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People v. Taylor.

2021 COA 133. No. 18CA1410.  Felony Charges—Right to a 12-Member Jury.

November 4, 2021

Defendant was arrested and charged with possession of a controlled substance. After trial and jury deliberations, the jury notified the court that they all believed defendant was guilty but Juror H would not vote guilty because he disagreed with the state’s drug laws. Defense counsel moved for a mistrial and the court denied the motion. The trial court applied CRS § 18-1-406(7) to excuse Juror H for “just cause,” and the remaining 11 jurors thereafter reached a unanimous guilty verdict.

On appeal, defendant contended that the trial court erred by not granting a mistrial, arguing that CRS § 18-1-406(7) is unconstitutional because the Colorado Constitution provides the right to a 12-member jury in felony cases. Colo. Const. art. II, § 23 guarantees a right to a jury of 12 in felony cases, and CRS § 18-1-406(1) provides persons accused of a felony the right to a jury of 12 whose verdict must be unanimous. CRS § 18-1-406(7) provides that, with respect to a 12-person jury, if a court excuses a juror for just cause after the jury has retired to consider its verdict, the court may allow the remaining 11 jurors to return the verdict. Because this statute conflicts with the state constitutional right, it is invalid. Further, while the constitutional right can be waived, neither defendant nor his counsel waived it. Accordingly, the verdict was a nullity so the court erred by not declaring a mistrial.

The judgment of conviction was reversed and the case was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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