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ADVANCE SHEET HEADNOTE
September 17, 2018
No. 16SC114, Johnson v. Schonlaw — Jury Deliberations — Conduct Affecting Jurors — Risk of Prejudice — Harmless Error.
Johnson sought review of the court of appeals’ judgment reversing jury verdicts in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the close of the case, the district court overruled the objections of Schonlaw and VCG to its announced decision to allow the alternate to deliberate to verdict with the other jurors. The court of appeals concluded that the trial court had erred in allowing an alternate juror to participate in jury deliberations over the objection of a party, and that the error gave rise to a presumption of prejudice, which remained unrebutted by Johnson, and therefore required reversal.
The supreme court reverses, holding that, because the errоr did not affect the substantial rights of any defendant, it should have been disregarded as harmless, as required by C.R.C.P. 61.
The Supreme Court of the State of Colorado
2 East 14 th Avenue • Denver, Colorado 80203
Supreme Court Case No. 16SC114 Certiorari to Colorado Court of Appeals Court of Appeals Case No. 13CA802 Petitioner:
Albert Johnson,
v. Respondents: Ryan Lee Schonlaw and VCG Restaurants Denver, Inc., d/b/a PT’s ALL NUDE, a Colorado
corporation.
Judgment Reversed
en banc September 17, 2018 Attorneys for Petitioner:
The Viorst Law Offices, P.C.
Anthony Viorst
Denver, Colorado
Attorneys for Respondents:
Berg Hill Greenleaf Ruscitti LLP
Rudy E. Verner
Boulder, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Darling Milligan Horowitz PC
Jason B. Wesoky
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HART concurs in the judgment.
JUSTICE GABRIEL dissents, and JUSTICE HOOD joins in the dissent. *3 Johnson sought review of the court of appeals’ judgment reversing jury verdicts
¶1 in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the close of the case, the district court overruled the objections of Schonlaw and VCG to its announced decision to allow the alternate to deliberate to verdiсt with the other jurors. The court of appeals concluded that the trial court had erred in allowing an alternate juror to participate in jury deliberations over the objection of a party, and that the error gave rise to a presumption of prejudice, which remained unrebutted by Johnson, and therefore required reversal. Because the error in this case did not affect the substantial rights of either
Schonlaw or VCG, it should have been disregarded as harmless, as required by C.R.C.P. 61. The judgment of the court of appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
I. Albert Johnson filed suit against VCG Restaurants Denver, Inc., d/b/a/ PT’s All
Nude, its managing agency, and a number of its employees, including Ryan Lee Schonlaw, asserting claims arising from injuries he sustained just outside the nightclub at closing. One of the defendants was dismissed before trial, and of the remaining defendants, the jury returned verdicts finding Schonlaw liable on claims of battery and intentional infliction of emotional distress and VCG liable for battery, intentional infliction of emotional distress, and negligent supervision. The district court ultimately entered judgments of $74,452.83 against Schonlaw and $246,462 against VCG.
¶4 While there was conflicting testimony about the altercation in which Johnson was injured, it appeared undisputed that Johnson suffered serious facial injuries requiring surgery, caused either by a blow inflicted by Schonlaw or by Johnson’s face coming into contact with the ground as the result of that blow or lost footing during a struggle with Schonlaw and at least one of the club’s other employees. It was also undisputed that the employees involved in the confrontation, or “courtesy patrol members,” were all substantially larger thаn the 5’10’’, 168 -pound Johnson, two of whom were described as former University of Colorado football players, one weighing 365 pounds; and that a taxi driver called 911 to report what he characterized as a guy getti ng “beaten and choked.” The jury was instructed on the defendants’ theory that the “courtesy patrol members” were exercising their legal rights and/or the legal rights of their employer, VCG, in preventing Johnson from regaining access to the club and in escorting him away from the club. In addition to the elements of battery, intentional infliction of emotional distress, and negligent supervision and training, the jury was instructed on the affirmative defenses of consent, self-defense, defense of another, defense of real property, and comparative negligence. After the close of the evidence, the district court asked the parties if they would
agree to allow the alternate juror, who had been permitted without objection to participate in pre-deliberation discussions, to deliberate with the six regular jury members. Johnson agreed, but Schonlaw and VCG objected. The district court overruled their objeсtion, indicating that it considered the matter to be within the court’s discretion, and it instead instructed the jury that all seven jurors, including the alternate, would *5 deliberate to a verdict. The jury deliberated over the course of some three days. On the third and final day of deliberations, the jurors sent a note to the court indicating that they could not come to an agreement on punitive damages. Johnson then withdrew his punitive damages claim and shortly thereafter the jury returned its verdicts, signed by all seven members. On direct appeal, the court of appeals reversed and remanded for a new trial,
concluding that whatever discretion may be permitted a trial court by C.R.C.P. 47(a)(5)
with regard to pre-deliberation discussions does not extend to allowing an alternate to
deliberate with the regular jurors and, similarly, that any discretion granted at section 13-
71-142, C.R.S. (2018), to retain the alternates when the jury retires to deliberate does not
conflict with the express requirement of Rule 47(b) for the court and parties to agree
before permitting an alternate juror’s actual participation in deliberations. Having found
that the district court thеrefore erred in permitting the alternate to participate over the
objection of a party, the intermediate appellate court further found, in reliance on People
v. Boulies,
alternate to deliberаte in this civil case was an error subject to the harmless error analysis dictated by C.R.C.P. 61, as distinguished from an error raising a presumption of prejudice requiring reversal in the absence of adequate rebuttal.
