People v. Burnette

Here, People interpose any failed to im- judgment and the deferred continued objection to the trial court’s decision in ten-day jail as addition- sentence posed People objected case. Had the either condition. al brought our recent decisions to trial 88SA156, Jones, No. People In v. attention, court’s court well have granted a deferred was defendant Jones Because arrived at different conclusion. period two for a and sentence judgment People failed to alert the trial court to stipulation signed years. Jones error, potential we decline to consider conditions, including the imposed several People’s appeals. the merits of the reporting court costs payment of Accordingly, affirm the orders of the we department. Sub- monthly probation district court. request for revocation sequently, filed, hearing and a judgment was deferred found Jones held. stipulation conditions

violated imposed costs and

failing pay the officer, probation but

reporting to judgment. revoke the deferred

clined to

Rather, the deferred the court continued days Jones five and sentenced

judgment additional condition. jail as an of the State of The PEOPLE that the trial People contend Colorado, Petitioner, erred, case, in its revoke failure to in each finding a viola- deferred v. terms and conditions tion BURNETTE, Respondent. Matthew contention, support In of this stipulation. Widhalm, 642 People cite People v. No. 88SC2. Wilder, v. (Colo.1982), People P.2d 498 Colorado, (Colo.1984), held in which we 687 P.2d En Banc. have discretion a trial court does not it judgment once revoking a deferred June has violated the finds that the defendant judg- conditions of his deferred terms and

ment and sentence.

However, precluded ad- we are

dressing the merits of this issue because object to the trial People failed People in each case.

court’s actions (Colo.1988), held 764 P.2d 76 we

Gallegos, People’s contemporane- failure to sentencing hearing pre-

ously object mer- the sentence on its

cluded a review of to afford objection

its. An opportunity to correct

trial court the Moore, People

alleged error. See If such error 562 P.2d 749

Colo. attention, brought court’s con- general rule is that it will not be Gallegos,

sidered on review. See 76; Sporleder, People v.

764 P.2d (Colo.1983); Moore, Colo.

P.2d 749. Woodard, Atty. Gen.,

Duane Charles B. Howe, Deputy Gen., Atty. Chief Richard H. Forman, Gen., Chan, Sol. and Paul H. Asst. Gen., Denver, Atty. petitioner. Vela, F. David Colorado State Public De- fender, and Janet Youtz, Deputy Fullmer Defender, Denver, State Public for'respon- dent.

