People v. Newman

471 P.3d 1243

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Damon D. NEWMAN, Defendant-Appellant.

Court of Appeals No. 16CA2201

Colorado Court of Appeals, Division II.

Announced July 23, 2020

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Jurors are generally permitted, even expected, to lean on their own experience and background — including "their professional expertise and education" — during deliberations. Kendrick v. Pippin , 252 P.3d 1052, 1065 (Colo. 2011), abrogated on other grounds by Bedor v. Johnson , 2013 CO 4, 292 P.3d 924. But what if that professional expertise and education is in the law? In this appeal, we must explore the boundaries of what a juror who is a lawyer may do and say during deliberations. In doing so, we address for the first time the definition of "legal content" as that term is used to define what constitutes "extraneous prejudicial information" under CRE 606(b). We conclude that, in the context of CRE 606(b), extraneous "legal content" refers to a statement of law that is inconsistent with or supplemental to the instructions provided by the trial court.

¶ 2 After a jury convicted defendant, Damon D. Newman, of sexual assault, but before he was sentenced, Newman filed a motion for a new trial, asserting that one of the jurors — a lawyer — introduced extraneous prejudicial information during deliberations. The trial court denied the motion without a hearing. Because Newman provided competent evidence that extraneous prejudicial information was improperly before the jury, we conclude that he was entitled to a hearing on two of the claims in his motion. Thus, we vacate the judgment of conviction and remand for an evidentiary hearing on Newman's request for a new trial.

I. Background¹

¶ 3 In March 2011, D.B. reported to the Denver Police Department that she had been sexually assaulted at gunpoint. As part of the ensuing investigation, D.B. completed a sexual assault examination kit. The examination revealed DNA belonging to an unidentified male.

¶ 4 Newman, who had been living in Colorado at the time of the assault, moved to California in the spring of 2012. Newman was later arrested in California on an unrelated offense, and a DNA sample was obtained from him. In October 2015, Denver police were alerted that Newman's DNA had been run through the CODIS multistate DNA database and was a preliminary match with the DNA from the March 2011 assault. Newman was then extradited to Colorado and charged with one count of sexual assault armed with a deadly weapon.

¶ 5 At trial, Newman testified in his own defense. He admitted to having sexual relations with D.B. but maintained that it was consensual. Following the trial, a jury convicted Newman as charged.

¶ 6 Prior to sentencing, Newman filed a motion for a new trial asserting that he was denied his constitutional right to a fair trial because extraneous prejudicial information had improperly been before the jury during their deliberations. Accompanying Newman's motion was a signed and sworn affidavit from one of the jurors — Juror S.P. — which alleged that Juror M.O., a practicing attorney, had made a number of statements during deliberations concerning criminal law and proceedings. It also alleged that he had conducted outside research regarding character evidence and shared the results of his research with the rest of the jury.

¶ 7 The trial court denied Newman's motion for a new trial without conducting a hearing, concluding that none of the statements detailed in the affidavit constituted extraneous prejudicial information, and thus the court could not consider the statements under CRE 606(b). Newman filed a motion for reconsideration, but that too was denied.

¶ 8 Ultimately, Newman was sentenced to an indeterminate term of thirty-two years to life in prison. He now appeals the denial of his motion for new trial.

II. Standard of Review

¶ 9 "The decision of a trial court to grant or deny a new trial is a matter entrusted to the court's discretion and will not be disturbed on review absent an abuse of that discretion." People v. Wadle , 97 P.3d 932, 936 (Colo. 2004). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, People v. Clark , 2015 COA 44, ¶ 215, 370 P.3d 197, and it "necessarily abuse[s] its discretion if it base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence," Wadle , 97 P.3d at 936 (quoting Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ).

¶ 10 The underlying issue of whether extraneous prejudicial information was before the jury presents a mixed question of law and fact. Kendrick , 252 P.3d at 1064 ; People v. Holt , 266 P.3d 442, 444 (Colo. App. 2011). We review de novo the trial court's conclusions of law, but we defer to the court's findings of fact if they are supported by competent evidence in the record. People v. Harlan , 109 P.3d 616, 624 (Colo. 2005). But see Kendrick , 252 P.3d at 1064 ("We apply an abuse of discretion standard to the court's findings of fact ....").

