*1 Appendix A-Continued SECTION, AS USED IN THIS MEANS,
"STATE" BUT IS NOT TO,
LIMITED THE STATE OF COL-
ORADO, ANY AGENCY OR DE- STATE,
PARTMENT OF THE ANY
PUBLIC INSTITUTION OF HIGH- EDUCATION,
ER ANY POLITICAL
SUBDIVISION, OR ANY GOVERN-
MENTAL INSTRUMENTALITY OF STATE, OR WITHIN THE
Appendix B
An amendment to the Colorado constitution
concerning prohibition against discrimina- state,
tion connection there-
with, prohibiting the state from discrimi-
nating against granting preferential or any
treatment group individual or race, sex, color, ethnicity,
the basis of or origin
national operation public
employment, education, public public
contracting; preserving the state's authori-
ty to regarding public employ- take actions
ment, education, public public contract
ing that are consistent with the United interpreted by
States constitution as court; supreme
United defining States include, limitation,
"state" without Colorado, any agency
state of depart- or state, public
ment institution of education, higher subdivision, political any governmental instrumentality of or
within the state.
In re the PEOPLE of The State Colorado, Plaintiff RICHARDSON,
Marvin Defendant.
No. 07SA191. Colorado,
Supreme Court of
En Banc.
May
Rehearing Denied June 2008.* * participate. tice Bender does not grant Justice Martinez would Petitions; Jus-
757 *3 Morrissey,
Mitchell R. District Attorney, 2nd Judicial Whitley, District Robert J. Chief Appellate Deputy Denver, Attorney, District Colorado, Attorneys for Plaintiff. Rosenbaum, P.C., Lozow, Isaacson Gary Myhre, Denver, Colorado, Blain Attorneys for Defendant.
Justice EID Opinion delivered the Court.
We issued a rule to show cause to consider whether the trial court by declaring erred mistrial when the failed to return a charge verdict on the of first-degree murder against Defendant Marvin Richardson. argues Richardson that the mistrial was not manifestly necessary as to the offenses of first- second-degree murder because the jury unanimously agreed he was not those offenses and the was deadlocked only as to the lesser-included offenses of manslaughter criminally negligent homi- argues cide. Richardson further trial court should have conducted a inquiry mistrial, verdict declaring before and he offers affidavits from the support his claim that had conducted, been would have acquitted him of the offenses of first- and second-degree murder.
We now hold that a manifestly mistrial was necessary because the was deadlocked first-degree as to the charge. Con- sequently, does not bar re- trial of Richardson first-degree mur- der or its lesser-included offenses of murder, manslaughter, criminally negligent homicide. We further hold that properly the trial court refused requests the offenses of first- and mur- jurors' der and to consider the affidavits as sign only one of Foreperson *The should therefore partial verdict. We evidence (I II). If the verdiet is NOT the above to show cause. discharge the rule GUILTY, signed. I above should be then GUILTY, II then above If the verdict I. signed. be September truck on driving pickup While guilty of the you **If find the Defendant and killed his struck lesser included charged crime or one of the result, cousin, Richard- Ricky As a Smith. complete must this offenses the foreman ultimately charged with son was ink, "X" by placing, in GUILTY (DUI), homicide and vehic- vehicular square. ONLY ONE appropriate in the (reckless). All three ular homicide in, re- SQUARE may be filled with the jury, and lesser-in- submitted were *4 mainder to remain unmarked. with two also submitted cluded offenseswere jury Thus, permitted the to while the form charges. particular, the lesser- the first-degree guilty on find Richardson not murder, second-degree offenses of included and the lesser-included offenses murder criminally negligent homi- manslaughter, and murder, manslaughter, first-degree with the were submitted cide as a collective criminally negligent homicide of- charge; and the lesser-included matter, place no on the form for there was resulting in driving death of careless fense not-guilty verdict on to return jury the vehicular homicide was submitted murder, murder, second-degree first-degree (reckless) charge. criminally manslaughter, negligent homi- or forms, jury received three verdict one The only indi- as an individual matter. The cide containing less- charge. The forms for each appeared guilty in the vidual consideration the format rec- offenses followed er-included form, jury allowed the to portion of the which Jury by the Instruc- ommended Colorado guilty mur- find Richardson tions, portion 88:07. The relevant CJI-Crim. der, manslaughter, or first-degree murder reads as form for Nothing criminally negligent in homicide. follows: objected that Richardson the record indicates structuring first-degree murder ver- VERDICT JURY way. form in this dict Tuesday, jury began deliberations on The IN OF MURDER CHARGE 9th, Friday, March March 2007. On THE FIRST-DEGREE asking, jury trial court a note "How sent the Defendant, We, jury, find the I.