LOHR, Justice. Burnette, 753 P.2d 773 (Colo.App.1987),the Ap- Colorado of peals reversed conviction of defendant Matthew Burnette for degree second as- appeals sault. The court of concluded that the district court violated Crim.P. permitted when it of for a juror who had become unavailable after begun. See also 8A violation, This the court of held, gave rise pre- to a rebuttable sumption of to the defendant. Because ap- failed to take propriate precautionary steps to ensure against prejudice to the defendant as a replacement, result of the ap- peals preju- held that the dice Therefore, overcome. the vio- lation judgment reversal of the People sought certiorari, conviction. The contending that court of im- properly presumed that the violation prejudiced rights rule of the defendant. granted ques- certiorari to review this tion. We now hold that a violation 24(e)by a with an deliberations raises a presumption preju- that, if properly rebutted, dice requires reversal conviction obtained as a result of verdict improp- rendered juror. recall the After affirm decided to erly jury. We therefore constituted arrived and appeals. of the court begun, deliberations had the court received I. judge of a directive from the chief ordering the courthouse closed district defendant, 1, 1986, the Mat- January On Shortly noon due 12:00 storm. after Burnette, alterca- involved thew was a.m., brought 11:15 the court the eleven brother-in-law tion in which he stabbed his jurors and the alternate into the courtroom in the charged with a knife. Burnette that and advised them one County El District Court with Paso regular juror. be for the substituted degree, count of assault the first jury: The court then told reconstituted 18-3-202, (1986). Burnette en- 8B C.R.S. § going you I am to invite to deliberate plea guilty of not and stood tered juror] twelve with Mr. Baxter alternate un- jury composed before a [the .you you I tell one The trial til noon. will that members and alternate. be- 31, 1986, beginning from the Mr. closing argu- start over so that gan on March and Baxter has benefit of completed on the afternoon of whatever ments were might yesterday, April trial court then sub- have been discussed 1986. The opportunity has the to contribute to jury the matter to the for delibera- mitted things. Maybe determining point he can out some- that all the tions. After thing change your into that will view of the prepared to enter delib- were erations, you may simply situation. So not sit the trial court told alternate is, him protect from an around and ask what his view juror: “You served to us about, you’ve got to come so start over and alternative which not tell you again. you, our deliberations I will also excuse at this time with we will weather, unfortunately, then admonished the because thanks.” The court however, already, having alternate, you, some time “I will tell that we’ve lost afternoon, your it will you lost the entire that be are not discuss view you your expectation that will vote on the verdict Court’s what [t]he has, tomorrow, be, might anyone come back unless the weather until bad, know, fact, verdict, really you you gets it still unless reached a because noon. So upon you. you resolve it between now and necessary be to call But are simply that’s the time schedule that excused....” Jury going to deal with. we’re So regular jurors then retired to The twelve verdict, upon its will retire and deliberate deliberating approxi- After for deliberate. you may go with the bailiff. hours, mately four and one-half were ap- The reconstituted deliberated for excused return at 9:00 a.m. on the fol- lowing day, April During night, proximately one-half hour before county day. moved into the in excused them for severe snowstorm following morning Early and some- which the courthouse was located. turned day morning, the next called time that reached a verdict one guilty charge degree as- say she come to on the second court to that could not (1986), sault, 18-3-203, 8B a less- the courthouse due to the inclement weath- § through charge offense to the first er. The court’s bailiff confirmed er-included county degree assault. The trial court sentenced sheriff the weather was four-year probationary term. enough prevent severe from Burnette to traveling courthouse. appealed to Burnette the Colorado Court a.m., approximately Appeals, arguing the trial court had

At 10:00 the court discharged erred conferred with counsel to consider how proceed. During meeting, best to stipulate begun to a its deliberations.