III. Applicable Law

A. CRE 606(b)

¶ 11 A juror is generally prohibited from testifying about any "matter or statement occurring during the course of the jury's deliberations" or about "the effect of anything upon his or any other juror's mind or emotions." CRE 606(b) ; Kendrick , 252 P.3d at 1063. Nor may a court receive an "affidavit or evidence of any statement by [a] juror" concerning as much. CRE 606(b) ; Kendrick , 252 P.3d at 1063. This rule seeks to "promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion," and thus "strongly disfavors any juror testimony impeaching a verdict." Harlan , 109 P.3d at 624 ; see also Kendrick , 252 P.3d at 1063.

¶ 12 However, notwithstanding the rule's broad limitations, CRE 606(b) contains narrow exceptions, one of which permits a juror to testify as to "whether extraneous prejudicial information was improperly brought to the jurors’ attention." CRE 606(b)(1). To determine whether a defendant is entitled to a new trial based on the jury's exposure to extraneous prejudicial information, a court employs a two-part inquiry. Kendrick , 252 P.3d at 1063 ; Harlan , 109 P.3d at 624. First, "a court makes a determination that extraneous information was improperly before the jury." Harlan , 109 P.3d at 624. Second, "based on an objective ‘typical juror’ standard, [a court] makes a determination whether use of that extraneous information posed the reasonable possibility of prejudice to the defendant." Id.

¶ 13 "When a party seeks to impeach a verdict based on an allegation of juror misconduct, the party has a limited right to an evidentiary hearing on those allegations." Kendrick , 252 P.3d at 1063. However, CRE 606(b) limits a trial court's ability to inquire into such allegations. Clark , ¶ 218. "[I]n order to satisfy CRE 606(b), before granting a hearing the court must first conclude that the party alleging misconduct has presented competent evidence that extraneous prejudicial information was before the jury." Kendrick , 252 P.3d at 1063-64 (citing Harlan , 109 P.3d at 624 ).

¶ 14 We note that the supreme court has used the phrase "competent evidence" in this context in two different ways. In Harlan , 109 P.3d at 623, the supreme court referred to "competent evidence" as the standard for reviewing the trial court's findings of fact after an evidentiary hearing. But in Kendrick , 252 P.3d at 1063-64, the phrase refers to the threshold showing necessary to be entitled to an evidentiary hearing in the first place. Clearly, these required showings cannot be the same, lest the quantum of evidence creating the entitlement to the hearing would necessarily also be sufficient to warrant relief in every case in which a hearing was granted — thus making any hearing unnecessary. Rather, in the context of the showing necessary to be entitled to a hearing, "competent evidence" merely means evidence that is admissible under CRE 606(b), People v. Garcia , 752 P.2d 570, 583 (Colo. 1988), which indicates that prejudicial extraneous information may have been before the jury, Clark , ¶ 239.

B. Extraneous Prejudicial Information

¶ 15 In Kendrick , our supreme court reiterated that "jurors are required to consider only the evidence admitted at trial and the law as given in the trial court's instructions." 252 P.3d at 1064 (quoting Harlan , 109 P.3d at 624 ). Accordingly, "any information that is not properly received into evidence or included in the court's instructions is extraneous to the case and improper for juror consideration." Id. (quoting Harlan , 109 P.3d at 624 ). The court observed that extraneous prejudicial information consists of (1) "legal content and specific factual information" (2) "learned from outside the record" (3) that is "relevant to the issues in a case." Id.

1. Legal Content

¶ 16 We turn first to the question of what constitutes "legal content." Because Kendrick involved a challenge to extraneous factual, rather than legal, information, the supreme court did not define the term "legal content." See id. at 1066 (considering only a "juror's use of her background in engineering and mathematics to calculate ... speed, distance, and reaction time"). Indeed, no published case in Colorado has yet provided a definition of "legal content" in this context. Nor, as relevant here, has any Colorado case navigated the fine line between a lawyer-juror's permitted application of her background professional and educational experience and the impermissible introduction of "legal content ... learned from outside the record." Id. at 1064 (citing Harlan , 109 P.3d at 625 ). Resolving the...