The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 23, 2020
2020COA108
No. 16CA2201, People v. Newman — Evidence — Competency
of Juror as Witness — Inquiry into Validity of Verdict or
Indictment — Extraneous Prejudicial Information
A division of the court of appeals addresses 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). The division concludes 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. Because the defendant presented credible evidence
that extraneous prejudicial information may have been introduced
to the jury, the division concludes that the trial court erroneously
denied the defendant’s motion for a new trial without affording him
an evidentiary hearing.
COLORADO COURT OF APPEALS 2020COA108
Court of Appeals No. 16CA2201
City and County of Denver District Court No. 15CR5700
Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Damon D. Newman,
Defendant-Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TOW
Román and Pawar, JJ., concur
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
¶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. 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
1
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
1The factual background set forth here is gleaned from the evidence
presented at trial. In the event Newman is successful in obtaining a
new trial on remand, we do not intend for this recitation to be taken
as having any preclusive effect, as the determination of the facts
would remain in the sole purview of a new jury.
2
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
3
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, 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
(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,
4
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.
5
¶ 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
6
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.
7
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
8
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 issue before us requires that we do so
now.
¶ 17 Though our supreme court has not defined the term, we do
find guidance in some of the court’s prior decisions.
¶ 18 In Harlan, during their deliberations in the death penalty
phase of a case, one or more jurors consulted various passages
from the Bible regarding the punishment for murder and
introduced that information into the jury room for consideration by
other jurors.
109 P.3d at 629. The court observed that “‘Holy
Scripture’ has factual and legal import for many citizens and the
actual text introduced into the deliberations without authorization
by the trial court plainly instructs mandatory imposition of the
death penalty, contrary to state law.”
Id. at 633. “Such a ‘fact’ is
not one presented in evidence in this case and such a ‘legal
instruction’ is not the law of the state or part of the court’s
instructions.”
Id. at 632. Thus, to the extent the Biblical passages
9
were considered legal, rather than factual, they were improper
because they conflicted both with Colorado law and with the trial
court’s instructions.
¶ 19 In Wiser v. People, 732 P.2d 1139 (Colo. 1987), a juror
consulted a dictionary for a definition of burglary, which was one of
the crimes with which the defendant was charged.
Id. at 1140. The
court concluded that the juror’s conduct was improper.
Id. at 1141.
“Jurors are required to follow only the law as it is given in the
court’s instructions; they are bound, therefore, to accept the court’s
definitions of legal concepts and to obtain clarifications of any
ambiguities in terminology from the trial judge, not from extraneous
sources.”
Id. (quoting Niemand v. Dist. Court,
684 P.2d 931, 934
(Colo. 1984)).
¶ 20 Indeed, Niemand also provides some guidance. In that case,
the supreme court was not directly addressing a claim involving a
juror introducing extraneous prejudicial information. Rather, the
trial court had already ordered a new trial because a juror had
independently researched various definitions in Black’s Law
Dictionary related to second degree murder and manslaughter. 684
P.2d at 932-33. The supreme court was asked to resolve whether,
10
having been convicted only of second degree murder in the first
trial, the defendant could be retried for first degree murder after his
conviction was vacated as a result of the juror’s misconduct. Id. at
934. But, relevant to our inquiry, in Niemand, the court
acknowledged that the juror’s misconduct included reviewing
definitions of terms such as “malice,” “depravity of heart,”
“passionless,” “implied malice,” and “atrocity,” among others. Id. at
932 & n.1. Significantly, these terms were not included in any of
the trial court’s instructions to the jury.
¶ 21 Finally, in Alvarez v. People, 653 P.2d 1127 (Colo. 1982), the
trial court had provided the jury with the standard definition of
“reasonable doubt.”
Id. at 1130 & n.7. “One of the jurors was
troubled as to whether her doubts were ‘reasonable,’ ‘imaginary,’ or
‘vague,’ terms used in the reasonable doubt instruction, and she
consulted her dictionary at home for the definitions of these words.”
Id. at 1130. After discussing her research with another juror, she
decided that her doubts were not reasonable, and she voted to find
the defendant guilty.
Id. The supreme court stated that “[t]here
can be no question but that a juror’s consultation of a dictionary to
11
assist in understanding legal terminology in the court’s instructions
is improper.” Id. at 1131.
