October 20, 2017

Colorado Court of Appeals: Jury Foreman’s Affidavit Allowable Under CRE 606(b) Due to Mistake in Entering Verdict

The Colorado Court of Appeals issued its opinion in Malpica-Cue v. Fangmeier on Thursday, April 6, 2017.

Mistake on Special Verdict Form—CRE 606(b).

Malpica-Cue sued Fangmeier for damages resulting from a car accident. After trial, the jury filled out a Special Verdict Form B that included three different damages amounts. All six jurors signed the form, and the judge read the verdict and each separate amount of damages aloud in open court. The jury foreman confirmed the verdict. Counsel for both parties declined to poll the jury.

Fangmeier filed a post-trial motion averring that while the jurors were still in the courthouse, defense counsel spoke with some of them about the amount of damages they had awarded. They said they had intended to award $2,500 for noneconomic losses, $18,373.38 for economic losses, and $0 for physical impairment or disfigurement. The total damages intended, $20,873.38, had mistakenly been added together and inserted on the line for physical impairment and disfigurement, making the total damages $41,746.76. Defense counsel told the court clerk that all six jurors agreed they had made a mistake on the verdict form and wanted to fix it. The judge denied counsel’s request to reconvene the jury that day and told him to file a motion.

Fangmeier filed a motion asking the court to vacate the jury verdict awarding $41,746.76 and enter judgment awarding $20,873.38. The motion included an affidavit from the jury foreman saying the jury had made a mistake. The district court denied the motion, stating that CRE 606(b) precluded it from considering the foreman’s affidavit.

On appeal, Fangmeier argued that the foreman’s affidavit should not have been precluded because an exception to Rule 606(b) allows jury testimony regarding “whether there was a mistake in entering the verdict onto the verdict form.” Here, all the jurors agreed that there should have been no recovery for physical impairment or disfigurement and the foreman misread the jury form, so the exception applies. While the affidavit by itself does not require the verdict to be changed, Fangmeier is entitled to an evidentiary hearing on the issue. Thus, it was error to not reconvene the jurors on the day the trial ended and in later failing to reconvene the jurors to ascertain the true verdict in response to the post-trial motion.

The order was vacated and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Inconsistent Answers on Special Interrogatories Do Not Render Verdict Invalid

The Colorado Court of Appeals issued its opinion in People v. Rail on Thursday, February 25, 2016.

Sexual Assault on a Child—Jury—Polling—Verdict Forms—Interrogatories—Waiver—Simple Variance—Expert Witness—Colorado Sex Offender Lifetime Supervision Act of 1998.

B.H. testified that beginning when she was about 5 years old and continuing for several years, Rail showed her sexually explicit photos and then subjected her to sexual contact.

On appeal, Rail contended that his convictions for sexual assault on a child (SAOC) and the pattern enhancer cannot stand because the jury’s answers to the unanimity and pattern interrogatories conflicted with each other and with the guilty verdict on the SAOC charge, thus constituting structural error. The jury received separate verdict forms for both the SAOC and the sexual assault on a childposition of trust (SAOC-POT) charges. The trial court polled the jury, but the partial polling left two inconsistencies unresolved: First, on the SAOC general verdict form, the jury found Rail guilty, while it indicated on the unanimity interrogatory that none of the four incidents had been proved. Second, the jury’s answers to the unanimity interrogatory marked the four incidents as not proved, but on the pattern interrogatory, it marked those same four incidents as proved. The Court of Appeals held that inconsistent interrogatory answers do not constitute structural error. Because defense counsel did not object to the inconsistencies when the trial court announced the verdicts and did not request further polling, Rail waived appellate review of this issue.

Rail next contended that the trial court’s response to a jury question during deliberations constructively amended the information as to the SAOC charge, requiring reversal. The Court found that by allowing the jury to find Rail guilty of a sexual assault that occurred outside the time frame alleged in the information, the trial court allowed a simple variance from the information, not a constructive amendment to it. Because Rail failed to show how he was prejudiced by the simple variance, reversal was not required.