* without long do we continue to deliberate RICHARDSON, NOT GUILTY MARVIN coming point At what do we to a consensus? First-degree and the in the of Murder answered, hung jury?" The court become in the included offenses of Murder lesser long as "You should continue to deliberate so Second-degree, Manslaughter and Crimi- progress being made toward unanimous against Ricky nally Negligent Homicide objected an- Richardson to this verdict." Smith. swer, arguing that the should be told hung jury have reached is not a unanimity count. The over- Foreperson objection, stating, "I've not inter- ruled Defendant, We, jury, find the II.* preted question [the to mean that of; RICHARDSON, MARVIN GUILTY unanimity anything.... It's reached has] * First-degree ] Murder *[ simply from the about what's * *[] Murder Second-de- long try." next and how should we ok gree* day, the asked for and Later the same * Manslaughter *[ ] permission go home for the week- received * Criminally Negligent Homicide ]*[ trial court denied Richardson's end. The People inquire, under
request for the court Lewis, (Colo.1984), P.2d 682 whether Foreperson making progress was toward a of a verdict, not, unanimous and if then the has not reached una- guilt was divided over Richardson's nimity. You should continue to deliberate if charges, innocence as to one of the or wheth- progress there is a likelihood of toward a er the division concerned Richardson's any charge." unanimous verdiet on degree guilt. The court based its decision subsequently sent a note an- on its conclusion that "[the has not nouncing they had reached a unanimous expressed any they indication that are a decision charge, on one they had hung jury." stopped making progress toward a unani- following Deliberations resumed the Mon- mous charges. decision on the other two At 12th, day, March and the sent a note point, this requested asking, "If we have reached consensus re- instruct to return a ver- garding particular charge but have some any greater-included dict on or lesser-includ- people who think the ed offense as to which had reached higher charge have we reached unanimity. The court request declined this regarding according accepted three verdict forms from the requested law?" Richardson that the trial (DUI) jury. The form for vehicular homicide provide following instruction: signed and found guilty. Richardson not *5 guilty You should return a verdict on However, first-degree the forms for murder offense, only jurors included if all (reckless) and vehicular homicide were un- unanimously agree guilt on the defendant's signed and unmarked. as to the lesser included offense and no requested Richardson the trial
juror to remains beyond convinced a reason- poll to their by on the able doubt the facts and law that charge first-degree murder and the lesser- guilty of a included offense of jury's submitted for the consideration. but the court refused. The court acknowl- however, People, objected The to in this edged that had returned a verdict ground struction on the by that it was barred solely charge manslaugh- vehicular C.R.S. (2007),1 18-1-408(8), section it because (DUI) juror, ter your and asked each "Is this
instructed the to convict on a lesser- juror replied "yes," verdict?" Each and the included offense. jury. court dismissed the The court then agreed The trial court People, with the request denied Richardson's second stating: jury. The court also discussed the need 18-1-408@8) The Court believes that retrial, eventually set a date for mandatory language pre- its and that it hearing scheduled a to conduct pro- further vents the instructing Court from ceedings Although and set the retrial date. regarding reaching further a consensus on expressly it did not declare a mistrial at that guilt of the defendant on a lesser time, 14, 2007, the court's order dated March charge long remaining so as there is a stated that the had "failed to reach a juror who guilty believes the defendant verdict as to Counts One and Three" and prose- offense and that that "[the Court declared a mistrial and will prevent any cution wishes to other proceed to set the case for retrial within 90 as to lesser included days of [March 2007]." that statute entitles them to do that. giving Instead of pro- subsequently Richardson's investiga- Richardson hired instruction, posed provided the court fol- jurors. investiga- tors