¶ 22 Another division of this court faced a similar claim. In Holt,
the prosecution conceded, and the division agreed, that where the
defendant was charged with vehicular eluding, several jurors acted
improperly when they consulted a dictionary definition of “elude.”
However, the division rejected the defendant’s challenge to one
juror’s statement that, based on his personal experience, vehicular
eluding was a minor traffic violation the penalty for which is a “slap
on the wrist.” Holt,
266 P.3d at 444. The division observed that the
juror did not introduce into the jury room language from the
Colorado Revised Statutes or “an article purporting to describe or
characterize the penalty for vehicular eluding.”
Id. at 446. The
division stated that
[t]he emphasis on the exception for legal
content precludes any suggestion that lawyers
and other individuals trained in certain
aspects of the law may use knowledge acquired
through their training and experience in
deciding what law applies to resolve a matter
before them and share that knowledge with
other members of the jury.
Id. at 445-46 (emphasis added).
12
¶ 23 As these cases make clear, “legal content” means a statement
of law.
¶ 24 But does legal content include more than just statements of
law? For example, if a juror is a lawyer, is any comment related to
the legal aspects of the case necessarily within the proscription
against introducing “legal content”? For the reasons that follow, we
answer these questions “no.”
¶ 25 First, we are hesitant to construe “legal content” so broadly, as
too expansive a definition risks nullifying the General Assembly’s
intent that attorneys be permitted to serve as jurors. See Ch. 159,
sec. 6, § 16-10-103, 1998 Colo. Sess. Laws 466 (repealing the
statutory provision that automatically disqualified all lawyers from
serving on a jury). The legislature must have understood that
lawyers serving as jurors would, just as any other jurors,
necessarily draw on their experiences in performing their duties.
For example, a lawyer-juror must be able to draw on his or her
education and experience in assessing the evidence, and any
reasonable inferences to be drawn from it.
¶ 26 In United States v. McCall, No. CR 00-0505 WHA,
2009 WL
10681057 (N.D. Cal. Dec. 22, 2009), the United States District
13
Court for the Northern District of California rejected an argument
that a juror introduced extraneous information when she
“necessarily drew on her particular expertise [as a lawyer], not
common to all jurors as part of the personal experiences all jurors
bring to the deliberations.” Id. at *3. Citing precedent from the
Ninth Circuit, the court noted that “a juror’s personal experience
and knowledge including specialized professional training may be
part of jury deliberations and is not extrinsic evidence.” Id. (citing
Grotemeyer v. Hickman, 393 F.3d 871 (9th Cir. 2004)). Accordingly,
the court suggested that a lawyer-juror’s “general legal knowledge”
that is “not in any way specific to [the defendant] or the issues in
the present action” is not extraneous prejudicial information. Id. at
*4. The court reasoned that “[i]f defendant McCall were correct that
lawyers necessarily share ‘extrinsic information’ with other jurors
during deliberations by drawing on their expertise as attorneys, it
would be impossible for lawyers to serve on juries at all.” Id. at *3.
Moreover, the court also cautioned that “[o]ur system would grind
to a halt if venirepersons could be left on the jury and then be
criticized after the verdict for doing nothing more than what was
imminently (sic) foreseeable.” Id.
14
¶ 27 Although the McCall court did not speak in terms of “legal
content,” its reasoning is nevertheless applicable here. If we were to
construe the concept of “legal content” so broadly as to encompass
any information drawn from a lawyer-juror’s professional
background, attorneys would effectively be prohibited from serving
as jurors. But, as noted above, that would conflict with the intent
of our legislature. See Ch. 159, sec. 6, § 16-10-103, 1998 Colo.
Sess. Laws 466.
¶ 28 Nor can we conclude that a lawyer-juror’s legal training is
problematic merely because that lawyer-juror will have pre-existing
views about the law, or because his or her discussion of the case
during deliberations will necessarily involve his or her experience
with or understanding of legal principles and the legal system.
“[V]irtually every juror will have preconceived notions about the
legal process . . . .” Holt,
266 P.3d at 446 (quoting Fullwood v. Lee,
290 F.3d 663, 684 (4th Cir. 2002)). Construing “legal content” too
broadly ignores the fact that, “[a]s a practical matter, it is
impossible to select a jury free of preconceived notions about the
legal system or to prevent discussion of such information in the jury
room.”