Rail further asserted that the trial court violated his constitutional rights to due process and a fair trial by admitting expert testimony on the general behavior of child sexual abuse victims. Because the expert’s testimony was reliable, did not impermissibly bolster B.H.’s credibility, and was not unfairly prejudicial, the trial court did not abuse its discretion in qualifying the witness as an expert and permitting her to testify regarding the behavior of child sex abuse victims.

Rail also challenged the constitutionality of the Colorado Sex Offender Lifetime Supervision Act of 1998. The Court found this argument meritless.

The judgment of conviction was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Insanity Defense Applies At the Time of Commission of the Act

The Colorado Court of Appeals issued its opinion in People v. Eastwood on Thursday, October 22, 2015.

Not Guilty by Reason of Insanity—Unlawful Possession of a Weapon on School Grounds—Attempted Murder—Assault—Child Abuse Resulting in Injury.

Defendant took a loaded rifle to his former middle school, where he shot and injured two students. A jury found him not guilty by reason of insanity on 10 of 11 counts, but guilty of unlawful possession of a weapon on school grounds.

On appeal, defendant contended that the evidence was not sufficient for a jury to conclude that he was sane when he unlawfully possessed a weapon on school grounds. Whereas the charged crimes of attempted murder, assault, and child abuse resulting in injury were limited to the few seconds in which defendant fired his rifle, the weapon possession charge spanned a longer time period. The jury could have viewed the evidence as demonstrating that, before the shooting, defendant was able to rationally interact with the clerk at the sporting goods store, the restaurant employee, and staff members and children at the school.

Further, some of the experts’ testimony supported the conclusion that although defendant was insane when he fired the shots at the children, he was able to appreciate the wrongfulness of his conduct at other times that day. Taken together, the lay person and expert testimony was sufficient for the jury to conclude beyond a reasonable doubt that defendant was sane when he arrived at the school with a rifle, even if the jury was not convinced beyond a reasonable doubt that defendant was sane when he actually fired the shots later that afternoon. The judgment, sentence, and order were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Determination that Defendant’s Negligence Did Not Cause Plaintiff’s Injuries Acceptable

The Colorado Court of Appeals issued its opinion in Vititoe v. Rocky Mountain Pavement Maintenance, Inc. on Thursday, June 18, 2015.

Personal Injury—Challenges to Jurors and Jury Verdict and Jury Instructions.

Plaintiff was riding his motorcycle late at night. Shortly after making a U-turn, he collided with a lowboy trailer that was connected to a tractor driven by an employee of defendant. The collision occurred as the tractor was either stopped or beginning to proceed through an intersection controlled by a traffic signal that had turned green.

Plaintiff alleged negligence on the part of the truck driver. Plaintiff’s expert opined that defendant’s employee had worked more than the allowable fourteen-hour day and was likely tired and inattentive at the intersection and stopped for an unreasonable amount of time. Another expert for plaintiff testified that the taillights were positioned too low. The jury returned a special verdict form finding defendant was negligent but its negligence was not a cause of plaintiff’s injuries. Judgment was entered for defendant.

On appeal, plaintiff argued that some of the jurors made prejudicial statements during voir dire concerning motorcyclists’ helmet use, and that the trial court erred by refusing to canvass the jurors on that topic, give a limiting instruction, or declare a mistrial. The Court of Appeals disagreed. In Colorado, evidence of a plaintiff’s failure to wear a helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. If the jury learns a motorcyclist was not wearing a helmet, a limiting instruction may be required. When a prospective juror makes a potentially prejudicial statement during voir dire, the trial court may issue a curative instruction, canvass the jury, or declare a mistrial. Whether a statement is potentially prejudicial depends significantly on the facts and circumstances. Here, no juror expressed an opinion that plaintiff was negligent for not wearing a helmet and, in fact, there was no evidence allowed as to whether or not plaintiff wore a helmet.

