County District Court No. 15CR591 Honorable Richard T.
P. Rubinstein, District Attorney, Richard B. Tuttle,
Assistant District Attorney, Grand Junction, Colorado, for
A. Ring, Colorado State Public Defender, Sarah A. Kellogg,
Deputy State Public Defender, Denver, Colorado, for
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.
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. 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
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. The trial court abuses its discretion if its
decision is manifestly unreasonable, arbitrary, or unfair, or
if it bases its decision on an erroneous view of the law.
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
[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.
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
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
(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.
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 ...