Id. Indeed, “[n]either Kendrick nor prior supreme court
15
decisions evidence an intent to categorize such discussions as
extraneous information under CRE 606(b)(1).” Id. To do so could
expose jurors to greater post-trial scrutiny, which would undermine
CRE 606’s purpose to “promote finality of verdicts, shield verdicts
from impeachment, and protect jurors from harassment and
coercion.” Harlan,
109 P.3d at 624; see Holt,
266 P.3d at 446.
¶ 29 Finally, “we are compelled to err in favor of the lesser of two
evils — protecting the secrecy of jury deliberations at the expense of
possibly allowing irresponsible juror activity.” Garcia v. People,
997
P.2d 1, 7 (Colo. 2000) (quoting United States v. Thomas,
116 F.3d
606, 623 (2d Cir. 1997)). Narrowly construing “legal content”
prioritizes such secrecy and promotes free discussion during
deliberations.
¶ 30 Thus, we conclude that “legal content” in this context is
limited to statements of law.
2. Outside the Record
¶ 31 Turning to Kendrick’s second prong, we must explore when a
lawyer-juror’s statements will be deemed extraneous.
¶ 32 Clearly, if a juror conducts an independent investigation into
either the facts or the law, that juror introduces information from
16
outside the record. See Wadle, 97 P.3d at 937 (researching on the
internet to learn about the effects of an anti-psychotic medication
mentioned during testimony); Wiser,
732 P.2d at 1140 (consulting a
dictionary for a definition of the crime charged). But what if the
juror does not engage in an outside investigation, and relies on his
or her memory and knowledge? Where is the line between a lawyer-
juror appropriately drawing on his or her professional expertise and
education and improperly introducing legal content?
¶ 33 As the supreme court noted in Kendrick, “[t]he line between a
juror’s application of her background professional and educational
experience to the record evidence and a juror’s introduction of legal
content or specific factual information learned from outside the
record can be a fine one.” Kendrick,
252 P.3d at 1066.
¶ 34 The court in Kendrick “repeatedly emphasized that jurors may
properly rely on their professional and educational expertise to
inform their deliberations so long as they do not ‘bring in’ or
‘introduce’ legal content learned from outside the record.” Holt,
266
P.3d at 445 (citing Kendrick,
252 P.3d at 1056, 1063, 1065-66).
This admonishment safeguards the court’s exclusive authority to
instruct the jury. See Harlan,
109 P.3d at 624 (“[J]urors are
17
required to consider only the . . . law as given in the trial court’s
instructions . . . .”). In other words, the focus is on ensuring that
the trial court, and not the lawyer-juror, is the source of all the law
the jury considers.
¶ 35 Again, as the division recognized in Holt, lawyer-jurors may
not “use knowledge acquired through their training and experience
in deciding what law applies to resolve a matter before them and
share that knowledge with other members of the jury.” 266 P.3d
445-46. Thus, if the lawyer-juror (or any other juror) introduces a
statement of law that is inconsistent with or supplemental to the
instructions provided by the trial court, that statement is
necessarily outside of the record. Accord In re Stankewitz,
708 P.2d
1260, 1262 (Cal. 1985) (defining “extraneous law” for purposes of
impeaching a jury verdict as “a statement of law not given to the
jury in the instructions of the court”).
3. Relevant to Issues in the Case
¶ 36 The third prong of Kendrick requires that the challenged
information be relevant to the issues before the jury. 252 P.3d at
1064. Again, this is part of the threshold inquiry into whether a
18
party is entitled to an evidentiary hearing. Id. at 1063-64 (citing
Harlan,
109 P.3d at 624).
¶ 37 Recall that in Holt, the division rejected the defendant’s
challenge to a juror’s observation, based on his personal experience,
as to the severity of the offense and any potential punishment.
Although this was in part based on the division’s conclusion that
the statement was not legal content, it also noted that “the severity
of the vehicular eluding charge was not relevant to the issues in
this case.” Holt,
266 P.3d at 445.
¶ 38 In People v. Bohl, a juror in a homicide case had apparently
conducted independent research regarding decomposition of a body
after there was testimony that the body was decomposed during the
autopsy.
