Barriner v. District Court, Division I In and For Jefferson County

• Citation: 174 Colo. 447,484 P.2d 774
• Decision Date: 10 May 1971
• Docket Number: No. 25106,25106
• Parties: Henry Carl BARRINER, Petitioner, v. DISTRICT COURT, DIVISION I IN AND FOR the COUNTY OF JEFFERSON, State of Colorado, Honorable Ronald J. Hardesty, Judge, and A. L. Herrmann, District Attorney, First Judicial District of the State of Colorado, Respondents.
• Court: Supreme Court of Colorado

Page 774

484 P.2d 774

174 Colo. 447

Henry Carl BARRINER, Petitioner, v. DISTRICT COURT, DIVISION I IN AND FOR the COUNTY OF JEFFERSON, State of Colorado, Honorable Ronald J. Hardesty Judge, and A. L. Herrmann, District Attorney, First Judicial District of the State of Colorado, Respondents.

No. 25106.

Supreme Court of Colorado, En Banc.

May 10, 1971.

Gerash & Kaiser, Walter L. Gerash, Denver, for petitioner.

A. L. Herrmann, Jr., Dist. Atty., Golden, for respondents.

KELLEY, Justice.

This is an original proceeding. The petitioner seeks relief in the nature of prohibition to enjoin a second trial after a previously declared mistrial. C.A.R. 21. We issued a rule to show cause why the relief sought should not be granted to which the respondents have answered. The issue raised by the proceeding is whether, under the circumstances hereinafter set forth, petitioner's right under Article II, § 18 of the Constitution of Colorado, not to 'be twice put in jeopardy for the same offense,' has been infringed.

The following circumstances gave rise to the controversy before us:

The petitioner was charged with assault with intent to commit rape. His trial by a jury occurred on June 2 [174 Colo. 450] and 3, 1970. At 5:00 p.m. on June 3, the case was submitted to the jury and the court announced that it, '* * * will be in recess until we get a verdict.'

At 11:35 p.m. on June 3 the court, in chambers and out of the presence of the jury, with the defendant and respective counsel present, made the following statement:

'The bailiff has informed the court that the jury wishes a further definition of the term 'entrapment.' The court has, with the assistance of counsel, drafted instruction numbered 18, which is self-explanatory. I have also prepared instruction numbered 19, which is a hungjury instruction; because the jury did commence their deliberations about five o'clock, and then took about an hour and a half for dinner, and that after they returned from dinner they resumed their deliberations and still have not arrived at a verdict. The court has also prepared an instruction for a sealed verdict. This sealed verdict will be returned in Division 3, that's Judge Stoner's court, tomorrow morning at 8:30, should they arrive at a verdict this evening.

'It is also the intention of the court not to make them work beyond 2:00. If they are unable to arrive at a verdict by 2:00 in the morning, I think we will declare the case a hung jury at that point and declare a mistrial, after the instructions that I am going to give them.

'MR. MYERS: Are you going to inform them, Your Honor?

'THE COURT: No, I am not going to inform them of that. If the bailiff calls me in at that hour and says that they are still hopelessly deadlocked and that the jury is hung, that would give them another two hours to deliberate this matter. And after the Instruction 19 on hung jury, and further definition of this term 'entrapment,' which seems to be bothering them, if they can't arrive at a verdict by then, I think we better declare the mistrial, hung jury.

'MR. MYERS: All right.'

These further facts appear in the judge's remarks in connection with the court's denial of petitioner's motion to dismiss:

'* * * It doesn't show on the record, but the bailiff did call me at two o'clock in the morning and asked me what to do. He reported to me at that time the jury had not arrived at their verdict, and the foreman told him they were deadlocked. At that point I told them (him) to discharge them, and I would declare a mistrial, which was done, and the clerk of the court was duly informed of that the next morning, and she made a record accordingly and entered the appropriate orders.

'The only other alternative the Court had at that time was to put the jury to bed.'

The defense of double jeopardy is based upon Article II, § 18 of the Constitution of Colorado which provides:

'No person shall be compelled to testify against himself in a criminal case Nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, The accused shall not be deemed to have been in jeopardy.' (Emphasis added.)

Colorado Rules of Criminal Procedure 31(a)(2) is pertinent to the consideration of the question of double jeopardy in the posture in which this case has been presented to us. In material part, it reads:

'When the jury retires to consider its verdict, The bailiff shall be sworn or affirmed to conduct the jury to some private and convenient place, and to the best of his obility to keep the jurors together until they have agreed upon a verdict. The bailiff shall not speak to any juror about the case except to ask if a verdict has been reached, nor shall he allow others to speak to the jurors. When they have agreed upon a verdict, the bailiff shall return the jury into court.' (Emphasis added.)

See also C.R.S.1963, 39--7--20.

The petitioner places his principal reliance upon Paulson v. Superior Court of El Dorado County, 58 Cal.2d 1, 22 Cal.Rptr. 649, 372 P.2d 641. Paulson holds that after jeopardy attaches, if a jury is discharged without returning a verdict, the defendant cannot again be put in jeopardy unless he consented to the discharge or legal necessity required it. The respondents argue that Paulson is not applicable, because the decision rested upon a California statute and, unlike the instant case, the petitioner there did not consent to the discharge of the jury. For reasons which will hereafter appear, we are not convinced that respondent's position is well taken. To begin with, as far back as 1889, in the application of Colo.Const. art. II, § 18 (and the equivalent of Crim.P. 31(a)(2)), Colorado formulated a rule of law which is comparable to the statute upon which the California Supreme Court relied. In re Allison, 13 Colo. 525, 22 P. 820; Brown v. People, 132 Colo. 561, 291 P.2d 680. As to the question of consent and waiver, a further analysis of that argument will be developed subsequently in this opinion.

The facts in this case are as important in what does not appear as are the facts which we have outlined. We note that there was no motion for a mistrial by the district attorney; that in that last session in open court at 11:35 p.m., there was no indication of an inability on the part of the jury to agree upon a verdict. In fact, no juror ever stated in open court that he thought the jury could not agree on a verdict. The jury was discharged by the bailiff without the jury returning to the court room to directly communicate the state of their deliberations to the trial judge. Under the constitution, 'If the jury disagree, * * * the accused shall not be deemed to have been in jeopardy.' The question, therefore, before us is: Did the jury Disagree, within the contemplation of...