fense counsel refused appeals held of fewer than twelve Over de- court of that Crim.P. members. objection, counsel’s be dis- fense court then mandates charged Boulies, when the deliber- commences 690 P.2d (Colo.1984); ations and cannot thereafter People ex rel. Hunter v. Dis- service. also Court, recalled See trict 634 P.2d (Colo.1981).1 (1986) (cited by 8A C.R.S. However, a defendant’s a fair and specifically court of but relied impartial jury him does entitle to a decision). reaching composed any particular individuals. further that if a trial held court People Tippett, 733 P.2d by recalling errs (Colo.1987);People Evans, 674 P.2d who is unable to (Colo.App.1983). When, 977-78 through continue serve circumstances, unforeseen commenced, presumed it will be that such unable continue the serve before case prejudice to the resulted jury, submitted the may is the trial court and that reversal is therefore defendant direct that an replace regular alternate The of required. concluded juror. People Abbott, P.2d preju- of presumption that in this case the (Colo.1984). 1268-69 dice had not been overcome because the procedures The using to be followed for adopt trial court had failed sufficient jurors are described Crim.P. against procedural safeguards to ensure 24(e), 24. Under Crim.P. a trial court improper prejudice influences or other as a direct that “a sufficient jurors number of replacement. Specifically, result of the regular in addition to the jury be called and inquiry any had type trial court made of impaneled to sit jurors.” as alternate into the alternate's activities after dis- jurors These alternate are chosen in the charge whether he had been subjected or way qualifications same and have the same or improper extrinsic information other in- regular and jurors. functions as Al- Id. time. did fluences Nor jurors “replace who, jurors prior ternate other trial court examine the to de- to the time the retires to consider its put previ- could termine whether verdict, disqualified become unable or ous out their and discussions of minds be- perform (emphasis their duties.” Id. add- gin their deliberations anew. The court of ed). “An alternate who does not therefore reversed conviction replace regular a be discharged shall and remanded the case for a new trial. at time the retires to consider its granted certiorari review the court (emphasis added). verdict.” Id. Section appeals’ of conclusion a rebuttable (1986), 8A C.R.S. contains lan- rights to the 24(e) guage identical to all re- as a defendant arises result here, including spects require- relevant of an alter- mid-deliberation substitution ment that the alternate regular regular juror. discharged prior or be to the time jury begins its deliberations. II. previously prior We have held that to the A. time its delib- erations, gives fair trial section 16-10-105 a trial impartial jury deciding is one the fundamental wide discretion whether a rights of a constitutional criminal defen has become unable to continue to Const, replaced dant. U.S. amends. VI and See serve therefore must be with Const, II, XIV; 23; Abbott, 1268-69; art. Colo. an alternate. at §§ Louisiana, 145, 149, Evans, Duncan also P.2d at 977-78. We 1444, 1447, question S.Ct. never considered the ticipation 1. responsibility The United States charac- and shared that re- terized as the feature" group’s “essential of a guilt sults from that determination of interposition innocence. between accused and his Florida, 78, 100, accuser of the commonsense of a Williams laymen, group community par- in the Turning to the facts of the case court is authorized trial us, once the we conclude that regular juror once place a deliberate, retired to the trial court was language of have commenced. compelled discharge under Crim.P. however, mandatory require- 24(e), at- juror. trial court’s discharged at that alternate ment tempt keep the alternate “on call” and deliberate, and time the retires of the alternate for the the substitution by an any replacement regular contrary provi- were necessarily occur 24(e). sions of Crim.P. that time. has been the event B. try be- sworn to until a verdict comes unable to continue Having concluded that juror is reached and “no alternate available 24(e)by recalling court violated Crim.P. juror, parties, such juror, we must deter verdict, may stipulate in writ- time before legal mine effect verdict of open court, ing or on the record improperly jury. The constituted court, that the shall approval of the urge recalling that even if an alternate to less of than twelve.” consist number replace during juror an deliber unavailable 23(a)(7); 8A Crim.P. also § ations is a technical violation of Crim.P. (1986) (containing essentially the 24(e), such does not necessar unavailability an language). The of same They ily require reversal. contend that juror jury deliberations alternate after reversal should result when defen if have is commenced foreordained dant that he is able to demonstrate was met, .24(e) quirements been of Crim.P. have by In prejudiced the al substitution. discharge of for that rule mandates the ternative, People argue if the that even to alternate retires appeals holding was correct in that of its do the rules consider verdict. Nowhere 24(e) of the trial court’s violation address situation which alternate presumption prejudice of raises a juror is a available defendant, rights trial court em during who unavailable delibera- becomes ployed procedural protections sufficient stipula- a parties tions and the cannot reach guard against any prejudice. actual proceed fewer than tion to with twelve Colorado, jurors.2 is no authority appeals prejudice There held that court of ^ however, discharged a presumed for a trial court to substitute a alter- will be where previously discharged juror for becomes juror replaces a a who begun. during have unable to continue deliberations deliberations presumption it agree that in order to rebut the with implication adopted that must that the trial court “clear is be shown [Crim.P. ] procedural safeguards an alternate is available to sufficient ensure perform necessary against prejudice the defendant as unable Burnette, only prior replacement. 753 duties of the office to the time result of agree with this retires. Once the commences at 775. We conclu- deliberations, view, although the recall of a sion. In our longer discharged replace juror is who and no available for alternate to Burnette, service.” 753 P.2d at 774. unable to continue deliber- 914, circumstances, Cir.1973), denied, appropriate 274 417 U.S. defendant cert. 2. may prohibi 2614, (1974); be considered have waived the 94 S.Ct. United cf. against Reed, (2d Cir.1986) (hon tion mid-deliberation F.2d 208 States v. by stipulating in advance to a mid-deliberation oring stipulation partic to allow alternate See, e.g., an alternate. United substitution of by ipate resulting in verdict Foster, (9th Cir.1983), cert. States v. F.2d 871 denied, thirteen-person jury), 104 S.Ct. 80 L.Ed.2d Baccari, F.2d United States Lamb, presumption prejudice sion on an alternate. 529 F.2d at ations raises a trial, a fair the defendant’s 1156.3 by ade- presumption be overcome these, For such practice reasons as showing procedural precautions quate replacing juror alternate at such dan- court obviated the taken stage proceedings sensitive ger prejudice to the defendant and over- ABA disapproved Standards for been underlying the came the concerns mandato- Criminal Justice 15-2.7 The com- § 24(e). requirements of ry How- mentary explains 15-2.7 Standard ever, agree court of we with the approach of allowing prejudice

