Opinion
Court of Appeals No. 18CA0407
04-15-2021
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sandra ARCHULETA, Defendant-Appellant.
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE DUNN
¶ 1 A jury convicted defendant, Sandra Archuleta, of child abuse resulting in the death of her four-month-old grandson. Archuleta appealed, arguing that the trial court erred by denying her requests for (1) a modified unanimity jury instruction and (2) a new trial based on jury misconduct.
¶ 2 A division of this court agreed with the first contention and concluded that the jury should have received a modified unanimity instruction. People v. Archuleta , 2019 COA 64, ¶¶ 21-22, 474 P.3d 132. The division therefore reversed Archuleta's conviction and didn't reach her second contention. Id. at ¶¶ 33-34.
¶ 3 On certiorari review, however, the supreme court held that Archuleta "was not entitled to a modified unanimity instruction." People v. Archuleta , 2020 CO 63M, ¶ 1, 467 P.3d 307. The court then reversed and remanded the case to us "for consideration of Archuleta's remaining" appellate contention. Id. at ¶ 36.
¶ 4 That contention asks us to determine whether CRE 606(b) — which, subject to a few narrow exceptions, broadly prohibits the use of juror testimony to inquire into the validity of a verdict — applies where a juror alleges misconduct that occurred before deliberations began.
¶ 5 We hold that whether CRE 606(b) bars juror testimony depends on the nature of the misconduct alleged, not when it occurred. Because the juror affidavit here did not allege misconduct that falls within a recognized CRE 606(b) exception, we agree with the trial court that the affidavit was inadmissible under CRE 606(b) and Archuleta was not entitled to a new trial. We therefore affirm the conviction.
I. Background
¶ 6 The court empaneled a twelve-person jury with one alternate. Before the presentation of evidence, the court instructed the jury that it "must base [its] decision only upon the evidence received" and "the law that [the court] give[s]." The court also instructed the jurors that they "may not discuss the case amongst [themselves] until [they] have heard all of the evidence." Throughout the trial, the court repeated its instruction that the jurors must not discuss the case with anyone, including other jurors. It ended each trial day with the same admonishment. During the trial, no juror reported any discussions in violation of these instructions.
¶ 7 At the end of evidence, the court identified Juror 11 as the alternate juror and excused him from deliberations. Juror 11 did not report any concerns to the court when he was excused. The jury then deliberated and found Archuleta guilty of child abuse resulting in death.
¶ 8 Four months later, Juror 11 testified at Archuleta's sentencing hearing. He requested that the court "consider imposing the minimum sentence available." He testified that he didn't "believe the evidence added up to proof beyond a reasonable doubt that [Archuleta] caused the injuries" that led to her grandson's death. And he expressed shock at the verdict, explaining that he "went home during the deliberation believing [Archuleta] would be cleared of all charges" and he did "not understand how [the conviction] happened." Juror 11 continued by commenting on his view of the evidence and why he believed there was "reasonable doubt." He also said that he "heard other jurors" laugh about Archuleta's recorded statement to police, and say, "Does she really expect us to believe that?" Other than this statement, Juror 11 did not report other juror comments. At the end of the hearing, the court sentenced Archuleta to a twenty-four-year prison term — neither the minimum nor the maximum available sentence.
At the hearing and in his later affidavit, Juror 11 mistakenly identified himself as Juror 12. The trial record confirms the alternate was Juror 11.
¶ 9 Almost a month later, Archuleta filed a motion for a new trial under Crim. P. 33 alleging juror misconduct — specifically, that jurors engaged in premature deliberations. Alternatively, Archuleta requested an evidentiary hearing. In support of the motion, Archuleta attached an affidavit from Juror 11 alleging the following:
• During breaks, he "heard jurors make statements about the evidence being presented in the case."
• One juror said that the trial was "taking too long and that [Archuleta] was overwhelmingly guilty."
• Two jurors said that Archuleta's grandson was injured while in her care and one commented that this meant Archuleta did what "was accused."
