dissenting.
I do not agree with the determination by the majority that § 16 — 10—103(l)(b), C.R.S. (1986 Repl.Vol. 8A) requires that, under the peculiar facts of this case, the trial court was required to sustain a challenge for cause because one of the prospective jurors was the mother of a deputy district attorney in this very large judicial district.
The mother testified during voir dire:
Q: “Do you have much of an opportunity to talk with your son about his business?
A: “He doesn’t discuss his job.”
This statement is typical of all of the others that she made during the interrogation, and there is absolutely nothing indicated in the questioning which could raise the slightest specter that she could not sit as a fair and impartial juror in this case. The record also shows that the deputy district attorney prosecuting the case, although he knew that the juror’s son worked in their office, stated that he “did not work with him.”
The question then becomes, does the application of § 16 — 10—103(l)(b), in and of itself, disqualify the mother as a matter of law? I think not.
The majority candidly admits that the prospective juror’s son was not in any way connected with the prosecution of this case. But, the majority through a very tortuous analysis, then attempts to establish that he is somehow an “attorney of record” just because he is employed in the same large office. I find such argument singularly unpersuasive.
Nowhere in this record does his name appear anywhere as an attorney of record. Furthermore, the cases cited by the majority for this proposition may have reached proper results on their specific facts, but *583they do not establish a rule to be followed in this case.
In Pease v. District Court, 708 P.2d 800 (Colo.1985), two members of the district attorney’s prosecutorial staff in a very small judicial district were to testify at trial, and the jury would, therefore, be hearing from three prosecutors from a single small office. In Jeffrey v. District Court, 626 P.2d 631 (Colo.1981), the members of the district attorney’s office were again in a small office working on matters involving the same criminal episode. In DeLuzio v. People, 177 Colo. 389, 494 P.2d 589 (1972), the statements relied on by the majority are dicta because, in that case, the district attorney himself had sufficient knowledge, and it was held that he knew or should have known of a deal made by someone else in his office. All of these cases show unfair advantage held by the prosecution.
People v. Garcia, 698 P.2d 801 (Colo.1985), also cited by the majority, is more instructive and, I think, is controlling here. In that case, our supreme court upheld a determination by a trial court that a district attorney and his staff should be disqualified. The court there said:
“In our view, the determination of whether a district attorney and his staff should be disqualified is a matter largely within the discretion of the district court.
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The goal of the court should be to shape a remedy which will assure fairness to the parties and integrity of the judicial process.... Among the relevant factors to be considered by the court are the nature, relevance and necessity of the testimony, the size and degree of integration of the district attorney’s staff, and the degree to which the testimony is contested.”
In Garcia, the size of the prosecuting staff of which the prosecutor was a member was relatively small. The testimony was relevant and necessary to prove an essential element of the offense charged. As it related to the defendant’s understanding of the court’s order to appear for further proceedings, it was a matter severely contested by the defendant. Under such circumstances, we can readily see that the disqualification of the prosecutor and staff was not an abuse of discretion.
When that analysis and those criteria are applied to the case before us, I can discern no abuse of discretion by the trial court, and I would hold that the extremely tangential relationship of the juror’s son to this case does not make him an “attorney of record.”
Since proper discretion was exercised by the trial court and since defendant chose to dismiss this juror with a peremptory challenge, I can perceive no basis to mandate the expense and energy of a retrial here that would, in all likelihood, result in the same outcome.
For the foregoing reasons, I would affirm the trial court.