*3 C.J., GOLDEN, HILL, and Before KITE, VOIGT, LEHMAN, JJ.
HILL, Chief Justice. (Alcalde) ap- Diego Alcalde Olmos
[T1] kidnapping in for viola- peals his conviction 6-2-201(a)(@H1), §§ Wyo. Ann. tion of Stat. (c). (b)G) claims error Alcalde juror after delib- of an alternate substitution challenges the commenced and eration had statute, constitutionality kidnapping 6-2-201, unconstitutionally alleging it is § in this facially applied vague, both reject claims that 6-2- Alcalde's case. We However, con- we unconstitutional. 201 is of the alternate the substitution clude that begun constitut- after deliberations Accordingly, prejudicial error. ed remand for a conviction and Alcalde's verse trial. new
ISSUES on frames his two issues Alcalde appeal as follows: I
ISSUE court committed the district Whether a dis- it substituted error when reversible juror for a charged alternate had commenced of hours? number II ISSUE whereupon help. she cried for The victim's father, just apart- who had come out of the § 6-2-201 is unconstitution- [sic] Is W.S. ment, Alcalde, managed chased after who facially ally vague and as get escape into car the scene. Al- case, denying due [Alcalde] facts apprehended shortly by calde was thereafter law, process provides because it no stan- police and identified as the assailant of conduct or notice of forbidden con- dard victim, brother, her and father. arbitrary duct and it allows for and dis- criminatory enforcement? charged with one count kidnapping Wyo. The State sets forth the issues in violation of before us Ann. Stat. (b)) (c) (LexisNexis 6-2-201(a)(if), §§ followinglanguage: 2003).1 The matter went before a I. Did the district court commit revers- *4 parties trial and after the presented had ible error when it substituted alter- closing arguments, their the district court juror regular nate for a juror: dismissed the alternate begun? deliberations had Earlier when we drew the name of the Wyo. § II. Is 6-2-201 Stat. constitution- alternate, that was done so that if some- ally vague, facially either or as body in the course of the trial ill became or to conduct? [Alealde's] finish, disabled or somehow unable to we'd have an alternate to fill place. FACTS Happily, point we've arrived at this with- Early morning August on the of any out so identify misfortunes. We'll now young Alcalde followed woman to her and excuse the alternate. apartment parking parking lot. After his car The alternate should understand that way in such a that she could not move her received, until the always verdict is there's vehicle, approached Alcalde her under the possibility the the alternate could be guise being lost. The woman remained upon, called so the instruction is not to sitting in legs her car but with her out the remaining discuss the case until the alter- open driver's side door. While the woman nate hears that there is a verdict. attempting give directions, was to Alcalde he alternate, juror]? Who is the [name of lunged pinned her inside the car. Al- alternate], you Now, [The are excused. began her, choking calde prevented which depending your view, point you on don't erying was, her from out. The woman how get you to or help don't have to with ever, able to reach the car horn and sound it you very deliberations. Thank much for Complaining "just twice. that she had to do participating, and we will be in recess until that," Alcalde forced the woman out of the we've heard that there's a verdict. dragged car and her about 15 to 20 feet to a privacy fence. approximately deliberations, After a min During sent a series ute, abruptly stopped the assault requesting of notes clarification of the terms apartment returned to the parking "vicinity" lot where and "confined" as used the kid- he was confronted the victim's napping brother statute and whether or not a verdict sister, who apart had come out of their had to be consulting unanimous. After with upon ment hearing Meanwhile, the car horn. parties, counsel for both the court sent a the victim had come back around stipulated the fence reply jury: 1. Kidnapping; penalties; (b) 6-2-201. effect of A removal or confinement is unlawful if release of victim. accomplished: it is (a) guilty force, A kidnapping (i) By deception;. if he threat or ... unlawfully (c) another from his voluntarily If the defendant releases the removes residence vicinity or business or from the substantially victim unharmed and in a safe where he was at the time the removal, or if trial, place prior kidnapping felony is a unlawfully he person, confines another with punishable by imprisonment for not more than the intent to: (20) twenty years. (iii) bodily injury Inflict on or to terrorize
the victim or another.
protect
safeguards
procedural
adequate
yes.
question
the first
The answer
process.
deliberative
unanimous.
must be
Any verdict
lan
analysis
with the
begin our
words
[¶ 7] We
are the
"Vicinity" and "confined"
portion
of W.R.Cr.P.
