People v. Burnette

• Citation: 775 P.2d 583
• Decision Date: 26 June 1989
• Docket Number: No. 88SC2,88SC2
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Matthew BURNETTE, Respondent.
• Court: Supreme Court of Colorado

Page 583

775 P.2d 583

88 A.L.R.4th 695

The PEOPLE of the State of Colorado, Petitioner, v. Matthew BURNETTE, Respondent.

No. 88SC2.

Supreme Court of Colorado En Banc.

June 26, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Paul H. Chan, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colorado State Public Defender, and Janet Fullmer Youtz, Deputy State Public Defender, Denver, for respondent.

LOHR, Justice.

In People v. Burnette, 753 P.2d 773 (Colo.App.1987), the Colorado Court of Appeals reversed the conviction of defendant Matthew Burnette for second degree assault. The court of appeals concluded that the district court violated Crim.P. 24(e) when it permitted the substitution of an alternate juror for a regular juror who had become unavailable after jury deliberations had begun. See also § 16-10-105, 8A C.R.S. (1986). This violation, the court of appeals held, gave rise to a rebuttable presumption of prejudice to the defendant. Because the trial judge failed to take appropriate precautionary steps to ensure against prejudice to the defendant as a result of the replacement, the court of appeals held that the presumption of prejudice was not overcome. Therefore, the violation required reversal of the judgment of conviction. The People sought certiorari, contending that the court of appeals improperly presumed that the violation of the rule prejudiced the rights of the defendant. We granted certiorari to review this question. We now hold that a violation of Crim.P. 24(e) by the replacement of a regular juror with an alternate juror during deliberations raises a presumption of prejudice that, if not properly rebutted, requires reversal of any conviction obtained as a result of a verdict rendered by the improperly constituted jury. We therefore affirm the judgment of the court of appeals.

I.

On January 1, 1986, the defendant, Matthew Burnette, was involved in an altercation in which he stabbed his brother-in-law with a knife. Burnette was charged in the El Paso County District Court with one count of assault in the first degree, § 18-3-202, 8B C.R.S. (1986). Burnette entered a plea of not guilty and stood trial before a jury composed of twelve regular members and one alternate. The trial began on March 31, 1986, and closing arguments were completed on the afternoon of April 2, 1986. The trial court then submitted the matter to the jury for deliberations. After determining that all the regular jurors were prepared to enter into deliberations, the trial court told the alternate juror: "You served to protect us from an alternative which has not come about, so we will excuse you at this time with our thanks." The court then admonished the alternate, "I will tell you, however, that you are not to discuss your view of the case, and what your vote on the verdict might be, with anyone until the jury has, in fact, reached a verdict, because it may still be necessary to call upon you. But you are excused...."

The twelve regular jurors then retired to deliberate. After deliberating for approximately four and one-half hours, they were excused to return at 9:00 a.m. on the following day, April 3. During the night, a severe snowstorm moved into the county in which the courthouse was located. Early the next morning, one of the jurors called the court to say that she could not come to the courthouse due to the inclement weather. The court's bailiff confirmed through the county sheriff that the weather was severe enough to prevent the juror from traveling to the courthouse.

At approximately 10:00 a.m., the court conferred with counsel to consider how best to proceed. During that meeting, defense counsel refused to stipulate to a jury of fewer than twelve members. Over defense counsel's objection, the court then decided to recall the alternate juror. After the alternate juror arrived and before jury deliberations had begun, the court received a directive from the chief judge of the district ordering the courthouse closed at 12:00 noon due to the storm. Shortly after 11:15 a.m., the court brought the eleven jurors and the alternate into the courtroom and advised them that the alternate juror would be substituted for the regular juror. The court then told the reconstituted jury:

I am going to invite you to deliberate with Mr. Baxter [the alternate juror] until 12 noon. I will tell you that you must start over from the beginning so that Mr. Baxter has the benefit of whatever might have been discussed yesterday, has the opportunity to contribute to things. Maybe he can point out something that will change your view of the situation. So you may not simply sit around and ask him what his view is, you've got to start over and begin the deliberations again. I will also tell you, unfortunately, because of the weather, we've lost some time already, and having lost the entire afternoon, that it will be [t]he Court's expectation that you will come back tomorrow, unless the weather really gets bad, you know, or unless you resolve it between now and noon. So that's simply the time schedule that we're going to deal with. So the Jury will retire and deliberate upon its verdict, and you may go with the bailiff.

