Adams County District Court No. 10CR1350 Honorable F. Michael Goodbee, Judge Honorable C. Vincent Phelps, Judge.
Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
¶1 Defendant, Michael Terrell Carter, appeals the judgment of conviction entered upon jury verdicts finding him guilty of five counts of first degree burglary and three counts of misdemeanor child abuse. We remand the case to the trial court with directions to (1) vacate Carter's conviction and sentence for four counts of first degree burglary - assault/menace and (2) correct the mittimus accordingly. In all other respects, the judgment is affirmed.
¶2 This case began with an incident at the home of R.W. on the evening of April 21, 2010, which allegedly involved Devone Fuller, Joshua Golston, and Carter. After Fuller, a former grade school classmate of R.W.,  knocked on the door, asking to use R. W.'s phone, two or three men rushed inside, pushing past R.W. One of the perpetrators was armed with a rifle, and had a black t-shirt covering his face and socks covering his hands.
¶3 While the perpetrators searched the house, several people called 911, and the police arrived moments later. Fuller and Golston fled as responding officers approached the front of the house, and they were later apprehended nearby. Carter's wife, a friend who was residing in the basement, and at least three minor children had been in the house and witnessed the incident.
¶4 Carter was taken into custody several days later after his parole officer noted that his ankle monitor placed him within 150 to 200 feet of the R.W. residence on the night of the incident. Carter told the police that he was either at home or at work on the night of the incident. Carter's employer, however, denied that Carter was at work that evening. A sock and a t-shirt recovered from the crime scene later tested positive for Carter's DNA.
¶5 Carter was charged with four counts of first degree burglary - assault/menace, and one count of first degree burglary - deadly weapon, one count of aggravated battery, and three counts of misdemeanor child abuse. Carter was convicted on all charges except aggravated battery. Golston was tried before Carter and was acquitted.
II. Challenge for Cause under Section 16-101-103(1)(k)
¶6 Carter argues that the trial court erred when it denied hischallenge for cause, under section 16-101-103(1)(k), C.R.S. 2014, to prospective juror R.L. (Juror Three), a "criminal investigator" for the Colorado Public Utilities Commission (CPUC). The CPUC, he argues, qualifies as a "public law enforcement agency" under the statute. We disagree.
A. Applicable Facts
¶7 During voir dire, Juror Three stated that he was a "criminal investigator" for the CPUC, working primarily in the "transportation safety and compliance unit." He stated that he investigated both civil and criminal matters, but that most of his investigations were civil in nature. He also stated that he did not have arresting authority, did not file his own criminal cases, was not Peace Officer Standards and Training (POST) certified under sections 24-31-301 to -314, C.R.S. 2014, and did not carry a gun, but did carry a badge.
¶8 The defense claimed that Juror Three was statutorily disqualified to serve. The trial court ruled that Juror Three "does not meet the statutory definition of being an employee of a law enforcement agency." Carter used a peremptory challenge to remove Juror Three, and expended all other peremptory challenges.
B. Standard of Review
¶9 When (1) a defendant challenges a juror for cause on the basis of a statutory relationship requiring automatic excusal for cause and (2) the statutory relationship is established, the trial court has no discretion in the matter and must sustain the challenge by removing the juror from further service on the case. People v. Macrander, 828 P.2d 234, 240 (Colo. 1992), overruled on other grounds by People v. Novotny, 2014 CO 18, 320 P.3d 1194. We review de novo the question of law of whether a prospective juror subjected to a challenge for cause was a compensated employee of a public law enforcement agency within the meaning of section 16-10-103(1)(k) and Crim. P. 24(b) (1)(XII). People v. Sommerfeld, 214 P.3d 570, 572 (Colo.App. 2009).
B. Law and Analysis
¶10 A criminal defendant has a constitutional right to a fair and impartial jury. See Nailor v. People, 200 Colo. 30, 32, 612 P.2d 79, 80 (1980); People v. Hancock, 220 P.3d 1015, 1016 (Colo.App. 2009). The right to challenge a prospective juror for cause is an integral part of this right. See Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999); People v. Chavez, 313 P.3d 594, 596 (Colo.App. 2011).
