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 courts order
granting the motion of defendant, Shannon Deane Burke, for a
new trial. The People contend that the trial court granted
Burkes motion based on evidence that was inadmissible under
CRE 606(b). We agree and reverse the trial courts order.
2] Burke was charged with second degree burglary and
theft after breaking into her ex-boyfriends 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 Burkes 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 courts instructions and based his or
her decision on an impermissible basis. The trial court found
that the anonymous jurors statement was evidence that there
had been jury misconduct and, therefore, concluded that CRE
606(b) did not render the jurors statement inadmissible.
Without taking additional evidence, the trial court granted
Burkes motion for a new trial. The People appeal the trial
3] On appeal, the People contend that CRE 606(b)
precluded the trial court from considering the anonymous
jurors statement as a basis to grant Burke a new trial. They
contend that the anonymous jurors 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 jurors
statement was evidence of misconduct, arguing that misconduct
is not shown by the jurors statement and cannot be shown
without conducting the specific sort of inquiry into the
jurors 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 jurors
statement. In the alternative, Burke contends that the trial
courts order granting a new trial should be affirmed because
the jurors 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 jurors statement was inadmissible under CRE
606(b). We conclude that the trial court, therefore,
erroneously granted Burkes motion for a new trial based on
the anonymous jurors statement alone. We further conclude
that a constitutional exception to CRE 606(b) is not
warranted under these circumstances. We, therefore, reverse
the trial courts order granting Burkes motion for a new
Standard of Review
6] A trial courts decision to grant or deny a
defendants 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,
or unfair, or if it bases its decision on an erroneous view
of the law. Id.
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 jurys deliberations or to
the effect of anything upon his or any other jurors mind or
emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in
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.
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 jurors 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.
606(b) (emphasis added).
9] Thus, CRE 606(b) provides that a jurors
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 jurys 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 rules
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 ...