made incriminating several during statements period and seemed extremely frightened.
Acquirre Mexico, drove defendant to New where he stayed for a few days before voluntarily surrendering to police.
I. Appellant’s argument first for reversal is that the method of se- lection used in Weld County systematically excluded Spanish-surnamed who persons comprised 15.4% of the population County, Weld accord- ing to the 1970 agree. census.5 We do not The record does not support such a contention. step first in the jury selection procedure reg- was to obtain voter
istration and driver and chauffeur- license lists for Weld County. The lists were then duplicate combined and resulting names were eliminated. The *5 5 figure record, clearly The bases for this and others contained herein were not established in the parties accepted also, purpose opinion, but the seem to have them as valid. For the of this we do though jury panel February even the was not selected until 1976. We further note there that was many Spanish-surnamed persons eligible no jury evidence as to how of the 15.4% were for service.
18 82,000 list contained assigned names. Each name on this list was a ran- and, using key system, dom number number number the of names was 5,489. reduced This list was the List.” It called “Master contained or 569 10.4% Spanish-surnamed persons.
Questionnaires were then sent whose people names were Master List. Two thousand hundred forty-nine persons seven returned questionnaires these and of 259 or were Spanish-surnamed. these 8.7% list, From this 350 names were for list. jury selected The list jury con- 30, 8.6%, tained Spanish-surnamed persons. jury or The at defendant’s single trial Spanish-surnamed contained a who sat person, as a second al- ternate.
A city county published Weld directory County, for de- that, fendant contends if jury this were used to select the pool, dispar- between ity 15.4% 10.4% not exist. directory would The was not used it produced computer judi- because was not in the used by media the state department cial in its was procedures. selection It determined judicial judge administrator and the chief district that the conversion could not be accomplished by funding. a lack reason of
Appellant that system jury array asserts creates a that violates rights Fifth and his Sixth Amendment and the terms Colorado’s Uni- Act, et seq., C.R.S. Jury 13-71-101, form Selection Service section 1973. We first address defendant’s constitutional claims. Supreme Court of United States has stated time and
again that the
guarantees
constitutional
of due
and a
process
by jury
trial
juries
mandate that
be
a representative
selected from
cross-section
Louisiana,
Taylor
522,
community. E.g.,
692,
v.
95
42
419 U.S.
S. Ct.
Fouche,
690;
Turner v.
346,
532,
L.Ed.2d
396 U.S.
90 S.Ct.
24 L.Ed.2d
567;
545,
643,
599;
Georgia,
Whitus v.
385
87 S.Ct.
17
U.S.
L.Ed.2d
Virginia,
Strouder v. West
303,
100 U.S.
no
L.Ed. 664. There is
re
however,
quirement,
that each petit
propor
reflect the exact ethnic
tion
Taylor v.
population
belongs.
to which
defendant
Louisiana,
Louisiana,
supra; Alexander v.
405 U.S.
92 S.Ct.
1221,
The jury procedure significant here involved differs in three First, dealt aspects many Supreme from the United States Court. showing any there is no in opportunity process any for human bias prejudice or to alter ethnic operate proportions pool. Cf. Partida, Castaneda 430 U.S. S.Ct. L.Ed.2d Louisiana, Alexander v. (jury pools commissioners); by jury selected returned; supra (jurors from each picked questionnaires questionnaire had race); Georgia, supra. Whitus space marked We out point selected, the instant after the lists be used are process completely personal random and no discretion is involved.
19
of Span-
between the
Second,
disparity
proportions
not have a
we do
great
so
jury pool
and those in
community
in the
persons
ish-surnamed
Castaneda v.
Compare
facie case of discrimination.
prima
a
present
as
Partida,
Mexican-American, jury list was 39%
supra (county was 79%
Alabama,
202, 85 S.Ct.
with Swain
Mexican-American),
v.