to interview the The lowing jury's question: answer to the "If tors obtained affidavits from all twelve by remains convinced stating the facts and law agreed had 18-1-408(8) guilty the facts and law the defendant is 1. Section provides: prosecution, Without the offense submitted for the consent of the no consideration, shall be instructed to return verdict on retrial of which would be any juror a lesser offense if remains convinced barred conviction of the lesser offense. agree upon jury is unable to finds that "[the of first- that Richardson verdict."). for a mistrial to be order on the affida murder. Based actually necessary, jury must manifestly "the these vits, to dismiss moved Schwartz, 678 The jeopardy grounds. to reach a verdict." charges on double be unable lies within at 1011. This determination pur P.2d the affidavits for stipulated to People dealing Id. When the trial court's discretion. only, argued that motion poses of the jury, 606(b)2 deadlocked the court from con prohibited CRE legal employ all and reasonable agreed and "should sidering The them. verdict," but must measures to secure issued a motion. We denied "the coercion of ver take care to avoid also cause. rule to show by improper ... influence." Barriner dicts Court, 447, 453, P.2d IL 174 Colo. v. Dist. (1971) (citation quotation omit in this case is overarching issue The ted). second-degree murder the first- dis- should be against Richardson begin by determining whether We jeop- argues that double missed. Richardson in fact declare a mistrial due trial court did charges because ardy a retrial on those bars to the of first- deadlock as necessity for a mistri- no manifest there was degree murder. returned When argues jurors' also al. Richardson forms, the court did not ex three verdict addressing considered should be affidavits However, with pressly declare a mistrial. claim. consider each We his double charge, respect argument in turn. jury had acknowledge that the the court did signed form failed to return A. necessary. par that a retrial would be jeopardy is a constitutional "Double possible then discussed ties and the court *6 a prohibiting the retrial of defen guarantee later, days the court for a retrial. Two dates for the same already has been tried dant who stating that a mistrial had an order issued Berreth, 1214, 13 P.3d People v. offense." Although the court did not been declared. (Colo.2000). of double principle One 1216 a at the time expressly declare mistrial "is entitled to jeopardy is that the defendant form, unsigned verdict returned the by particular tribu completed have his trial that the court and record this case shows Schwartz, 1000, 678 P.2d People nal." v. had parties that a mistrial understood (Colo.1984). However, may a mistrial 1011 conclude that declared. We therefore been necessary, manifestly and the be declared if trial did in fact declare a mistrial may subject to a second then be charge to the of based on deadlock as Id.; Berreth, at 1216. 13 P.3d trial. accord first-degree murder. necessity depends manifest The existence of inquiry whether the mis Our next is Berreth, of the case. on the cireumstances is, Schwartz, 1216-17; manifestly necessary-that P.2d at trial was at 678 13 P.3d actually unable to circumstance whether was Jury is one deadlock first-degree of 13 reach that warrant mistrial. Berreth indicated, Schwartz, 1011; 1217; murder. As the verdict form 678 P2d at P.3d at (2007) 18-1-801(2)(b)(IV), (1) § C.R.S. acquit Richardson see also options: had two (The all if it murder and lesser-included may declare a mistrial therewith, juror may testify 606(b) except on 2. CRE states: prejudicial question whether extraneous validity Upon of a verdict into the brought ju- improperly to the information was indictment, juror may testify any as to or any outside influ- rors' attention or whether occurring during the or statement matter any improperly brought upon to bear ence was jury's to the course of the deliberations or juror. his affidavit or evidence of Nor any juror's anything upon his or other effect of concerning any a matter statement him influencing him to assent or emotions as mind precluded would be from testi- about which he verdict or indictment or to or dissent from the purposes. fying received for these concerning process be his mental in connection (2) offenses, or convict him for either agree first- on the defen- guilt degree murder or one of the lesser-included dant's as to either the great- lesser or Unanimity required offenses. as to ei er submilted to them their offenses 28(a)(8), 8l1(a)(8); option. ther See Crim. P. consideration. 