relevant
from the
are
guage
listed
elements
statute.
added):
statute,
parts
using
(emphasis
from
taken
in this
may
direct
the evidence
apply to
jwrors.-The
could
Alternate
apply.
could
portions
The other
jurors
case.
addition
than six
that not more
impanelled
further
be called
but,
cannot
again, we
sorry,
I'm
Alternate
jurors.
dictionary.
to sit as
[sic]
provide
define
they are
jurors
in the order
jury over defense's
excused
The court
who, prior
jurors
replace
called shall
not been
a verdict
objection when
consider
its
retires to
the time
day
first
of deliber-
by the end of
reached
to be un-
verdict,
are found
become or
ations.
perform their
disqualified
able or
court was
morning,
The next
drawn
shall be
Alternate
duties.
excused
juror sought to be
that a
notified
manner,
have the same
shall
the same
con
A
reasons.
panel for medical
subject to the same
shall be
qualifications,
court,
held in chambers
ference
challenges,
take
shall
examination
juror. The
parties,
for both
counsel
*5
func-
the same
have
oath and shall
same
After the
by phone.
appeared
juror's doctor
privileges
tions,
powers, facilities
the
questioned
counsel
parties'
court
juror
An alternate
jurors.
regular
the
the
doctor, the court dismissed
juror and his
regular
juror
replace
a
does not
who
condition.
medical
of a serious
juror because
jury
discharged
retires
after the
be
shall
the dismissed
that
then indicated
The court
enti-
Each side is
verdict.
consider
its
to
the alternate
replaced with
juror
be
would
challenge in addi-
peremptory
one
tled to
conference.
into the
called
juror, who was
if
by law
allowed
otherwise
to those
tion
the
replacing
objected to
counsel
Defense
im-
jurors
to be
are
alternate
or two
one
the
but
the alternate
juror with
exeused
if
challenges
peremptory
two
panelled,
The alternate
him.
overruled
court
jurors are to be
alternate
or four
three
he had dis
or not
to whether
questioned as
chal-
peremptory
and three
impanelled,
his dis
anyone since
the case
cussed
jurors are to
alternate
lenges if five or six
satisfying itself
day
After
before.
missal the
peremptory
The additional
impanelled.
be
case, the dis
the
had not discussed
that he
an alter-
against
may be used
challenges
join the
to
alternate
court directed
trict
peremptory
the other
juror only, and
nate
its deliberations.
continue
jury,
may not
by
rules
these
challenges allowed
later,
jury de
minutes
Approximately 50
juror.
alternate
against an
used
guilty
a
verdict.
livered
mandatory word
of the
the use
Alcalde cites
an al-
that
contention
support his
to
"shall"
DISCUSSION
prior
juror
regular
a
only replace
can
ternate
Alternate Juror
to deliberate
I. Substitution
retires
time the
retire,
the alternate
jury does
that once
that
contends
Initially, Alcalde
discharged.
must be
authority to substi
lacks the
court
a district
fed
corresponding
Prior to 1999
juror
regular
juror
for
alternate
tute an
Wyoming's. See
to
identical
rule was
eral
Pursu
have commenced.
once deliberations
24(c)
cir
In those
it
Fed.R.Crim.P.
24(e),
argues that
ant to W.R.Cr.P.
to fed
looked
cumstances,
generally
have
to dis
court
mandatory
the district
for
interpreta
guidance
case law
eral
jurors when
charge any alternate
procedure.
criminal
rules of
of the
tion
alterna
In an
a verdiet.
consider
retires to
(Wyo.1999).
State,
465
P.2d
981
if Brock
even
that
Alcalde contends
argument,
tive
adopted the view
courts
The federal
juror
substituted
can be
juror during mid-
of an alternate
begun,
substitution
have
juror
deliberations
language of
plain
violated
deliberations
to take
failed
in this case
the district
Quiroz-Cortez,
the rule. United States v.
quirements
of Crim.P.
great.
(5th
Cir.1992). However,
960 F.2d
juror
Where an alternate
is inserted
into
the federal courts
a harmless error
process
deliberative
jurors
which some
only
standard and would
reverse
conviction
may
opinions
have formed
regarding the
if
prejudice
the defendant had
suffered
guilt
innocence,
defendant's
there is a
the substitution.