380 U.S.
Black,
juries are
only 10 to 15% of
824,
(25% county
of
is
Third,
here of total exclusion or a
showing
been no
there has
Alexander v.
group.
ethnic
particular
of a
representation
ken
Cf.
Louisiana,
Georgia, supra.
supra; Whitus
v.
it con
this: Is
essentially
then, the issue
Ultimately,
presented
registration and driver and
only
to use
the voter
stitutionally permissible
lists,
assembling
in
County directory,
and not the Weld
chauffeur-license
County jury pool?
names for the Weld
the list of
Taylor
issue,
the test inferred from
v.
addressing
adopt
In
Louisiana,
692,
690,
522,
42
the Tenth
by
S.Ct.
L.Ed.2d
419 U.S.
Test,
We
without
Thus,
cognizable
for the
of this
people.
purposes
a
class of
represent
reading of the
second one. From a
the crucial
of the test is the
prong
area,
clear that systematic
cases in this
it is
Supreme
States
Court
United
inferred,
evidence, direct or
of
when there is
exclusion will be found
government
of time
period
racial discrimination over a
purposeful
above,
discrimi
purposeful
there is no evidence of
agency.6 As we noted
were made
contrary,
specifically
To the
efforts
nation in the instant case.
on
lists.
Spanish-surnamed persons
proportion
to increase
(These
confi
lists failed.
are
obtain welfare and income tax
Attempts
Colorado.) Other
statute from disclosure
protected by
dential and
(i.e.,
tele
rejected as sex-biased
of names were considered
sources
books,
lists).
attempt
pro
an
was made
Finally,
utility company
phone
above,
but,
it was not
as noted
directory,
copy
County
cure a
of the Weld
solely because
act is not unconstitutional
the fact that an official
“Recent cases have established
Davis,
2040,
229, 239,
impact. Washington
96 S.Ct.
racially disproportionate
426 U.S.
v.
it has a
Housing Corp.,
Metropolitan
Arlington Heights
429 U.S.
(1976);
see
48 L.Ed.2d
Partida, supra.
Castaneda (1977).” (Emphasis supplied.)
We also that there has been no dis- over time has period crimination here. It not been demonstrated that Spanish-surnamed consistently ju- have been persons underrepresented County. ries in Weld test, prong jury pool third has failed to be reason- *7 drawn,
ably representative community of from which it been the is has not met in “Reasonably representative” this case. pro- does not mean exactly and, correct, portionate if the statistics cited above are indeed a we have (15.4% 10.4%) difference 5% or comparative of minus a 31% disparity (5% 15.4%) the in proportion jury pool. divided between the While the selection not be cannot process perfect, say that the is jury pool not reasonably representative community. of the
Thus, registration we hold that the use of the voter and lists driver arriving and chauffeur-license lists are in constitutionally sufficient Accord, Test, United at States County. the for Weld supra. jury pool reject also statutory County We defendant’s attacks the Weld on discussion, that, jury procedure. light We find in of the the above requirement of the Jury jury Uniform Selection and Act that Service the be selected a fair population at random from cross-section of is ade the quately met.7 also
Defendant contends that the Weld County directory is “avail- able,” within the of Rule 7 meaning of the Colorado Rules of Selec- Jury Service, and, thus, tion and must agree. be used. We do not 7(b)(3) Rule of rules chief a judge invests the in district those with the availability discretion to determine the and applicability of lists to supplement registration assembling jury the voter lists in for the pool district. rule court This also directs the state administrator to assist the Here, judge chief in this task. the administrator has determined that the Weld not County directory funding is “available” because of problems. We do not find an abuse of discretion in case. this
Finally, totally we observe that the defendant dem has failed to jury onstrate that the which convicted him racially was biased or preju him, against diced and as a did that he not receive a fair trial. consequence In the of jury absence a method of selection that systematically excluded (which members case), of his ethnic in group present was not this or which in jury, some other manner resulted in a we will not fundamentally unfair 7 “Legislative It of that all selected service declaration. this state for policy persons shall be selected at random from fair cross section the area of served population shall in court, that citizens have the accordance qualified all opportunity provisions obligation jurors this article considered service in when to be this state an serve as summoned for 13-71-102, that Section C.R.S. 1973. purpose.” did ev- give conclude that the in this case fair consideration to the idence at trial and the law as the instructions. presented contained II. prejudice next submits he suffered material Appellant of his case because the trial court the late endorse- preparation permitted ment of a witness The record does not bear out prosecution. claim. trial,
On the first moved en- Monday prosecution for the witness, of an Korgan. Korgan dorsement additional Dixie Ms. is a sister Korgan (one Bell), was Lujan-Griego of Don at Taco group apparently eyewitness shooting. argues an to the prose- Defendant Korgan cutor had known about Ms. from the time the offense occurred gave no substantial for late con- prosecution reason endorsement. given tends that defense counsel was of its adequate notice intent to move fact, for late endorsement. In defense Korgan counsel interviewed Ms. this, granted before day trial. Because the trial court prosecu- tor’s motion endorse. did Defendant not move for continuance.