2018 COA 152, ¶ 19. However, the key issue in the case
was not how long the victim had been dead, but rather how long the
victim had endured blunt force trauma before she died, as that
related to whether the defendant had the requisite intent for first
degree murder. Id. at ¶ 20. The defendant was not entitled to
impeach the verdict because, in part, “any extraneous information
that [the juror] obtained was not relevant to a key issue at trial.” Id.
at ¶ 26 (citing Wiser,
732 P.2d at 1143).
19
¶ 39 And in Niemand, the juror misconduct involved researching
legal concepts that were related to the homicide charges at issue,
but were not specifically elements. 684 P.2d at 932 & n.1.
¶ 40 Thus, if a statement of law relates to the definition or elements
of the crime, it clearly satisfies the third prong of Kendrick. See,
e.g., Wiser, 732 P.2d at 1141. But statements of law are also
improper if they relate to any other issue before the jury. See Holt,
266 P.3d at 445.
4. Reasonable Possibility of Prejudice
¶ 41 Even if an attorney-juror introduces extraneous legal content,
however, the defendant must still demonstrate prejudice. Harlan,
109 P.3d at 625. The test for whether an “extraneous” statement is
also “prejudicial” is an objective one: “The relevant question for
determining prejudice is whether there is a reasonable possibility
that the extraneous information influenced the verdict to the
detriment of the defendant.”
Id. Under this test, “a reviewing court
cannot consider evidence of actual impact on specific jurors in the
case.”
Id. Instead, it must look solely to whether there was a
“realistic possibility that the communication would influence the
verdict of a typical juror.’” Wadle,
97 P.3d at 937.
20
¶ 42 In order to determine whether extraneous information created
such a realistic possibility, the court may consider the following
factors: (1) how the extraneous information relates to critical issues
in the case; (2) how authoritative is the source consulted; (3)
whether a juror initiated the search for the extraneous information;
(4) whether the information obtained by one juror was brought to
the attention of another juror; (5) whether the information was
presented before the jury reached a unanimous verdict; and (6)
whether the information would be likely to influence a typical juror
to the detriment of the defendant. Harlan, 109 P.3d at 625.
¶ 43 In sum, like any other juror, a lawyer-juror must refrain from
engaging in an independent investigation into a legal or factual
matter relevant to the case. See Clark, ¶ 222. But a lawyer-juror
must also refrain from introducing any statements of law (even if
from memory) that conflict with or are supplemental to the
instructions of law provided by the trial court. If a defendant
presents competent evidence, admissible under CRE 606(b), that a
lawyer-juror introduced such a statement of law related to an issue
that was before the jury, and that there is a realistic possibility that
21
this information would influence a typical juror in reaching a
verdict, the defendant is entitled to an evidentiary hearing.
IV. Analysis
¶ 44 Newman contends that the trial court erroneously denied his
motion for a new trial. He argues that, contrary to the findings of
the trial court, his supporting affidavit sufficiently alleged that six of
Juror M.O.’s statements constituted extraneous prejudicial
information improperly before the jury. Accordingly, he argues not
only that the court was permitted to consider the statements under
CRE 606(b), but that Juror M.O.’s misconduct warranted a new
trial. We address in turn each of Juror M.O.’s statements as
presented in the affidavit and relied upon by Newman in this
appeal.
A. Statement on the Significance of Character Witnesses
¶ 45 Juror S.P.’s affidavit alleged that during deliberations, Juror
M.O. produced a piece of paper with a definition written on it. She
recounted the incident as follows:
On the morning of August 15, 2016, during
deliberations and prior to reaching a verdict,
the juror who works as a lawyer addressed the
group. He said he had been thinking all
weekend about the character witnesses not
22
being asked certain questions about Mr.
Newman’s personality. He said “I knew taking
the bar would come in handy” and then pulled
a piece of paper out of his pocket with a
definition of law on it. It was something about
character witnesses. I could not see what was
written on the paper because I was sitting on
the opposite side of the table.
I do not recall the specific wording of the
definition but it included what could and could
not be asked of character witnesses. The
lawyer did not provide us with the source of
this information. Since he said taking the bar
came in handy I assumed it was a legal
definition.