• After observing Archuleta's recorded police interview, "a number of jurors laughed and shook their heads," and one juror asked, "Does she really expect us to believe that?" and "other jurors agreed."
• He believed "at least 5 of the jurors would vote guilty on the initial vote."
¶ 10 The prosecution opposed Archuleta's motion, arguing that Juror 11's affidavit was inadmissible under CRE 606(b), and, in any event, Archuleta failed to demonstrate prejudice.
¶ 11 The trial court agreed with the prosecution. It found that Juror 11's affidavit was inadmissible under CRE 606(b) to impeach the verdict because it did not "concern information extraneous to jury deliberations, nor any outside influence, clerical mistake, or racial bias." The court also concluded that, if any "premature deliberations [did occur, they] did not prejudice" Archuleta. It therefore denied the motion without a hearing.
II. Motion for A New Trial
¶ 12 Archuleta contends the trial court erred by denying her motion for a new trial. She specifically argues that the court erred by (1) finding Juror 11's affidavit inadmissible under CRE 606(b) ; and (2) concluding that, to the extent any premature deliberations occurred, they did not prejudice Archuleta. We agree with the trial court that Juror 11's affidavit was inadmissible under CRE 606(b). And, because Archuleta presented no other evidence supporting her motion for a new trial, we don't reach Archuleta's second contention.
A. Standard of Review
¶ 13 "The decision of a trial court to grant or deny a new trial is a matter entrusted to the court's discretion." People v. Wadle , 97 P.3d 932, 936 (Colo. 2004). So too are its evidentiary rulings. People v. Glover , 2015 COA 16, ¶ 10, 363 P.3d 736.
¶ 14 We review de novo, however, a trial court's interpretation of a rule "governing the admissibility of evidence." People v. Salas , 2017 COA 63, ¶ 30, 405 P.3d 446.
B. CRE 606(b)
¶ 15 Courts have long been hesitant to peek behind a jury verdict by inquiring into a jury's deliberations or its thought processes in reaching the verdict. This rule — commonly known as the "no-impeachment rule" — is codified in CRE 606(b) and its federal counterpart, Fed. R. Evid. 606(b). E.g. , Tanner v. United States , 483 U.S. 107, 117-21, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (discussing common law history of the no-impeachment rule and the development of Fed. R. Evid. 606(b) ); Stewart ex rel. Stewart v. Rice , 47 P.3d 316, 320-22 (Colo. 2002) (reviewing history of the no-impeachment rule in Colorado).
¶ 16 CRE 606(b) provides that,
[u]pon an inquiry into the validity of a verdict or indictment, 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. ...
The rule continues,
A juror's affidavit ... may not be received on a matter about which the juror would be precluded from testifying.
¶ 17 The rule recognizes three narrow exceptions to the ban on post-verdict juror testimony. A juror may testify to (1) extraneous prejudicial information improperly brought to the jurors’ attention; (2) any outside influence improperly brought to bear on any juror; and (3) whether there was a mistake in entering the verdict on the verdict form. CRE 606(b) ; accord Fed. R. Evid. 606(b).
¶ 18 In addition to these rule-based exceptions, the Supreme Court has recognized a constitutional exception that applies when "a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant." Pena-Rodriguez v. Colorado , 580 U.S. ––––, ––––, 137 S. Ct. 855, 869, 197 L.Ed.2d 107 (2017).
¶ 19 Substantial policy considerations support the broad prohibition on post-verdict challenges based on juror testimony. Chief among them are the interests in verdict finality and protecting the secrecy of jury deliberations. See, e.g. , id. ; see also Stewart , 47 P.3d at 322 (" CRE 606(b) has three fundamental purposes: to promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion."). Indeed, rejecting a challenge that Fed. R. Evid. 606(b) violated an individual's constitutional right to a fair and impartial jury, the Supreme Court observed that post-verdict scrutiny of juror conduct would not only "seriously disrupt the finality of the process" but would also undermine "full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople." Tanner , 483 U.S. at 120, 107 S.Ct. 2739 ; see also Pena-Rodriguez , 580 U.S. at ––––, 137 S. Ct. at 865. The Court also reasoned that "several [other] aspects of the trial process" protect a defendant's constitutional right to an impartial jury, including jurors’ ability to report misconduct to the court during trial. Tanner , 483 U.S. at 127, 107 S.Ct. 2739.
