Pena-Rodriguez v. People

2015 CO 31 PENA-RODRIGUEZ,

Miguel Angel

Petitioner of the State of PEOPLE

Colorado, Respondent.

Supreme No. Court Case 13SC9 of Colorado.

18,May

Rehearing Denied June History

I. and Procedural Facts May a man T3 made sexual ad teenage girls two in the bath vances toward The Law Office Attorneys for Petitioner: facility horse-racing where Peti room of the PC, Rosen, Jonathan D. Ro- D. of Jonathan Miguel Angel Pena-Rodriguez tioner sen, Denver, Colorado. thereafter, Shortly girls identi worked. Petitioner as the assailant a one- fied Cynthia H. Attorneys Respondent: showup. People subsequently on-one The General, Yazdi, Coffman, Majid Attorney As- charged Petitioner with one count of sexual General, Denver, Attorney Colorado. sistant fifteen; on a child-victim less than assault one count of unlawful sexual contact-no con sent; harassment-strike, and two counts of shove, preliminary hearing, or kick. After RICE delivered the CHIEF JUSTICE at the court bound over first count as tempted sexual assault on a child-victim Opinion Court. less than fifteen.2 interplay be T1 This case involves the trial, three-day 14 At the start of a justice fundamental tenets of the tween two questionnaire, venire received a written secrecy system: protecting the delib inquired, anything you there which "Is ensuring a defendant's constitu erations and you you feel would make it difficult for right impartial jury. entry After tional During to be a fair this case?" verdict, guilty of a defense counsel obtained dire, panel, any judge asked the "Do suggesting that one of the affidavits you feeling against have a for or [Petitioner] against racial the defen Jurors exhibited Later, or the Prosecution?" defense counsel The trial court dant deliberations. simply asked the venire whether "this is affidavits, finding refused to these consider good juror." case for them to be a fair ("CRE") that Colorado Rule of Evidence jurors subsequently impaneled None of the admission, barred their and the court questions of these so answered as appeals People affirmed. v. Pena-Rodri jury ultimately reflect racial bias. The found 193, ¶ 3, guez, 2012 COA WL guilty Petitioner of the latter counts three granted P.3d —. We certiorari attempted but failed to reach a verdiet on the 606(b) applies to such consider whether CRE charge. sexual assault and, so, affidavits if whether the Sixth later, 15 Two weeks Petitioner filed a requires Amendment nevertheless their adm information, alleging motion for contact ission.1 that "some members of the used ethnic regarding 12 We hold that slurs in the course of deliberations." The biased statements fall within the trial court ordered Petitioner to submit affi " sweep broad do 'who, what, when, regarding the davits satisfy the rule's "extraneous allegations where' of the miscon exception. further We hold subsequently counsel duct." Petitioner's application that, the trial court's of CRE averring shortly filed an affidavit after verdict, not violate the Sixth entry jurors two informed her did Ac- expressed of the other "some cordingly, judgment we affirm the bias toward and the alibi witness [Petitioner] Hispanic."3 because were appeals. court of Specifically, People charged driving granted we certiorari to consider: 2. The also Petitioner with influence, they voluntarily under but dis- "Whether C.R.E. bars the admission of charge prior to trial. missed showing statements racial evidence of deliberations, so, during jury and if wheth- friend, Chavez, 3. Petitioner's M. testified that er the defendant's constitutional to a fair was with him at the time of the inci- Petitioner requires ad- nevertheless such statements' dent and could not have been the man in the thus mission." bathroom. cluded, however, that CRE was uncon- authorized Petitioner's counsel court then only applied. affi- Id. at 1107. jurors, but to secure stitutional We contact these regarding granted their "best recollection of certiorari. davits exactly each 'biased' stated about what the alibi witness."