that the was not replace regular jurors during deliberations the facts of this case. overcome under rejected in the standard because “it is desirable allow a unfa- miliar with sud- potential occasioned denly join group participate mandatory require deviation voting group without the benefit of earlier 24(e) great. ments Crim.P. Where an 2 Wright, discussion.” See also C. Federal is inserted into a delibera Practice and Procedure: Criminal 2d process jurors may tive some (2d 1982) (criticizing ed. opinions regarding formed the defendant’s procedure substituting an alternate for a innocence, guilt danger there is a real deliberations). juror during will new not have a realistic 24(e), counterpart federal to Crim.P. opportunity express his views and to 24(c),4 requires Fed.R.Crim.P. alter- persuade others. See United States v. jurors replace regular who do not Phillips, 971, (5th Cir.1981), 664 F.2d 995 jurors discharged be the jury retires 1136, denied, 2965, cert. 457 U.S. 102 S.Ct. to consider its verdict. The committee his- (1982); 73 L.Ed.2d 1354 United v. States tory leading to adop- the formulation and Lamb, 1153, (9th Cir.1975). 529 F.2d 1156 24(c) tion of Fed.R.Crim.P. indicates that Moreover, juror the new will not been have the federal rules committee considered the part dynamics prior of the of the delibera possibility permitting juror tions, including interplay of influences replace regular juror who becomes among and jurors, between that advanced during jury’s disabled but other along paths their to a rejected it after the United States People decision. Ryan, See v. 19 N.Y.2d inquired 100, committee whether it 199, 202, 710, 278 224 N.Y.S.2d N.E.2d had (1966). procedure satisfied itself that such a 712 juror Nor will the new would be desirable or had benefit of constitutional. See juror’s the unavailable Finally, Id. ABA views. a lone can Standards for Criminal Justice good 15-2.7, Orfield, conscience (citing vote for at 15-75 L. conviction Trial § might great be pressure feign Cases, under Jurors in Federal Criminal 29 place illness order to 43, burden deei- (1962)); 46 F.R.D.. also United tbe example illustrating Thus, 3. An this concern is found ed deliberations anew. (11th Kemp, Cir.1984), in Peek v. 746 672 F.2d procedure deprived had the defen- denied, 939, 421, cert. U.S. 479 107 S.Ct. 93 right dant of by his state constitutional to a trial (1986). L.Ed.2d 371 In that impartial jury process a fair and and his due who entertained a reasonable doubt as right Peek, to a fair trial. 746 F.2d at 681. guilt defendant's was excused when he became upset during nervous and replaced deliberations and was 24(c) provides pertinent part Fed.R.Crim.P. Peek, juror. with an alternate 746 F.2d "[ajlternate jurors order in which later, at 675-76. A few minutes the reconstitut jurors who, are called shall guilty charges ed returned verdicts on all verdict, time retires to consider its against the defendant. Id. The Peek court held disqual- become or are found to be unable or that the trial failed make a reliable perform ified their duties” and that ‘‘[a]n determination whether the regular who does not incapacitated, regu had failed to ensure that the shall be right understood his adhere his view, consider its verdict.” and had failed to instruct the reconstitut-