18-1-406(1), (2007). § see also C.R.S. How Lewis, (footnotes omitted) P.2d ever, jury's questions Friday, on March added). However, (emphasis Lewis instruc Monday, 9th and March 12th indicated that tions are not constitutionally required, and unanimity no had been reached as to either instead, are left to the discretion of the trial option. Although jurors agreed all Richard court. (offering"guidelines" See id. for deal guilty (pre son was of some homicide offense ing juries); People deadlocked v. Bar venting unanimity 1), option on disa nard, 290, 12 P.3d 295 (Colo.App.2000) greed particular (preventing over the offense ("[The giving of Lewis [a ] instruction is not 2). words, option In other mandatory."). jury was deadlocked3 degree years Lewis, Sixteen after our guilt. decision Assembly the General added subsection Lewis, People we addressed the issue ("Prosecution 18-1-408, to section C.R.S. how trial court should handle a act."). multiple 131, counts for same See Ch. degree guilt. is deadlocked as to the 18-1-408, § see. 2000 Colo. Sess. Laws (Colo.1984). There, P.2d 682 gave we 458. Subsection states: following guidance: courts the prosecution, court should first ask the wheth- Without the consent of the no progress er there is a likelihood of towards shall be instructed to return a upon a unanimous verdict further any juror delibera- verdict on a lesser offense response tion. An affirmative should re- remains convinced the facts and law quire further deliberation without ad- gr:ater is aof ditional instruction. If the indicates submitted for the consider- progress ation, deadlock such that the retrial of which would be barred unlikely, towards a unanimous verdict by conviction of the lesser offense. inquire should then whether 18-1-408(8) added). § (emphasis guilt divided over one of Contrary guidelines, to Lewis's see nonguilt the offenses and as to all 18-1-408(8) expressly prohibits tion the trial instead, the division centers *7 alleviating jury court from deadlock over the only particular degree guilt. of In degree guilt by instructing jury, of the with jury impasse solely the event the relates to consent, prosecution's out the to return a guilt any the issue of as to one of the guilty verdict on a lesser-included offense. nonguilt offenses and as to all the Rather, if any jwror by remains convinced may give court in its discretion Colo. J.I. the (Crim.) facts and the law that the (1988), is patterned 38:14 which is offense, guilty greater jury the cannot be
after ABA Standards Criminal Justice (2d instructed, ed.1980) prosecution's consent, without the 15-44 and the 1971 directive to however, return a verdict on a If, lesser-included of Chief Justice. the fense. Because Lewis instructions are not solely particular deadlock centers on a constitutionally degree required, the General Assem guilt, rather than on the issue of of guilt bly may prohibit Therefore, nonguilt, or or alter them. then the court should 18-1-408(8) we hold that charg- abrogates consider an additional instruction section part the of Lewis that allows the trial court ing the to guilty return a verdict on long every jury, the lesser as to prosecution's as essential instruct the without the offense consent, necessarily guilty element the lesser to return a verdict on a less of offense included in the and all if er-included offense the has reached Contrary suggestion, juror to Richardson's the rec- those comes from the affidavits Richardson, ord does not establish that the determined to by submitted and as we discuss in acquit second-degree of first- and him murder. IL.B.2, Part those affidavits are inadmissible. only evidence of the deliberations on 762 are considered the offenses guilt but is lesser-included defendant's to the as
consensus
degree
guilt.
purposes of
greater offense for
as to
as the
deadlocked
same
Moore,
P.2d
jeopardy, People v.
of see
interpretation
light
In
of our
(Colo.1994),
the first-de-
on retrial
18-1-408(8),
that
the trial
conclude
we
tion
Richardson
charge against
gree murder
jury's questions were
responses to
court's
offenses of
include the lesser
deliberations,
day of
the fourth
proper. On
murder,
criminally negli-
manslaughter, and
continue
long they should
how
asked
gent homicide.
Lewis, the
deliberate,
keeping
with
and
to
instructed
properly
B.
long
progress is
so
to deliberate
"continue
18-1-408(8)
above,
As noted
section
unanimous verdict."
being made toward
instructed,
being
jury from
prevents
("The court
P.2d at 689
See Lewis
consent, to return a
prosecution's
without
there is a
jury whether
ask the
should first
any
if
a lesser-included offense
verdict on
a unanimous
progress towards
likelihood of
juror
convinced that the defendant
remains
deliberation."). On the
upon further
verdict
However, it does
offense.