[Petitioner] and/or II. Standard of Review Thеreafter, affida Petitioner submitted 4 6 general applicability 18 The of LT., jurors M.M. and both of vits from 606(b) question a CRE of law that we racially alleged that H.C. made whom Pippin, review de novo. See Kendrick v. Ac during deliberations. biased statements (Colo.2011), abrogated P.3d M.M., "I cording H.C. said that think he Johnson, grounds by other Bedor v. 2013 CO Mexican and Mexican men did it because he's 292 P.8d 924. But whether was they want." also stated take whatever She prejudicial influenced extrancous informa concerning that H.C. "made other statements fact; question law tion is mixed of we being physically controlling of Mexican men accept findings court's of fact absent they of women because have sense entitle discretion, an abuse of but we review the they thеy think can 'do whatever ment and legal court's conclusions de novo. Id. women." L.T. stated that H.C. want' with guilty that was because [Petitioner] "believed Analysis III. experience in his as an ex-law enforcement requires T 9 This case us to resolve wheth- officer, Mexican men had a bravado that 606(b) er CRE bars admission of affida- caused them to believe could do whatev suggesting that a racially vits L.T. er wanted with women." further during biased statements deliberations. To that averred H.C. "said where he used so, plain do we language first examine the of patrol, out ten Mexican nine times men overarching purpose. the rule and its We guilty being aggressive were toward wom then conclude that such affidavits indeed im- young girls." Finally, LT. en and stated 606(b) plicatе CRE not fall do within that H.C. "said that he did not think the alibi prejudicial rule's "extrancous because, among witness was credible other exception. Finally, we consider whether the things, illegal'" 'an he was Based on these rule was unconstitutional as to Peti- affidavits, Petitioner moved for a new trial. tioner, and enforcing we determine that motion, finding trial court The denied the rule did not his violate Sixth Amendment any inquiry that CRE barred into H.C.'s deliberations.4 ¶ appealed, split 7 Petitioner and a division 606(b): Language Purpose A. CRE Pena-Rodriguez, appeals of the court of affirmed. scope: T10 CRE is broad in It majority 3. The first held ¶ precludes peering beyond courts from admissibility CRE controlled the Specifi- veil shrouds deliberations. jurors' and that affidavits cally, provides the rule as follows: satisfy exceptions. did not the rule's Id. ¶¶ 33, 38, majority rejected Upon inquiry validity 41-42. The then into the of a indictment, challenge regard juror may Petitioner's verdict ing impar testify any his Sixth Amendment as to matter or statement oc- jury, holding curring during tial jury's Petitioner "waivedhis the course of the ability challenge the verdict on this or to effect of anything basis by failing sufficiently question jurors upon any juror's his or other mind or influencing emotions as him to to or assent about racial in voir dire." Id. at 148. dissent, Writing Judge Taubman did not dissent from verdict or indictment or disagree majority's general analysis concerning processes his mental in connec- ¶107 606(b). CRE n.3. He con- tion therewith. dire; hearing did it court conduct brief found his failure to disclose this investigate deliberately misreрre- whether H.C. information to be inadvertent. This issue is irrel- experience appeal. sented his in law enforcement evant to this however, Therefore, 606(b). does, precludes their ad- enu- CRE The rule

