concluding that a self-defense instruction was “totally irrelevant” when it was undisputed that a “fight ended no later than when [the] defendant fired into the crowd,” yet the defendant “continued to fire at his unarmed and apparently helpless foe”
How later courts described this case
- concluding that a self-defense instruction was “totally irrelevant” when it was undisputed that a “fight ended no later than when [the] defendant fired into the crowd,” yet the defendant “continued to fire at his unarmed and apparently helpless foe”
- explaining that a jury is presumed to understand and follow cautionary instructions
- Although a defendant “need not retreat to the wall before defending himself, [and] may stand his ground and even, in some circumstances, pursue his assailant until the assailant has been disarmed or otherwise deterred from his violent purpose,” the defendant may not rely on that rule “when he is no longer under attack, but has himself become the assailant.” (citing Almond v. People, 135 P. 783 , 784 (Colo. 1913))
- “There is no requirement ... that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs.”
Written by the judges who cited it.
The opinion
MR. JUSTICE CARRIGAN
concurring in part and dissenting in part:
While I concur in the remainder of the majority opinion, I cannot accept the Orwellian premise of Part I that a defendant’s right to trial by a jury representing a fair cross-section of his community must be subordinated to the language shortcomings of a computer. To put the matter in proper perspective, it is essential to recall that not only the defendant in this murder case, but nearly all the parties to the fracas out of which the killing arose, were Chícanos. Census figures placed the number of Spanish-surnamed persons in Weld County at 15.4% of the county’s population. Yet the jury selection methods employed ultimately reduced Spanish *26 surnamed persons on the jury list to 8.6%. Of the twelve jurors who actually decided the defendant’s fate, not one was Spanish-surnamed. To me the gist of the majority opinion on this point is summed up in the following paragraph:
“A city and county directory is published for Weld County, and defendant contends that, if this were used to select the jury pool, the disparity between 15.4% and 10.4% (at the first stage of the selection process) would not exist. The directory was not used because it was not produced in the computer media used by the state judicial department in its jury selection procedures. It was determined by the judicial administrator and the chief judge of the judicial district that the conversion could not be accomplished by reason of a lack of funding.” Slip Opinion, p. 5. (Parenthetical matter added.)
I simply cannot accord any place in our justice system to the notion that the fundamental right to a fair, representative jury can be subordinated to the convenience of a computer. Even though, as the majority opinion states, there may be no constitutionally recognized right to trial by a jury of one’s “peers” in the sense of persons of the same racial or ethnic background, we are not here dealing with minimum constitutional standards. In fact there is no need to reach the constitutional issue, for the real issue here is one of judicial administration policy subject to the powers expressly granted to this court by the Colorado Constitution. Colo. Const., Art. VI, sec. 2(1) 1 and sec. 21. 2
Moreover our concern cannot stop when we are satisfied that a jury selection procedure is actually fair, for the procedure employed must have the appearance of fairness as well. Courts, having neither police nor militia to enforce their orders, must depend for their authority on the people’s confidence that their official acts and procedures are fundamentally fair. Therefore our judicial system ought constantly to strive for a quality of justice above the bare minimum required of us by the United States Constitution as expounded by the Supreme Court.
The Colorado Rules of Jury Selection and Service promulgated by this court declare our policy “to provide for jury service by persons selected at random from a fair cross-section of all citizens qualified to serve.” C.R.J.S.S., Rule 2. These rules implement the Uniform Jury Se *27 lection and Service Act, 3 which similarly requires random selection from a fair cross-section of the population to assure implementing the declared state policy “that all qualified citizens shall have the opportunity ... to be considered for jury service . . . ,” 4
Our rules provide the means by which this court could, and should, require more than minimal compliance with constitutional requirements. Rule 7(b) provides that the master lists for jury selection may be supplemented with additional lists, “if available,” in order to increase the likelihood that prospective jurors will be selected from a list truly representative of the community’s population. The state court administrator and the chief judge of each district are to determine whether supplemental lists are “available” and “applicable” for these purposes. C.R.J.S.S. 7(b)(3). Directories like the one here involved are expressly mentioned as sources for the master jury list.
Thus, the dicision whether to use sources such as these directories in putting together the master jury lists is left to officers directly subject to this court’s supervisory powers. Therefore this court has an opportunity to ensure employment of the fairest practicable methods of jury selection, not merely those which marginally satisfy minimum requirements.
But in this case, the majority have simply deferred to the judgment of the state court administrator, who determined that the Weld County directory was not “available” because of the expense problems involved in converting it to computer language. The court simply elects not to interfere with the administrator’s decision.
I object to this portion of the opinion because it abstains from deciding an important matter of judicial policy, and flatly upholds the administrator’s decision on the matter without any adequate factual basis.
Given the importance of the right here involved, it is essential that this court ascertain that there be substantial justification for any dilution of it. Being mindful of Judge Learned Hand’s injunction: “Thou shalt not ration justice,” I would be troubled by any decision, based solely on budgetary reasons, to forego using a list providing the fairest available cross-section of the community. In this case, however, the court makes its decision with no evidence in the record even roughly quantifying the expense of converting the county directory to computer language.
The record indicates only the generality that converting the directory would “take a lot of time and a lot of money,” and that the court administrator had decided as a policy matter that directories are not “available” whenever such conversion is required. Certainly the court’s decision upholding the administrator’s policy determination should not be controlled *28 by budgetary concerns not even documented by evidence.
It is also unclear from the record to what extent use of the Weld County Directory would improve the jury representation of the Spanishsurnamed. It is of course conceivable that a very slight improvement would not justify a very large expense. For that reason, I would remand the case for further evidence on these two points, both of which are essential to making an intelligent judgment whether exclusion of the directory is justifiable. If excessive expense is to be recognized as a determinative factor in policy decisions affecting the fairness of jury selection — i.e., if we must put a price on the right to trial by a fair cross-section of the community — at least we should know and publicly state how much expense is being used to justify how much underrepresentation. If we allow a nonspecific representation of the expense of computerization to control our decision of what is truly a fair cross-section of the community, we blindly subvert the fundamental right of the jury trial to dubious concepts of administrative efficiency.
Ironically, were it not for the modern, quantitatively efficient computer, we might have, in this instance, a more qualitatively efficient jury selection system, for the Weld County Directory is already in human language and would require no expensive conversion but for the computer.
“(1) The supreme court . . . shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law.”
“Rule-making Power. The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases, except that the general assembly shall have the power to provide simplified procedures in county courts for claims not exceeding five hundred dollars and for the trial of misdemeanors.”
Section 13-71-101, et seq., C.R.S. 1973.
Id. §13-71-102.