June 26, 2019

Colorado Court of Appeals: Trial Court Properly Denied Defendant’s Challenges for Cause of Prospective Jurors

The Colorado Court of Appeals issued its opinion in People v. Fleischacker on Thursday, January 17, 2013.

Sexual Assault on a Child—Challenge for Cause—CRS § 16-10-103(1)(b)—Double Jeopardy.

Defendant appealed the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child, position of trust; sexual assault on a child, pattern of abuse; and sexual assault on a child. The judgment was affirmed.

Defendant contended that the trial court erred in denying his challenge for cause against Juror G. Juror G. told the court that he had worked in law enforcement for four-and-a-half years; that his daughter was a paralegal at the district attorney’s office; that his son worked for the Denver sheriff’s office; and that his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter’s wedding the previous month. CRS § 16-10-103(1)(b) does not require the disqualification of a prospective juror related within the third-degree to a paralegal working in a district attorney’s office. Because Juror G.’s daughter was not an attorney, the trial court did not err in denying defendant’s challenge for cause under CRS §16-10-103(1)(b). Further, the trial court did not abuse its discretion in finding that Juror G. was not actually biased because of his numerous connections to law enforcement based on Juror G’s assurances to the court that he could hold the prosecution to its burden of proof and that he would be impartial to both sides.

Defendant also contended that the trial court erred in denying his challenge for cause against Juror J. Juror J.’s daughter was sexually assaulted by his brother-in-law when she was approximately 15 years old. Based on Juror J’s assurances that he could be fair in this particular case, could listen to the court’s instructions, and could hold the prosecution to its burden of proof, the trial court did not abuse its discretion in denying defendant’s challenge for cause to Juror J.

Defendant also argued that his convictions for Counts 2 and 3 violated his right to be free from double jeopardy because they were predicated on the same factual basis. The evidence demonstrated that defendant was not convicted twice for the same offense because there were factually distinct incidents of sexual assault. The predicate act for Count 2 was defendant touching the victim’s buttocks with his hand, and the predicate act for Count 3 was touching the victim’s buttocks with defendant’s lap. Any clerical error on the verdict forms did not undermine the fundamental fairness of the trial. Accordingly, the convictions for those counts did not violate defendant’s right to be free from double jeopardy.

Summary and full case available here.

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