CRE exceptions: "[A] mission. three narrow merate (1) whether extraneous testify argues T14 Petitioner the affidavits improperly information was validity inquiry "an into the do not involve (2) attention, whether jurors' brought contemplated verdict" [the] improperly any influence outside 606(b). only In Petitioner's the rule (8) juror, or wheth- upon brought to bear regarding applies to statements entering the ver- a mistake er there was is, process-that how the actual deliberative form." Id. Colorado's verdict onto the dict its verdict-and not to evidence reached to its federal coun- virtually identical rule is particular racial bias. To the with Fed. R. Evid. Compare id. terpart. parse that we can this semantic extent even 606(b). committee emt. also CRE distinction, it immaterial. Petition- we deem ("ICRE] 606(b) bring amended to has been of comments er seeks to introduce evidence 2006 amendments to conformity into nullify during deliberations in order to made ..."). rule. the federal and obtain a new trial. Such the verdict 606(b) effectuates three CRE necessarily inquiry an into request involves finali "promote[s] It purposes: fundamental very validity, inqui- which is the the verdiet's verdicts, from im verdiets ty shield[s] 606(b) ry prevents. that CRE jurors from protect[s] and peachment, Indeed, 1 Court ex 15 U.S. People v. Har and coercion." harassment rejected argument pressly this exact War (Colo.2005). Thus, lan, 624 109P.3d Shauers, —, ger 135 8.Ct. U.S. any juror testimony "strongly disfavors rule (2014), determining that 190 L.Ed.2d recog have a verdict." Id. We impeaching on the means the rule "does not focus equally rule is forbid that the federal nized might be used which deliberations evidence Rice, ex rel. Stewart v. ding. See Stewart Rather, the Court to invalidate verdict." ("[Fed. (Colo.2002) R. Evid. P.3d '[dJuring "simply applies held that the rule 606(b)] paint with a have been hard would inquiry validity into of the verdiet'- an brush, subject, [its] and in terms of broader is, during proceeding which the everything exclusionary principle reaches (alter verdict be rendered invalid." deliberations, un which to the relates original). ation in the Court was Although (quoting exceptions applies." less one оf the 606(b), interpreting Fed. R. Evid. we have Mueller, Impeach B. Jurors' Christopher 606(b) previously recognized that CRE and Indictments in Federal ment Verdicts "[slubstantially similar to its federal counter 606(b), 57 Neb. L.Rev. Court Under part" and that we "look to the federal author (1978))). 920, ity construing our rule." guidance ¶12 prosecriptive language With Stewart, Thus, Warger 47 P.3d at fore mind, we now purpose of CRE argument. closes Petitioner's operates the rule to bar consider whether this case. admission of that, 116 Petitioner next contends 606(b) applies, if the affidavits even CRE B. Bars Admission CRE satisfy for "extraneous exception the rule's the Jurors' Affidavits prejudicial He is mistaken. information." 606(b)s plain language exception pertains "legal That content and 118 CRE jurors' specific from out clearly affida factual information learned bars admission of in a exceptions, side the record and relevant to the issues vits in this case. Absent narrow see, Kendrick, 1064; eg., 252 P.3d at unambiguously prohibits testi case." the rule Harlan, (holding that 109 P.3d at 629 two mony "as to matter or statement occur jurors' Bibles into jury's delibera introductions of annotated ring the course of the Here, penalty during a death case Petitioner seeks to introduce tions." effect, information because testimony precisely as constituted extraneous ma not admitted these per L.T. trial court had "[tlhe the affidavits from both M.M. and evidence, in- nor did the court's deliberations. terials into tain to statements use"). 606(b)." "gener —, allow their But it is rest of Rule Id. at structions S.Ct. undisputеd" jurors "may apply their ally analysis applies at 580. The same here. knowledge everyday experience general Accordingly, we hold that the affida Kendrick, deciding when cases." 252 P.3d concerning vits H.C.'s biased statements fall accord sweep within the broad of CRE ("Generally speaking, at 529 informa satisfy do not the rule's "extrane if deemed 'extraneous' it derives from tion ‍​​​​​‌‌‌​‌​​‌​‌‌‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​​‌​​‌​​‌​‍is ous exception. We 'external' 'External a source now address whether CRE was uncon publicity and information re matters include as in this case.5 stitutional specifically jurors case the are lated decide, "internal in meant while matters C. CRE Was Not body experiences general clude the Unconstitutional bring are understood to with them to Aрplied room."). Here, per H.C. did not any improper investigation into Peti form {19 The Sixth Amendment to the tioner's nor did he introduce evidence provides U.S. Constitution that "the accused from outside the record into the room. enjoy shall to ... Rather, alleged his racial bias arose from his jury." question here is whether everyday experience. personal beliefs and 606(b), application court's of CRE which bias, loathsome, ideologically Such however functioned to bar evidence of H.C.'s contemplated by not "extraneous" as Petitioner, against racial bias violated his 606(b). right. Sixth Amendment again, Warger T 17 And once scuttles Peti ¶ 20 The U.S. Court addressed a case, In tioner's claim. that car-crash fol similar-though identical-issue Tаn defendant, juror lowing a verdict for the a States, 107, ner v. United 483 U.S. 107 S.Ct. reported juror during that another stated 2739, 97 LEd.2d 90 In that daughter that deliberations her had once verdict, following the contacted de a motor vehicle "if caused accident and that fense counsel and informed him that several sued, daughter her had been it would have jurors had consumed alcohol lunch breaks —, her life." ruined 135 S.Ct. slept the trial and had through after at 524. The Court held that such informa noons, while another told that counsel tion "falls on the "internal side of the line: jury big party" was "one and that numer juror's] daughter's [The accident well jurors ous drugs. used alcohol and Id. at general negli have informed her views about 118, 115-16, holding 