People v. Patterson, 90CA1027

• Decision Date: 23 April 1992
• Docket Number: No. 90CA1027,90CA1027
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William PATTERSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1083

832 P.2d 1083

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William PATTERSON, Defendant-Appellant.

No. 90CA1027.

Colorado Court of Appeals,

Div. II.

April 23, 1992.

Rehearing Denied May 21, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Kristin Giovanini, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge SMITH.

The defendant, William Patterson, appeals the judgment entered on a jury verdict finding him guilty of sexual assault on a child. We reverse and remand for a new trial.

I.

The defendant contends that the trial court committed reversible error in substituting jurors once deliberations had begun. We agree.

The record discloses that, approximately thirty minutes after jury deliberations began, the jury foreperson notified the bailiff that one member of the jury knew the victim. The trial court instructed the jury to stop deliberating. And, following an in-chambers evaluation, this juror was dismissed.

Defense counsel did not want to proceed with only eleven jurors, and all parties agreed that a just-dismissed alternate juror would be recalled. The trial court then instructed the jury to suspend deliberations until their number again reached twelve. The court then recessed, and the alternate juror was located and was returned to the courthouse within one hour. Without the court giving further instruction to the jury or the alternate juror and without defendant or his counsel being present, the alternate juror joined the eleven regular jurors in the jury room and deliberations resumed.

The trial court reconvened about three hours later and announced that the jury had reached a verdict. The defendant, prior to reception of the verdict, moved for a mistrial, arguing, in essence, that the manner of the mid-deliberation substitution of jurors had impaired his right to a fair trial. The trial court then questioned the alternate juror about his activities while discharged and before rejoining the jury. It also questioned the regular jurors about the influence, if any, of the juror substitution on their deliberations. Receiving assurances that the jury's deliberations had not been impaired by the substitution, the trial court denied the defendant's motion and received the verdict.

The crux of the defendant's argument is that the manner by which the trial court accomplished the mid-deliberation substitution of a juror failed to ensure that his right to a fair trial would be unimpaired. We agree.

The substitution, over objection, of a regular juror who becomes unable to continue deliberations with a discharged alternate juror raises a rebuttable presumption that the defendant's right to a fair trial, indeed, has been prejudiced. People v. Burnette, 775 P.2d 583 (Colo.1989).

In Burnette, defendant objected to the substitution. Thus, the prime issue there was whether an unauthorized mid-deliberation substitution of a juror, in itself, resulted in reversible error. The Supreme Court held that it did unless accompanied by certain extraordinary precautions to ensure the fairness of the subsequent deliberations.

Here, the situation is somewhat different. Defendant consented to the substitution. Thus, the authority to make the substitution is not in issue.

Rather, the issue here is--does the presumption announced in Burnette arise independent of the question of the authority by which the substitution is made? We hold that it does.

The rationale behind the creation of a rebuttable, rather than conclusive, presumption that a mid-deliberation substitution of a juror constitutes the denial of a fair trial does not rest on the fact of the substitution itself. Rather, it is solely dependent upon the precautions taken, in the process of accomplishing the substitution, in order to ensure that subsequent deliberations result in compliance with the constitutional "fair trial" guarantee.

Thus, while the defendant here consented to the fact of the substitution, he did not thereby waive his right to challenge the procedure followed in accomplishing that change in the jury and thereby waive his right to a fair and impartial jury.

In our...