# Fields v. People

> Supreme Court of Colorado · February 17, 1987 · 732 P.2d 1145

URL: https://www.frixlaw.com/law-library/cases/9539092

## Case

- **Full name:** Paul Louis FIELDS, Petitioner, v. the PEOPLE of the State of Colorado, Respondent
- **Court:** Supreme Court of Colorado
- **Decided:** February 17, 1987
- **Citations:** 732 P.2d 1145; 55 U.S.L.W. 2484; 1987 Colo. LEXIS 491
- **Precedential status:** Published
- **Opinion:** Concurrence by Vollack
- **Judges:** Dubofsky, Lohr, Vollack, Erickson
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9539092

## How later opinions describe it (automated extraction)

- concluding that peremptories based on religious affiliation violate at least state constitution
- holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims against the use of peremptory challenges
- holding that Spanish-surnamed people constitute a cognizable group for the purpose of Sixth Amendment and Equal Protection Clause claims against the use of peremptory challenges

## Opinion text

VOLLACK, Justice,
specially concurring in the result only:
I agree with the majority’s decision to affirm the judgment of the court of appeals, upholding the defendant’s conviction of first degree murder and attempted first degree murder. I write separately, however, because I believe it is unnecessary for us, given the facts of this case, to adopt the Wheeler approach and hold that the discriminatory use of peremptory challenges by a prosecutor violates the sixth amendment to the federal constitution and article II, section 16, of the Colorado Constitution. In light of the ultimate holding of the majority, namely, that the defendant could not establish a prima facie case under either the sixth amendment right to an impartial jury, or the equal protection clause of the fourteenth amendment, it is unnecessary to adopt an approach which leaves issues unresolved and contains open-ended interpretations of key principles.
I.
The unpopularity of the Swain case prompted a few state courts to interpret the sixth amendment and their state constitutional provisions on the right to an impartial jury as preventing the discriminatory use of peremptory challenges. E.g., People v. Wheeler, 22 Cal.3d 258 , 583 P.2d 748 , 148 Cal.Rptr. 890 (1978); Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 *1159 L.Ed.2d 110 (1979). However, the majority of courts have rejected this interpretation. E.g., United States v. Clark, 737 F.2d 679 (7th Cir.1984); Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256 , 104 S.Ct. 3546 , 3548, 82 L.Ed.2d 849 , 851 (1984); United States v. Whitfield, 715 F.2d 145 (4th Cir.1983); United States v. Childress, 715 F.2d 1313 (8th Cir.1983), cert. denied, 464 U.S. 1063 , 104 S.Ct. 744 , 79 L.Ed.2d 202 (1984); Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046 , 104 S.Ct. 719 , 79 L.Ed.2d 181 (1984); State v. Wiley, 144 Ariz. 525 , 698 P.2d 1244 (1985); State v. Stewart, 225 Kan. 410 , 591 P.2d 166 (1979); State v. Sims, 639 S.W.2d 105 (Mo.App.1982); Nevius v. State, 101 Nev. 238 , 699 P.2d 1053 (1985); Commonwealth v. Henderson, 497 Pa. 23 , 438 A.2d 951 (1981); State v. Ucero, 450 A.2d 809 (R.I. 1982); State v. Grady, 93 Wis.2d 1 , 286 N.W.2d 607 (1979). The California Supreme Court, in People v. Wheeler, was reacting to what it viewed as an almost impossible burden of proof under Swain’s interpretation of the equal protection clause, which required a defendant to show that the prosecutor systematically used peremptory challenges against a racial group over an extended period of time. With the advent of Batson v. Kentucky, — U.S.-, 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which overrules Swain, such an impossible burden no longer exists.
I believe the Wheeler analysis adopted by the majority rests on a faulty premise that equates impartiality with representativeness. If a jury must be cross-sectional, i.e., representative, to be impartial, then it must be cross-sectional in every case. However, virtually all the courts that follow Wheeler subscribe to the proposition that there is
no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.
Taylor v. Louisiana, 419 U.S. 522, 538 , 95 S.Ct. 692, 702 , 42 L.Ed.2d 690 (1975) (citation omitted). Wheeler and its progeny subscribe to the notion that impartiality is achieved through the mixing of a variety of views on the jury itself, and that the way to achieve impartiality is through the representation of that variety on a petit jury so that views associated with group membership can mix and, if antagonistic, cancel each other out. Wheeler, 22 Cal.3d at 266-67 , 583 P.2d at 754-55 , 148 Cal.Rptr. at 896 ; Soares , 377 Mass, at 480-83, 387 N.E.2d at 512-13 . This premise, that particular groups have particular views and thus must be represented on a jury for that jury to be impartial, continues the stereotypical thinking that Wheeler seeks to eliminate, i.e., the conception of group bias. If members of groups think in a particular way, then it would be the obligation of both the prosecution and the defense to remove groups unfavorable to their side.
