People v. Burke

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          Mesa County District Court No. 15CR591, Honorable Richard T. Gurley, Judge

         Daniel P. Rubinstein, District Attorney, Richard B. Tuttle, Assistant District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

         Megan A. Ring, Colorado State Public Defender, Sarah A. Kellogg, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

         OPINION

         WELLING, JUDGE.

         [¶ 1] The People appeal the trial court’s order granting the motion of defendant, Shannon Deane Burke, for a new trial. The People contend that the trial court granted Burke’s motion based on evidence that was inadmissible under CRE 606(b). We agree and reverse the trial court’s order.

          I. Background

         [¶ 2] Burke was charged with second degree burglary and theft after breaking into her ex-boyfriend’s home. A jury convicted Burke of the burglary charge.^[1] After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Jurors’ responses to these evaluation requests are anonymous. On one of the evaluation responses that was directed to Burke’s counsel, an anonymous juror wrote "[h]ard to believe a client when they choose to remain silient [sic]." Burke then moved for a new trial, arguing that the statement showed that at least one juror had disregarded the trial court’s instructions and based his or her decision on an impermissible basis. The trial court found that the anonymous juror’s statement was evidence that there had been jury misconduct and, therefore, concluded that CRE 606(b) did not render the juror’s statement inadmissible. Without taking additional evidence, the trial court granted Burke’s motion for a new trial. The People appeal the trial court’s order.

         [¶ 3] On appeal, the People contend that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant Burke a new trial. They contend that the anonymous juror’s statement was inadmissible under the plain language of CRE 606(b), which bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations. The People further contend that the trial court erroneously concluded that the juror’s statement was evidence of misconduct, arguing that misconduct is not shown by the juror’s statement and cannot be shown without conducting the specific sort of inquiry into the juror’s deliberative process that CRE 606(b) prohibits.

         [¶ 4] Burke responds that the trial court properly found that CRE 606(b) did not apply to the anonymous juror’s statement. In the alternative, Burke contends that the trial court’s order granting a new trial should be affirmed because the juror’s statement shows that the juror deliberately concealed during voir dire a bias against defendants who exercise their constitutional right to remain silent. Burke also contends that, even assuming CRE 606(b) applies, a constitutional exception to the rule is warranted.

         [¶ 5] We agree with the People and conclude that the anonymous juror’s statement was inadmissible under CRE 606(b). We conclude that the trial court, therefore, erroneously granted Burke’s motion for a new trial based on the anonymous juror’s statement alone. We further conclude that a constitutional exception to CRE 606(b) is not warranted under these circumstances. We, therefore, reverse the trial court’s order granting Burke’s motion for a new trial.

          II. Standard of Review

         [¶ 6] A trial court’s decision to grant or deny a defendant’s motion for a new trial is one we review for an abuse of discretion. People v. Bueno, 2018 CO 4, ¶ 19, 409 P.3d 320. The trial court abuses its discretion if its decision is manifestly unreasonable, arbitrary,

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or unfair, or if it bases its decision on an erroneous view of the law. Id.

         III. CRE 606(b)

         [¶ 7] In Colorado, the testimony of jurors is governed by CRE 606(b). Pursuant to that rule, jurors are generally prohibited from testifying regarding their deliberative process:

[A] juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

Id.

          But there are three exceptions to this general prohibition:

[A] juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Id.

         [¶ 8] Finally, whether a trial court may consider evidence from a juror turns on whether the juror would be permitted to testify about such a matter:

A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

         CRE 606(b) (emphasis added).

         [¶ 9] Thus, CRE 606(b) provides that a juror’s testimony, affidavit, statement, or other evidence may not be admitted to impeach the verdict unless that evidence falls within one of the three exceptions in subparts (1)-(3). These exceptions permit juror testimony about "exposure of a jury to information or influences outside of the trial process itself," People v. Harlan, 109 P.3d 616, 625 (Colo. 2005), and also permit, pursuant to the 2007 amendments, testimony about "whether there was a mistake in entering the verdict onto the verdict form," Malpica-Cue v. Fangmeier, 2017 COA 46, ¶ 12, 395 P.3d 1234 (quoting CRE 606(b) ).

         [¶ 10] In its application, CRE 606(b) "strongly disfavors any juror testimony impeaching a verdict, even on grounds such as mistake, misunderstanding of the law or facts, failure to follow instructions, lack of unanimity, or application of the wrong legal standard." Harlan, 109 P.3d at 624. CRE 606(b)’s exclusionary principle is broad and "in terms of subject, ... reaches everything which relates to the jury’s deliberations, unless one of the exceptions applies." Stewart v. Rice, 47 P.3d 316, 321 (Colo. 2002) (quoting Christopher B. Mueller, Jurors’ Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b), 57 Neb. L.Rev. 920, 935 (1978) ). The rule "has three fundamental purposes: to promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion." Stewart, 47 P.3d at 322.

         [¶ 11] CRE 606(b) does not preclude jurors from discussing their service after the fact, "including their deliberations, how they viewed the evidence and reached their verdict, and how they view the intent and meaning of their verdict." Id. at 325. "[N]one of this," however, "can become evidence unless one or both of the CRE 606(b) exceptions apply to the case." Id. (discussing pre-2007 amendment version of CRE 606(b) that included only the two exceptions under subparts (1) and (2) ). Although "[a]ttorneys may benefit from learning how the jurors viewed their case," they "may not make jurors witnesses except under the provisions of 606(b)." Id. To do so "requires a proper showing that the juror testimony, affidavit, or statement is admissible under the rule’s exceptions." Id.

          IV. Analysis

         [¶ 12] The issue presented by this appeal is whether the trial court abused its discretion in relying on the unsworn post-trial statements of an anonymous juror to grant Burke a new trial. We conclude that it did.

         [¶ 13] Burke advances three arguments on appeal as to why the trial court did not err. First, she ...