CO Code § 16-10-105 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 10 - Jury Trials|Part 1 - Composition and Selection of the Jury|§ 16-10-105. Alternate Jurors

 The court may direct that a sufficient number of jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror shall be discharged when the jury retires to consider its verdict or at such time as determined by the court. When alternate jurors are impaneled, each side is entitled to one peremptory challenge in addition to those otherwise allowed by law. In a case in which a class 1, 2, or 3 felony, as described in section 18-1.3-401 (1)(a)(IV) and (1)(a)(V), C.R.S., is charged, and in a case in which a level 1 or level 2 drug felony as described in section 18-1.3-401.5 , C.R.S., is charged, and in any case in which a felony listed in section 24-4.1-302 (1) , C.R.S., is charged, the court shall impanel at least one juror to sit as an alternate if requested by any party.   History. Source: L. 72: R&RE, p. 237, § 1. C.R.S. 1963: § 39-10-105 . L. 90: Entire section amended, p. 924, § 5, effective March 27. L. 91: Entire section amended, p. 429, § 6, effective May 24. L. 2012: Entire section amended,(HB 12-1310), ch. 268, p. 1394, § 7, effective June 7. L. 2013: Entire section amended,(SB 13-250), ch. 333, p. 1930, § 44, effective October 1. L. 2014: Entire section amended,(SB 14-163), ch. 391, p. 1969, § 3, effective June 6.    ANNOTATION   The purpose of seating an alternate juror is to have available another juror when, through unforeseen circumstances, a juror is unable to continue to serve. People v. Meis, 837 P.2d 258 (Colo. App. 1992).   Crim. P. 24(e) is mandatory in its requirement that alternate jurors be discharged at the time the jury retires to deliberate; any replacement of a regular juror by an alternate must occur prior to such time. People v. Burnette, 753 P.2d 773 (Colo. App. 1987), aff'd, 775 P.2d 583 (Colo. 1989).   A ruling by the trial court which calls an alternative juror to replace a juror who becomes “disqualified” to perform his duties is a matter within the discretion of the trial court and will not be disturbed on review unless an abuse of discretion is shown. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988) (decided prior to 1990 and 1991 amendments).   The trial court has authority to dismiss an unbiased juror if there are valid reasons for the dismissal of the juror and the decision was not arbitrary, unreasonable, or unfair, nor was the defendant prejudiced by the juror's dismissal because an alternate was available. People v. Lee, 30 P.3d 686 (Colo. App. 2000).   But trial court has the authority under both Crim. P. 24(e) and this section to replace a juror with an alternate after jury deliberations have commenced where discharge is allowed “at such time as determined by the court”. People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd, 974 P.2d 478 (Colo. 1999).   If a trial court interrupts deliberations of a jury and suspends the jury's fact finding functions to investigate allegations of juror misconduct, the court's inquiry must not intrude into the deliberative process. In the exercise of judicial discretion, before a juror is dismissed from a deliberating jury due to an allegation of juror misconduct, the court must make findings supporting a conclusion that the allegedly offending juror will not follow the court's instructions. Garcia v. People, 997 P.2d 1 (Colo. 2000).   In deciding whether to replace a juror with an alternate, the following should be considered: The juror's assurance of impartiality; the nature of the information not disclosed; whether the nondisclosure was deliberate; and any prejudicial effect the non-disclosed information would have had on either party. People v. Meis, 837 P.2d 258 (Colo. App. 1992).   Prejudice is presumed when discharged alternate juror replaces regular juror during deliberations. Presumption may be rebutted only by a showing that trial court took extraordinary precautions to ensure that defendant would not be prejudiced and that, under the circumstances of the case, such precautions were adequate to achieve that result. People v. Burnette, 775 P.2d 583 (Colo. 1989); Carrillo v. People, 974 P.2d 478 (Colo. 1999).   Presumption of prejudice held sufficiently rebutted where juror was replaced for an obvious and bona fide hearing impairment, court carefully instructed remaining jurors and the alternate juror to start their deliberations anew, the jury physically tore up and discarded their notes from the earlier deliberations, and the second set of deliberations took two hours longer than the first. Carrillo v. People, 974 P.2d 478 (Colo. 1999).   Reversible error. Where trial court replaced regular juror with alternate juror during jury deliberations but did not ask regular jurors if they were capable of disregarding their previous deliberations or if they would be receptive to an alternate juror's attempt to assert a non-conforming view and did not ask alternate juror about his activities after being discharged or his present ability to serve on the jury, trial court did not take extraordinary measures to ensure that defendant would not be prejudiced by such mid-deliberation replacement and, as a result thereof, defendant's conviction required reversal. People v. Burnette, 753 P.2d 773 (Colo. App. 1987), aff'd, 775 P.2d 583 (Colo. 1989).   This section is not in agreement with Crim. P. 24(e) because this section requires that jurors may be replaced with alternate jurors before deliberations begin and not after. Since the court rules govern practice and procedure in civil and criminal cases while the statute affects the substantive right to a fair trial, this section is the operative provision in deciding that the trial court erred by applying Crim. P. 24(e) and allowing the replacement of a regular juror with at alternate juror after the jury had begun its deliberations. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).   This section controls over Crim. P. 24(e) because it provides substantive, in addition to procedural, direction to the trial court. Carrillo v. People, 974 P.2d 478 (Colo. 1999).   Court's decision to replace a sleeping juror was not an abuse of discretion. Although a defendant is entitled to a trial by fair and impartial jurors, he or she is not entitled to any particular juror. Trial court was well within its discretion to dismiss the sleeping juror and to replace him with an alternate juror. People v. Tunis, 2013 COA 161 , 318 P.3d 524.   Applied in People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978); People v. Evans, 674 P.2d 975 (Colo. App. 1983); People v. Tippett, 733 P.2d 1183 (Colo. 1987).