II. Unlike the defendant in a criminal prosecution, the parties to a civil proceeding in
this jurisdiction are not guaranteed a jury trial by either the federal or state constitution.
See Gasperini v. Ctr. for Humanities, Inc. , 518 U.S. 415, 432 (1996) (“T he Seventh
Amendment . . . governs proceedings in federal court, but not in state court. ”) ; Scholz v.
Metro. Pathologists, P.C.,
absence of structural error, our holding in People v. Novotny requires an “appropriate
case specific, outcome- determinative analysis” in evaluating the harmfulness of an error,
2014 CO 18, ¶ 2, 320 P.3d 1194, 1196. James, ¶ 20 , __ P.3d at __. And in Laura A.
Newman, LLC v. Roberts, we extended our holding in Novotny to the harmless errоr
analysis required by C.R.C.P. 61 in civil cases, expressly abandoning prior case law
mandating automatic reversal for error in jury selection that effectively deprives a party
of his full use of peremptory challenges.
deliberations, at least where that participation was not permitted by the court in bad faith,
see Novotny, ¶ 23,
(tracing this formulation of the harmless error standard of C.R.C.P. 61 and Crim. P. 52(a)
through People v. Quintana,
disregarded as harmless only if it substantially influenced the outcome of the case. In addition tо making clear that the harmless error standard requires an evaluation
of the likely impact of any error on the outcome of the proceeding at issue, we have also
indicated that the question of prejudicial impact cannot be reduced to a specific set of
factors. People v. Roman,
III. One-sided as the physical altercation in this case may have beеn, not only the
credibility of disparate witness accounts but also the reliability of the witnesses’ perceptions and reasonableness of their actions, as well as the adequacy of VCG’s training of its employees, were not clearly matters as to which the evidence of liability was overwhelming. An assessment of the likelihood of prejudice resulting from allowing participation by the alternate juror in the absence of the agreement of both parties, nevertheless, must ultimately depend upon the rationale for legislatively dictating a specific number of jurors for civil juries and the risk of prejudice associated with erroneously allowing an alternate to be added to that number. As the Supreme Court has held in characterizing the twelve-man requirement of
common- law juries as “a historical accident” and as “wholly without significance ‘except
to my stics,’” th e number of jurors itself is not an “essential feature ” of the right to a jury
trial such that it should be understood as implied in the Sixth Amendment, much less as
incorporated in the due process clause of the Fourteenth Amendment. See Williams v.
Florida,
In addition, the Rules of Civil Procedure purport to extend the number of jurors to include alternates, upon the agreement of the court and parties. Whether it succeeds or not, C.R.C.P. 47(b) appears to confine its extension of jurors beyond the number six to cases in which there is agreement of the court and parties solely to avoid conflict with the statute — not as an indication that any numbеr greater than six without agreement would actually risk prejudicing a party. While the risk of prejudice associated with depriving a defendant of the number of jurors to whose unanimous agreement of liability he is statutorily entitled seems clear enough, the same cannot be said of finding him liable only upon the agreement of an even greater number of jurors. This is especially the case where, as here, the additional juror has been vetted and chosen in the same manner as the other jurors and has already been permitted, without challenge, to pаrticipate in pre- deliberation discussions with the other jurors. Were a court to erroneously permit the participation of an alternate in violation of
statute or rule other than in good faith, the question of whether the error would amount
to structural or trial error would clearly require a different analysis. See Rivera v. Illinois,
*11
IV. Because the error in this case did not affect the substantial rights of either
Schonlaw or VCG, it should have been disregarded as harmless, as required by C.R.C.P. 61. The judgment of the court of appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
JUSTICE HART concurs in the judgment.
