People v. Rodriguez

Decision Date31 May 2005
Docket NumberNo. 04SC219.,04SC219.
Citation112 P.3d 693
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Peter RODRIGUEZ, Respondent.
CourtColorado Supreme Court

David J. Thomas, District Attorney, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, for Petitioner.

Lloyd L. Boyer, P.C., Lloyd L. Boyer, Englewood, for Respondent.

H. Patrick Furman, Boulder, Amicus Curiae for Colorado Criminal Defense Bar.

Justice MARTINEZ delivered the Opinion of the Court.

The People of the State of Colorado appeal a district court order overturning a county court judgment against Respondent, Peter Rodriguez. The district court found that Rodriguez's Colorado Constitutional right to a jury of twelve was violated when the county court denied his demand for a jury of twelve on misdemeanor charges and instead provided only a jury of six. We determine that a defendant does not have a right to a jury of twelve under the Colorado Constitution when charged only with a misdemeanor offense. Accordingly, we conclude that section 18-1-406, C.R.S. (2004), and Crim. P. 23(a)(2), which provide for a jury of six in misdemeanor cases, are not unconstitutional.

I. Facts and Procedure

In 2001, Rodriguez's estranged wife discovered photographs of nude children in Rodriguez's possession. His wife alerted the police and they seized the photographs. While searching through Rodriguez's belongings, the police also found items the police suspected Rodriguez stole from his wife's niece. Police issued Rodriguez a summons and complaint charging him with two misdemeanor offenses — Sexual Exploitation of a Child, a class 1 misdemeanor,1 and Theft Under $100,2 a class 3 misdemeanor — and ordered him to appear in county court.

Prior to trial, Rodriguez demanded a jury of twelve pursuant to article II, section 23, of the Colorado Constitution. The county court denied Rodriguez's request for a jury of twelve, finding instead that both Crim P. 23(a)(2) and section 18-1-406(1) provide for a jury of six in misdemeanor cases. The jury of six returned a guilty verdict on both charges.

Rodriguez appealed to the district court arguing, inter alia, that he was denied his Colorado Constitutional right to a jury of twelve. The district court agreed with Rodriguez and held that the Colorado Constitution mandates a twelve-person jury for misdemeanor cases if a jury of twelve is properly demanded. Because Rodriguez had requested a twelve-person jury when he entered his not guilty plea, the court remanded the case to the county court for a new trial.

We granted certiorari to determine whether a defendant who is being tried for a misdemeanor has a Colorado Constitutional right to a jury of twelve and whether section 18-1-406(1) and Crim. P. 23 are therefore unconstitutional in providing for a jury of six in a misdemeanor case.

The district court's interpretation of the Colorado Constitution is subject to de novo review. See Colo. Dept. of Labor and Employment v. Esser, 30 P.3d 189, 194 (Colo.2001).

II. Analysis

In this case we determine if article II, section 23, of the Colorado Constitution ("section 23"), which provides in part: "The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law," establishes the right to a jury of twelve in misdemeanor cases.3 Essential to our analysis is the principle that Colorado's Constitution, "unlike the federal constitution, does not comprise a grant of but rather, a limitation on power." Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205, 1208 (Colo.1994). "All power which is not limited by the constitution is vested in the people and may be exercised by them via their elected representatives so long as the constitution contains no prohibition against it." Id. Therefore, if we find section 23 establishes a right to a jury of twelve in misdemeanor cases, then section 18-1-406(1) and Crim P. 23, which both provide for juries of six,4 unconstitutionally encroach upon the that right. If, however, section 23 does not establish a right to a jury twelve in misdemeanor cases, the General Assembly and this court, through its rule-making powers, may provide for less than twelve jurors.

Accordingly, our analysis is twofold. First, we determine whether section 23 establishes a right to a jury of twelve that may not be encroached upon by legislation or procedural rule. Next, because we find that section 23 does establish a defendant's right to a jury of twelve in some criminal cases, but not others, we determine if the right extends to misdemeanor cases. We conclude that there is no constitutional right to a jury of twelve in misdemeanor cases in Colorado and therefore section 18-1-406(1) and Crim. P. 23 are constitutional.

