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Mulberger v. People

Supreme Court of Colorado, En Banc

February 22, 2016

Samuel J. Mulberger, Petitioner
v.
The People of the State of Colorado, Respondent

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 11CA482.

SYLLABUS

The supreme court holds that, under the plain language of the challenge for cause statute, § 16-10-103(1)(k), C.R.S. (2015), a " compensated employee of a public law enforcement agency" is a person who provides labor and services to, is paid bye, and receives direction from a public law enforcement agency. The potential juror in this case contracted with and received compensation from a private agency for work she performed as a nurse at a county jail. That potential juror therefore was not a " compensated employee" of the county jail because she was not paid by the county jail, and the record does not contain any evidence that she was subject to the jail personnel's direction and control. The trial court therefore did not err in denying defendant's challenge for cause. Because the trial court did not err, the supreme court does not address the issue concerning the proper remedy for a trial court's erroneous ruling on a challenge for cause.

Attorneys for Petitioner: Douglas K. Wilson, Public Defender, Kielly Dunn, Deputy Public Defender, Denver, Colorado.

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado.

JUSTICE GABRIEL concurs in the judgment, and JUSTICE HOOD joins in the concurrence in the judgment.

OPINION

BOATRIGHT, JUSTICE

Page 144

[¶1] This case requires us to interpret the statute that provides for challenges for cause to potential jurors in criminal cases. Specifically, we must determine the scope of the provision that directs trial courts to sustain a challenge to a potential juror who is a " compensated employee of a public law enforcement agency." § 16-10-103(1)(k), C.R.S. (2015). At his trial for four driving offenses, petitioner Samuel J. Mulberger brought such a challenge to a juror who worked as a nurse at the El Paso County Jail through a contractual arrangement with a private agency, and who received compensation for such work from the private agency. The trial court denied the challenge for cause, concluding that the potential juror was not a compensated employee of the jail. Mulberger then used a peremptory challenge to dismiss the potential juror and ultimately exhausted all of his challenges. At the conclusion of the trial, the jury found Mulberger guilty of all charges. The court of appeals affirmed the trial court's denial of the challenge for cause in a published opinion. People v. Mulberger, 2012 COA 149, ¶ 1, ___ P.3d ___. We subsequently granted certiorari on two issues relating to Mulberger's challenge for cause.[1] We now affirm.

[¶2] We hold that a " compensated employee of a public law enforcement agency," as used in section 16-10-103(1)(k), is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. In this case, the potential juror at issue provided labor to the El Paso County Jail, but she was not paid by the jail, nor does the record contain any evidence that she was subject to the jail personnel's direction and control. The potential juror therefore was not a " compensated employee" of the jail under section 16-10-103(1)(k), and the trial court did not err in denying Mulberger's

Page 145

challenge for cause. Because we find no error, we do not address the second issue in this case concerning the proper remedy for a trial court's erroneous ruling on a challenge for cause. We accordingly affirm the judgment of the court of appeals.

I. Facts and Procedural History

[¶3] The People charged Mulberger in El Paso County District Court with one count each of vehicular eluding, aggravated driving after revocation prohibited, following too closely, and driving an unregistered vehicle. During jury selection, the trial court stated that any potential juror who was a " compensated member of a public law enforcement agency" could not serve on the jury and then asked whether any of the potential jurors fit that classification. " Juror L" notified the court that, in addition to her work at a military hospital, she worked as a registered nurse for the El Paso County Jail. In later questioning from the court and defense counsel, Juror L clarified that she contracted with a private agency to work at the jail and that she worked at the jail only when she had the day off from her regular job and the jail had a need for nurses. When Juror L would work at the jail, the jail would pay the private agency, and the private agency would pay Juror L under her contract. At the time of voir dire, Juror L had not worked at the jail in " two or three weeks."

[¶4] Mulberger challenged Juror L for cause, arguing that her work at the jail qualified her as a compensated employee of the El Paso County Jail. Mulberger also argued that, because of her job, Juror L had at least a " tenuous relationship with [a] prosecutorial or law enforcement arm of the state" that warranted her dismissal. See People in the Interest of R.A.D., 196 Colo. 430, 586 P.2d 46, 47 (Colo. 1978). The trial court denied the challenge, finding that Juror L was not employed by the El Paso County Jail. Mulberger later used a peremptory challenge to remove Juror L and ultimately exhausted all of his challenges. Following trial, the jury found Mulberger guilty of all four charges.

[¶5] Mulberger appealed, and the court of appeals affirmed the trial court in a published opinion. Mulberger, ¶ 1. In its opinion, the court of appeals held that, while the El Paso County Jail was a public law enforcement agency, Juror L did not fall under section 16-10-103(1)(k) because she was not employed by, and did not receive compensation from, the El Paso County Jail. Id. at ¶ ¶ 8-10. Instead, Juror L had a contractual arrangement with a private agency and received compensation for any work she performed at the El Paso County Jail from that private agency. Id. at ¶ 10. In addition, the court of appeals noted that the record contained no evidence that Juror L was subject to the direction and control of the jail, further distinguishing her from an employee of the jail. Id. at ¶ 11.

[¶6] We granted certiorari to determine whether a potential juror who contracts through a private company to work at a county jail is a " compensated employee of a public law enforcement agency" under section 16-10-103(1)(k), and additionally what remedy is appropriate if the trial court erred in its ruling on the challenge for cause.

II. Standard of Review

[¶7] This case requires us to interpret the statute governing challenges for cause to potential jurors. Statutory interpretation is a question of law, which we review de novo. People v. Johnson,20 ...


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