The lawyer read the definition off of the piece
of paper. After reading the definition the
lawyer told the group something to the effect
of, Mr. Newman is a bad guy or they would
have asked different questions and you should
infer that from the lack of questions asked of
the character witnesses.
The parties do not dispute that the lawyer referred to in the affidavit
was M.O.
¶ 46 The People concede, and we agree, that the affidavit
sufficiently alleged that Juror M.O. introduced extraneous
information into deliberations under CRE 606(b). The affidavit
unequivocally describes Juror M.O. presenting a legal definition.
Indeed, the affidavit suggests that, rather than drawing from his
23
background legal knowledge, Juror M.O. conducted outside
research and shared the results of that research with other jurors.2
And while Juror S.P. could not recall the precise definition that
Juror M.O. offered, the affidavit nonetheless alleges that Juror M.O.
shared a statement of law pertaining to the admissibility of
character evidence. Moreover, as the statement was used to draw
inferences as to Newman’s character, it was relevant to Newman’s
credibility. See People v. Hall, 107 P.3d 1073, 1075 (Colo. App.
2004) (“[C]haracter evidence may be defined as evidence that
directly relates to the general credibility of the witness . . . .”
(quoting 28 Charles A. Wright & Victor J. Gold, Federal Practice and
Procedure § 6113 (1993))). Given the nature of the case, Newman’s
credibility was critical. Thus, the affidavit provided competent
evidence that Juror M.O. introduced “legal content . . . learned from
outside the record and relevant to the issues in a case.” Kendrick,
252 P.3d at 1064.
2 To be sure, the allegation that Juror M.O. injected this definition
into the jury’s deliberations is alone sufficient to allege the
introduction of extraneous legal content; the fact that this legal
definition was apparently the product of independent research
rather than stated by Juror M.O. from memory merely compounds
the misconduct.
24
¶ 47 However, the People dispute that Juror M.O.’s statement, as
described in the affidavit, was prejudicial. Specifically, the People
cite to Holt for the proposition that the affidavit was insufficient to
support such a finding because it did not describe Juror M.O.’s
statement with more specificity. The People’s argument, however,
misses the point.
¶ 48 In Holt, the trial court conducted a hearing on the defendant’s
request for a new trial. 266 P.3d at 443. In other words, Holt does
not stand for the proposition that the affidavit and motion alone
must proffer sufficient evidence to establish Newman’s right to a
new trial. Rather, as noted above, Newman need only bring forth
sufficient admissible evidence to demonstrate that he may be so
entitled. By doing so, Newman is then entitled to a hearing at
which he can further develop his claim. Here, the trial court denied
Newman’s motion without a hearing, even though Newman
specifically requested that the trial court hold an evidentiary
hearing on the motion.
¶ 49 As noted, Newman asserts that Juror M.O. provided a
definition of character evidence and used it to urge the jury to reject
Newman’s credibility and conclude that he was a bad person. We
25
conclude that this is competent evidence and that a typical juror
may have been swayed by this extraneous information.3 Because
Newman “has put forth competent evidence, in the form of an
affidavit, which indicates prejudicial extraneous information may
have been before the jury,” he is entitled to an evidentiary hearing.
Clark, ¶ 239. At the evidentiary hearing, Newman should be given
the opportunity to present evidence “regarding the source of the
extraneous information, the manner of its acquisition, its content,
and its presence and use in the jury room during deliberations.”
Harlan, 109 P.3d at 625.4
¶ 50 On remand, the trial court cannot consider any evidence of
Juror S.P.’s reaction to Juror M.O.’s statement, and instead must
solely determine whether there was a “realistic possibility that the
communication would influence the verdict of a typical juror.’”
Wadle,
97 P.3d at 937. Thus, we reject Newman’s argument that
3 Of course, our inquiry is limited to the threshold question of
whether Newman has presented enough evidence to be entitled to a
hearing. The ultimate determination of whether there was
extraneous prejudicial information introduced to the jury remains
for the trial court to make upon the conclusion of the hearing.
4 This necessarily means that Newman’s counsel should be provided
the necessary information to contact M.O. in order to call him to
testify at the hearing.
26
we — and presumably the trial court — need not ask how a typical
juror would have reacted, because we know how S.P. did react.
