*1 ingly visibly sold beer to a intoxicated Jose
Vargas. record,
On this state of summary judgment
entered dismissal
as to all based on defendants Dickman v. Inc.,
Jaekalope,
(Colo.App.
1994) Lorrigan, and Forrest v.
(Colo.App.1992). Jaekalope Dickman v.
squarely point supports judgment
entered. addition, Robby Ferrufino Memorial
Fund was under the dismissed charitable
immunity Hemenway doctrine forth in set Colorado,
Presbyterian Hospital Ass’n 42, Colo. view,
In my the facts the record do not
establish an issue of material fact that justify
would summary the vacation claims,
judgment thus, all dismissing judgment affirmed. should be Colorado,
The PEOPLE of the State of
Plaintiff-Appellee, VELOZ, Defendant-Appellant.
Paul J.
No. 95CA1740. Appeals,
Colorado Court
Div. I. 20, 1997.
Feb.
Rehearing April Denied 1997.
Certiorari Denied Nov. 1997.
527 *3 Norton, General, Attorney
Gale A. Stephen ErkenBrack, K. Deputy Attorney Chief Gen- eral, Timothy Tymkovich, M. Solicitor Gener- al, Mills, Attorney Sandra K. Assistant Gen- eral, Denver, Plaintiff-Appellee. for Vela, David F. Colorado Public State De- fender, Gerash, Karen Deputy M. State Pub- Defender, Denver, lic Defendant-Appel- for lant.
Opinion by Judge CASEBOLT.
Defendant,
Veloz, appeals
Paul
judg-
upon jury
conviction entered
verdicts
finding him guilty
driving
influ-
(DUI)
being
ence
and
traffic
habitual
dire,
offender.
During
We affirm.
one
voir
that,
panel
members related
addi-
employed
tion
being
as a server at a
restaurant,
approximately
also worked
she
per
unpaid
hours
as an
police
week
officer on a volunteer basis. She indicated
currently
that
being paid
she was not
for her
officer,
police
work as a reserve
but that she
employed
would be
as a
full-time
officer within a few weeks.
that,
She further indicated
as a reserve offi-
cer, she had been trained in
enforce-
“DUI
ment”
“everything
paid
and that she did
officer does.”
prospective juror
The
told the court that
“all of
[her]
[were]
friends
law enforce-
ment,”
many
she had
friends
that
who
county
worked for
which the case was
being
present
prosecuted and who
were
the trial.
she
indicated
she
any
did not
who
know
the officers
were
listed as
for
trial.
witnesses
People challenged
panel
member
for
specifying
cause without
the reason for
challenge.
The court denied the chal-
lenge, concluding that she
be fair in
could
spite
experiences.”
of her “life
Macrander,
removed
cause.
examination
defense
for
Upon further
Prator,
counsel,
prospective juror reiterated
aff'd,
(Colo.App.1992),
work as a reserve
she
her
receiving any form
and denied
free
She indicat-
compensation
efforts.
“off-duty
compensated for
ed
she was
A.
officer,”
jobs
but
trial court
Defendant maintains
department.
statutory challenge
erred
she
received the same
related that
had
16-10-103(l)(k)
cause under
because the
compensated police
training that a
pub-
employee of a
was an
that “there is no dif-
receives
indicated
agency.
lic law enforcement
We
regular police
between
[her]
ference
*4
16-10-103(l)(k)
here, §
pertinent
As
that
not
[she was]
other than
fact
provides
grant
challenge
a
that
court must
a
suggested that
being paid.”
she had
juror
compensated
... a
for cause if “the
opinions
proper way
investigate
to
“the
about
employee
agen
a
and that it would be hard for her not
case”
Initially,
that
cy.”
we hold
the trial court
do,
thinking
to
about what would
what
“be
that, by
erroneously concluded
enactment of
concerning
investiga-
would have done”
13-71-104,
generally prohibits
§
dis
said,
“I’m sure I could be
tion of
case but
against prospective jurors
crimination
based
impartial.” Relying
§on
16-10-
fair and
occupation
impermissible
their
on
and other
(1986
103(l)(k),
8A),
Repl.Vol.
defen-
C.R.S.
factors,
Assembly
the General
“eliminated”
cause,
juror
challenged
dant
contend-
§
specific provision
more
16-10-
ing
a
of
was
103(l)(k) requiring trial courts to sustain
agency.
a
law
The court
enforcement
challenges
cause
based
a
com
that,
challenge, concluding
denied
pensated employment with a law enforce
13-71-104,
§
Cum.Supp.), pro-
agency.
spective
may
not be
occupation,
of his
that
basis
16-10-103(l)(k)
significant
§
It is
13-71-104,
Assembly
§
enacting
the General
prior
passage
§
to the
of
enacted
13-71-104.
16—10—10B(l)(k).
