Colo. R. Crim. P. 31
If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.
The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
Colo. R. Crim. P. 31
Annotation I. General Consideration. Jury's verdict must be allowed to stand if supported by substantial evidence. People v. Chavez, 182 Colo. 216, 511 P.2d 883 (1973). Appellate courts cannot direct entry of directed verdicts of guilt. People v. Smith, 181 Colo. 203, 510 P.2d 315 (1973). Applied in People v. Morris, 190 Colo. 215, 545 P.2d 151 (1976); People v. Ledman, 622 P.2d 534 (Colo. 1981). II. Submission and Finding. A. Forms of Verdict. Where the crime charged can be committed in alternative ways, the written verdict form should not lump the ways together in the disjunctive or conjunctive, although the charge in the statute may be made in the disjunctive and the charge in the information may be made in the conjunctive. Hernandez v. People, 156 Colo. 23, 396 P.2d 952 (1964). Separate verdicts should be submitted or else there should be a general verdict given as a counterpart of the not guilty verdict, since evidence of any of the alternative ways a crime can be committed will support a general verdict. Hernandez v. People, 156 Colo. 23, 396 P.2d 952 (1964). B. Retirement of Jury. All communications should be made in open court with the parties afforded an opportunity to make timely objections to any action by the court or jury which might be deemed irregular. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). Informal communications improper. Informal communications between the court and jury via the bailiff are improper. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). Prejudice required to set aside verdict for improper jury communication. In order to constitute grounds for setting aside verdict because of unauthorized or improper communication with the jury, the defendant must show that he was prejudiced thereby. People v. Davis, 183 Colo. 228, 516 P.2d 120 (1973). Informal communication between court and jury must be examined in order to determine whether it is prejudicial. Ray v. People, 147 Colo. 587, 364 P.2d 578 (1961). Determination of prejudice within court's discretion. The determination of whether prejudice has occurred because of unauthorized or improper communication with the jury is within the sound discretion of the trial court, and only where that discretion has been abused will the verdict be set aside and a new trial ordered. People v. Davis, 183 Colo. 228, 516 P.2d 120 (1973). Communication without prejudice not reversible error. Where the communication does not disclose that any prejudice whatever resulted to defendants, such communication between court and jury does not constitute reversible error. Ray v. People, 147 Colo. 587, 364 P.2d 578 (1961). This rule must receive a reasonable construction as prohibiting only communications of an improper or unnecessary character. McLean v. People, 66 Colo. 486, 180 P. 676 (1919). Ordinary physical necessities of jurors must be provided for. McLean v. People, 66 Colo. 486, 180 P. 676 (1919). Where trial testimony is read to the jury at its request during its deliberations, it is essential that the court observe caution that evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury, for this would be prejudicial abuse of discretion and constitute grounds for reversal. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). Such reading is discretionary with trial court. The overwhelming weight of authority is that the reading of all or part of the testimony of one or more of the witnesses at trial, criminal or civil, at the specific request of the jury during its deliberations is discretionary with the trial court. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). Court must determine whether jury is deadlocked. The trial court fails to exercise its power with that degree of caution which the circumstances demand where it fails to determine as a matter of fact that the jury is hopelessly deadlocked immediately before its discharge. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). When "consent" to discharge deemed invalid. Defendant's "consent" to the discharge of the jury has no force or validity where the conditions and assumptions upon which the consent is based are never legally met, such as where defendant agreed to a future situation where the jury was "hopelessly deadlocked" when he had a right to anticipate that the court would follow the usual procedures in discharging a jury, and not the declaration of a mistrial based upon hearsay and procedural violations of the bailiff done totally off the record and out of court where no objection to the procedure was possible. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). C. Return. Verdict in a criminal case should be certain and devoid of ambiguity, though it need not follow strict rules of pleading or be otherwise technical. Yeager v. People, 170 Colo. 405, 462 P.2d 487 (1969). Else conviction will not stand. When the language of the verdict permits reasonable uncertainty, defendant's conviction cannot be permitted to stand. Yeager v. People, 170 Colo. 405, 462 P.2d 487 (1969). Sealed verdict must be returned the next juridical day. Where the parties stipulated that the court direct the jury to the effect that should they agree upon a verdict during the recess or adjournment of court for the day, the jury should seal their verdict and thereafter, in the absence of defendant and his counsel, and without their knowledge, the court instructed the jury to return verdict one week later instead of the next juridical day, as this rule contemplates, such practice was improper. Denny v. People, 106 Colo. 328, 104 P.2d 610 (1940). Unanimity is required only with respect to the ultimate issue of defendant's guilt or innocence of the crime charged and not with respect to alternative means by which the crime was committed. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Vigil, 678 P.2d 554 (Colo. App. 1983). Unanimity in a verdict does not require the jurors to be in agreement as to specific elements of the crime. People v. Lewis, 710 P.2d 1110 (Colo. App. 1985). Where the intent of the jury can be ascertained from the verdict forms submitted, there is no reversible error as a result of the omission of a reference to conspiracy in the guilty verdict form. People v. Roberts, 705 P.2d 1030 (Colo. App. 1985). Jury verdicts will not be reversed for inconsistency when the crimes charged required different elements of proof, and the jury could find from the very same evidence that the element of one crime was present while at the same time finding that the element of another charged crime was absent. People v. Powell, 716 P.2d 1096 (Colo. 1986). No error in the trial court's decision to reassemble the jury for further deliberation and to enter judgment on the amended verdict where facts were insufficient to support a presumption that the jury was open to the influence of others after discharge and the defendant did not request that the jurors be questioned about their contact with others during the brief period after discharge. People v. Montanez, 944 P.2d 529 (Colo. App. 1996). Court properly instructed jury to resume deliberations where juror's statements were ambiguous and equivocal as to her concurrence in the verdict. People v. Barnard, 12 P.3d 290 (Colo. App. 2000). III. Conviction of Lesser Offense. Lesser included offense defined. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971). "The offense charged" as used in section (c), encompasses any lesser included offense of the one charged. Hunter v. District Court, 184 Colo. 238, 519 P.2d 941 (1974). Provisions of section (c) are embodiments of the rule at common law that the defendant was presumed to be on notice that he could be convicted of the crime charged or a lesser offense included therein. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974). Section (c) and all prior Colorado case law provide that one may be convicted of a lesser included offense of the crime charged. Hunter v. District Court, 184 Colo. 238, 519 P.2d 941 (1974). If appellate court reverses a conviction as to a greater offense for insufficient evidence, it may direct entry of judgment on a lesser included offense supported by sufficient proof, even if jury was not instructed upon that lesser offense. People v. Valdez, 56 P.3d 1148 (Colo. App. 2002). A criminal defendant who maintains his or her innocence at trial is not automatically barred from seeking jury instructions for a voluntary intoxication defense. If an instruction is given in that case, there must be a rational basis for it in the evidence presented at trial. After a review of the record, there was no rational basis in the evidence for the voluntary intoxication instruction. Brown v. People, 239 P.3d 764 (Colo. 2010). Claim of innocence alone does not disentitle defendant to lesser included offense instruction. The instruction, however, must be supported by evidence at trial. There was no error in failing to instruct the jury on attempted first degree murder where victim's injuries were such that no rational jury could have found the shooter acted with anything but a premeditated intent to cause death. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 (Colo. 2010). IV. Poll of Jury. A court may declare a mistrial without further questioning the jury if the record supports the determination that the jury is unlikely to reach a unanimous verdict. Section (d) specifically applies "when a verdict is returned" and contains no direction to poll jurors prior to a verdict. Although the rule contemplates that a juror may disagree with a verdict, thereby permitting the court to direct further deliberations or to discharge the jury, the rule contains no provision for the situation where the jury reports that it cannot, and likely will not, reach a verdict. People v. Rivers, 70 P.3d 531 (Colo. App. 2002). A jury poll ordinarily requires each juror to assent in the verdict. However, the right to a jury poll is not absolute, and matters relating to the manner of conducting a jury poll are generally committed to the discretion of the trial court. People v. Phillips, 91 P.3d 476 (Colo. App. 2004). Trial court properly refused defendant's request to poll the jury. If a single charge includes multiple degrees of offenses, the trial court may not conduct a partial verdict inquiry as to the offenses included within the charge. People v. Richardson, 184 P.3d 755 (Colo. 2008). Where no contemporaneous objection is made to an asserted defect occurring during the polling of the jury, review on appeal is limited to whether the defect rises to the level of ordinary plain error. Because the jurors in the case orally informed the court of their unanimous verdict and the record did not show a lack of unanimity, the court perceived no plain error where twelfth juror inexplicably not polled. People v. Phillips, 91 P.3d 476 (Colo. App. 2004).