Plaintiff argued that the evidence admitted at trial did not support the jury’s verdict. After reviewing the evidence presented, the Court found that there was competent evidence to support the verdict.

Plaintiff argued that the court erroneously instructed the jury by not omitting any reference to the doctrine of assumption of risk because the evidence did not support it. The Court found that testimony from a detective that plaintiff “accelerated toward something he saw” supported the instruction regarding assumption of risk.

Plaintiff argued that the court erred by instructing the jury that the law presumes a driver is negligent if the driver hits another vehicle in the rear. Plaintiff contended that the instruction should not have been given because this was not a rear-end collision, but a barrier crash. The Court found no authority to suggest that hitting the lowboy trailer, even if not moving forward, constituted a barrier crash as opposed to a type of rear-end collision. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Underlying Rationale in General Steel Ruling Applicable to Court Actions

The Colorado Supreme Court issued its opinion in Boyer v. Health Grades, Inc. on Monday, June 1, 2015.

Abuse of Process—First Amendment Right to Petition.

Boyer and Singson, defendants in a suit brought by Health Grades, petitioned for review of the court of appeals’ judgment declining to affirm a favorable jury verdict on their counterclaim for abuse of process. The court of appeals remanded the case to the district court and ordered reversal of the verdict unless that court were to find that the claims initially brought by Health Grades were devoid of reasonable factual support or had no cognizable basis in law, in accordance with the appellate court’s understanding of the mandate of Protect Our Mountain Environment v. District Court (POME), 677 P.2d 1361 (Colo. 1984). On rehearing, the appellate court modified its opinion, expressly evaluating the recent judgment of the Supreme Court in General Steel Domestic Sales, LLC v. Bacheller, 291 P.3d 1 (Colo. 2012), which had found the heightened abuse of process standards of POME inapplicable to the filing of an arbitration complaint implicating a purely private dispute. Based on its own exegesis of POME and its progeny, as well as POME’s roots in federal jurisprudence, the court of appeals concluded that nothing in General Steel required the modification of its remand order.

The Court reversed the judgment of the court of appeals, holding that the underlying rationale for its judgment in General Steel concerning arbitration proceedings is equally applicable to actions filed in courts of law. Because it is uncontested by the parties that the action filed by Health Grades involved a purely private dispute, the Court remanded the matter with directions to affirm the jury’s verdict.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Protecting the Secrecy of Jury Deliberations is of Paramount Importance in Our Justice System

The Colorado Supreme Court issued its opinion in Pena-Rodriguez v. People on Monday, May 18, 2015.

Secrecy of Jury Deliberations—CRE 606(b)—Sixth Amendment Right to Impartial Jury.

After entry of a guilty verdict, defense counsel obtained juror affidavits suggesting that one of the jurors exhibited racial bias against defendant during deliberations. The Supreme Court granted certiorari to consider whether CRE 606(b) applies to such affidavits and, if so, whether the Sixth Amendment requires their admission. The Court held that the affidavits regarding the juror’s biased statements fall within the broad sweep of CRE 606(b) and that they do not satisfy the rule’s “extraneous prejudicial information” exception. The Court further held that the trial court’s application of CRE 606(b) did not violate defendant’s Sixth Amendment right to an impartial jury. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Verdict Forms Did Not Offer Jury Opportunity to Find Elements of Crime Committed

The Colorado Supreme Court issued its opinion in Sanchez v. People on Monday, May 12, 2014.

Criminal Law—Jury Instructions.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for sexual assault on a child as part of a pattern of abuse. The trial court entered judgment of conviction for a class 3 felony on the basis of its finding of two out of six enumerated touching incidents presented on a verdict form entitled “Sexual Assault on a Child–Pattern of Abuse.” A majority of the court of appeals found that defendant had been adequately charged in a single count with both the elements of sexual assault on a child and the pattern-of-abuse sentence enhancer, apart from the count charging simply sexual assault on a child. The court of appeals also held that the jury’s instructions did not make the finding of a pattern of abuse contingent on first finding defendant’s guilt of the separately charged crime of sexual assault on a child.