§
had “eliminated”
Consequently, we assume that
the General
Assembly
provisions
was aware
of
challenged
panel
mem-
Defendant then
16—10—103(l)(k)
§
when it enacted
13-71-
inability
alleged
ber for cause
on an
to
based
Metropolitan
104.
See Scholz
Patholo
impartial.
be fair and
The trial court denied
P.C.,
(Colo.1993);
gists,
I.
275,
Jorgensen,
ical Examiners
198 Colo.
(1979).
trial
Defendant
first contends
by refusing
erred
excuse
Finally, particular
prevail
statutes
for cause. We
and,
statutes,
general
statutory
over
outset,
favored,
by implication
gener
prejudice
repeal
we note
is not
At
if,
here,
repeal
interpreted
shown
the defendant exhausts
al statute will
be
if,
provision,
peremptory challenges
conflicting special
all
as is
unless the
of
Gen
here,
Assembly clearly
unmistakably
ex
alleged
challenges
one of those
eral
pended
on a
intent to
who should have been
evinces its
do so. Uberoi Univer-
Colorado,
statutory
sity
language
reserve Are to be prosecutorial or law enforcement arm of the anybody able to treat officers like jury duty be in state should excused from a else? R.A.D., People criminal case.” in Interest of Colo, 47; supra, at THE 196 at 586 P.2d see Yes. JUROR: 527, 538, People, v. also Tate 125 247 Colo. mean, Okay. THE COURT: sometimes (1952) (“The well-reasoned right, they’re a officer’s sometimes jurisdictions cases in other hold that wrong. got they You’ve to listen to what officials officers and law-enforcement say they’re right whether decide juries in not be allowed serve on criminal trial, wrong. you juror If sit as a on this cases.”). you open can with an do that mind? open THE supreme JUROR: believe I can with an as the court has since noted, respecting mind. “R.A.D. the court’s dicta juror” prospective be- When a criminal defendant of a disqualification suppress inculpato- relationship moves a confession or his with a law cause of or her statement, prosecution ry the must establish in the con- agency “was made enforcement by preponderance of the evidence the a com- prospective text of a who was voluntarily A statement was defen made. pensated employee enforce- if Rhodus, involuntary statement coercive dant’s agency.” People v. played significant added). governmental conduct (Colo.1994)(emphasis 470, 476 inducing role the statement. Moreover, may not infer bias (Colo.1991). Gennings, eval juror merely particular of this uating voluntariness of the the uncompensated work as statement, trial the court must consider the police officer. The circumstances totality of the circumstances under Rhodes, will prospective which a be dis under People statement was made. jury qualified from service on basis' prospective “attributable law to bias Here, arresting officer testified regardless partiality” are actual hearing suppression that when he expressly by the limited to those delineated accident, arrived at the scene of defen 16-10-103(1), Assembly in General nearby in a “stumbling dant was around” 8A). Rhodus, Repl.Vol. su field. officer illuminated defendant with The pra, P.2d at 473. car spotlight patrol and defendant began walking toward the officer. When the supreme recently rejected
The court has got walking bias, began out of his ear and implied apart from the the view defendant, toward defendant raised hands scheme, may statutory used to create an be spontaneously suggest Rhodus, made statements automatic exclusion. See ing that been the he had driver of vehi supra (county clerk recorder not dis- cle. The officer testified that he had not qualified automatically because her office any made comments to defendant and had represented legal county matters any questions eliciting him not asked office). attorney's The also district dispute statements. There is no that defen specifically rejected pro- the notion that a extremely dant was intoxicated when he spective juror must be made these statements. service on the basis of his or her contacts agencies with law enforcement that do that, The further after testified ad- disqualification require automatic vising rights, of his defendant Miranda de- 16-10-103(1). fendant indicated that he “understood his rights” willing that he talk to was Thus, while a con- we would have reached present. lawyer officer without a Defendant trary respect result with to this inculpatory then statements made additional juror, our record review does response questions. officer’s required reveal the clear abuse of discretion that, while officer indicated defendant still ruling. trial set aside the court’s intoxicated, coopera- appeared he to be Rhodus, supra; People Vigil, *8 tive, coherent, and able to seemed was com- (Colo.1986); Zurenko, 496 v. 833 P.2d intelligently. municate The officer further (Colo.App.1991). 794 P.2d testified that he not threaten or intimi- did and he did date defendant not otherwise II. making or him into the state- force coerce ments. Defendant next contends that the trial denying suppress suppression in At the the hear-
court erred his motion to conclusion of ing, to his the court motion statements he made both before trial denied defendant’s suppress and he made at arrest and after he had been arrested to both the statements rights pursuant the of the and the statements advised his Miranda scene accident advised, Arizona, 1602, rights. being 384 S.Ct. 16 he made after of his U.S. 86 (1966). Again, specifically, court that the 694 More the found L.Ed.2d