deliberations,
indicated
day
fifth
presented
being
from
prevent
not
degree
they were deadlocked
jurors
option
gives
form that
a verdict
18-1-408(8)
guilt. As section
charge and its lesser-inelud-
considering the
jury,
"If
told the
the trial court
requires,
basis,
acquit
offenses on an individual
ed
by
law
the facts and
convinced
remains
or all of them.
ting the defendant on some
guilty of
that
words,
form that was
the verdict
other
una
jury has not reached
then the
jury in this
allowed
given to the
case-which
if
to deliberate
nimity.
continue
You should
only
guilty verdict
jurors to return a not
progress
toward
a likelihood of
there is
not
of first-
they
found Richardson
charge."
on
unanimous verdict
murder,
man
degree
afternoon,
indicated
Later
criminally negligent homi
slaughter,
a unanimous verdict
they
reached
had
required by section 18-1-
cide-was
not
not
were
one
on
408(8). Nevertheless,
not ob
Richardson did
unanimity on the
toward
making progress
trial,
ject
form at
and does
of which was first-
charges,
two
one
other
appeal.
directly challenge it before
on
us
accept-
then
degree
The trial court
murder.
however,
does,
challenge the
Richardson
forms and dismissed
ed all three verdict
indirectly
arguing that
verdiet form
circumstances, we hold
jury. Under
these
given
opportunity
have
been
first-degree murder
that a
as to the
mistrial
regard convey their conclusions with
necessary
manifestly
because the
charge was
of-
offense and lesser-included
actually
to reach
unable
through
polling
fenses
either
Schwartz,
763
arguments
jury poll-
permit partial
based on
Procedure do not
verdicts and
affidavits,
ing
juror
ultimately reject
question
then moved to the
whether dou-
jeopardy
ble
requires
nevertheless
such ver-
them both.
dicts.
Id. at 445-46.
began
The court
its
analysis
by acknowledging
partial
inquiries carry "signifi-
When Richardson asked the trial
potential
cant
for coercion" and that "dead-
court to
when
returned the
juries
particularly susceptible
locked
are
form,
unsigned first-degree murder verdiet
coercion." Id. at 447. The court then elabo-
essentially asking
he was
the court to con
problem:
rated on the coercion
partial
inquiry,5
duct a
which Rich
import
[partial
inquiry
[The
verdict]
acquit
ardson believed would
him of the
you
is unmistakable:
"Can't
at least decide
two of the four homicide offenses
part
of this
inquiry, by
case?" The
its
murder).
e.,
first- and
Sev
nature, plays
jurors'
on the deadlocked
jurisdictions
eral other
have addressed this
frustration,
natural
disappoint-
sense
issue,
majority
and the
has held that
if a
ment,
jurors
and failure. The
are con-
single charge
multiple degrees
includes
request,
fronted
and asked to
not conduct a
absorb its
complexity,
inherent
at
partial
verdiet
as to the offenses in
time,
possible
they
tired,
worst
when
are
See,
charge.
e.g.,
cluded within
People
v.
discharged,
anxious to be
perhaps
an-
Flail,
992,
50,
.App.3d
25 Ill
824 N.E.2d
52-53
gry
jurors
they
at fellow
whom
blame for
(1975);
Bell,
(Iowa
93,
v.
322
State
N.W.2d
95
failing
agreement.
to reach
techni-
While
1982);
11,
McKay,
State v.
217 Kan.
535 P.2d
cally inquiring only
jurors
to what
945,
(1975);
Roth,
947
Commonwealth v.
437
on,
already agreed
have
request
777,
487,
(2002);
Mass.
776 N.E.2d
450
Peo
partial
verdiets broken down
in-
850,
ple Hickey, Mich.App.
v.
103
303 N.W.2d
implicitly
cluded
suggests
offenses
that the
19,
(1981);
Booker,
302,
21
State v.
306 N.C.
jurors
try just
a little bit harder to
(1982).
78,
293
minority,
S.E.2d
80
come back with at
least a
decision
hand,
the other
jeopar
has held that double
to showfor all of their efforts.
dy requires partial
acquittal
verdict of
toas
Id. at 448.
offenses
is deadlocked
problem
See, e.g.,
The second
the Roth court identi-
as to the lesser offenses.6
State,
(Alaska
270,
Whiteaker v.
808 P.2d
278
propensity
fied is the
compro-
Court,
Ct.App.1991);
Superior
Stone v.