107 S.Ct. 2739. After crashes, gence liability for car but did not that Fеd. R. Evid. barred provide this testimo jury either her or the rest of the 125, ny, 2739, see id. at any specific the Court knowledge regarding [the] considered whether the Amendment Sixth —, collision." Id. at 135 S.Ct. at 529. The required if nevertheless the trial Court noted even com court to ex challenge ments would have warranted a amine such evidence. The for Court first de cause, "long-recognized very did not render them "extrane clared sub ous," support as protection "[the otherwise 'extraneous' infor stantial concerns exception jury mation would much inquiry." swallow from intrusive appeals regarding 5. The court of refused to conduct this tions racial or ethnic bias because it analysis, holding might insulting jurors that Petitioner "waived his abil be viewed as to or as ity challenge by failing raising to the verdict on this basis an issue defense counsel does not want to sufficiently question jurors about racial bias in highlight."). Here, Petitioner's counsel asked potential jurors ¶ 43. not whether Pena-Rodriguez, took issue with voir dire." But a defense attorney's simply decision not to ask about racial bias- Petitioner's race but if be could fair. attempt prejudice and to instead to root out We cannot conclude that this tactical decision to through generalized questioning-is entirely explicitly inquiring de avoid racial bias- strategy. fensible as a matter of See United which would have underscored Petitioner's mi- nority background-constituied (1st Cir.2009) an affirmative Villar, States v. 586 F.3d 87 n.5 ("[MJany attorneys defense have sound tacticаl waiver of Petitioner's constitutional proposing specific ques- impartial jury. reasons for not voir dire Turning to the irresponsible after or 107 S.Ct. tion of verdicts reached Id. behavior," that "sev- scale, reasoned it warned that improper the Court "[iJt opposing process" protect jury system the trial at all clear ... aspects of is not eral perfect it." 483 survive such efforts right to an could Sixth As the Court 107S.Ct.2739. identified U.S.at The Court jury. Id. (2) (1) only authorizing post- dire; recognized, not would voir safeguards: specific four "seriously jurors dis investigations of verdict ability to observe and counsel's the court very finality process," (8) rupt but trial; jurors' opportunity to investigations shat such would potential juror behavior inappropriate "report (4) verdict"; fundamental no public confidence ter they render court before ("[Flull and frank by Id. non-juror tion of evidence to use opportunity following discussion room, jurors' willing the verdict impeach in the misconduct trial, verdict, and the thus concluded unpopular The Court return an ness to system in a that relies on community's trust Amend- yield to Sixth need laypeople would all be under See id. considerations. the decisions of ment serutiny by barrage postverdict mined Tanner, then, held that Rule conduct."); also States v. see United as cases not unconstitutional (10th Cir.2008) Benally, 546 F.3d year, the Court incompetence. Last ("If were on in the room what went Tanmer to cases of Warger extended judicially for reasonableness reviewablе Tanner, recog Relying on bias. fairness, truly longer no trials would "(elven dire in if lie nized that commands."). jury, Constitution bias, juror impartiality is way that conceals fact, slippery perceived such a the Court ability parties' adequately assured years ago: far slope as back as any evidence of bring to the court's attention that verdicts it onee be established [Llet rendered, and to the verdict bias before solemnly publicly returned into made and nonjuror after the ver evidence even employ aside on the court can be attacked set U.S. at is rendered." dict part testimony those who took their Therefore, held at 529. the Court 135 S.Ct. be, and publication and all verdicts could "any that Rule foreclosed сlaim that Tanner be, by inquiry an many would followed 606(b) in cireumstances unconstitutional discovering something which hope of these." such as would might finding. invalidate the Jurors Combined, Warger and stand 122 Tanner and beset the defeated be harassed Protecting simple principle: but crucial them in an effort to secure party from secrecy para of deliberations is might establish of facts which evidence justice system. importance in our See mount a verdict. sufficient to set aside misconduct Tanmer, at 107 S.Ct. 2789 488 U.S. If thus secured could be thus evidence ("Substantial policy support considerations used, to make what the result would be against rule the admission common-law deliberation, private to was intended verdict."); jury testimony impeach a to subject public investigation; the constant —, Warger, at 135 S.Ct. at 528 U.S. all frankness and to the destruction of 606(b) ("Rule concerns premised on the of discussion and conference. freedom evidence to chal that the use of deliberations Pless, 264, 267-68, 238 35 McDonald lenge represent would a threat to verdicts 783, L.Ed. 59 1300 S.Ct. cireum- finality and in those both Turning instant this case express 1 23 to the not covered the Rule's stances 606(b) compels the conclusion that CRE principle that ani law exceptions."). It was this to Peti- deem Rule was not unconstitutional mated the Court's refusals to 606(b) contrary holding ignore unconstitutional, A would despite concerns re tioner. underlying Indeed, policy CRE although both garding impropriety. ‍​​​​​‌‌‌​‌​​‌​‌‌‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​​‌​​‌​​‌​‍precedent "post- unwavering Supreme Court acknowledged that the Tanner Court policy. magnitude of that emphasizing the investigation into misconduct verdict sure, Warger in- Tanner nor To be neither lead to the invalida- would some instances Accordingly, conclude that the we But in bias. of racial issue the exact volved 606(b)to bar ad- application of CRE court's we can- jurisprudence, Court's examiningthe not vio- jurors' affidavits did different mission dividing line between not discern right. Amendment Sixth late Petitioner's misconduct, whereby juror bias or types par- implicate a partiality would form of one another right while Amendment Conclusion ty's IV. Sixth at Benally, 546 F.3d not.