533 METZGER, J., spontane- pre-arrest were made statements concurs. ously product improp- the and were not of an J., NEY, part concurs in in and dissents respect interrogation. er custodial With part. statements, post-advisement court
the the fully found that had been advised defendant Judge concurring part NEY in and rights his and had made the statements dissenting part: in voluntarily. part majority opinion. I II of concur the Defendant maintains that the statements and, thus, I dissent as he made at the scene of the accident were judgment would reverse remand for product interrogation. of a custodial He a new trial. thus claims the trial court in con- erred cluding voluntary that the statements were Because, correctly as majority con- denying and in his motion to suppress those cludes, erroneously the trial court deter- statements. (1996 13-71-104, § mined that C.R.S. Cum. Supp.) specific provisions in “eliminated” the person The determination whether 16-10-103(l)(k), 8A) Repl.Vol. objective in custody turns on an assess requiring grant court to person ment of whether reasonable challenged juror compensat- if cause is “a position defendant’s would himself or believe ed of a deprived herself to be action in freedom of agency,” apply the trial court did any significant way. People Viduya, 703 10—103(l)(k). set forth in Al- standard see also though majority’s I concur with the use of Wallace, (Colo.1986). 670 standard, would conclude that undisputed are, facts in the record contained in custo Whether defendant was best, whether, ambiguous at regarding at the dy inculpatory when he she made state trial, prospective ju- time of defendant’s question ments is a of fact must be equivalent ror was the functional of a com- court, trial resolved will not and we pensated employee law enforce- if it supported disturb its determination agency who should have been excused competent evidence the record. pursuant as a matter 16-10- Dracon, 103(l)(k). presented suppression The evidence at the opinion, my prospec- the voir dire hearing support does not asser- (the undisput- content tive of which subjected tion that he was to a custodial ed) not, law, compel does as a matter of interrogation pre-arrest when he made the that the for cause to conclusion Rather, amply sup- statements. the record have been denied. ports the trial that the court’s determination spontaneously statements volun- were she testified that Hammons, tarily People v. made. See approxi- had a reserve officer for been White, P.2d 1 (Colo.App.1988); trial, year mately prior had at- one to the (Colo.App.1981). police academy capacity in her tended as officer, and, dire, of voir reserve the time reject We also defendant’s conten working approximately per 30 hours tion that erred capacity. week in that further testified suppress pre-arrest motion both duties the same post-advisement statements he was officer, po- viewed as a career herself too to have intoxicated made them voluntari officer, she, officer, lice as a ly. People, Ballay Colo. *9 off-duty jobs. accepted compensated The (statements (1966) not inad were testimony strongly implies of her substance merely because intox missible defendant was off-duty jobs available to the these were them). icated made when he juror solely she was a prospective judgment is affirmed. reserve officer. 10—103(l)(j) alleged moreover, based on testified, at- der had officer obtain- bias. goal as a reserve tained her position compensated with ing a full-time therefore, would, reverse defendant’s department that was scheduled trial. conviction and order new dining month within the commence appears It to me was conducted. voir dire acceptance of the prospective juror’s
that the po- compensated employment as a
offer for provisions brought within her
lice 10—103(l)(k).
§of 16— un- prosecution and the defense
Both the
successfully challenged prospective for cause. CHILDERS, Plaintiff-Appellee, Coantha Nevertheless, majority concludes “compensat- not a prospective COMPANY, QUARTZ CREEK LAND law enforcement employee ed general partnership, a Colorado 16-10-103(l)(k). con- Such agency” Defendant-Appellant. only if this follows here one considers clusion to retain her active No. 96CA0075. objectivity begins until she Appeals, Colorado Court officer. cannot employment Div. I. accept a scenario. such Furthermore, court here not did Feb. 1997. 16-10-103(l)(k) standard, apply the Rehearing As Modified on Denial of had, developed facts if it even based 1, 1997. May dire, the denial of defendant’s voir Granted Nov. 1997. Certiorari may still have constituted an abuse for cause of discretion. here, opinion, facts my under the juror was “a com- whether the
determination employee public law
pensated of a enforce- be made as matter agency” cannot and, court did make because the trial regard, this findings this court
factual M.D.C./Wood, Inc. Mor so. See
not do (absent (Colo.1994)
timer, cer circumstances, as when undis
tain such presented facts are to the trial court
puted appellate
by stipulation, does facts).
decide P. also that Grim.
I would conclude
24(b)(l)(XII), requiring a court sustain challenged juror is
challenge for cause if the
“an office,” compels
agency defender’s challenge for cause of
the court to sustain a juror. prospective conclude, alternative, I would
In the juror’s responses,
view its
that the trial court abused discretion un- challenge for cause