31
attempt
mise in an
to reach a final verdict.
503,
647,
809,
Cal.Rptr.
183
646 P.2d
particular,
In
judge's
the court noted that "a
(1982);
Tate,
262,
820
State v.
256 Conn.
773 request
jury divulge
the substance
308,
(2001);
Pugliese,
A.2d
State
of their
'final vote
force the
(1980).
N.H.
A.2d
report as 'final some
votes
were not
intended to be 'final unless
resolved the
exemplifies
Commonwealth v. Roth
entire case."
Id.
448-49. For these rea-
Roth,
majority
rule.
the Massachusetts
sons,
jeopar-
the court concluded that double
Supreme
judges
Court held "that
should not
dy
require partial
inquiries.
does not
verdiet
any inquiry
initiate
into
verdicts
premised on lesser included
reasoning-in-
offenses within a
We find the Roth court's
single complaint
cluding
or count of an indictment."
its concerns about
coercion and
at the time
unreliability of
might
(discussing
well be the result
at
the
resulting
N.E.2d
448
verdict
the
particular
concern
final ver
juror
"until there is a
eoercion-a
deliberations
where,
here,
Therefore,
is deadlocked.
"For
charge").
dict on the entire
lack confidence
that we would
jury's
all the reasons
final
properly accepted the
guilty that was returned
any
in
verdict of
ju
properly
refused to
verdict and
conditions,
lack confi
we should
under such
first-
regard to interim votes on the
rors with
Roth,
guilty."
of not
in
verdict
dence
charges.7
second-degree murder
Lewis,
448;
676 P.2d
at
see also
776 N.E.2d
a
and un
("Unanimity requires
free
at 686
2.
express
process that
trammeled deliberative
reject
argu
alsoWe
of each
conviction
indi
the conscientious
es
jurors' affidavits should be
ment
that
juror.").
vidual
addressing
in
his double
considered
Second,
jury's
a
deliberations
in
recently addressed this issue
claim. We
a final
legal
force of
given
should not be
Rice,
we determined that
Stewart v.
where
expressed on a
result is
until the end
verdict
606(b)
juror
"broadly prohibits using
CRE
open
as re
verdiet form returned
316,
testimony to contest a verdict." 47 P.3d
16-10-108,
§
by
law. See
quired
Colorado
(Colo.2002). Richardson, however, ar
321
28(a)(8);
(2007);
P.
see also
Crim.
C.R.S.
gues that
affidavits are admissible under
("[The weight
at 21
Hickey,
N.W.2d
303
606(b).
Stewart,
In
we
exception
to CRE
given to
adjudication
not be
final
juror
held that
affidavits are
admissible
returned in a final
is not
action
(1)
infor
prejudicial
show that
extraneous
("[The
Booker,
verdict.");
at
298 S.E.2d
80
brought
jurors'
improperly
mation was
majority
rule
reasoned rule is
better
attention,
improperly affected
was
....").
In
requires a
verdict
which
final
influence,
the verdict
an outside
jurors could
deed,
very possible that
it is
a clerical error.
Id. at 323-24.
contains
that a defendant
believe
exceptions applies here be
None of these
"in
offenses
charge,
focus on lesser
the affidavits as evi
cause Richardson offers
reach a verdict."
spirit
compromise to
pur
for the
dence of the
deliberations
52;
Hall,
Hickey,
also
303
N.E.2d at
see
324
pose
impeaching
the final verdict that was
("[Als
...
practical
matter
at 21
N.W.2d
court,
pro
open
and this use is
returned
included offenses
be the
votes on
(stating
hibited.
Id. at 828
in an
temporary compromise
ef
result of a
impeach
by testifying
about
not
Moreover,
unanimity.").
under
to reach
fort
deliberations). Therefore,
the affida
their
case,
used in this
"the
the verdict form
606(b).
vits are not admissible under CRE
verdict,"
single
separate
was to return a
606(b)
attempts
Richardson
to avoid CRE
greater and
not-guilty verdiets on each of the
by arguing alternatively that
Bell,
altogether
at
In
322 N.W.2d
lesser offenses.
inapplicable
never
short,
rule is
because
jury's informal and non-final dis
first-degree mur-
returned a verdict on the
concerning the first-
and decisions
cussions
words,
ar-
charges against
charge.
der
In other
Richardson
second-degree murder
meaning
approach,
minority
rule advocat
the "soft
transition"
7. We also note that
acquit
developed
defendant of
exclu
need not
ed
has
almost
Richardson
reaching
on a
sively
those
offenses before
transition"
states.
in "hard
states,
"acquittal
juries
first" instruc
e.g.,
receive
See,
Bachicha,
offense.
v.