589 Hillard, (2d impartial his 1052, v. eration of case States F.2d 1057 701 See, e.g., v. denied, United States Gue 958, panel. Cir.1983), cert. 103 461 U.S. vara, United (11th Cir.1987); 823 F.2d 446 2431, 77 S.Ct. Cir.1985), Josefik, v. (7th States F.2d 753 585 juror unavaila of mid-deliberation problem denied, rt. 471 partially court was at least bility in federal ce United States (1985); 23(b) 85 L.Ed.2d 481 in 1983 Fed.R.Crim.P. resolved Hillard, 701 F.2d 1052 (2d Cir.1983), v. con allow deliberations was amended denied, 958, 103 S.Ct. 461 U.S. stipu without eleven even tinue with United States 1318 if neces L.Ed.2d parties it becomes lation Kaminski, (8th Cir.1982); 692 F.2d 505 juror for sary just cause excuse Phillips, (5th federal United States majority A deliberations.5 cert, Cir.1981), proce concluded that this rules committee But see preferable S.Ct. alternates dure was Lamb, States v. had United F.2d 1153 substituted after deliberations Cir.1975) (establishing Federal Practice See C. rule under absolute begun.6 Wright, (2d Criminal 2d re and Procedure: of Fed.R.Crim.P. ed. violation reversal). quires Supp.). Boulies, 690 P.2d 1253 courts have con- A number of federal (Colo.1984), presence of an we held mid-delib- sidered issue of imping- juror during deliberations of an alternate eration substitution right es a defendant’s constitutional reversible for a constitutes Although uniformly to a of more than twelve members these courts error.7 will reach guarantee and the substitu- hold mid-deliberation 24(c), secrecy. at 1255-56. its verdict tion is a violation of Fed.R.Crim.P. impingement held that this was suffi- find harmless violation when We majority safeguards to create a has used to neu- cient trial court Id.8 that, rebutted, requires if reversal. defen- possible prejudice tralize the Boulies was that preserve to a full consid- The concern dant and “[o]nce 1983, 23(b), of the case time before or after submission 5. Fed.R.Crim.P. like our Prior 23(a)(7), See, stipulation e.g., jury. the Code Cal.Penal 1089 proceed l:8-2(d) 1989). (West order to with an eleven- (West 1985); counsel in N.J.R.Proc. Thus, jury. operated the federal rules attack, member al constitutional These have withstood and to enable a like the Colorado rules statutes though they been construed to contain refusing defendant agree to force a mistrial implicit requirements that deliberations jury a to an eleven-member a substitution is made after anew when during deliberations. With became unavailable Collins, jury. People final submission to previous stipulation, the ver out the defendant's 782, (1976), Cal.Rptr. 742 cert. 552 P.2d 131 23(b) prevented the court sion Fed.R.Crim.P. 1077, 820, denied, U.S. 97 S.Ct. 50 L.Ed.2d 429 eleven, proceeding a from with and 392, Miller, (1977); 76 N.J. 388 A.2d 796 State v. 24(c) post-submission Fed.R.Crim.P. barred sub Corsaro, (1978). 107 N.J. But State v. 218 see Gambino, stitution. United States 938, 788 F.2d 339, (1987) (trial court committed 526 A.2d 1046 825, (3d Cir.1986), cert. 479 U.S. 948 a plain when it substituted error 98, (1986). 107 S.Ct. 93 L.Ed.2d 49 counts in order to return of verdicts on some 6. States Court held in counts). The United remaining on the How reach verdicts 78, 1893, Florida, Williams v. 90 S.Ct. ever, Appeals has New Court of struck York (1970), right a state as violative of the New York Constitution the sixth and fourteenth amendments allowing jurors to be recalled statute require does United States Constitution regular jurors delibera substitute for jury of criminal trial. In twelve in a state Ryan, begun. People v. 19 N.Y.2d tions have Colorado, right twelve and 199, 100, 224 N.E.2d 710 278 N.Y.S.2d felony only non-capital twelve in cases is based provision statutory upon not constitution and the record did not establish 8.In Boulies necessity. People ex rel. Hunter v. District al actually during present Court, (Colo.1981); jury’s the case deliberations. We remanded 18-1-406(1), § 23(a)(1). 