Id. The
appellate
federal
real danger
juror
the new
will not
prejudice
courts evaluated
to the defendant
have a
opportunity
realistic
express
his
by examining,
"among
things,
other
persuade
views and to
others.... More-
length
jury's
of the
deliberations before and
over,
juror
the new
will not
part
have been
after substitution of the alternate and the
dynamics
of the
prior deliberations,
district court's
jury upon
instructions to the
including
interplay
among
of influences
charging
substitution
begin
its
jurors,
and between
that advanced the oth-
anew."
(citing
Id.
United
along
er
paths
their
to a deci-
(5th
Phillips,
States v.
ror after activities deliberations have begun violated during period from discharge his Colorado Rule of to recall 24(e), Criminal Procedure present ability which at his that time jury; serve on Wyo identical to (8) ming Rule at issue whether remaining here. Id. at regular jury 586-87. The Colorado court potential noted the prejudices members had been instructed to recommence inherent when substitution regular juror of a deliberations anew they and whether occurs mid-deliberation: capable be disregarding previous their de potential prejudice for any opinions occasioned liberations and during formed
by a deviation from the mandatory re-
those deliberations.
Id. at 590-91.
24(c)
2.
In 1999 the federal
cides
rule
jurors,
to retain the alternate
was amended
it shall
pre-submission
eliminate references to
substitu-
they
ensure that
do not discuss the case with
tion and
discharge
of alternate
any
they
other
unless
replace
and until
when deliberations have commenced. The feder-
regular
juror during
deliberations.
If an
provides:
al rule now
replaces
juror
alternate
after deliberations
(3) Retention of Alternate Jurors. When
begun,
have
the court
shall instruct the
verdict,
retires to consider
begin its deliberations anew.
may
court in its discretion
retain the alternate
24(c)(3) (2002
Ed.).
Fed.R.Crim.P.
Second Rev.
jurors during deliberations.
If the court de-
Alealde's conviction and
must reverse
the authori we
concur with
We
possible new trial.
plain
mand for a
hold that
above and
ties noted
permit
does not
language of W.R.Cr.P.
Stat,
Ann.
Constitutionality Wyo.
juror
II.
alternate
for
of an
the substitution
§ 6-2-201
have com
juror once deliberations
regular
of an alternate
The substitution
menced.
issue, Alcalde
In his second
pre
raises a
cireumstances
in those
constitutionality of the kid
challenged the
prejudice to a defendant
sumption of
(b))
6-2-201(a)(iii),
statute, §§
napping
showing
however,
upon a
can,
rebutted
be
unconstitutionally
(c), claiming that
it
is
safeguards were
procedural
adequate
him.
applied to
vague on its face and as
to ensure that
by the trial court
undertaken
Alcalde's convie
Although we have reversed
Specifi
trial.
received a fair
the defendant
claim,
will address this
on his other
tion
(1)
must:
instruct
cally, the trial court
trial
possibility of a new
because of the
issue
discharge that his oath is still
upon
alternate
upon remand.
ren
until a verdict has been
applicable and
jury discharged, he
dered
following
apply the
[T13] We
discussing the case with
must refrain
vagueness:
facial
analysis to claims of
information
anyone and avoid extrinsic
challenged
vague-
may
A statute
be
judge the
ability impartially
may
affect
particu-
ness "on its face" or
recall,
(2)
record
case;
inquire on the
upon
challenged
conduct.
a statute
lar
When
did,
fact,
com
whether the
face, the court exam-
vagueness
on its
(8)
instructions;
instruct
ply with the court's
only
light
of the
not
ines the statute
begin
the reconstituted
conduct,
might
it
but also as
complainant's
(4)
anew;
whether
inquire on the record
applied in other
situations.
See
be
original jury
remaining members
Gardner,
F.2d 1341
Schwartzmiller
and set
previous deliberations
ignore the
can
(9th Cir.1984).
appro
Facial review is
during them.
If
any opinions formed
aside
priate
all cases.
that all of
cannot establish
the trial court
is not com-
vagueness review
"[Flacial
met,
may
then the court
safeguards are
these
judicial
canons
mon because
alternate, and the matter
not substitute
permit
party
whose
restraint do not
283(b);
may proceed pursuant to W.R.Cr.P.
adequately
de-
particular
conduct
otherwise,
may
declared.
a mistrial
*7
to 'attack
by a criminal statute
scribed
case,
clearly
In
the record
this
language
because
[the statute]
procedural safeguards
adequate
shows that
warning
fair
give
not
similar
properly
taken. The district
were not
might
spect to other conduct
discharging
the alternate before
instructed
ambit!"
and literal
within its broad
recall,
and,
inquired
he
upon
whether
him
omitted).