¶11 A court must sustain a challenge for cause when "[t]he juror is a compensated employee of a public law enforcement agency or a public defender's office." § 16-101-103(1)(k); see also Crim. P. 24(b)(1)(XII) (containing similar language but not expressly requiring compensation). The Colorado courts have not yet addressed whether the CPUC qualifies as such an agency. We conclude that it does not.
¶12 Certain agencies have been recognized as "public law enforcement agencies, " such as "any police department, sheriffs department, or district attorney's office; the office of the state attorney general; the Colorado bureau of investigations; and the Colorado state patrol." People v. Speer, 255 P.3d 1115, 1121 (Colo. 2011). In the context of the challenge for cause statute, "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." Ma v. People, 121 P.3d 205, 211 (Colo. 2005).
¶13 Conversely, numerous cases have held that "agencies responsible for enforcing civil regulations are not law enforcement agencies for the purpose of section 16-10-103(1) (k)." Id. (citing People v. Urrutia, 893 P.2d 1338, 1346 (Colo.App. 1994) (Department of Defense); People v. Zurenko, 833 P.2d 794, 796 (Colo.App. 1991) (Department of Social Services and Equal Employment Opportunity Commission)). Moreover, "a prospective juror's governmental employer does not become a public law enforcement agency solely because the prospective juror in question, or any other of his co-employees for that matter, performs law enforcement functions." Speer, 255 P.3d at 1121 (citing Ma, 121 P.3d at 211; People v. Simon, 100 P.3d 487, 491 (Colo.App. 2004)).
¶14 The CPUC derives its authority from both constitutional and statutory origins. The Colorado Constitution vests the CPUC with "all power to regulate the facilities, service and rates and charges therefor, including facilities and service and rates and charges therefor . . . of every corporation, individual, or association of individuals, wheresoever situate or operating within the State of Colorado . . . as a public utility . . . ." Colo. Const. art. XXV. The Commission, therefore, has broad regulatory and legislative power over public utilities in the state.
¶15 The General Assembly also provided the CPUC the duty to enforce its regulations. See § 40-7-101, C.R.S. 2014 ("It is the duty of the commission to see that the constitution and statutes of this state affecting public utilities . . . are enforced and obeyed and that violations thereof are promptly prosecuted and penalties due the state are recovered and collected . . . ."). The CPUC has inherent authority to investigate alleged violations and issue orders requiring compliance with applicable laws and regulations. Eveready Freight Serv., Inc. v. Pub. Utils. Comm'n, 131 Colo. 172, 175–76, 280 P.2d 442, 444 (1955). It may levy "fines, " "penalties, " or "damages" for civil violations. See, e.g., §§ 40-7-101, -102, -105, -107, -109, C.R.S. 2014.
¶16 Additionally, the CPUC statute creates seven criminal offenses, to be punished "as provided in" the criminal misdemeanor and felony statutes. See §§ 40-7-106, -108; 40-9-104; 40-10.1-113 to - 114; 40-27-101, -113, C.R.S. 2014. The CPUC, however, does not have the authority to carry out its own prosecutions for violations of these criminal laws. Instead, that responsibility is specifically tasked to the local district attorney or the state attorney general. See §§ 40-7-101, -104; 40-10.1-116, C.R.S. 2014.
¶17 Carter argues that because all "members" of the CPUC are statutorily deemed "peace officers while engaged in . . . [their] duties, " the CPUC is a law enforcement agency. As peace officers, "members" have the authority to carry weapons while engaged in their duties, and have some authority to arrest. See §§ 16-2.5-101, -143; 16-3-102, C.R.S. 2014. However, we conclude that employees of an agency being classified by statute as "peace officers" while engaged in their duties is not determinative. See Speer, 255 P.3d at 1121 (citing Ma, 121 P.3d at 211; Simon, 100 P.3d at 491).