would Cf operates to ensure of evidence ("[Olnee that the rules held it is sac- remains privacy of need to admit must bе subordinated rule, policy it buttress- and the rosanct. violations, we Amendment of Sixth evidence es, case. We thus point this squarely on stop at the could the courts not see how do regarding jurors' hold that violations."). To draw such serious' 'most fall within the statements H.C.'s biased long- only violate the not a line would such they-do and that sweep of CRE broad jury delib- shielding private standing rule satisfy the rule's "extraneous mention public view-not from erations further hold exception. We ju- harassment post-verdict incentivize of CRE application court's the trial trial courts require also it would rors-but Petitioner's Sixth did not violate hinge on the judgments that arbitrary make impartial jury. Ac- right to an juror's impropriety severity particular of a judgment of the affirm the cordingly, we decline bias. We intensity of his appeals. court of haphazard process. such sanction dissents, MARQUEZ readily visible JUSTICE less Admittedly, bias is join in HOOD EID and JUSTICE intoxication, Tan- JUSTICE meaning the second than court the dissent. ability of the protection-the mer during trial- behavior observe MARQUEZ,dissenting. JUSTICE that did cases. But in such less force carries that CRE agree majority I with the deeming Warger Court from prevent affi post-verdiet bars admission safeguards sufficient remaining Tanner terms, By that rule of case. its rights, davits this party's protect any "inquiry into the va precludes evidence during voir juror lied a biased even when testimony U.S. at lidity of a verdict" based dire. during jury de regarding statements Benally, 546 F.3d also see liberations, Pena-Rodriguez's motion for ("The relied the Court safeguards thаt inquiry into "plainly entail[ed] use a new drug and alcohol exposing the upon for verdict," ques if it even validity of the are also available amongst jurors Tanner impartiality and not its the tioned (emphasis ...." add biases expose to racial Shauers, Warger — v. ed). thought processes. true here. Other The same is 521, 525, —, 190 LEd.2d 135 S.Ct. or counsel of U.S. the court have informed could (internal (2014) omit quotation marks delivering 422 the ver prior to H.C.'s statements ted). of a agree that evidence I also of his bias dict, any non-juror evidence qualify as "extraneous does not personal That post-verdiet. remained admissible purposes in not benefit Petitioner safeguards did these 606(b)(1). —, id. at in exception CRE nullify validity, nor their does not this case Benally, v. at Stаtes ability 135 S.Ct. United of their Woarger's clear endorsement (10th Cir.2008); 1230, Ken 1237-38 546 F.3d right to party's constitutional protect a to (Colo. 1052, 1064 252 P.3d jury.6 Pippin, impartial drick process." integrity Id. Absent protect the Warger com recognize the We that 6. Court, we the command from a clear cases footnote, [there that mented, in may that, defy trend in the unmistakable by will not defini almost so extreme — Tanner articulated in both case law-as tion, abridged." Court's right jury has been trial sanctity jury delib- Warger-preserving the at 529 n.3. But n.3, at 135 S.Ct. U.S. refusing to deem Rule and thus erations that case "whether to consider in Court declined unconstitutional. safeguards are or are not sufficient the usual 2094

