dissenting.
Because the selection of the grand jury in this matter violates the statutory rights of the defendant and the statutory and constitutional rights of the citizenry, I respectfully dissent.
In People v. Cerrone, 854 P.2d 178, 181 (Colo.1993), the court adopted these findings of the trial court:
[D]uring the course of selecting the 1985-86 grand jury, deliberate attempts were made to select persons with college educations or occupations that would help them to understand complicated cases that were to be presented that year to the grand jury and that deliberate attempts were also made to select persons whose jobs and family commitments would allow *151them most easily to be away from work or home nearly every Friday for one year when the grand jury met. (emphasis supplied)
After holding in a split decision that the procedure followed did not violate defendant’s equal protection right under the federal constitution, the supreme court then reversed and remanded for our ruling on whether the procedure followed in selecting the grand jury violated § 13-71-103, C.R.S. (1987 Repl.Vol. 6A) because of the systematic exclusions based on levels of formal education and status as an hourly wage earner. See People v. Cerrone, supra, fn. 3.
Section 13-71-103, provides:
A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.
And, § 13-71-102, C.R.S. (1987 Repl.Vol. 6A) provides:
It is the policy of this state that all persons selected for jury service shall be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens shall have the opportunity in accordance with the provisions of this article to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.
Hence, since the State of Colorado has expressly extended to its citizens the opportunities and obligations to serve on juries beyond those specifically contained in the United States, Colorado Constitutions, the supreme court’s remand was not only proper, but necessary. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (Right of the citizenry to serve on juries without discrimination). Cf Georgia v. McCollum, — U.S. —, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
In Cerrone, supra, the court adopted the three-part standard from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) for purposes of determining the existence of discrimination in jury selection. That standard, as applicable here,
(1) The defendant is required first to make a prima facie showing that the State has excluded potential jurors on account of [education or economic status]. (2) If the requisite showing has been made, the burden shifts to the State to articulate a ... neutral explanation for excluding the jurors in question. (3) If the State succeeds in articulating a ... neutral explanation, then the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Here, that defendant has established the first prong of the Batson test is irrefutable.
Although the People have articulated a neutral explanation for excluding potential jurors on an educational and economic basis under the second prong, that explanation does not, in my estimation, rise to a success-fill articulation of a neutral exclusion. However, even if I assume that the explanation is sufficient to carry the matter to the third prong, it is undisputed that the People purposefully and deliberately discriminated against that large and probably majority segment of the population with limited formal education and hourly wage earner economic status.
Clearly, the People cannot rely upon a neutral reason for the utilization of exclusions which patently deprives the public and this defendant of jurors selected at random from a fair cross section of the population. See § 13-17-102 & 103.
There is no evidence in the record to establish that education and intelligence are necessarily coextensive nor is there evidence that an hourly wage earner would be less attentive. Thus, though the People have proffered a purported neutral explanation, that explanation is irreconcilable with the specific provisions of the statutes and which purposefully discriminatory.
Hence, I would hold that the deliberate selection of an elitist grand jury violates the relevant statutes and the public policy of the State of Colorado and would, therefore, reverse the conviction of defendant.