Colorado’s second-highest court last week reversed a man’s Boulder County sexual assault convictions and ordered a new trial because one juror was distracted after witnessing a fatal accident and missed key portions of testimony.

A jury convicted Curtis James DiMarco in 2021 of numerous child sex offenses and he received a sentence of 60 years to life in prison.

On the third day of trial, then-District Court Judge Norma A. Sierra told the prosecution and defense that one juror, identified as Juror V, was having trouble focusing. Juror V disclosed to a court employee that he witnessed a traffic accident the previous night in which a motorcyclist appeared to have died.

Sierra called in Juror V, who confirmed the experience “shook me in ways that took me by surprise.” The defense asked if Juror V was able to pay attention to the morning’s witnesses, who included a county caseworker, a family visitation supervisor and someone who heard the child victims’ abuse allegations.

“Not totally 100%,” responded Juror V, saying he was instead seeing images of “that poor man lying on the road.”

Sierra planned to check with Juror V later that day to see if he was still unable to focus. The defense moved to dismiss the man, but Sierra declined to do so.

Juror V “was particularly conscientious in bringing this information to the court’s attention,” she said. “I would hope that he is able to regain the focus that he believes he had yesterday afternoon.”

Later that day, Sierra again pulled Juror V aside. He confirmed the afternoon went “much better” and he was able to focus “most of the time” on the witnesses — including the victims themselves.

“I missed quite a bit this morning,” Juror V added.

Once again, the defense moved to dismiss Juror V because he admitted he was impaired during multiple witnesses’ testimony. Although Sierra acknowledged Juror V “missed some of the testimony,” she declined to remove him from the jury. 

“There may be other jurors who, at times, perhaps find themselves also distracted by other goings-on in their lives,” Sierra said. “The court did indicate to jurors that when they are deliberating, they have their memory and the memory of their fellow jurors collectively.”

On appeal, DiMarco argued state law requires judges to replace jurors who are unable to perform their duties before the start of deliberations.

Juror V, “dealing with his traumatic experience, was not fully engaged, present, and able to listen carefully, materially affecting DiMarco’s rights,” wrote defense attorney Mallika L. Magner.

A three-judge panel for the Court of Appeals agreed with her. Judge Rebecca R. Freyre, writing in the Nov. 27 opinion, noted “juror inattentiveness” does not generally warrant a new trial unless it results in the defendant not receiving a fair trial.

While DiMarco’s case presented “a close question,” she elaborated, there was no dispute Juror V was inattentive for a meaningful period. Therefore, he was unable to perform his duties and should have been replaced with an alternate.

“We do not mean to suggest that a court faced with this dilemma is always required to dismiss a juror who, due to a lapse in concentration, misses some testimony,” Freyre wrote. “The impact on a juror’s ability to engage in informed deliberations would depend, among other things, on the degree and length of the juror’s inattention, the complexity of the case, and the importance of the testimony at issue.”

However, given the significance of the witnesses on the day in question, “we cannot conclude as a matter of law that Juror V’s extended lapse in concentration did not prejudice DiMarco,” she added.

The case is People v. DiMarco.