Granting leave for late endorsement witnesses within *8 366, the Bailey, sound discretion of the court. People trial v. 191 Colo. 1014; Gable, 313, 552 P.2d 184 People Bailey, v. 520 P.2d Colo. 124. In we held that: order constitute reversible error where there a late endorsement
“[i]n
witness,
of a
the
prejudiced
defendant must show that he was
because
of the
appearance
witness
him and
he did
surprised
because
ade
have
quate
opportunity
interview
witness
to trial. Reed
prior
People,
v.
421,
(1970);
171
568,
Colo.
There, here, as defendant failed to for a move continuance. Moreover, prejudice defendant has failed to demonstrate as any a result the late endorsement. We find no abuse of in allowing discretion the late under the endorsement circumstances of this case.
III.
trial,
deceased,
At
two
which depicted the wounds of the
photographs
Jerry Lujan,
objections
were admitted
over
of defendant. Defendant
argues that those
pictures
passions
prejudices
served
incite the
had
jury.
pictures
members
Defendant further contends that the
evidentiary
no
body
value because
condition of the
and the cause
prosecution
death
described in
stipulated
were
detail
witnesses.
Again, we deal with a matter that is within the discretion of
judge.
judge
weigh
the trial
The trial court
probative
must
value of the
against
photographs
inflammatory
effect that they may have on the
jury. The photographs may be admitted unless the latter effect far out
Pearson,
the former purpose. People v.
weighs
313,
190 Colo.
546 P.2d
1259;
People McCrary, 190 Colo.
538,
v.
549 P.2d
1320. Pictures
be
crime,
introduced to graphically portray the scene of the
appearance of the
victim, and any other matters which are competent for a witness to de
Moreland,
237,
words. People v.
355,
scribe
193 Colo.
567 P.2d
Steele,
People v.
193 Colo.
Defendant 135 Colo. Archina, that, P.2d 1083. In we held no photographs where have proba- value, tive passion serve to incite prejudice jury, they should be excluded. case, however,
The instant
falls within the ambit of Jorgenson
People,
There,
174 Colo.
IV. Defendant asserts that the court permitted improper cross- trial, examination key of a defense witness at and then improperly denied *9 a motion for mistrial based on this questioning. prosecutor began
The his cross-examination of defense witness Ed- by asking ward Lozano him spoken when he had last with defense witness Gilbert objected grounds Ramirez. Defense counsel on the relevancy and objection trial court overruled the with following the statement: “Well, assuming relevancy objection subject I’ll override the strik- to ing if proves it to be irrelevant.”
