People v. White

Justice MARTINEZ,

dissenting.

I respectfully dissent because I cannot agree with the majority's interpretation of section 18-71-105 or its reliance on the principal-or-primary-home test to determine the residency, and hence qualification, of Juror C. Rather, I would resolve the instant case based on the text of section 18-71-105(1) alone.

Section 18-71-105(1) sets forth two alternate criteria for determining residency status. A United States citizen who "resides" in a county or "lives in such county more than fifty percent of the time" shall be qualified to serve as a trial juror in such county. § 13-*11277I-105(1), C.R.S. (2010). At the time of the trial, the record clearly showed that Juror C had moved to Colorado Springs (El Paso County) to live with his sister. Moreover, there was no evidence that Juror C lived in Teller County with his father. To the contrary, Juror C explained to the trial court that he had recently moved out of his father's house in Woodland Park (Teller County). Thus, even though section 13-71-105(1) does not explain precisely how to calculate whether a person has lived in a county "fifty percent of the time," at the time of trial Juror C certainly did not live in Teller County more than fifty percent of the time; rather, he did not live in Teller County at all.

Juror C also lacked the necessary intent to return to his father's house in Teller County and be deemed to legally "reside" there. Neither section 18-71-105(1) nor the Colorado Uniform Jury Selection and Service Act ("UJSSA") provides an express definition for the term "reside" or "residency." Generally however, legal residence carries with it a notion of intent. More specifically, a person must have an intent to either establish a legal residence or return to a legal residence within the foreseeable future. Here, Juror C lacked any concrete plans to return to his father's house in Teller County. True, Juror C had not yet made arrangements for his mail to be delivered to Colorado Springs and could return to his father's house if he needed to get his finances changed someday. Moreover, as the trial court apparently found relevant, Juror C was in transitional stage in his life-meaning that he "really doesn't know where he's going to end up." Pointedly though, Juror C specifically explained that he had no intention of returning to Teller County within the next year-and-a-half. On this record then, it is apparent that Juror C lacked a present intent to return to Teller County-a necessary mindset to qualify as a legal resident of that county for the purposes of section 18-71-105(1).

Nonetheless, despite Juror C's lack of intent to return to Teller County within the next year-and-a-half, the majority concludes that Juror C remained a resident at his father's home in Teller County. To arrive at this conclusion, the majority relies heavily on the statutory definition of residence used to determine voter registration qualifications. See § 1-2-102; of § 81-10-2201 (Municipal Election Code). Pursuant to section 1-2-102(1)(a)(I) of the Uniform Election Code of 1992, "[the residence of a person is the principal or primary home or place of abode of a person." In turn, a person's principal or primary home is where "the person's habitation is fixed and to which that person, whenever absent, has the present intention of returning...." Id. Present intent is therefore of prime importance in determining legal residence for voting purposes. See Gordon v. Blackburn, 618 P.2d 668, 672 (Colo.1980).

Based on the Uniform Election Code's definition of residence, the majority concludes that Juror C was a resident of Teller County for the purposes of the UJSSA. Apparently, Juror C's principal or primary home was fixed at his father's residence in Teller County. Thus, regardless of the fact that Juror C moved out of his father's home and had no intent to return within the next year-and-a-half, he nonetheless remained a resident of his father's home and Teller County. Surely though, Juror C's indefinite intent to return to Teller County is insufficient to establish legal residence for the purposes of voter registration or juror qualification. See id. ("The mere intention to return to a former abode at some more or less indefinite time, with no other indicia of a home or domicile, may not fulfill the usual requirements of legal residence' for voting purposes.").

More problematic, however, is the lack of textual support for the majority's reliance on the principal-or-primary-home test. Section 13-71-105 does not define "reside" or "residence," let alone mention a person's principal or primary home. In this respect, the UJS-SA contrasts sharply with the Uniform Election Code of 1992 which expressly references the principal-or-primary-home test and spells out in great detail the cireumstances for determining residence. See § 1-2-108. The UJSSA's silence counsels strongly against the majority's wholesale adoption of the principal-or-primary-home test.

Moreover, section 183-71-105 does not cross-reference the Uniform Election Code, *1128let alone the principal-or-primary-home test found in section 1-2-102(1)(a)(I). True, seetion 13-71-107 does designate voter registration, income tax, and motor vehicle registration lists as potential sources for a master list of jurors. However, the designation of source material for a master juror list has no bearing on the definition of "reside" and cannot provide the loophole for importing the principal-or-primary-home test into the UJS-SA.

Finally, the majority makes an unnecessary policy decision to adopt the prineipal-or-primary-home test in the context of juror residency status. On the one hand, the principal-or-primary-home test may provide for broad-based juror eligibility and thereby comport with the realities of our contemporary mobile culture. On the other hand though, the princeipal-or-primary-home test may ensnare jurors located at a great distance from the county where they are called. In drafting section 18-71-105(1), the legislature did not address these competing poli-cles, opting instead to omit any specific definition or test for residency. In the instant case, there is no need for this Court to make the policy determination necessary to explain its rationale for adopting a definition of residence found in another entirely different statute. Instead, based on the text of section 13-71-105(1) alone, Juror C neither "reside[d]" in Teller County nor "live[d] in such county for more than fifty percent of the time." Accordingly, because I conclude that Juror C was not a qualified juror in Teller County, I respectfully dissent.

I am authorized to state that Justice BENDER joins in this dissent.