Certiorari to Colorado Court of Appeals Court of Appeals Case
No. 14CA2030
Attorney for Petitioner: Schelhaas Law LLC Krista A.
Schelhaas Littleton, Colorado
Attorneys for Respondent: Cynthia H. Coffman, Attorney
General Jillian J. Price, Assistant Attorney General Denver,
Colorado
OPINION
COATS,
CHIEF JUSTICE.
¶1
James sought review of the court of appeals' judgment
affirming his conviction for possession of methamphetamine.
Upon realizing that it had failed to discharge the alternate
juror before the jury retired to deliberate, the district
court recalled and dismissed the alternate; instructed the
jury to continue on with deliberations uninfluenced by
anything the alternate may have said or done; and denied the
defense motion for dismissal or mistrial. The court of
appeals concluded that the trial court's error in
allowing the alternate juror to retire with the jury and the
juror's presence for part of the deliberations were
harmless beyond a reasonable doubt, and after rejecting
James's other assignments of error, affirmed his
conviction.
¶2
Because the evidence supporting the defendant's guilt of
the lesser offense of possession, the only offense of which
he was convicted, was overwhelming and was in fact never
seriously challenged, the district court's failure to
recall the alternate for approximately ten minutes amounted,
under the facts of this case, to harmless error. The judgment
of the court of appeals is therefore affirmed.
I.
¶3
Dustin James was initially charged with two counts of
distribution of a controlled substance, one count of
possession with intent to manufacture a controlled substance,
and one count of possession with intent to distribute a
controlled substance, all but the last of which were
dismissed before trial. He was acquitted of the charged
offense of possession with intent to distribute
methamphetamine but was convicted of the lesser offense of
possession. He was sentenced to three years of intensive
supervised probation.
¶4
At trial, the People presented evidence to the effect that
the defendant was present at a house upon which the police
executed a search warrant. With regard to the lesser offense
of possession, of which the defendant was actually convicted,
the evidence indicated that the police also searched a car
the defendant had been seen driving and found a handgun in
the console and a backpack in the back seat containing the
defendant's identification and twenty grams of
methamphetamine. An investigator testified that the defendant
told him, after being Mirandized, that the handgun and
everything inside the backpack were his. The defense rested
without presenting evidence and did not offer a theory of the
case instruction.
¶5
Shortly after the jury retired to deliberate, the district
court realized that it had not discharged the alternate and
immediately called him back. In response to questioning by
the court and counsel, the alternate indicated that during
the approximately ten minutes he was in the jury room, he had
agreed to serve as the foreperson and the jury had taken a
preliminary vote to get the sense of the group. He also
indicated that the jury was just beginning to discuss the
elements of the charges when he was recalled by the judge.
¶6
After allowing the alternate to leave, the court also
recalled the entire jury to the courtroom, explained its
mistake in not stopping the alternate from retiring with the
other jurors, and instructed the jurors to continue on with
their deliberations, uninfluenced by anything the alternate
had said or done. It then entertained and denied the
defendant's motion for either dismissal or a mistrial.
After accepting the jury's verdicts and determining that
neither counsel wished to have the jury polled, the court
itself queried each juror individually whether his or her
verdict was uninfluenced by any discussion with the
alternate. Each juror answered that the alternate had not
influenced his or her verdict.
¶7
On direct appeal, the court of appeals affirmed, finding, as
relevant to the issue before this court, that although the
defendant had a constitutional right to a jury of twelve and
a verdict reached in secrecy, and although those rights were
implicated by the presence of the alternate, in this case the
error was nevertheless harmless beyond a reasonable doubt. In
reaching this conclusion, the intermediate appellate court
reasoned that the district court's instruction to the
jurors that they were not to be influenced by the
alternate's words or actions, in conjunction with the
individual statements of the jurors affirming that their
verdicts were in fact not influenced by the alternate,
eliminated any reasonable possibility that the error affected
the verdict.
¶8
We granted the defendant's petition for a writ of
certiorari on the question whether the court of appeals erred
in finding the alternate's participation harmless.
II.
¶9
Some thirty-five years ago, in People v. Boulies,
690 P.2d 1253 (Colo. 1984), this court addressed, for the
first and only time in a criminal prosecution, the effect of
the presence of an alternate juror in the jury room during
deliberations. In that case, the trial court had instructed
the jury that the alternate, or "thirteenth juror,"
would be permitted to go in and listen but not voice her
opinion or vote unless a vacancy occurred among the remaining
twelve jurors. Id. at 1254-55. No objection was
registered at that time or upon return of the jury's
guilty verdict, but by motion for postconviction relief,
pursuant to Crim. P. 35(c), the defendant later sought a new
trial on the ground, among others, that an unauthorized
person was present in the jury room during deliberations.