8B C.R.S. to resolve that factual issue. to the trial court 690 P.2d at 1255. procedural 7. A few states now have statutes or rules substitution of an alternate at prescribed nied, number of jury,’ then, immediately, any just ‘the and other Because a verdict strangers inappropri- cannot be reached if there is an persons proceedings.” are to its upon ate interference with or at intrusion (quoting Id. United States Beas- id., process, deliberative (10th Cir.1972)). mid-delibera- ley, 464 F.2d tion of a with an presence therefore concluded presumed preju- alternate must be to have any person room of unauthorized diced the defendant. Such a participate destroys in the deliberations only by showing can be overcome sanctity jury, which must reach precau- the trial court extraordinary took private its decision in and free outside tions ensure that the defendant would influence. Id. at 1256-57. prejudiced not be and that under the cir- Boulies addressed the effect of the unau- case, precautions cumstances of the presence thorized of an alternate adequate See, were to achieve that result.9 during room deliberations. this Guevara, e.g., 823 F.2d at 447-48.10 we have been called deter- partic- mine effect of the unauthorized 3. ipation of an alternate delibera- extraordinary precautions No such original jurors tions when one of the were protect taken the instant case to participate unable to continue to and is Burnette’s constitutional to a trial danger excused. We conclude that the impartial jury. fair and The alternate prejudice associated with an alternate’s juror entered the jury room after the elev presence in room delibera- regular jurors en had sifted the evidence applies tions equal least force when hours, for and four one-half well stranger proceedings given progress have made formulating toward voice the deliberations. positions. The reconstituted then de We therefore requir conclude that only liberated for one-half hour be ing prejudice presumed from a viola ing day dismissed for returning tion Crim.P. is consistent with Bou- portion following deliberate lies best accommodates the fundamen day they agreement. until reached Al tal concern protecting though deliberative regu the trial instructed the process of jury. v. Kemp, anew, See Peek to begin deliberations he (11th Cir.1984), inquire did of them whether is unnecessary evidentiary It to remand for an ments of Fed.R.Crim.P. will be tolerated hearing only on exceptional the issue of because the circumstances and inquiry determining relevant extraordinary precautions whether the are taken to presumption prejudice prejudice has been overcome is minimize defendant. United employed adequate whether the pre- Kopituk, trial court States F.2d cautionary danger Cir.1982), measures to obviate prejudice, inquiry an to be on resolved 77 L.Ed.2d Phillips, basis 664 F.2d 996; Phillips, of the record. See at 664 F.2d at 996. c/. Boulies, (requiring 690 P.2d at 1256 n. 5 example, For in Guevara the Eleventh Circuit evidentiary hearing presumption if determine Appeals significant Court of found to its conclu- prejudice was rebutted facts where extrinsic sion prejudiced by that was not defendant to the record could be relevant the determi- the mid-deliberation substitution that the nation). original jury had deliberated for a short period ror, being by joined ju- before the alternate typically 10. adopt federal courts do not judge questioned that the trial had the alter- presumption prejudice on based mid-deliber- exposed nate as to whether he had been ation substitution but instead examine influences, improper judge outside had procedures by adopted the trial court to obviate inquired regular jury members whether prejudice to the defendant in order determine would be able to their deliberations whether the anew, violation of Fed.R.Crim.P. compiled by all that notes and materials See, Guevara, e.g., was harmless. 823 F.2d at during previous had deliberations 448; 587; Josefik, Phillips, confiscated, 753 F.2d at judge been that had re- quick point 991-96. These courts charged are out after the alternate had mandatory Guevara, that require- deviations from the impaneled. been 823 F.2d at 447-48. Otherwise, an alternate previous their disregarding capable of at the time the opinions they “shall be deliberations proce- by consider its verdict.” presented questions on have formed pro- judge ask in Crim.P. does not Nor did the trial dure described the evidence. I receptive presumption, they could be for a rebuttable vide them agree I attempt separately to assert because do not juror’s write Moreover, the alter- non-conforming go beyond plain view. court should that this his pre- released from juror, language nate been of the rule to create such a hours twenty-four approximately sumption. duties for being recalled, had his nor- resumed