¶ 20 Thus, absent a recognized exception, juror testimony (through an affidavit or otherwise) is inadmissible to impeach a verdict. See Stewart , 47 P.3d at 320 (juror affidavits not addressing "matters within" the rule's exceptions are inadmissible under CRE 606(b) ); see also Warger v. Shauers , 574 U.S. 40, 48, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014) ( Fed. R. Evid. 606(b) prohibits "the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous ... and outside influences" and the later-added mistake and racial animus exceptions.); United States v. Brown , 934 F.3d 1278, 1302 (11th Cir. 2019) (noting that, outside the four recognized exceptions, " Rule 606(b) prohibits inquiry into a wide range of alleged misconduct").
1. CRE 606(b) Applies to Pre-deliberation Misconduct
¶ 21 Archuleta doesn't quarrel with the breadth of the no-impeachment rule. Instead, she says that CRE 606(b) doesn't reach misconduct that occurs before deliberations begin. Because Juror 11 alleged pre-deliberation misconduct, Archuleta contends that the trial court erred by finding the affidavit inadmissible under CRE 606(b). Taking our lead from Tanner and Warger — each of which considered variations of Archuleta's argument that Rule 606(b) doesn't apply to misconduct occurring before deliberations — we disagree. Stewart , 47 P.3d at 321 (looking to Fed. R. Evid. 606(b) "for guidance in construing" CRE 606(b) ).
¶ 22 We start with Tanner . There, the defendants sought a new trial based on juror affidavits alleging that multiple jurors were intoxicated during the trial (from alcohol, marijuana, and cocaine), which impaired their ability to follow the evidence and led some to sleep during the trial. 483 U.S. at 112-17, 107 S.Ct. 2739. Asked to determine the admissibility of the juror affidavits, the Tanner majority didn't focus on when the alleged misconduct occurred. Instead, looking to the common law and legislative history of Fed. R. Evid. 606(b), the Court explained that the admissibility of juror testimony depends "on the nature of the allegation" and not "whether the juror was literally inside or outside the jury room" when the alleged misconduct occurred. Id. at 117-18, 107 S.Ct. 2739. The Court concluded that juror testimony about misconduct that was "external" to the deliberations — extraneous influences and outside information — was admissible to impeach the verdict, but testimony about internal influences wasn't. See id. at 117-18, 127, 107 S.Ct. 2739. Applying this external/internal distinction, Tanner held that juror intoxication during the trial "is not ‘an outside’ influence about which jurors may testify to impeach their verdict." Id. at 125, 107 S.Ct. 2739.
By contrast, the Tanner dissenters did focus on when the misconduct occurred, interpreting Fed. R. Evid. 606(b) as not applying to "matters occurring before or after deliberations." Tanner v. United States , 483 U.S. 107, 138, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (Marshall, J., concurring in part and dissenting in part).
¶ 23 Still, the external/internal distinction is not always obvious or easy to apply, especially when the alleged misconduct occurred before deliberations. After Tanner , some courts particularly struggled with whether Rule 606(b) bars post-verdict allegations that a juror concealed bias or lied during voir dire. For instance, in Black v. Waterman , a division of this court held that a juror's affidavit alleging that a juror failed to disclose bias during voir dire was admissible because CRE 606(b) "does not bar inquiry into matters that arise before jury deliberations begin." 83 P.3d 1130, 1137-38 (Colo. App. 2003) (citing Wilson v. O'Reilly , 867 P.2d 92 (Colo. App. 1993) ); see also Hard v. Burlington N. R.R. , 812 F.2d 482, 485 (9th Cir. 1987) ("Statements which tend to show deceit during voir dire are not barred by [ Fed. R. Evid. 606(b) ].") (citation omitted), abrogated by Warger , 574 U.S. 40, 135 S.Ct. 521.