People
965,
People
(Colo.App.1996);
v.
967
requiring
to return final verdicts on
940 P.2d
tions
them
912,
(Colo.App.1981);
returning
McGregor,
verdicts on
635 P.2d
914
offenses before
Padilla,
15,
(Colo.
See,
Whiteaker,
e.g.,
People v.
638 P.2d
offenses.
lesser-included
cf.
1981) (noting
particular
instruc
Kurtzman,
274;
808 P.2d
People
because,
alia,
244,
Cal.Rptr.
question
proper
inter
758 P.2d
tion in
Cal.3d
Tate,
320;
require
(1988);
Pugliese,
a unanimous
it could not be "read to
773 A.2d at
greater offense before consider
the Tate court acknowl
decision on the
an into the of a ver- on the added)). greater charge, yet, jury's after (emphasis dict" the dis- charge, juror we cannot consider affidavits or have never considered We testimony revealing jury's acquittal. 606(b) applies when a defen whether CRE Consequently, defendants such as Richard- to dant seeks establish verdiect-in whole or retried, thereby son be put jeop- in part-as charge in to a on which the time, ardy a second for offenses on which hung, today. and we need not do so Assum Thus, in acquitted. were fact the effect jurors' ing apply, the rule does affidavits majority's opinion prevent of the is to excep are not admissible under of its jeopardy by assuring future double violation Assuming apply, tions. the rule does not (or that a court cannot know about cannot affidavits are still inadmissible because Colo legally recognize) jeopardy the double viola- rado does not allow verdict affidavit. Accordingly, respectfully tion. I dissent. Rather, procedure under Colorado's criminal to presented by Central the issue this case rules, a verdict must be submitted on a procedure dealing choice of with a signed in open verdict form that is returned jury's charge deadlock over a that includes opportunity an court with for each to degrees Specifically of offenses. 81; individuallypolled. P. be See Crim. see whether, mistrial, issue is declaring before § way, 16-10-108. also Either the affidavits the trial court par- should have conducted a proper are not evidence for consideration inquiry by polling tial verdict this case. actually order to assure that unable to reach a verdict as to each offense. IIL. majority that conducting concludes such sum, In we hold that a mistrial was mani- partial inappropriately festly necessary because the was dead- jury's coercive on the deliberations and does first-degree charge. locked as to the murder maj. not reflect the final verdict. See Consequently, jeopardy double does not bar Thus, op. majority at 764. holds that the retrial of Richardson on the properly refused re- Richardson's charge or its lesser-included offenses poll to to quest determine whether murder, second-degree manslaughter, had reached on the of- criminally negligent homicide. We further fenses. Id. at 764. properly hold that the trial court refused contrast, I would hold that the far bet- requests procedure require ter would the trial the offenses of first- and mur- opportunity court afford the to ren- jurors' der and to consider the affidavits as acquittal der a verdiet of on a evidence of a verdict. We therefore offense when the deadlocked discharge the rule to show cause. Implementing lesser-included offenses. such procedure recognizes underlying con- Justice MARTINEZ dissents. subject cern that a defendant can be to a violation without his knowl- participate. Justice BENDER does not edge ability challenge or without MARTINEZ, dissenting. Justice instance, jury may violation. -In the first Although agree I majority aequit with the decide jurors' yet this court proce- consider affida- have no vits, jury acquitted report acquittal. which revealed that dure which to Con- sequently, the defendant of first- and is unaware that his disagree I that the trial court placed had no retrial on that offense has him in *11 766 time. In the latter in verdict, a second
jeopardy
accepting
partial
a
which would indi
stance,
evidence
procedure
defendant
have
have
cate
these states
some
jury
stating that
by
accepted.
as
affidavits
partial
such
which a
verdict can be
yet
greater charge,
Court,
acquitted him of the
Superior
Ariz.