before no majority “[tjhere notes that Although community. in the mal functions authority ... for a trial court Colorado by judge the trial he had been instructed previously discharged alter- substitute his “view of with others to discuss juror after deliberations nate for a be, he was his verdict would case” or what slip begun.” Majority, op. at 9. Wis- have forming opinion to refrain from told “de- adopted per se rule when it consin might come that based on information to infer from a silent statute cline[d] discharge. he his When his attention after approves dur- legislature substitution participate returned to the courthouse ing Leh- jury deliberations.” Wisconsin v. questioned deliberations, he was not about man, 291, 299-300, 321 N.W.2d 108 Wis.2d ability present to serve his activities or Although Lehman was 219-20 sum, re- the trial jury. on the statute,1 adopt I addressing the from either ceived assurances reasoning of the Wisconsin Court: ju- regular jurors or the alternate maining significant view of the division [I]n ability ror of the reconstituted opinion legal community as to the unim- a fair verdict would be to render constitutionality of wisdom and paired by the substitution. of an alternate after substitution a clear It is not our intention sanction begun we pos- where the deviation from Crim.P. legislative approval of such cline to infer prejudice is so sibility of defendant statute. We a silent However, acknowledge great. we express au- the absence hold in which an unautho- factual circumstances or rule for sub- thorization statute dur- substitution of an rized juror for of an alternate stitution ing may occur are manifold deliberations have deliberations and that under certain circumstances consent begun or in the absence of flows from a presumption prejudice substitution, here- to such defendant during the course of juror substitution circuit after it reversible error may be rebutted. Neverthe- juror for an alternate substitute less, because the after deliberations us, in the case we was not overcome an alter- begun. The decision whether ap- of the court of affirm the permitted juror should be peals. dies, or is disabled disqualified during jury’s otherwise J., VOLLACK, specially concurs. is a policy decision VOLLACK, Justice, specially each circuit made should concurring: case-by-case on basis without guidelines. Until there ju- provides that alternate established cir- who, permitting express is authorization rors “shall retires,” substitute cuit court to time the become unable the circuit jurors. 7B disqualified to act as analogous Id. at 321 N.W.2d is F.R.C.P. consider verdict.” 1. The Wisconsin statute expressly provid[ing] replace- in "not regular jurors retires ment of options court has three purpose.” available to tive interpretive same it if a policy applies to court rules. first, begun: deliberations have States, Bulls v. United 490 A.2d stipulation by obtain a parties pro- (D.C.App.1985)(citations omitted) (empha- ceed jurors; with fewer than twelve sec- added). sis ond, stipulation by to obtain a parties mandatory Based on the and unambig- juror; third, to substitute a to de- language uous 24(e), of Crim.P. I would clare a mistrial. conclude that mid-deliberation 302-303, 108 Wis.2d at 321 N.W.2d at 222- ordered the court in this added). (emphasis case was reversible Berry error. v. Flor- per adopted by se rule was also ida, 298 So.2d (Fla.App.1974) Appeals Ninth Circuit Court of in United (“The language of this rule is mandatory, Lamb, States v. permissive. must dis- Cir.1975) (“[Rjeversal because charge an who does not of the failure of the District Court to com- replace a principal juror, at the time the ply plain requirements with the of Fed.R. deliberate.”). If appropri- 24(c).”). ate, the rule could provide be amended to The District Ap- of Columbia Court of procedure for mid-deliberation substi- peals has also held that tutions, provide or to for the use of eleven [although the specifically rule does not jurors under certain circumstances. At question post-deliberation address time, this the rule provi- contains no such substitution, it unquestionably implies sions. Because I agree do not with the that the court would violate the rule if it creation adoption of a pre- rebuttable replaced with an alternate after sumption 24(e), under Crim.P. I concur in “[Wjhen retired. language only. the result of a statute is clear and admits of no

more than meaning, one we are not em-

powered to beyond look the literal words statute,” unless the clarity of the

language, upon scrutiny, careful is “su- perficial,” or application literal

provide results,” “absurd create an “ob- injustice,”

vious or frustrate the “legisla-

Case Details

Case Name: People v. Burnette

Court Name: Supreme Court of Colorado

Date Published: Jun 26, 1989

Citation: 775 P.2d 583

Docket Number: 88SC2

Court Abbreviation: Colo.