¶ 24 But in Warger , the Supreme Court laid to rest any lingering doubt about whether Fed. R. Evid. 606(b) applies to alleged voir dire misconduct. 574 U.S. at 44, 135 S.Ct. 521. In that case, the defendant moved for a new trial based on a juror affidavit alleging that another juror lied during voir dire about her impartiality. Id. at 43, 135 S.Ct. 521. The district court and the Eighth Circuit concluded that the affidavit was not admissible under Fed. R. Evid. 606(b). The Supreme Court agreed, holding that Fed. R. Evid. 606(b) bars post-verdict inquiry into allegations that a juror "deliberately lied during voir dire about her impartiality." Id. at 43, 135 S.Ct. 521.
¶ 25 In doing so, the Court declined to limit Fed. R. Evid. 606(b) to misconduct that occurred during deliberations. Instead, the Court focused again on whether the alleged misconduct was based on external or internal influences. Id. at 51, 135 S.Ct. 521. The Court concluded that allegations that a juror lied during voir dire "fall[ ] on the ‘internal’ side of the line," and thus the juror affidavit was inadmissible under Fed. R. Evid. 606(b). Id. ; see also People v. Burke , 2018 COA 166, ¶ 23, 452 P.3d 124 (applying Tanner and Warger to conclude that an affidavit alleging a juror deliberately concealed bias during voir dire was inadmissible under CRE 606(b), implicitly disagreeing with Black ).
¶ 26 Guided by Tanner and Warger , as well as the text of CRE 606(b), we hold that, in determining whether juror testimony is admissible under CRE 606(b), it's the nature of the misconduct alleged — not when it occurred — that matters. Post-verdict allegations that one or more jurors internally discussed a defendant's guilt before deliberations began do not fall within one of the rule's four recognized exceptions, so an affidavit alleging as much is barred by CRE 606(b).
¶ 27 This conclusion is not much of a stretch. After all, our supreme court has long recognized that CRE 606(b) bars juror testimony unless it addresses "matters within the rule's" exceptions. Stewart , 47 P.3d at 320. That includes juror testimony that jurors "failed to follow instructions." See id. at 326 (concluding that CRE 606(b) barred affidavits alleging jury "had not read the court's instructions[ ] or had misunderstood them"). And an allegation that jurors discussed evidence or decided guilt before deliberations is essentially an allegation that jurors failed to follow the trial court's instructions not to do either of those things. See Burke , ¶ 22 (juror statement suggesting a "juror disregarded or did not follow the court's instruction" not to use a defendant's silence against him was inadmissible under CRE 606(b) ); accord United States v. Voigt , 877 F.2d 1465, 1469 (10th Cir. 1989) ; see also United States v. Rutherford , 371 F.3d 634, 640 (9th Cir. 2004) (juror allegations that jurors failed to follow instructions are inadmissible because they do not concern "external" influence).
¶ 28 Nor are we alone in concluding that a juror affidavit alleging internal pre-deliberation discussions is inadmissible under Rule 606(b). To illustrate, in United States v. Leung , 796 F.3d 1032 (9th Cir. 2015), the defendant sought a new trial based on a juror affidavit alleging that "several jurors" regularly talked about the evidence during trial breaks and that "at least three" jurors had decided the defendant was guilty before deliberations began. Id. at 1034. The trial court found the affidavit barred by Fed. R. Evid. 606(b) and denied the motion for a new trial. The Ninth Circuit agreed. It held that Fed. R. Evid. 606(b) bars juror testimony about alleged pre-deliberation discussions. Id. at 1036. In doing so, it observed that the affidavit "improperly implicates the internal affairs of the jury during an inquiry into the ‘validity of the verdict.’ " Id. at 1038 (quoting Warger , 574 U.S. at 48, 135 S.Ct. 521 ); see also Larson v. State , 79 P.3d 650, 655 (Alaska App. 2003) (applying Tanner to conclude that juror affidavits alleging, among other things, that jurors had pre-decided guilt and discussed the case before deliberations began were inadmissible under Alaska Rule of Evidence 606(b) ).