The Supreme Court reversed the court of appeals’ judgment affirming defendant’s conviction of sexual assault on a child. The Court found that the verdict form by which the jury found defendant guilty of sexual assault on a child–pattern of abuse did not offer the jury an opportunity to find that he committed the elements of sexual assault on a child, and instead reflected at most the jury’s factual finding of two different incidents of sexual contact.

Summary and full case available here.

Colorado Supreme Court: Defendant Did Not Overcome Presumption of Regularity Regarding Incorrect Verdict Forms in Record on Appeal

The Colorado Supreme Court issued its opinion in LePage v. People on Monday, February 24, 2014.

Presumption of Regularity.

The Supreme Court considered whether the court of appeals correctly applied the presumption of regularity when it determined that the jury did not receive the correct verdict forms. The trial judge read to the jury the correct elemental instructions and verdict forms; therefore, it can be inferred that the jury received the correct verdict forms. When the record was certified on appeal, however, one of the verdict forms was stapled to a refused jury instruction that was not given to the jury, raising the inference that the jury in fact may not have received the correct verdict forms.

The Court held that defendant failed to show that the jury did not receive the correct verdict forms. The court of appeals had affirmed the trial court’s judgment, holding that failure to give the jury the verdict form for the lesser included offense was not reversible error. The Supreme Court, however, affirmed the trial court’s judgment because defendant did not show that the trial court erred. Therefore, the Court affirmed the court of appeals’ judgment on other grounds.

Summary and full case available here.

Tenth Circuit: Jury’s Award in Breach of Insurance Contract Case Affirmed

The Tenth Circuit published its opinion in Ryan Development Company v. Indiana Lumbermens Mutual Insurance Company on Wednesday, March 27, 2013.

This case arose from a fire that destroyed a Texas manufacturing facility in April 2009. The owner of the facility, Agriboard, manufactured building panels made of compressed straw. At the time of the fire, Agriboard was insured under a fire and related losses insurance policy issued by Indiana Lumbermens Mutual Insurance Company (“ILM”) with various coverages, including lost income. ILM paid $450,000. Agriboard sued ILM for breach of an insurance contract, and ILM paid $1.8 million. Agriboard continued to seek recovery under the policy, but ILM refused to pay the amount requested. Agriboard re-filed suit, seeking $2.4 million in unpaid coverage.

The jury awarded Agriboard $2,261,166 for breach of contract. ILM renewed its motion for judgment as a matter of law, or in the alternative, for a new trial, asserting four grounds for relief: (1) prejudicial remarks in Agriboard’s closing arguments; (2) confusing and inappropriate jury instructions; (3) inadmissible expert testimony; and (4) a verdict unsupported by the evidence. The trial court denied the motion. ILM appealed.

At issue on appeal was ILM’s motion for a new trial.

First, ILM argued it was entitled to a new trial because Agriboard’s accountants offered expert testimony after the trial court ruled in limine that such testimony was inadmissible. Because the district court admitted the accountants’ testimony under FRE 701, where a non-expert witness may offer opinions not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, the Tenth Circuit held that the district court did not abuse its discretion in admitting the accountants’ testimony.

Second, ILM challenged certain jury instructions, asserting they were (1) inappropriate because Agriboard never elicited testimony that the policy was ambiguous, and (2) designed to confuse the jury. The Tenth Circuit’s review of the record confirmed the district court’s finding that the instructions on how to interpret an insurance policy and what to do when the policy and endorsement conflict were suitable for the jury.

Third, ILM argued a new trial was warranted because Agriboard’s counsel made improper remarks during closing arguments. The decision to grant a new trial based upon counsel’s misconduct is left largely to the discretion of the district court. A new trial is appropriate only if the moving party shows that it was prejudiced by the attorney misconduct. Because the jury was instructed that closing arguments are not evidence, any remarks were brief and unlikely affected Agriboard’s substantial rights, particularly given that the jury was instructed to follow the law as the judge explained.

