People v. Taylor
| Decision Date | 04 November 2021 |
| Docket Number | Court of Appeals No. 18CA1410 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bobby L. TAYLOR, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE DAILEY
¶ 1 Defendant, Bobby L. Taylor, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance (cocaine). At issue is whether during jury deliberations on a felony charge a district court may, under section 18-1-406(7), C.R.S. 2021, and over a defendant's objection, remove a juror for "just cause" and accept a verdict from the remaining eleven jurors. Because we conclude that, under the supreme court's interpretation of our state constitution, a court may not do so, we reverse and remand for a new trial.
¶ 2 A police officer was riding along Colfax Avenue on his bicycle as Taylor and a companion approached from the other direction on the sidewalk. The officer saw Taylor show his companion something in his hand, which he concealed when the officer came closer. When the officer asked Taylor what was in his hand, Taylor said, "I don't have anything" and then dropped two small white rocks — later confirmed to be cocaine — onto the ground.
¶ 3 Taylor was arrested and charged with possession of a controlled substance. At trial, Taylor did not testify or present any witnesses. His theory of defense, however, was that the only evidence against him was the officer's testimony, there was no corroborating evidence, and the officer was not a credible witness.
¶ 4 During deliberations, the jury sent the court a note inquiring what it needed to do "[i]f there is some number of jurors who will not vote guilty because of their disagreement with the drug law(s)."
¶ 5 The court responded:
¶ 7 The jury continued deliberations until it was released for the evening. After resuming deliberations the next day, however, the jury sent the court a second note:
We have an 11-1 guilty vote, and the "1" juror also believes the defendant is guilty but will not vote that way due to his/her disagreement [with] the drug laws of the state of CO. Under no circumstances will he/she change his/her vote, thereby knowingly breaking his/her oath. There will never be a unanimous decision. This particular juror is willing to meet with the Judge [and] discuss. Will you meet with him/her? If so, when? If not, how do we proceed?
¶ 8 Defense counsel moved for a mistrial, arguing, "[W]e're at the point where this is a hung jury." The court refused to grant a mistrial, however. Instead, it brought the jury into the courtroom and asked whether all of the jurors were aware of the contents of the second note. After all jurors nodded affirmatively, the court asked that the "one juror ... identified in the note ... raise their hand." Juror H did so.
¶ 9 In the presence of the entire jury, the court read the second note aloud and then asked Juror H whether the note was accurate, and Juror H responded, "I believe so."
¶ 10 The court then sent the other eleven jurors back into the jury room and re-read to Juror H part of the second note, ending with the sentence, "Under no circumstance will [the juror] change his ... vote, thereby knowingly breaking his ... oath." When the court asked if "that [was] an accurate statement," Juror H responded,
¶ 11 Over defense counsel's objection, the trial court applied section 18-1-406(7) to (1) excuse Juror H for "just cause"; and (2) return the remaining eleven jurors "to the jury room to continue ... deliberations, and to notify [the bailiff] if and when [they had] reached a verdict."1
¶ 12 The court found "just cause" to excuse Juror H for two reasons: (1) Juror H "had a pre-existing belief ... with respect to his disagreement with the drug laws of the State of Colorado" and "despite having ample opportunity during jury selection to express that disagreement, which many other prospective jurors did, [Juror H] for whatever reason chose not to do so"; and (2) after taking "the oath, indicating that he would follow the law," Juror H chose not to do so.
¶ 13 Shortly after resuming deliberations, the remaining eleven jurors returned a verdict finding Taylor guilty of possession of a controlled substance (cocaine), and the trial court later sentenced him to a term of two years’ probation.
¶ 14 On appeal, Taylor contends that the trial court erred by not granting a mistrial because (1) section 18-1-406(7) is unconstitutional because it is inconsistent with article II, section 23 of the Colorado Constitution, which guarantees a person accused of a felony the right to be tried by a jury of twelve; (2) section 18-1-406(7) is invalid because it conflicts with Crim. P. 23(a)(7), which requires a defendant's consent to deliberations by an eleven-person jury; (3) in addressing the issue, the court impermissibly intruded into the deliberative process of the jury; and (4) Juror H's conscientious conviction that he could not find Taylor guilty was not, in any event, "just cause" for excusing him and allowing eleven jurors to return a verdict in this case. Because we agree with, and find dispositive, Taylor's first contention, we reverse without discussing his other contentions.
¶ 15 We review a trial court's conclusions of law about the constitutionality of a statute de novo. Rocky Mountain Gun Owners v. Polis , 2020 CO 66, ¶ 30, 467 P.3d 314.
Statutes are entitled to a presumption of constitutionality, rooted in the doctrine of separation of powers, through which "the judiciary respects the roles of the legislature and the executive in the enactment of laws." Because "declaring a statute unconstitutional is one of the gravest duties impressed upon the courts," this presumption of constitutionality can be overcome only if it is shown that the enactment is unconstitutional beyond a reasonable doubt.
Id. (citations omitted).
¶ 16 Section 18-1-406(1) provides that "[e]xcept as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous."
¶ 17 Section 18-1-406(7), in turn, provides that "[e]xcept as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict."
¶ 18 Section 18-1-406(7) was enacted in 1994.2 See Ch. 287, sec. 5, § 18-1-406, 1994 Colo. Sess. Laws 1716. It was modeled on Fed. R. Crim. P. 23(b) (1994), which, at the time, provided, in pertinent part, "if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors." See United States v. Davis , 15 F.3d 1393, 1403 n.1 (7th Cir. 1994).3
¶ 19 The purpose of this rule is "to save the parties and the judicial system the time and expense of a retrial." See 25 James Wm. Moore et al., Moore's Federal Practice § 623.03[4], at 623-10 (3d ed. 2015).4 "Because it permits a jury of fewer than 12 to return a verdict without defendant's consent, it has been subjected to constitutional challenge."
Id. But because a defendant is not entitled as a matter of federal constitutional law to a twelve-person jury, see Williams v. Florida , 399 U.S. 78, 86, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), state provisions allowing for fewer than twelve jurors in a criminal trial have withstood federal constitutional challenges, see, e.g. , United States v. Stratton , 779 F.2d 820, 830-33 (2d Cir. 1985).
¶ 20 When section 18-1-406(7) was enacted in 1994, it was thought that Colorado's constitution also did not require twelve-person juries in felony cases. See People v. Burnette , 775 P.2d 583, 589 n.6 (Colo. 1989) .
¶ 21 In 2005, however, the supreme court concluded otherwise. Noting that "the framers of the Colorado Constitution adopted [article II,] section 23, which goes beyond the protections" of the Federal Constitution and "has no comparable federal counterpart,"5 the supreme court interpreted section 23 as guaranteeing a "right to a jury of twelve in felony cases." People v. Rodriguez , 112 P.3d 693, 698, 703 (Colo. 2005) ; see also id. at 709 ("[T]he right to a jury of twelve only extends to felony offenses ....").
¶ 22 Further, the supreme court broadly said, " section 23 establishes a right to a jury of twelve ... that may not be encroached upon by legislation or procedural rule." Id. at 709. "[S]...
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