Other courts have reached similar conclusions. See, e.g. , Crowe v. Hall , 490 F.3d 840, 848 (11th Cir. 2007) (affidavit alleging that jurors predetermined guilt is inadmissible under Fed. R. Evid. 606(b) ); United States v. Logan , 250 F.3d 350, 381 (6th Cir. 2001) (under Tanner , evidence of premature juror deliberation is barred by Fed. R. Evid. 606(b) ), abrogated on other grounds by Fed. R. Evid. 408 (2006); Templeton v. United States , No. MO:12-CV-010-RJ-DC, 2014 WL 12823747, at *13 (W.D. Tex. June 18, 2014) (juror testimony on alleged premature deliberations "could not have been used to impeach the verdict" under Fed. R. Evid. 606(b) ); Bryant v. Mascara , No. 2:16-CV-14072, 2018 WL 3868709, at *4 (S.D. Fla. Aug. 14, 2018) (allegations that jurors made up their minds before hearing evidence related to an "internal" matter and were barred by Fed. R. Evid. 606(b) ) (citation omitted); Barnette v. United States , No. 3:12CV327, 2013 WL 3779077, at *2 (W.D.N.C. July 18, 2013) (evidence of juror's pre-deliberation remarks related to internal matters and were barred by Fed. R. Evid. 606(b) ); United States v. Sabhnani , 529 F. Supp. 2d 384, 394 (E.D.N.Y. 2008) (rejecting argument that evidence of juror misconduct before deliberations was not barred by Fed. R. Evid. 606(b) ); Cummings v. Ortega , 365 N.C. 262, 716 S.E.2d 235, 271 (2011) (applying Tanner and concluding juror affidavits that alleged a fellow juror pre-decided guilt and said his "mind was made up" before deliberations began were inadmissible under North Carolina Rule of Evidence 606(b) ).
¶ 29 And this conclusion does not leave trial participants or concerned jurors without a remedy. Jurors may report violations of the court's instructions during trial, as may court personnel, bailiffs, or attorneys who overhear inappropriate pre-deliberation talk. See Tanner , 483 U.S. at 127, 107 S.Ct. 2739 ; accord Warger , 574 U.S. at 50, 135 S.Ct. 521 ; Burke , ¶ 28. The trial court then has discretion to address the reported misconduct before deliberations begin. See People v. Harmon , 284 P.3d 124, 128-29 (Colo. App. 2011) (instructing courts on potential curative measures to address juror misconduct raised during trial).
¶ 30 This all leads us to People v. Clark , 2015 COA 44, 370 P.3d 197. In Clark , the defendant moved for a new trial and, in support of the motion, submitted an investigator's affidavit outlining an alternate juror's detailed statements. The affidavit described a host of startling misconduct, including exposure to extraneous information and outside influences. The affidavit also alleged that some jurors conducted an experiment on a trial issue. See id. at ¶¶ 239-242.
¶ 31 Nestled among the allegations of improper external influences, however, the affidavit alleged that some jurors expressed the belief that the defendant was guilty before deliberations began. Without separately addressing the admissibility of the alleged misconduct under CRE 606(b), the Clark division remanded the case for a hearing. In doing so, it noted its "particular[ ] concern[ ]" that deliberating jurors may have independently conducted an experiment on a trial issue. Id. at ¶ 244.