Id. at 1254. The district court agreed and ordered
the defendant entitled to a new trial. Id. at 1255.
¶10
On appeal by the People, this court found, in reliance on a
state constitutional right to a twelve-person jury and
existing United States Supreme Court jurisprudence concerning
a defendant's entitlement to a jury verdict reached in
secret, that the presence of an alternate during jury
deliberations sufficiently impinged upon the defendant's
constitutional right to a jury trial to create a presumption
of prejudice that, if unrebutted, would require reversal.
Id. at 1255-56 (citing Colo. Const. art. II, §
23 and Clark v. United States, 289 U.S. 1, 13
(1933)). More specifically, we indicated that a prima facie
showing by the defendant of the presence of an alternate at
deliberations would shift the burden to the prosecution
either to prove by a preponderance of the evidence that the
alternate was not present at all or, barring that, to prove
that the error was harmless beyond a reasonable doubt.
Id. at 1256 & n.5. Apart from referencing the
limitations imposed by CRE 606 on any inquiry into the
validity of a verdict, and cases from other jurisdictions in
which the temporary presence of an alternate before
deliberations had begun did not invalidate the verdict, we
offered no other guidance concerning proof of harmlessness.
See id. at 1256 n.5.
¶11
Between that time and this, the law governing the nature and
remedies for error occurring in the trial process in general,
and the presence and use of alternate jurors in particular,
has undergone considerable development in the jurisprudence
of both this court and the United States Supreme Court. In
People v. Burnette, 775 P.2d 583, 584 (Colo. 1989),
announced six years after our opinion in Boulies, we
were faced with the related question of substituting an
alternate for an incapacitated juror after deliberations had
already begun. Finding that the failure to dismiss the
alternate juror when the jury retired to deliberate in that
case violated the dictate of Crim. P. 24(e), we then
considered "the legal effect of the verdict of the
improperly constituted jury," id. at 587, and
concluded that the presumption of prejudice arising from the
mere presence of an alternate, which we had identified in
Boulies, must apply "with at least equal
force" to the unauthorized participation of an
alternate juror, id. at 590. In Burnette,
however, we held that this presumption of prejudice could be
overcome by, but only by, a showing that the trial court took
extraordinary precautions to ensure that the defendant would
not be prejudiced and a showing that under the circumstances
of the particular case, those precautions proved adequate to
achieve that result. Id.
¶12
Although we found, in the absence of any such precautions in
Burnette, that the presumption was not overcome,
id., some ten years later, in Carrillo v.
People, we came to the opposite conclusion in a case in
which an alternate was substituted for one of the sitting
jurors after the jury had actually returned a verdict. 974
P.2d 478, 493 (Colo. 1999). Where, upon being polled, one of
the jurors in Carrillo disagreed with the verdicts
as announced by the foreman and, when it became apparent that
he was hard of hearing and had not heard all of the testimony
or discussion in deliberations, was replaced by the
alternate, the trial court instructed the second,
reconstituted jury to begin its deliberations anew,
uninfluenced by any earlier discussions. Id. at
482-83. In Carrillo, we found it unnecessary to
resolve ambiguities in the rule and statute governing the
dismissal of alternate jurors, both of which had been amended
since Burnette, instead attributing to
Burnette the proposition that in any event
mid-deliberation replacement of a juror, which necessarily
entails the alternate's presence, raises a presumption of
prejudice to the defendant's right to a fair trial.
Id. at 488. Notwithstanding acknowledging such a
presumption, however, we found in Carrillo, unlike
in Burnette, that the court's instruction to the
"second jury" and "the circumstances of the
case" were sufficient to overcome the presumption and
uphold the guilty verdict. Id. at 492-93.
¶13
Although in Boulies we relied largely on federal
authority concerning an entitlement to jury secrecy in
concluding that the mere presence of an alternate during jury
deliberations sufficiently impinges on a defendant's
constitutional right to a jury trial to create a presumption
of prejudice, in doing so we did not have the benefit of the
Supreme Court's subsequent analysis in United States
v. Olano, 507 U.S. 725 (1993). In Olano,
decided after both Boulies and Burnette,
the Supreme Court considered the question posed by the
presence of an alternate in the jury room during
deliberations and held that despite being a clear violation
of Rule 24 of the Federal Rules of Criminal Procedure, which
at that time required dismissal of alternates when the jury
retired, the mere presence of an alternate should
not be presumed prejudicial. Id. at 741.
Acknowledging the very authority upon which we had earlier
relied to the contrary, the Supreme Court held that "the
primary if not exclusive purpose of jury privacy and secrecy
is to protect the jury's deliberations from improper
influence." Id. at 737-38. Also accepting,
without deciding, that there might conceivably be cases in
which an improper ...