JUSTICE GABRIEL dissents, and JUSTICE HOOD joins in the dissent.
JUSTICE HART, сoncurring in the judgment. I concur in the majority’s judgment concluding that the error in this case was
harmless. However, I part with the majority in its reliance on James v. People, 2018 CO 72, __ P.3d __. In James, also announced today, the majority held that challenges to the presence of alternate jurors in jury deliberations during criminal proceedings should be reviewed for harmless error, not presumed prejudice. I joined in the James concurrence, concluding that presumed prejudice was the appropriate standard of review. I perceive no conflict between the majority’s conclusion here and the concurrence’s analysis in James because criminal and civil proceedings are fundamentally different. Whereas the United States and Colorado Constitutions afford defendants in criminal prosecutions the right to a jury trial, parties to civil proceedings in Colorado must timely demand and advance statutory fees to obtain jury trials in cases where the right to a jury even exists. See U.S. Const. amend. VI; Colo. Const. art. II, § 23. And, unlike criminal proceedings that strictly require deliberation by a twelve-person jury, the number of jurors рermitted in civil jury trials may be agreed upon by the parties, so long as they comply with the statutory framework. See Colo. Const. art. II, § 23; Crim. P. 23(a)(1); see also § 13-71-103, C.R.S. (2018)(“A jury in civil cases shall consist of six persons, unless the parties agree to a smaller number, which shall not be less than three.”). Moreover, although not permitted in criminal proceedin gs, alternate jurors in civil cases may “deliberate and participate fully with the principal jurors” when the court and parties agree. C.R.C.P. 47(b). As such, I discern no error in affording criminal defendants a heightened standard of review to аlternate juror challenges — specifically, presumed prejudice — than parties *13 in civil proceedings. Accordingly, while I disagree with the majority’s reliance on James, I respectfully concur in its judgment.
JUSTICE GABRIEL, dissenting.
¶20 Today, the majority concludes that our recent decisions have established a
harmless error or structural error dichotomy for cases like the present one and that the
harmless error standard should apply here. In reaching this conclusion, the majority
effectively
(1) overrules over
three decades of precedent and aрplies an
outcome-determinative, harmless error standard, notwithstanding the fact that the error
in this case defies review under such a standard, and (2) renders virtually meaningless
C.R.C.P. 47(b), which allows an alternate juror to deliberate only upon agreement of the
court and the parties. As more fully set forth in my concurring opinion in James v. People,
___ P.3d ___ (Gabriel, J., concurring in the judgment), which is also being announced
today, the majority’s analysis appears to be based on a false dichotomy. Specifically,
contrary to the majority’s view that in a case like this our review must either be for
harmless error or structural error, both the United States Supreme Court and this court
have recognized that in cases like the present one, which defy harmless error review,
courts apply a third category of error, namely, one of presumed prejudice. See id. at
¶¶ 29 – 32, ___ P.3d at ___. Moreover, unlike the majority, I perceive nothing in People v.
Novotny,
People v. Burnette, 775 P.2d 583, 584 – 85, 587 – 88 (Colo. 1989), and People v. Boulies,
I. Analysis In my concurring opinion in James, ¶¶ 23 – 47, ___ P.3d at ___, I explained at length
my view as to why we should continue to recognize a rebuttable presumption of prejudice in cases like the present one, in which a nonstructural trial error defies harmless error review. By not doing so, we are creating an analytical regime that will virtually always result in our recognizing a wrong while simultaneоusly denying an aggrieved party any remedy for that wrong. Indeed, as I read the majority’s analysis, a violation of C.R.C.P. 47(b)’s requirement tha t the parties agree to allow an alternate juror to deliberate can never be prejudicial, unless, perhaps, if the alternate juror’s presence caused the number of deliberating jurors to exceed twelve (and it is unclear to me that the majority would perceive prejudice even in that scenario). Thus, in the interest of clarifying that an error like that present here is not structural, the majority appeаrs to adopt the opposite *16 rule, namely, a rule of automatic affirmance. I respectfully cannot subscribe to such an analysis, which I believe renders a longstanding rule of civil procedure virtually meaningless. In reaching this conclusion, I am not persuaded by the majority’s conclusion that
cases like Novotny and Newman effectively overruled Boulies and its progeny. See maj.