This contention misunderstands the purpose of focusing on the
typical juror. S.P.’s — or any other juror’s — testimony about
specific reactions to this extraneous information is prohibited by
CRE 606(b). Harlan, 109 P.3d at 625 (“[A] reviewing court cannot
consider evidence of actual impact on specific jurors in the case.”).
B. Statement on the Significance of a Buccal Swab
¶ 51 Juror S.P. described the following discussion regarding
Newman’s prior buccal swab:
I am not certain if the discussion regarding Mr.
Newman’s prior record began on Friday or
Monday morning. On Monday however, it was
discussed at length and another juror, [P.S.],
commented that Mr. Newman had to have
committed other felonies to get a buccal swab
done. She presented this to the group as a
fact. She told the group that it was likely to
have been a prior sex offense. [Juror P.S.] told
the group she had been on three other juries.
The attorney said that [Juror P.S.] was correct.
I tried to propose additional ways DNA would
be entered into the system but the lawyer and
[Juror P.S.] stated that I was wrong and it
absolutely had to have been a felony. It was
written on the board as a reason to convict.
27
¶ 52 The affidavit indicates that Juror M.O. agreed with, and later
reiterated, another juror’s conclusion that Newman “had to have
committed other felonies to get a buccal swab done.” But the
statement is not one of law. Nor is it the introduction of new
factual information. Rather, it is a factual conclusion drawn from
the evidence before the jury. Thus, the affidavit does not allege that
Juror M.O. introduced any “legal content [or] specific factual
information.” Kendrick, 252 P.3d at 1064. Nor does it suggest that
Juror M.O. did anything more than permissibly apply his
professional or general background to the record evidence.
Accordingly, as to this statement, the affidavit did not provide
competent evidence of extraneous prejudicial information.
Id. As
such, this statement is inadmissible and cannot be considered by
the trial court. CRE 606(b).
C. Statement on Prior Bad Acts Evidence
¶ 53 Juror S.P. further alleged as follows:
The lawyer told the group that Mr. Newman
was not asked about his sex life because those
questions would have allowed for the district
attorney to ask about all the prior things Mr.
Newman was accused of or convicted of.
28
¶ 54 This allegation presents a closer call. On the one hand, the
statement does not explicitly state that Juror M.O. offered a specific
statement of what the law was in this area, as opposed to simply
drawing an inference regarding what the lack of evidence may
mean. Seen in this way, Juror M.O.’s statement arguably does no
more than describe his “mental processes” during deliberations. On
the other hand, his statement appears to explain, albeit incorrectly,
rules of evidence concerning the admissibility of prior acts evidence.
And, although the affidavit does not allege that Juror M.O.
conducted outside research to obtain a specific rule or legal
definition, as noted above, even a statement made from memory can
introduce extraneous legal content if it is a statement of law that is
inconsistent with or supplemental to the trial court’s instructions.
¶ 55 Further, as alleged, this statement implicates Newman’s
character. As our supreme court has recognized, character
evidence can be properly used “to discredit the truthfulness of a
defendant,” but is also capable of being improperly used “to prove
the defendant committed the offense charged.” People v. Harding,
104 P.3d 881, 887 (Colo. 2005), overruled on other grounds by
29
Moore v. People, 2014 CO 8. Either way, the statement was related
to an issue before the jury.
¶ 56 In context, the lawyer-juror’s alleged statement may have been
an expression of what the law is in this critical area. Thus,
Newman has met the threshold to obtain an evidentiary hearing on
this allegation.
D. Statement on Ineffective Assistance of Counsel and Attorney
Misconduct
¶ 57 Juror S.P. alleged that Juror M.O. offered the following
reasoning to discount part of Newman’s testimony:
During deliberations I asked the rest of the
jury about Mr. Newman’s testimony that he
had [the complaining witness’s] number in his
phone. The attorney stated they don’t have the
phone, it does not exist, Mr. Newman is a liar.
He told the group that if they had the phone
they would have brought it. The attorney told
us that if they had the phone Mr. Newman
could file against his attorneys for incompetent
counsel and the attorneys could be disbarred.
The attorney presented this to the group as if it
was the law.
¶ 58 The first part of Juror M.O.’s statement is not one of law.