(quot-
Id. at 1846
(Emphasis
The
complied with those instructions.
733, 94
ing
Levy,
v.
417 U.S.
Parker
into the
the alternate
district court then sent
(1974)).
2547,2562,
is shown to be
'not in the sense
"merely
notice that
forcefully moving some-
"
requires
person
a
it
to conform his
only
one
20
only
feet and for
under 80 see-
imprecise
conduct
comprehensive
onds could result in felony
but
kidnapping con-
standard,
normative
but
rather
Thus,
viction."
he claims the statute does
sense that
speci-
no standard of conduct is
specify
not
a standard of conduct.
sup-
To
"
fied at
Levy,
all
Parker v.
supra 94 S.Ct.
port
contention,
Alcalde cites the fact that
at
(quoting
2561
City
Coates v.
Cincin
requested
his case
definition of
nati,
611,
1686, 1688,
402
91
U.S.
S.Ct.
29 "vicinity" and "confine"from the court three
(1971)).
L.Ed.2d 214
See also Schwartz
different
Accordingly,
times.
he concludes
Gardner,
miller
supra
v.
1261 CONCLUSION identify more than must do party ... a duet of application the in which instances some alternate of the The substitution [¶ 18] ambiguous; uncertain or may be the statute begun had without deliberations after imper- 'the law is that demonstrate he must jury to recom instructing reconstituted applications' all its vague in missibly of beginning con from deliberations mence Cal.App.4th37, 44- Moore, 75 v. People ..." Accordingly, we error. prejudicial stituted (1999) (quoting 914, 918 45, Cal.Rptr.2d 88 for a and remand conviction Alcalde's reverse Court, 44 Cal.3d Superior v. Evangelatos new trial. 629, P.2d 585 753 1188, 1201, Cal.Rptr. 246 The stat original)). (Cal.1988) (emphasis Justice, concurring, LEHMAN, specially not and is conduct specified prohibits ute Justice, KITE, joins. with whom vague on its face. unconstitutionally majority's reason- agree I with [{T19] as Alcalde's disagree with alsoWe law, [¶ 16] and case application of established ing, unconstitutionally the statute reaching sertion its interpretation rule relevant noted As his conduct. applied to vague as and the facts under determination ultimate "vicinity" nor "con above, the term neither matter. in this exist cireumstances ordinary usage. this in its vague by fine" is Nevertheless, not bothered I am while the victim case, approached certainty Alcalde holding provides majority's which car so as parking his and following her home the trial courts future for guidance readiness used her points exit. He her this case to block litigants, I believe to W.R.Cr.P. assault physically modification opening need for an out the him as help to honk managed jurors. 24(e) the victim alternate her. After the use of regarding her forcefully horn, removed Alcalde her present condition Frankly, 15 to dragged her her vehicle from rule defeats alternate established our he had success Onee privacy fence. to a feet selecting alternate very reason basic could area that to an the victim fully moved re-try having to namely, prevent jurors, complex, apartment not be seen jurors one case should entire ground victim to pinned the assigned complete their unable to become her. choked economy. judicial promote thus duties suggest respectfully I would Accordingly, was confronted court Another 24(e) allow modified that W.R.Cr.P. was confined the victim in which a case original place of take the removed for minutes and five approximately have com jurors even after 150 feet. State only 100 to a distance set forth safeguards those under menced Morris, 160 N.W.2d 281 Minn. (Colo.1989) Burnette, People v. argued in that case defendant majority. by adopted inci merely behavior actions were that his not and were assault an indecent to W.R.Cr.P. dental Modification [T21] legislature to consti by the state's that a defendant only assure intended not would Su Quoting by California review kidnapping. impartial fair and tute ceives against forci alleged victim was charges case where preme peers Court of those economy, feet, judicial the Minnesota only 22 furtherance bly moved him in the fact, trust and stated, promote "It is the enhanced also eloquently but legal system. consti in our distance, public removal forcible confidence *9 (quoting Id. state." kidnapping in this tutes Chessman, 38 Cal.2d
People uncon (1951)). The statute is
1001, 1017 be to Alcalde vague
stitutionally intelligence any person of
cause illegal his acts were on notice statute.
under the