I disagree with the majority’s statement that the ideal impartial jury is one where its members are different from each other and individually indifferent. Maj. op. at 1153 n. 24.) Ideally, group membership should not be a consideration for the making of an impartial jury.
The sixth amendment analysis as adopted by the majority is a double-edged sword for the defendant. Although the sixth amendment affords protection only to the defendant, there is nothing in its language or its history to suggest that the state may not protect itself from jurors who are partial to the defense. S. Saltzburg & M. Powers, Peremptory Challenges and The Clash Between Impartiality and Group Representation, 41 Md.L. Rev. 337, 354 (1982). The Wheeler approach, based on the California Constitution, recognizes the ability to challenge the use of peremptories on the part of the prosecution as well as the defense. 22 Cal.3d at 281 n. 28, 583 P.2d at 765 n. 28, 148 Cal.Rptr. at 906 n. 28. “The state, no less than a defendant, is entitled to an *1160 impartial jury.” State v. Neil, 457 So.2d 481, 487 (Fla.1984).
Thus, according to the unique provisions of the California Constitution as interpreted in Wheeler , either side can violate the fair cross-section requirement. This could prove very problematic for the defense, for whom the right to peremptory challenges is of great importance because they are so personally involved in the result of the trial and, therefore, are usually given more peremptory challenges than is the government. United States v. Newman, 549 F.2d 240 , 250 n. 8 (2d Cir.1977). 1 I cannot endorse the adoption of an analysis which requires proportional representation on juries because it would carry the divisive implication that without such a system of proportional representation, juries would be unable to be impartial. See Ristaino v. Ross, 424 U.S. 589 , 596 n. 8, 96 S.Ct. 1017 , 1021 n. 8, 47 L.Ed.2d 258 (1976); Note, The Defendant’s Right to Object to Prosecuto-rial Misuse of the Peremptory Challenge, 92 Harv.L.Rev. 1770, 1777 n. 53 (1979). This would conflict with the long established principle that a petit jury need not mirror the community to be considered impartial. Taylor, 419 U.S. at 538 , 95 S.Ct. at 702 .
II.
My primary concern with the majority’s sixth amendment analysis is the definition of “cognizable groups” or “distinctive groups,” which, under the sixth amendment, are those groups that “are sufficiently numerous and distinct” so that if they are systematically excluded from the jury venires, “the sixth amendment fair cross-section requirement cannot be satisfied.” Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664, 668 , 58 L.Ed.2d 579 (1979) (quoting Taylor, 419 U.S. at 531 , 95 S.Ct. at 698 ). I do not object to the majority’s holding that spanish-sumamed persons are a cognizable group. (Maj. op. at 1153). However, I do object to the phrasing used by the majority in defining “cognizable group:” “[W]e believe that a group is le-gaily cognizable if it is defined on the basis of race, national origin, religion or sex.” (Maj. op. at 1153-1154 n. 15.) The use of the words “we believe,” coupled with their location in a footnote, fails to provide sufficient guidance for compliance with this opinion and leaves “cognizable group” subject to interpretation.
In State v. Gilmore, 103 N.J. 508 , 511 A.2d 1150 (1986), cited by the majority, the New Jersey Supreme Court stated that “at minimum, cognizable groups include those defined on the basis of religious principles, race, color, ancestry, national origin, and sex.” 511 A.2d at 1159 n. 3 (emphasis added). As the majority here, the Gilmore court found it unnecessary to determine the scope of “cognizable group” definitively.
Because I believe that the majority’s definition of “cognizable group” is vague and because the facts of this case clearly do not require it, I would not adopt the majority’s sixth amendment analysis and embracement of Wheeler .
I am authorized to state that ERICKSON, J., joins in this special concurrence.
. The majority contends that this issue need not be resolved in this case (maj. op. at 1156 n. 19). In light of the majority’s adoption of Wheeler , I cannot agree; the effect of this approach on the defendant’s use of peremptory challenges must be considered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9539092. Public record. Not legal advice.