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recognizing that the defendant does not carry the burden of showing that discharged jurors communicated with others
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No. 97SC174.
June 29, 1998.
Appeal from the District Court of Jefferson County, Honorable Ruthanne N. Polidori, Judge
David F. Vela, Colorado State Public Defender, Claudia Brett Goldin, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Clemmie P. Engle, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Respondent.
We granted certiorari to review the court of appeals decision in People v. Montanez, 944 P.2d 529 (Colo.App. 1996), to determine whether a jury in a criminal case was properly recalled and allowed to amend its verdict after being formally discharged by the Jefferson County District Court (trial court). The court of appeals determined that the recall was proper. We reverse and remand with instructions.
I.
In August 1992, an armed man broke into a home, held the family at gunpoint, and robbed them. The police arrested David A. Montanez (Montanez), who was tried before a jury on charges of first degree burglary (two counts), crime of violence, and aggravated robbery. Initially, the jury found Montanez guilty on the charges of burglary and aggravated robbery but found him not guilty on the crime of violence charge. At the request of defense counsel, the trial court polled the jurors individually, all of whom affirmed the verdicts. The trial court dismissed the jury, and they left the courtroom.
A few minutes later, the bailiff informed the trial court that the jury had mistakenly filled out one of the verdict forms. Over defense counsel's objection, the trial court recalled the jury. At the time of recall, ten of the jurors were in the hall behind the courtroom in the custody of the bailiff. The eleventh juror was exiting the building near the metal detectors, and the twelfth was outside the courthouse on the way to the parking lot. When all the jurors had returned, the trial court again polled them as to their verdicts. Each of the jurors confirmed verdicts one, two, and four but rejected number three, the not guilty verdict on the crime of violence charge. The trial court gave the jurors a new verdict form and sent them to the jury room for further deliberations. Upon returning, the jury rendered a guilty verdict on all four charges. When polled by the trial court, the jury unanimously affirmed the verdicts. The trial court entered a judgment of conviction against Montanez.
The verdict forms for burglary and armed robbery directed the jury to sign at the top for "not guilty" and at the bottom for "guilty." However, the crime of violence form, which was a special interrogatory, contained a signature space at the top to "find" Montanez used a deadly weapon and a space at the bottom to "not find" he used such a weapon. The jury signed all the verdict forms at the bottom, thereby acquitting Montanez of the crime of violence charge.
On appeal, the court of appeals affirmed the trial court's actions in recalling the jurors and allowing them to amend verdict number three. Citing Kreiser v. People, 199 Colo. 20, 604 P.2d 27 (1979), the court of appeals acknowledged the general rule that the jury cannot be recalled after it has been formally dismissed and the jurors have left the courtroom and the control of the judge. However, the court of appeals concluded that under the circumstances of this case, recall was proper because Montanez failed "to show that the jurors had actually communicated with others or were influenced to change their verdict by their contact with others." Montanez, 944 P.2d at 534. Moreover, the court of appeals determined that due to the irregularity of the crime of violence verdict form, the jury's amendment amounted to the correction of a clerical error. Accordingly, the court of appeals affirmed Montanez' conviction on all charges.
II.
In general, a jury may change or modify its verdict up to the point the verdict is accepted by the court and the jury is formally discharged. See State v. Badda, 68 Wn.2d 50, 411 P.2d 411, 417 (Wash. 1966). However, after the jury has been discharged, it may be recalled to amend its verdict only in certain limited circumstances. See State v. Myers, 318 S.C. 549, 459 S.E.2d 304, 305 (S.C. 1995). But see West v. State, 228 Ind. 431, 92 N.E.2d 852, 855 (Ind. 1950) (stating that a verdict cannot be materially amended after the jury has been formally discharged). In Colorado, the recall of a discharged jury is governed by the following rule:
[A]fter a verdict has been rendered and received by the court, and the court has discharged the jury, which thereupon disperses, leaving the courtroom and the control of the judge, the jury may not thereafter be recalled and reconstituted to again consider or amend its verdict. . . . [O]nce the jurors have separated and departed from the courtroom and from the control of the judge, with the opportunity to mingle and discuss the case with others, whether discussion be had or not, the jury's functions are at an end.
Kreiser, 199 Colo. at 22-23, 604 P.2d at 29; accord People v. Lopez, 867 P.2d 52, 53 (Colo.App. 1993). This rule helps to ensure that jury verdicts will not be tainted by any outside influence. See Kreiser, 199 Colo. at 23, 604 P.2d at 29. The rule also promotes the finality of verdicts, which, in criminal trials, is a fundamental principle guarded by the Double Jeopardy Clause. See id.; see also U.S. Const. amend. V ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.")
In Kreiser, the jury received an instruction on the crime of second degree assault with intent to cause serious bodily injury. However, the instruction failed to include the key word "serious." The defendant was convicted under the instruction, and the court discharged the jury. When the error was discovered, the court recalled the jury, directed them to amend the verdict form, and entered a final judgment of conviction. We reversed, noting that at the time of recall, nine of the jurors had reached the courthouse parking lot and the other three had returned home. We held that the recall was improper because "the jurors had the opportunity of mingling with the public and discussing the case." Kreiser, 199 Colo. at 23, 604 P.2d at 29.
In this case, the jury left the courtroom and the control of the judge directly after being discharged. While most of the jurors remained in the custody of the bailiff, two jurors were well outside the control of the court at the time of recall. One juror was about to exit the courthouse, and the other was already outside. Because these two jurors had the opportunity to mingle and discuss the case with outsiders, it was improper for the trial court to recall the jury. Contrary to the court of appeals, the burden is not on Montanez to show that the two jurors communicated with others on their way out of the courthouse. As we stated in Kreiser, the jury's functions are over when they have had "the opportunity to mingle and discuss the case with others, whether discussion be had or not." Id. (emphasis added). Any rule to the contrary would invite doubt regarding the integrity of verdicts and raise legitimate concerns as to the reliability of the jury system. See Melton v. Commonwealth, 132 Va. 703, 111 S.E. 291, 294 (Va. 1922) (refusing to consider the issue of whether the jury was actually influenced after leaving the control of the court because "[t]he sanctity of jury trials cannot be thus subjected to the hazard of suspicion").
We also disagree with the court of appeals' conclusion that the jury's amendment of verdict number three can be characterized as "clerical." See Montanez, 944 P.2d at 534. In certain circumstances, a discharged jury may be recalled to correct a verdict that is insufficient in form. See Schoolfield v. Brunton, 20 Colo. 139, 142, 36 P. 1103, 1104 (1894). However, as we noted in Schoolfield, the corrected verdict must be "the same, in substance, as the former verdict." Id. In this case, the jury initially acquitted Montanez of the crime of violence charge. After being recalled, the jury convicted Montanez. Clearly, the second verdict was not the same in substance as the first. Accordingly, Schoolfield provides no grounds for affirming the jury's amended verdict.
III.
We conclude that in these circumstances, the trial court erred in recalling the jury and allowing the verdict to be amended. Therefore, we reverse the court of appeals and remand with instructions that the trial court enter a judgment of conviction based on the jury's original verdict.
SCOTT, J., concurs
KOURLIS, J., dissents.