See Andrade v.
183
under
are either inadmissible
113,
461,
the affidavits
(holding
(App.1995)
901 P.2d
462
606(b)
a
cannot constitute
ver
Rule
jury acquitted
that when the
danger
against
the realistic
protect
To
dict.
offense,
greater
but deadlocked on the
violations,
jeopardy
future double
of these
offenses,
jeopardy
lesser-included
did
provide
oppor
would
an
procedure
the better
lessers); People
of
v.
not bar
retrial
jury
partial
render a
verdict
tunity
for the
734,
807,
Krogul,
Ill.App.3d
115
70 Ill.Dec.
thereby
the defendant from retrial
shield
(1983)
20,
(same);
450 N.E.2d
23
Common
actuality
he was in
for which
on offenses
671,
(Ky.Ct.
Ray,
674
wealth v.
982 S.W.2d
Therefore,
here,
where as
defen
acquitted.
Booker,
(same); People
208
App.1998)
v.
jury
polled
requested that
be
dant has
(1994)
42,
168,
Mich.App.
527
48
N.W.2d
a
as to
of
regarding its
(approving
acceptance
"partial
trial court's
fense,
that the trial court should
I would hold
acquittals"
greater charges
of first-
on
inquiry to determine
partial
a
verdict
conduct
murder,
allowing
while
actually unable to
jury
on lesser-included
defendant to be retried
a
as to each offense submitted
reach
verdict
Halsey,
manslaughter);
v.
offense of
State
jury.
1
658,
877,
441
880
232 Neb.
N.W.2d
supported by
the fact
This conclusion
not-guilty
(noting that
trial court entered
number of states have
that a substantial
greater charge
attempted
first-
verdict on
procedures
which
implemented various
as to
degree
but declared mistrial
acquittal
an
on a
jury can render
attempted
deadlocking
despite
on lesser-inelud-
Grabowski,
1282,
murder);
644 A.2d
State v.
have caselaw
At least six states
ed offenses.
(R.I.1994) (holding
jury ac
1286
that when
rendering
outlining procedures for
explicitly
quitted
State,
partial
See Whiteaker v.
808
verdict.
offenses, dou
deadlocked on lesser-included
(Alaska
270,
Ct.App.1991);
v.
Stone
P.2d
278
retrial of the lese
ble
did not bar
503,
Court,
Cal.Rptr.
183
Superior
31 Cal.3d
537,
rs);
Seagroves,
v.
691 S.W.2d
541
State
(1982);
Tate,
809,
647,
State v.
646 P.2d
820
(Tenn.1985)
Russell,
(same);
101
State v.
308,
262,
(2001);
773 A.2d
323-24
256 Conn.
(same).
349,
332,
678P.2d
335
Wash.2d
728, 422
Pugliese, 120 N.H.
A.2d
State v.
Thus,
have
a substantial number of states
Castrillo,
(1980);
1319,
State v.
90 N.M.
1321
jury
procedures
permit
implemented
(1977),
1146,
608,
overruled on
566 P.2d
1149
partial
of
to render
verdict on
Wardlow,
N.M.
grounds by State v.
95
other
fense.
(1981);
585,
partial verdiet
ap
to other states that have considered the
jurisdiction such as Colo-
a "soft transition"
propriate remedy
a trial court
where
rado,
need
where
have conducted
verdiet
acquit the defendant of
failed to do so. These courts have held
considering the lesser-included of-
before
appellate court
must assess
Although
be some corre-
fenses.
there
*13
specific charges
trial
court record reveals
"hard transition"
states and
lation between
on
was deadlocked.
which
See Whi
verdicts,
partial
that allow
"soft
states
teaker,
278-179; Stone,
quests that the trial court I Accordingly, would make the rule to whether had reached a verdict on show cause absolute and order Richard- Additionally, offenses. there was son cannot face retrial on the first- and see- ambiguity some in the notes received from Therefore, ond-degree charges. I jury was as to whether dead- dissent. locked on the and the lesser-included
offenses or whether the had reached offense and re- on a of-
mained deadlocked on lesser-included Thus,
fenses. the trial court should have
inquired into reached una-
nimity offenses. complete. remain because the trial deliberations are unaffected
merely receiving the final verdict after its