A. Right to a Jury of Twelve

To determine whether section 23 establishes a right to a jury of twelve in criminal cases, we turn first to the language of section 23. We find that the plain and clear meaning implies a right to a jury of twelve. Because this right is implied, rather than directly stated, we next look to the proceedings of the Constitutional Convention during which section 23 was enacted for evidence of the framers' intent. We find that the framers intended to preserve the common law right to a jury of twelve in "courts of record." As such, we conclude that section 23 establishes the right to a jury of twelve in "courts of record."

1. Plain and clear meaning of section 23

Our state "constitution derives its force ... from the people who ratified it, and their understanding of it must control. This is to be arrived at by construing the language, used in the instrument according to the sense most obvious to the common understanding." Alexander v. People, 7 Colo. 155, 167, 2 P. 894, 900 (1884); see also Prior v. Noland, 68 Colo. 263, 267, 188 P. 729, 730 (1920) ("The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who have adopted them."). Therefore, we afford the language of the Constitution its "ordinary and common meaning" to give "effect to every word and term contained therein, whenever possible." Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1273 (Colo.2001). When the language "is plain, its meaning clear, and no absurdity involved, constitutional provisions must be declared and enforced as written." In re Great Outdoors Colo. Trust Fund, 913 P.2d 533, 538 (Colo.1996). "[I]n so doing, technical rules of construction should not be applied so as to defeat the objectives sought to be accomplished by the provision under consideration." Cooper Motors v. Bd. of County Comm'rs of Jackson County, 131 Colo. 78, 83, 279 P.2d 685, 688 (1955). It is with these principles in mind that we review section 23.

Section 23 states that in criminal cases in a "court not of record," fewer than twelve jurors may be provided "by law." The natural implication of this provision is that when in a "court of record," a defendant has a right to a jury of twelve that cannot be reduced by the General Assembly. Several other state courts interpreting similar provisions in their respective state constitutions have reached the same conclusion.5 This court has also acknowledged the implied right to a jury of twelve in criminal cases under the Colorado Constitution.6

We must also "presume that each phrase of the constitution was included for a purpose." Reale, 880 P.2d at 1208. As such, section 23 must imply a jury of twelve requirement in criminal cases in courts of record because interpreting the provision to mean otherwise would render the reference to "less than twelve jurors" superfluous. If the General Assembly was free to provide for fewer than twelve jurors in any case, or in any court, it would not be necessary to explicitly state in section 23 that fewer than twelve jurors is permissible in criminal cases in courts not of record. If we were to read no implied right to a jury of twelve in courts of record, the express reference in section 23 to the circumstances where the General Assembly can provide for less than twelve jurors would be unnecessary. In other words, because section 23 provides an exception relating to the number of jurors in "courts not of record," section 23 must be read to provide a limit on the General Assembly's power to provide for fewer than twelve jurors in "courts of record." This is, of course, the most reasonable conclusion to be drawn from section 23.

The People nevertheless set forth several arguments against this construction.

First, the People contend Colorado courts have previously rejected the notion that there is any state constitutional right to a jury of twelve in criminal cases. The People cite People v. Burnette, 775 P.2d 583 (Colo.1989), and People v. Chavez, 791 P.2d 1210 (Colo.App.1990). These cases, however, do not involve the construction of section 23 or the extent of rights protected by section 23. In Burnette, we addressed the question of whether it was permissible pursuant to Crim. P. 24(e) for an alternate juror to replace a sitting juror who becomes disabled during the jury's deliberations. 775 P.2d at 584-85. Only in a footnote and without discussion did we note that "the right to a jury of twelve and twelve only in non-capital felony cases" is not a constitutional necessity. See Burnette, 775 P.2d at 589 n. 6 (citing People ex rel. Hunter v. Dist. Court, 634 P.2d 44 (Colo.1981)). Similarly, the court of appeals in Chavez did not analyze section 23 or discuss the rights afforded by section 23. See Chavez, 791 P.2d at 1211. Instead, the court of appeals relied solely on the footnote in Burnette. Id.

Furthermore, because Burnette relies on Hunter for the proposition that the number of jurors has no constitutional basis, we turn to Hunter. We also find Hunter inapposite. In Hunter, this court addressed...

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