Finally, ILM argued the verdict was not supported by the evidence. When a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence. Absent an award that shocks the judicial conscience or raises an irresistible inference that passion, prejudice, corruption or other improper cause played a part in the jury’s damage award, an appeals court will not disturb the jury’s damage award. Ample evidence was introduced at trial for the jury to conclude that ILM breached its contract. Thus, the trial court did not abuse its discretion.

AFFIRMED.

Colorado Court of Appeals: Juror’s Racially Biased Statements Made During Deliberations Were Personal Opinion and Not Outside Influence

The Colorado Court of Appeals issued its opinion in People v. Pena-Rodriguez on Thursday, November 8, 2012.

Jury—Racial Bias—Deliberations—Voir Dire—Misrepresentation—CRE 606(b)—Unconstitutional as Applied.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of unlawful sexual contact and harassment. The judgment was affirmed.

Defendant contended that the trial court abused its discretion by not properly addressing allegations of Juror 11’s racial bias and denying defendant’s motion for new trial. After the jury returned its verdict and was dismissed, two jurors told defense counsel that a juror—later identified as Juror 11—had made racially biased statements during deliberations. Those two jurors completed affidavits describing the statements of racial bias, which were shared with the court. However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific questions about the subject of the misrepresentation during voir dire, which defendant failed to do in this case. Juror 11 inadvertently misrepresented his law enforcement background during voir dire; however, his employment in law enforcement ended more than four decades before trial, and defendant failed to prove this misrepresentation resulted in actual bias. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for new trial.

Defendant also contended that, because the statements of bias attributed to Juror 11 in the juror affidavits showed deliberations were corrupted by extraneous prejudicial information or an outside influence, he is entitled to a new trial. CRE 606(b) broadly prevents attacks on verdicts using information from jury deliberations. Because the statements at issue illustrate Juror 11’s beliefs and opinions and not any outside influence, the juror affidavits describing statements of racial bias made during deliberations do not fall under the outside influence exception to 606(b). Thus, because the juror affidavits were inadmissible, the record contains no admissible evidence of Juror 11’s bias. Furthermore, because defendant failed to conduct specific voir dire on racial bias, his challenge as to whether CRE 606(b) was unconstitutional as applied failed.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Requiring Jury to Determine Penalties but Error was Corrected in Trial Court and Therefore There Was No Harm

The Colorado Court of Appeals issued its opinion in Graham v. Zurich American Insurance Co. on Thursday, November 1, 2012.

Employment—Colorado Wage Claim Act—Penalties—Jury—Attorney Fees.

Zurich American Insurance Company appealed from the trial court’s final judgment in favor of Michael Graham. The judgment was affirmed and the case was remanded.

After being terminated from his job at Zurich, Graham brought an action to recover certain bonuses that, in his view, constituted unpaid wages under the Colorado Wage Claim Act. The jury found in Graham’s favor and awarded $28,326.98 in damages, but it failed to add certain penalties that are mandatory under the Wage Claim Act. After the court gave the jury additional instructions, the jury entered a verdict in favor of Graham that included penalties. The court entered judgment on the first verdict in the amount of $28,326.98, plus penalties and interest.

Zurich contended that the court erred in granting judgment for Graham. It is the jury’s responsibility to make the necessary factual findings as to whether the employee made a written demand for payment, whether the employer paid the employee within fourteen days, and whether the employer’s failure to pay was willful. After receiving the jury’s factual findings, the court is then responsible for determining the penalties as a matter of law. Here, the court erred in requiring further deliberations after it received the first verdict. The court should have recognized that the first verdict contained all the necessary factual findings, and it should have corrected the jury’s determination of penalties as a matter of law. Therefore, although the court erred in further instructing the jury to determine penalties, it corrected its error by entering judgment on the first verdict and determining penalties based on the jury’s factual findings. The judgment was affirmed and the case was remanded to the court to determine, in its discretion, whether Graham should be awarded the reasonable attorney fees he incurred in defending this appeal.

Summary and full case available here.