The reconstituted jury deliberated for approximately one-half hour before the court excused them for the day. The jury returned the following morning and sometime during that day reached a verdict of guilty on the charge of second degree assault, § 18-3-203, 8B C.R.S. (1986), a lesser-included offense to the charge of first degree assault. The trial court sentenced Burnette to a four-year probationary term.

Burnette appealed to the Colorado Court of Appeals, arguing that the trial court had erred by allowing the discharged alternate juror to replace the regular juror after the jury had begun its deliberations. The court of appeals held that Crim.P. 24(e) mandates that an alternate juror be discharged when the jury commences deliberations and that the juror cannot thereafter be recalled for service. See also § 16-10-105, 8A C.R.S. (1986) (cited by court of appeals but not specifically relied upon in reaching its decision). The court of appeals further held that if a trial court errs by recalling a discharged alternate juror to replace a juror who is unable to continue to serve after deliberations have commenced, it will be presumed that such replacement resulted in prejudice to the defendant and that reversal is therefore required. The court of appeals concluded that in this case the presumption of prejudice had not been overcome because the trial court had failed to adopt sufficient procedural safeguards to ensure against improper influences or other prejudice as a result of the replacement. Specifically, the trial court had made no inquiry of any type into the alternate's activities after his discharge or whether he had been subjected to extrinsic information or other improper influences during that time. Nor did the trial court examine the other jurors to determine whether they could put the previous discussions out of their minds and begin their deliberations anew. The court of appeals therefore reversed the conviction and remanded the case for a new trial.

We granted certiorari to review the court of appeals' conclusion that a rebuttable presumption of prejudice to the rights of the defendant arises as a result of the mid-deliberation substitution of an alternate for a regular juror.

II.

A.

The right to a fair trial by an impartial jury is one of the fundamental constitutional rights of a criminal defendant. See U.S. Const. amends. VI and XIV; Colo. Const. art. II, §§ 16 and 23; Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968); People v. Boulies, 690 P.2d 1253, 1255 (Colo.1984); People ex rel. Hunter v. District Court, 634 P.2d 44, 45 (Colo.1981). ¹ However, a defendant's right to a fair and impartial jury does not entitle him to a jury composed of any particular individuals. People v. Tippett, 733 P.2d 1183, 1196 (Colo.1987); People v. Evans, 674 P.2d 975, 977-78 (Colo.App.1983). When, through unforeseen circumstances, a juror becomes unable to continue to serve before the case is submitted to the jury, the trial court may direct that an alternate replace the regular juror. People v. Abbott, 690 P.2d 1263, 1268-69 (Colo.1984).

The procedures to be followed for using alternate jurors are described in Crim.P. 24. Under Crim.P. 24(e), a trial court may direct that "a sufficient number of jurors in addition to the regular jury be called and impaneled to sit as alternate jurors." These alternate jurors are chosen in the same way and have the same qualifications and functions as regular jurors. Id. Alternate jurors "replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties." Id. (emphasis added). "An alternate juror who does not replace a regular juror shall be discharged at the time the jury retires to consider its verdict." Id. (emphasis added). Section 16-10-105, 8A C.R.S. (1986), contains language identical to Crim.P. 24(e) in all respects relevant here, including the requirement that the alternate replace a regular juror or be discharged prior to the time that the jury begins its deliberations.

We have previously held that prior to the time that the jury retires to begin its deliberations, section 16-10-105 gives a trial court wide discretion in deciding whether a juror has become unable to continue to serve and therefore must be replaced with an alternate. Abbott, 690 P.2d at 1268-69; see also Evans, 674 P.2d at 977-78. We have never considered the question of whether a trial court is authorized to replace a regular juror once deliberations have commenced. The language of Crim.P. 24(e), however, is mandatory in its requirement that alternate jurors be discharged at the time the jury retires to deliberate, and any replacement of a...