¶ 32 In our view, the improper external influence allegations drove the Clark division's decision to remand for an evidentiary hearing, not the pre-deliberation allegation. Those external influence allegations fall plainly within CRE 606(b) ’s exceptions for "extraneous prejudicial information" and improper "outside influence." But, to the extent Clark can be read as holding that pre-deliberation allegations are admissible under CRE 606(b), that holding is inconsistent with Tanner and Warger and we decline to follow it. 2. Juror 11's Affidavit is Inadmissible Under CRE 606(b)
Although Clark acknowledges Tanner’ s distinction between external and internal influences, it doesn't address Warger . Rather, it relies upon pre-Warger cases for the proposition that "Rule 606(b) does not completely preclude review of the statements made by jurors during premature deliberations." People v. Clark , 2015 COA 44, ¶ 234, 370 P.3d 197 (citing United States v. Farmer , 717 F.3d 559, 565 (7th Cir. 2013) ). The vitality of those pre-Warger cases is questionable. Indeed, faced with an earlier decision inconsistent with Warger , the Fifth Circuit "disavow[ed]" earlier reasoning that was "clearly incorrect" in light of Warger . See Austin v. Davis , 876 F.3d 757, 790 (5th Cir. 2017) (concluding post-trial statements that jurors were not truthful in voir dire were inadmissible under Fed. R. Evid. 606(b) ).
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¶ 33 With all this in mind, we turn back to Juror 11's affidavit. That affidavit described internal discussions among the jurors before deliberations started. To be sure, such pre-deliberation discussions — if they occurred — undoubtedly violated the court's instructions and were inappropriate. But that doesn't make Juror 11's affidavit admissible.
¶ 34 Juror 11 didn't allege that the jurors were exposed to extraneous prejudicial information or any outside influence. He alleged no mistake in entering the verdict. And he did not allege that the verdict was driven by racial animus. Because Juror 11's affidavit does not allege any conduct that falls within a recognized exception to CRE 606(b), the affidavit is inadmissible. CRE 606(b) ("A juror's affidavit ... may not be received on a matter about which the juror would be precluded from testifying."); see also Stewart , 47 P.3d at 320.
¶ 35 To conclude otherwise would necessarily require a court to delve into the jurors’ mental processes to determine the effect of the pre-deliberation comments on the validity of the verdict — the exact inquiry CRE 606(b) prohibits. See Stewart , 47 P.3d at 323 ; accord Warger , 574 U.S. at 48-49, 135 S.Ct. 521 ( Fed. R. Evid. 606(b) applies to a post-verdict motion for a new trial alleging voir dire misconduct because it "plainly entail[ed] ‘an inquiry into the validity of [the] verdict.’ ") (citation omitted).
¶ 36 Juror 11, of course, could have reported his concerns about pre-deliberation chatter to the court during the trial. Had he done so, the trial court could have taken curative measures to address the concerns. See Harmon , 284 P.3d at 128-29. Having waited to raise his concerns until after the verdict, the court's ability to consider and address them was limited by CRE 606(b).
¶ 37 For these reasons, we agree with the trial court that Juror 11's affidavit was inadmissible under CRE 606(b). Thus, we affirm the trial court's order denying Archuleta's motion for a new trial.
C. Prejudice
¶ 38 In addition to finding Juror 11's affidavit inadmissible under CRE 606(b), the trial court appears to have also considered Juror 11's allegations and found that Archuleta was not prejudiced by any premature deliberations, if they occurred. But, having found Juror 11's affidavit inadmissible under CRE 606(b), the court should have ended its inquiry there. See United States v. Villar , 586 F.3d 76, 84 (1st Cir. 2009) (upon finding juror statements were inadmissible under Fed. R. Evid. 606(b), further inquiry was precluded); accord United States v. Brooks , 987 F.3d 593, 604 (6th Cir. 2021) ; United States v. Torres-Chavez , 744 F.3d 988, 998 (7th Cir. 2014) ; United States v. Brown , 934 F.3d 1278, 1303 (11th Cir. 2019) ; see also United States v. Baker , 899 F.3d 123, 132 (2d Cir. 2018) (collecting cases finding that inquiry into juror allegations that are barred under Fed. R. Evid. 606(b) would be "futile" because such inquiry would likewise run afoul of Rule 606(b) ).
¶ 39 For that reason, and because Archuleta presented no other evidence to support her motion for a new trial, we do not reach Archuleta's additional argument that the trial court abused its discretion by finding that "premature deliberations, if any occurred, did not prejudice" Archuleta.
III. Conclusion
¶ 40 We affirm the judgment of conviction.
JUDGE TERRY and JUDGE GOMEZ concur.