426 P.3d 336 (Colo. 2018), 16SC81, James v. People

Docket Nº:Supreme Court 16SC81
Citation:426 P.3d 336, 2018 CO 72
Party Name:Dustin Lee JAMES, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
Attorney:Attorney for Petitioner: Schelhaas Law LLC, Krista A. Schelhaas, Littleton, Colorado Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado
Judge Panel:JUSTICE GABRIEL concurs in the judgment, and JUSTICE HOOD and JUSTICE HART join in the concurrence in the judgment. JUSTICE GABRIEL, concurring in the judgment.
Case Date:September 17, 2018
Court:Supreme Court of Colorado

Page 336

426 P.3d 336 (Colo. 2018)

2018 CO 72

Dustin Lee JAMES, Petitioner


The PEOPLE of the State of Colorado, Respondent.

Supreme Court No. 16SC81

Supreme Court of Colorado, En Banc

September 17, 2018

Certiorari to Colorado Court of Appeals, Court of Appeals Case No. 14CA2030

Attorney for Petitioner: Schelhaas Law LLC, Krista A. Schelhaas, Littleton, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado



[¶1] James sought review of the court of appeals’ judgment affirming his conviction for possession of methamphetamine. Upon realizing that it had failed to discharge the alternate juror before the jury retired to deliberate, the district court recalled and dismissed the alternate; instructed the jury to continue on with deliberations uninfluenced by anything the alternate may have said or done; and denied the defense motion for dismissal or mistrial. The court of appeals concluded that the trial court’s error in allowing the alternate juror to retire with the jury and

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the juror’s presence for part of the deliberations were harmless beyond a reasonable doubt, and after rejecting James’s other assignments of error, affirmed his conviction.

[¶2] Because the evidence supporting the defendant’s guilt of the lesser offense of possession, the only offense of which he was convicted, was overwhelming and was in fact never seriously challenged, the district court’s failure to recall the alternate for approximately ten minutes amounted, under the facts of this case, to harmless error. The judgment of the court of appeals is therefore affirmed.


[¶3] Dustin James was initially charged with two counts of distribution of a controlled substance, one count of possession with intent to manufacture a controlled substance, and one count of possession with intent to distribute a controlled substance, all but the last of which were dismissed before trial. He was acquitted of the charged offense of possession with intent to distribute methamphetamine but was convicted of the lesser offense of possession. He was sentenced to three years of intensive supervised probation.

[¶4] At trial, the People presented evidence to the effect that the defendant was present at a house upon which the police executed a search warrant. With regard to the lesser offense of possession, of which the defendant was actually convicted, the evidence indicated that the police also searched a car the defendant had been seen driving and found a handgun in the console and a backpack in the back seat containing the defendant’s identification and twenty grams of methamphetamine. An investigator testified that the defendant told him, after being Mirandized, that the handgun and everything inside the backpack were his. The defense rested without presenting evidence and did not offer a theory of the case instruction.

[¶5] Shortly after the jury retired to deliberate, the district court realized that it had not discharged the alternate and immediately called him back. In response to questioning by the court and counsel, the alternate indicated that during the approximately ten minutes he was in the jury room, he had agreed to serve as the foreperson and the jury had taken a preliminary vote to get the sense of the group. He also indicated that the jury was just beginning to discuss the elements of the charges when he was recalled by the judge.

[¶6] After allowing the alternate to leave, the court also recalled the entire jury to the courtroom, explained its mistake in not stopping the alternate from retiring with the other jurors, and instructed the jurors to continue on with their deliberations, uninfluenced by anything the alternate had said or done. It then entertained and denied the defendant’s motion for either dismissal or a mistrial. After accepting the jury’s verdicts and determining that neither counsel wished to have the jury polled, the court itself queried each juror individually whether his or her verdict was uninfluenced by any discussion with the alternate. Each juror answered that the alternate had not influenced his or her verdict.

[¶7] On direct appeal, the court of appeals affirmed, finding, as relevant to the issue before this court, that although the defendant had a constitutional right to a jury of twelve and a verdict reached in secrecy, and although those rights were implicated by the presence of the alternate, in this case the error was nevertheless harmless beyond a reasonable doubt. In reaching this conclusion, the intermediate appellate court reasoned that the district court’s instruction to the jurors that they were not to be influenced by the alternate’s words or actions, in conjunction with the individual statements of the jurors affirming that their verdicts were in fact not influenced by the alternate, eliminated any reasonable possibility that the error affected the verdict.

[¶8] We granted the defendant’s petition for a writ of certiorari on the question whether the court of appeals erred in finding the alternate’s participation harmless.


[¶9] Some thirty-five years ago, in People v. Boulies, 690 P.2d 1253 (Colo. 1984), this court addressed, for the first and only time in a

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criminal prosecution, the effect of the presence of an alternate juror in the jury room during deliberations. In that case, the trial court had instructed the jury that the alternate, or "thirteenth juror," would be permitted to go in and listen but not voice her opinion or vote unless a vacancy occurred among the remaining twelve jurors. Id. at 1254-55. No objection was registered at that time or upon return of the jury’s guilty verdict, but by motion for postconviction relief, pursuant to Crim. P. 35(c), the defendant later sought a new trial on the ground, among others, that an unauthorized person was present in the jury room during deliberations. Id. at 1254. The district court agreed and ordered the defendant entitled to a new trial. Id. at 1255.

[¶10] On appeal by the People, this court found, in reliance on a state constitutional right to a twelve-person jury and existing United States Supreme Court jurisprudence concerning a defendant’s entitlement to a jury verdict reached in secret, that the presence of an alternate during jury deliberations sufficiently impinged upon the defendant’s constitutional right to a jury trial to create a presumption of prejudice that, if unrebutted, would require reversal. Id. at 1255-56 (citing Colo. Const. art. II, § 23 and Clark v. United States, 289 U.S. 1, 13, 53 S.Ct. 465, 77 L.Ed. 993 (1933) ). More specifically, we indicated that a prima facie showing by the defendant of the presence of an alternate at deliberations would shift the burden to the prosecution either to prove by a preponderance of the evidence that the alternate was not present at all or, barring that, to prove that the error was harmless beyond a reasonable doubt. Id. at 1256 & n.5. Apart from referencing the limitations imposed by CRE 606 on any inquiry into the validity of a verdict, and cases from other jurisdictions in which the temporary presence of an alternate before deliberations had begun did not invalidate the verdict, we offered no other guidance concerning proof of harmlessness. See id. at 1256 n.5.

[¶11] Between that time and this, the law governing the nature and remedies for error occurring in the trial process in general, and the presence and use of alternate jurors in particular, has undergone considerable development in the jurisprudence of both this court and the United States Supreme Court. In People v. Burnette, 775 P.2d 583, 584 (Colo. 1989), announced six years after our opinion in Boulies, we were faced with the related question of substituting an alternate for an incapacitated juror after deliberations had already begun. Finding that the failure to dismiss the alternate juror when the jury retired to deliberate in that case violated the dictate of Crim. P. 24(e), we then considered "the legal effect of the verdict of the improperly constituted jury," id. at 587, and concluded that the presumption of prejudice arising from the mere presence of an alternate, which we had identified in Boulies, must apply "with at least equal force" to the unauthorized participation of an alternate juror, id. at 590. In Burnette, however, we held that this presumption of prejudice could be overcome by, but only by, a showing that the trial court took extraordinary precautions to ensure that the defendant would not be prejudiced and a showing that under the circumstances of the particular case, those precautions proved adequate to achieve that result. Id.

[¶12] Although we found, in the absence of any such precautions in Burnette, that the presumption was not overcome...

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