op. ¶ 10. Neither case expressly did so. Rather, both Novotny and Newman overruled
prior cases that had mandated automatic reversals when challenges fоr cause were
erroneously denied and the aggrieved party had exercised all of his or her peremptory
challenges. See Newman, ¶¶ 3, 10,
rule, and neither Novotny nor Newman addressed the issue of presumed prejudice from nonstructural errors defying harmless error review. Moreover, I perceive nothing in either Novotny or Newman that is inconsistent
with Boulies. To the contrary, as noted above, both the United States Supreme Court and
this court have recоgnized that the outcome-determinative, harmless error standard and
the rebuttable presumption of prejudice are different standards that apply to different
types of cases. See Olano,
*17 ¶27 Accordingly, and given our consistent recognition that stare decisis principles require us to follow a rule of law established in our prior cases unless sound reasons exist for departing therefrom, see People v. Kutlak, 2016 CO 1, ¶ 18, 364 P.3d 199, 205, I perceive no reason to depart from Boulies and its progeny, nor do I perceive any basis for effectively overruling those cases. The question for me thus becomes whether the error in this case defies harmless error review.
¶28 Here, the parties do not dispute that an alternate juror improperly deliberаted with the jury. We must therefore determine whether and how VCC James Restaurants could establish prejudice from this error.
¶29 The majority says that the outcome-determinative, harmless error test should apply here. See maj. op. ¶ 11. I, however, cannot see how VCC James Restaurants could show prejudice under this standard, given the restrictions of CRE 606(b). CRE 606(b) provides, in pertinent part:
[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 anythi ng upon his or any other juror’s mind or emotions as influencing him to assent tо or dissent from the verdict . . . or concerning his mental processes in connection therewith.
Id.
In light of this prohibition, I cannot see how VCC James Restaurants could possibly
establish (1) how, if at all, the alternate juror contributed to the jury’s deliberations or
(2) the impact, if any, that the alternate may have had on the other jurors. This, however,
is precisely the kind of evidence that VCC James Restaurants would need to introduce to
establish prejudice under the majority’s test. As a result, I view this case as a prototypical
*18
example of a case in which the error evades harmless error review. Accordingly, I would
apply the presumption of prejudice test to determine whether the error here requires
reversal.
In Burnette,
arises from the improper involvement of an alternate juror in jury deliberations can be overcome by a showing that “the trial court took extraordinary precautions to ensure that the defendant would not be prejudiced and that under the circumstances of the case, the precautions were adequate to achieve th at result.” In this case, Johnson points to no precautions undertaken by the trial court to ensure the absence of prejudice, and the record reveals none. To the contrary, the record shows that the trial court wished to allow the alternate to deliberate, VCC James Restaurants objected to the alternate’s doing so, and the trial court overruled the objection and let the alternate deliberate anyway. The alternate juror then participated fully in the jury’s deliberations, and I perceive nothing that would support a conclusion that the resulting presumption оf prejudice has been overcome. See Olano, 507 U.S. at 741 (observing that the presence of alternate jurors might be prejudicial if the alternates actually participated in the deliberations, either verbally or through body language); Manning v. Huffman, 269 F.3d 720, 726 (6th Cir. 2001) (noting that the Olano court made it “quite clear” that in some situations a presumption of prejudice is appropriate and concluding that an alternate juror’s participation in deliberations was sufficient to show prejudice).
II. Conclusion For these reasons, as well as for the reasons set forth in my сoncurring opinion in
James, ¶¶ 23 – 47, ___ P.3d at ___ (Gabriel, J., concurring), I would continue to recognize a category of presumed prejudice for nonstructural trial errors that by their nature evade harmless error review. Applying that standard here, I would further conclude that Johnson has offered no evidence or argument sufficient to overcome the presumption of prejudice that arose when the trial court erroneously allowed an alternate juror to participate fully in the jury’s deliberations. Like the division below, I would therefore reverse the judgment and remand this case for a new trial. Accordingly, I respectfully dissent.
I am authorized to state that JUSTICE HOOD joins in this dissent.