Rather, it is a reasonable inference that any juror could draw from
the fact that the phone was not presented as evidence — i.e., that
30
the phone messages did not exist and that Newman’s testimony was
not credible.
¶ 59 The second part of Juror M.O.’s statement concerning attorney
misconduct is arguably one of law. But even if this statement
constituted legal content, it was not “relevant to the issues in [the]
case,” Kendrick, 252 P.3d at 1064, as the issue of whether
Newman’s attorney was competent was not before the jury. See
Holt,
266 P.3d at 445 (holding that a juror’s statement regarding the
severity of the charge was not relevant to the issues in the case
because the jury does not consider punishment when deliberating).
Because the first part of the statement was neither legal content nor
factual information, and the second part of the statement (to the
extent it was legal content) was not relevant to the issues before the
jury, this statement is also inadmissible under CRE 606(b).
E. Statement That the Complaining Witness Did Not Have to
Participate in the Trial
¶ 60 As to the complaining witness’s credibility, Juror S.P. alleged
that Juror M.O. made the following statements:
At another point during deliberations the
attorney told the group that [the complaining
witness] did not have to be at trial. He said
[she] had the power to drop the charges and
31
never be contacted about this again. The
attorney told us that [the complaining witness]
must be telling the truth since she is still
coming to court five years later.
The lawyer told us [the complaining witness]
could have walked away at any point in the
last five years and this would have been let go.
He said if this did not happen [she] would have
simply walked away. He told us that it was
[the complaining witness’s] choice to come
relive the event and experience it all over
again. The lawyer told the group that by
choosing to testify [the complaining witness]
placed herself in danger of perjury charges and
jail time if she were not telling the truth. He
said she would never take that risk if she was
lying. The attorney was very sure [the
complaining witness] did not have to continue
with the case and could have walked away
without any repercussion.
¶ 61 The statements as recounted in the affidavit were not
statements of law or factual information. Rather, Juror M.O. was
simply offering his opinion as to why the jury ought to believe the
complaining witness. To the extent his statements touched on the
possibility of perjury charges, the affidavit does not indicate that he
provided any sort of definition or explanation of perjury. Indeed,
any lay juror could, in similar circumstances, opine that a witness
should be believed because that witness would not likely perjure
himself or herself; we cannot see how the fact that a lawyer-juror
32
says it would give it any more weight. Thus, in our view, Juror
M.O. was not introducing a statement of law, but was permissibly
applying his professional or general knowledge to inform
deliberations. See Kendrick, 252 P.3d at 1066; Holt,
266 P.3d at
447. Thus, the affidavit lacks the necessary content to provide even
a threshold showing of competent evidence that the information
was prejudicial. Therefore, this statement is inadmissible. CRE
606(b).
F. Statement That a Non-Unanimous Verdict Would Result in a
Mistrial
¶ 62 Finally, Juror S.P. questioned what would happen if the jury
did not reach a unanimous verdict. She alleged in her affidavit that
Juror M.O. offered the following answer:
[Juror M.O.] told us that it would result in a
hung jury and a mistrial. He told us that
would require a new trial but that would never
happen. He said [the complaining witness]
would never come back and testify again. He
told us it would be too traumatic for her and
we would be letting a rapist back out into the
community.
¶ 63 First, the affidavit does not allege that Juror M.O. suggested
that Newman legally could not be retried. Thus, in our view, his
statement that a new trial would not occur was not a statement of
33
law. And to the extent his comment about the consequences of not
reaching a unanimous verdict — i.e., a hung jury and a mistrial —
could be considered a statement of law, it was not relevant to the
elements of the charge or to any other issue before the jury. Thus,
this statement, too, is inadmissible. CRE 606(b).
V. Conclusion
¶ 64 The judgment of conviction is vacated. The case is remanded
to the trial court with instructions to hold an evidentiary hearing
regarding the allegations pertaining to Juror M.O.’s introduction of
a statement of law concerning character evidence and his statement
concerning the implication of Newman not having been asked about
prior conduct. If, after the hearing, the trial court finds that Juror
M.O. introduced extraneous legal content that was prejudicial to
Newman, it shall grant the motion for new trial. If the trial court
again denies the motion for new trial, it shall resentence Newman
and enter a new judgment of conviction.
JUDGE ROMÁN and JUDGE PAWAR concur.
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