Lozano then answered together that he and Ramirez had lunched that day. nothing He testified that was said about what either of them would testify to at trial. court parties The then directed the and this witness into chambers. chambers,
In questioned the witness was further both parties. violated, court noted sequestration that the order had been but that it was had In satisfied nevertheless that no collusion the witnesses occurred. gave following jury, court instruction: presence concerning of this witness conversations with another questioning “The has to immaterial to the issues of this case and the court proven witness be such to be and to testimony disregard now orders stricken directs the it.” clearly unequivocally
The court’s instruction
and
directed the
to
disregard the
and
that
questioning,
presume
understood and
77,
Motley,
followed the
People
instructions
court.
v.
179 Colo.
presented
V. The court refused to include the its following in instruction jury: self-defense to the right
“You are further instructed that a man has a defend or to himself against another the unlawful assault attack of may another and repel required force force. He is not to but may pursue adversary retreat has until he secured himself or another from such danger; and he is to esti- danger justified acting mate the is upon he as circumstances they reasonably appeared him at time and may appeared have ato person.” reasonable 496, Boykin 419,
In
People,
Colo.
P.
this court held
if
be,
right
defendant where he has a
he is assaulted by the de-
assault,
ceased without first provoking the
need
defendant
not retreat
defending himself,
wall
ground
even,
before
may
but
stand his
circumstances,
in some
pursue his
until
assailant
the assailant has been
disarmed or otherwise deterred from violent
A
purpose.
his
defendant
rely
Boykin
longer
attack,
on the
rule when he is no
under
but has
himself become the assailant.
v. People,
Almond
55 Colo.
P.
Favors,
783; similarly,
People
192 Colo.
VI. The jury was instructed on the affirmative defense of intoxica tion, 18-1-804, C.R.S. permitted section but was to consider de murder, first-degree fense to the respect crimes attempted murder, first-degree second-degree attempted manslaughter. murder and *10 error, light it Defendant contends that was reversible of our recent 24 Cornelison, People 337,
decision in P.2d Colo. permitted not to have court consideration the defense of intoxication respect second-degree with to murder. initially
We note correctly that defendant states the law pro- as in Cornelison. We stated there that, pounded 18-1-804(1), under section “* * * C.R.S. voluntary defendant’s intoxication be evi- inability dence of his to specific required entertain the intent for convic- second-degree tion of murder.”8
The court’s failure to instruct the point was error under Cornelison, supra, but in the context of this case was not it er- reversible ror. Cornelison,
In
single
defendant faced the
charge
first-degree mur-
der, and
was convicted of
lesser included
of second-degree
offense
murder. The
had no opportunity to assess
volun-
defendant’s claim of
tary
negating specific
intoxication as
intent
respect
with
to
other
any
charge.
case,
consider,
In
instant
the jury
was instructed to
appar-
ently rejected, defendant’s defense
voluntary
intoxication with respect
charge
of attempted second-degree
to
logically
murder. It is
inconsis-
suggest
tent to
that the
would
found
requisite
have
specific
murder,
negated
second-degree
intent was
with
to
respect
when
found
they
requisite
negated
was not
with
specific intent
sec-
respect
attempted
Mullins,
People
ond-degree
murder.