¶18 In Simon, a division of this court addressed whether the United States Environmental Protection Agency (EPA) qualified as a public law enforcement agency for purposes of section 16– 10– 103(1)(k). Simon, 100 P.3d at 490-91. The EPA maintained offices for both criminal investigations and civil enforcement. Id. (citing 42 U.S.C. § 4321 (2000)). It was also able to designate officers to investigate criminal violations, carry firearms, execute and serve warrants, and make arrests. Id. (citing 18 U.S.C. § 3063 (2000)).
¶19 The EPA's principal functions, however, consisted of developing, establishing, and enforcing environmental standards. Id. Therefore, because the EPA was "charged primarily with [the] regulation of civil matters, " and only had "incidental penal enforcement authority, " it was more properly characterized as an "investigatory and rulemaking body, " and was not a public law enforcement agency for the purposes of section 16–10–103(1)(k). Id. at 491.
¶20 We perceive the same to be true here. Although the CPUC has some authority to arrest and investigate a limited assortment of criminal violations, its primary functions involve the civil regulation of public utilities, services, and rates. See Colo. Const. art. XXV. It is therefore "charged primarily with [the] regulation of civil matters, " only has "incidental penal enforcement authority, " and, therefore, is not a public law enforcement agency for the purposes of section 16– 10–103(1) (k). See Simon, 100 P.3d at 491. Because the CPUC is not a public law enforcement agency, we perceive no error in the trial court's denial of the challenge for cause to Juror Three.
III. Restriction on Cross-Examination
¶21 Carter argues that the trial court erred by restricting him from eliciting, on cross-examination, information about two alleged incidents that he claims would have been relevant as to R. W.'s motive to testify and credibility. He further argues that these errors implicated his constitutional rights to confront witnesses and present relevant evidence for his defense. We disagree.
A. Applicable Facts
¶22 In addition to arguing, as part of his defense, that he was not present at the R.W. home, Carter argued, in the alternative, that what happened was not a "straightforward home invasion." He argued that, instead of a home invasion, it might have been a "drug deal gone wrong, " in which R.W. possessed drugs in his home and participated in the event. This had been, essentially, Golston's defense during his trial.
¶23 Carter presented evidence and argument to support this alternate defense, including testimony (1) from R.W. that he was on parole at the time of the incident and was subject to sanctions for violations such as interacting with other parolees or possessing drugs or firearms; (2) from R.W. that he wiped off his fingerprints after holding the rifle purportedly carried by one of the perpetrators; and (3)indicating that Fuller and Golston were carrying large quantities of drugs and cash, respectively, when they were apprehended near R.W.'s home.
¶24 Carter sought to cross-examine R.W. about an incident that allegedly had occurred outside of the courthouse after the first day of testimony in Golston's trial, in which R.W. threatened Golston with a gun to "take the deal." He argued that the incident was probative of R.W.'s motive and credibility, and was relevant for impeachment purposes. The trial court ruled that the alleged incident was irrelevant and therefore inadmissible. Defense counsel protested that exclusion of the evidence would implicate Carter's rights to confrontation, cross-examination, due process, a fair trial, effective assistance of counsel, and his right to present a complete defense.
¶25 Carter also sought to cross-examine Detective Meier, an investigating detective on the case, about allegedly attempting to obtain consent to search R.W.'s cell phone. Trying to gain R.W.'s consent, Detective Meier purportedly relayed that the purpose of doing so was to determine whether R.W. had been in contact with the perpetrators prior to the incident, as alleged by Golston. That information, Carter asserts, was relevant as to "the effect on the listener" and R.W.'s credibility, because, as Detective Meier and R.W. later testified, R.W. initially refused consent and later provided a faulty access code.
¶26 On redirect examination, Detective Meier indicated that he had spoken with R.W. and had given him some indication of Golston's intended defense. On recross-examination, Carter's counsel attempted to elicit information about what Detective Meier had told R.W. during that conversation. The prosecution objected to the question as irrelevant, hearsay, and inadmissible under CRE 403, and the ...