188 Colo.
VII. assignment Defendant’s final error concerns the impropriety of certain statements the prosecuting attorney during closing made his argument jury. following alleged to the The improprieties are defend grounds ant constitute for reversal: The prosecutor
1. made several on the credibility comments of the de- witness, fendant as specifically respect to defendant’s he claim that memory shooting suffered a loss and could not recall incident. The prosecutor appealed 2. to the jury as “conscience of the commu- nity” and admonished to convict safety them defendant for the of the com- munity. prosecutor
3. The went commented when defendant into his house get gun might his he clip, say have “even had to load the he didn’t objected grounds that.” Defense counsel to this on the that it statement unsupported by was the evidence. objection was overruled. legislature changed We note Cornelison decision the that after announcement the law relating language statutory to the affirmative defense of intoxication. The amended “Dimin reads: responsibility capacity ished due to lack of or self-induced defense mental intoxication not a degree.” 18-3-103(2), (1977 Supp.). present murder the second Section In the C.R.S. prior adoption both crime and trial occurred to the of this amendment. *11 “lit- criminally negligent homicide as a prosecutor 4. The characterized that, thing” of argued jury tle to the rather than convict defendant that, they altogether. should The court overruled defense coun- acquit him objection to this sel’s comment. trial, objected first two noted not improprieties
The above were at in prosecutorial and we have held on numerous occasions that misconduct ever, arguments egregious is so as to constitute er closing rarely, plain if ror, meaning 52(b), the P. we on within of Crim. so that consider it Plotner, See, e.g., People abjection. v. appeal contemporaneous absent Simbolo, 791; People 534 P.2d 188 Colo. 532 P.2d Colo. flagrant plain We find no misconduct so as to error. 962. constitute object The defendant did to the contemporaneously prosecutor’s to the jury clip statement that the defendant loaded the bullets before evidence, inserting gun. clearly the in the Since this was not in it was clip ABA, See closing argument. for the to state it in improper prosecutor Relating Standards to the Prosecution Function 5.8(a). Even had the § trial, event occurred and been the it supported evidence at would be rel only premeditation. evant to the defendant defendant’s Since was not con victed of a crime the containing element of we find no premeditation, for grounds reversal based this prosecutorial on indiscretion.
Finally, objected the defendant contemporaneously to the pros criminally negligent ecutor’s characterization of homicide as a “little course, thing.” Of it improper is an misstate or misinter attorney law Longinotti pret jury during closing argument. the to the his however, People, clear, 46 Colo. 165. 102 P. It is that the remark neither misstated the elements the offense nor misinterpreted for Thus, how the law jury applied should be to the facts. ill- conclude the remark did advised not constitute reversible error. judgment is affirmed.
MR. JUSTICE CARRIGAN I. dissents as to Part MR. JUSTICE concurring part dissenting CARRIGAN in in part: majority
While I concur in I ac- opinion, the remainder cannot cept right the Orwellian Part I premise that a defendant’s trial jury community a fair of his must be subordi- representing cross-section in language shortcomings put nated to of a To the matter computer. proper it in perspective, is essential recall that not defendant case, but all fracas out nearly parties this murder to the of which arose, killing figures were Chícanos. Census number of placed Span- persons County county’s population. ish-surnamed in Weld at 15.4% of ultimately employed Spanish- Yet the selection methods reduced jurors surnamed on the 8.6%. Of persons jury list to the twelve who actu- fate, ally decided the defendant’s not one was To me Spanish-surnamed. gist majority point up following this in the opinion summed paragraph: county
“A city directory County, for Weld published defendant that, contends if were used to select the be- pool, disparity (at stage tween process) 15.4% and 10.4% the first of the selection would not directory produced exist. The was not used because it was used computer media the state its department *12 procedures. judicial It was determined administrator and by the chief judge judicial district the conversion could not be accomplished that by (Parenthetical funding.” Slip Opinion, reason of a lack of p. 5. matter added.) justice
I in simply any place system cannot accord our to the notion fair, right jury representative fundamental to a can be subordi- though, nated computer. majority to the convenience of a Even as the states, opinion may recognized right there be no constitutionally by to trial jury of in “peers” persons one’s the sense of of the same racial or ethnic background, dealing are not here minimum constitutional stand- issue, ards. In is no fact there need to reach the constitutional for the real issue here is of policy subject one administration to the ex- powers Const., pressly granted the Colorado Constitution. Colo. to court VI, 2(1)1 Art. and sec. sec. 21.2 stop
Moreover our concern cannot when we satisfied jury are that a fair, selection for the procedure actually procedure employed must have Courts, appearance fairness having police of as well. neither nor mili- orders, tia to enforce depend authority their must for their on the people’s procedures confidence that their official acts and are fair. fundamentally judicial system ought constantly Therefore our to strive for a quality justice required above the bare minimum of us United by the States Con- stitution as Court. expounded Supreme The Rules Jury promulgated by Colorado Selection and Service this court our se- policy provide jury by persons declare “to service lected at from qualified random a fair cross-section of all citizens to C.R.J.S.S., serve.” Rule 2. rules the Uniform Se- implement Jury These 1 “(1) courts, supreme general superintending . over The court . . shall have a control all inferior regulations may prescribed by under 2 be such limitations as law.” promulgate governing “Rule-making supreme ad shall rules Power. court make governing practice procedure promulgate ministration and shall rules of all courts make and cases, simpli except general assembly power provide civil and criminal shall have procedures county exceeding fied courts for dollars and for the trial of claims not five hundred misdemeanors.” from a Act,3 random selection similarly requires lection and Service which state declared fair cross-section of assure population implementing have ... to be “that citizens policy qualified opportunity all shall ,”4 considered service . . . for jury should, could, court rules the means which this provide Our requirements. more than minimal with constitutional require compliance 7(b) jury supple- lists for be provides Rule that the master available,” lists, with additional “if in order to increase the likeli- mented jurors truly representa- will be selected from a list prospective hood that community’s tive The state court administrator and the population. judge supplemental chief of each district are to determine whether lists are 7(b)(3). Di- “applicable” purposes. “available” and for these C.R.J.S.S. here involved mentioned as sources for expressly rectories like the one are the master list.
Thus, the dicision whether to use sources such as these directories in together subject the master lists officers putting directly is left to supervisory powers. this court’s Therefore this court has an opportunity selection, ensure employment practicable of the fairest methods of merely marginally satisfy requirements. those which minimum judgment
But in this have deferred to the majority simply administrator, the state court the Weld di- County who determined that rectory was not “available” involved in expense problems because of *13 converting language. it to court elects not to inter- computer simply fere with the administrator’s decision. object
I portion opinion to this of the because it abstains from decid- ing an of important flatly upholds matter the adminis- policy, any adequate trator’s decision on the matter without factual basis. involved, right Given the of the here it is essential that importance justification any this court ascertain that there be substantial dilution for Being Judge injunction: of it. mindful of Learned “Thou Hand’s shalt decision, ration I be any would troubled on bud- justice,” solely based reasons, getary a list forego using fairest available cross- providing case, however, of deci- community. section In this the court makes its roughly quantifying expense sion no evidence the record even converting county language. of directory computer converting generality directory
The record indicates that lot of and that the court adminis- money,” would “take a time and a lot of trator had decided as a matter that directories are not “available” policy up- the court’s decision required. Certainly whenever such conversion is should not be controlled holding policy the administrator’s determination 13-71-101, seq., et C.R.S. 1973. Section 4 Id. §13-71-102. by budgetary concerns not even documented evidence.
It is also from unclear the record to use what extent of the Weld County Directory would improve jury representation Spanish- is surnamed. It of course very slight conceivable that a improvement not justify very reason, would a For large expense. I would remand case for further evidence points, on these two both which are essen- making intelligent tial to an judgment whether exclusion of directory justifiable. is If recognized excessive is to expense be aas determinative — i.e., affecting in policy factor decisions the fairness selection if we aput price right must on the trial fair cross-section of the com- — munity at least we should know and state publicly expense how much being used to justify underrepresentation. how much we If allow a non- specific representation expense computerization control our truly decision of what is a fair cross-section of the community, we blindly subvert the right fundamental trial to dubious of ad- concepts ministrative efficiency. modern,
Ironically, were it not for the quantitatively efficient com- puter, might have, instance, more qualitatively efficient jury system, the Weld County Directory already in human lan- guage and require would no but expensive conversion for the computer.
No. 27488 Miller, Ray Oscar Burleson v. of Arapahoe County Arnold Sheriff (580 793) P.2d Rehearing Decided June July 1978. denied 1978.