2011). Nevertheless, respectfully government." Texas, I dissent sentative Smith v. 311 128, 130, 164, view, "cannot be U.S. 61 S.Ct. because, 85 L.Ed. 84 my in (1940) (footnote omitted). inflexibly applied testimony Importantly, so as to bar " harm caused grave such discrimination those rare and cases where claims of 'not limited to the injury defendant-there during jury racial or ethnic bias jury system, institution, to the law as an implicate right process defendant's due community large, and to the demo jury." impartial and an United States v. (1st Villar, 76, Cir.2009). cratic processes ideal reflected in the F.3d 87 of our 586 Racial 556, courts'" 448 U.S. at 99 S.Ct. context, bias is detestable but in our Rose (quoting States, Ballard v. United justice system especially perni criminal it is 187, 195, 261, U.S. 67 S.Ct. 91 L.Ed. 181 Mitchell, 545, cious. See Rose v. 443 ‍​​​​​‌‌‌​‌​​‌​‌‌‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​​‌​​‌​​‌​‍U.S. (1946)). 555, 2993, 99 S.Ct. 61 L.Ed.2d 739 I where, here, $30 would hold that evidence In its recent discussion of Fed. R. light juror specifically comes to relied Evid. in Warger, the United States on racial guilty, bias to find the defendant Supreme Court observed that certain fea yield must to the defendant's jury system tures built into the ordinarily right impartial jury.1 expose juror suffice to jury bias before the renders verdict. By foreclosing consideration of the (citing at — 135S.Ct. at 529 Tanner v. United evidence of racial bias in this States, 107, 127, 2739, 483 U.S. 107 S.Ct. majority general policy elevates interests (1987))2 Warger L.Ed.2d 90 neg involved a finality in the in avoiding verdicts and ligence arising action out of a motor vehicle potential embarrassment of a over the —, accident. See id. at 135 S.Ct. at 524. right fundamental constitutional ease, In that allegedly stated Although majority to a fair trial. be- daughter deliberations that her had been at required preserve lieves this result is fault in a mоtor vehicle collision in which a public system, confidence in our trial man died and that if daughter her had been my precisely it has opposite effect. sued, it would have ruined her life. Id. right 129 "The impartial jury is Warger argued in a motion for a new trial guaranteed by Amendment, both the Sixth this statement revealed that applicable through the States had lied voir dire impartial about her Amendment, Fourteenth by principles ity ability damages. and her to award process." due Murray, Turner v. 476 U.S. The Court concluded that Fed. R. Evid. 28, n.9, 106 S.Ct. 90 L.Ed.2d 27 606(b) barred consideration of this evidence. (1986). Our state guar constitution likewise —, Id. at 525. It also conclud right. II, antees this See Colo. Const. art. ed that its decision Tawmnmerforeclosed Indeed, §§ this court has observed Warger's claim that Rule was uncon "(aln jury is a fundamental stitutional as to the cireumstances of element of the constitutional to a fair that case. Id. at 135 S.Ct. at 529. trial." People, Morrison v. 19 P.3d however, doing, so the Court expressly ac (Colo.2000) "(there Rhodus, (citing People v. 870 knowledged be cases of (Colo.1994)). P.2d Racial discrimi that, bias so extreme almost defini system nation our only "not tion, abridged," has been violates our Constitution and the laws enact and declined to consider whether "the usual ed under it but is at war with our basic safeguards are or are not protect sufficient to concepts of a society democratic a repre- integrity and the [jury] process" under question 1. (1) dire; I note that protections (2) the before us is not wheth- 2. These include: er there is impeach sufficient evidence to court, counsel, jury by observations of the Rather, question verdict. simply trial; (3) personnel during pre-verdict and court whether the trial court has discretion to consider reports behavior; by jurors inappropriate allegations post-verdict made in the (4) post-verdict evidence other than testi- explore validity allegations and to of those Tanner, 483 U.S. at 127, 107 S.Ct. mony. evidentiary hearing part as of a motion for a new trial. question as to call into so "extreme" n.8, Id. at — cireumstances. such view, safeguards pro this is that to my of the usual adequacy In n.8. at 529 S.Ct. integrity process. tect case. exceptional — n.3, In at 529 n.3. juror affidavits two According to the herе, where, that a view, appears my counsel, Juror Pena-Rodriguez's obtained find on racial bias to juror specifically relied statements made several H.C. yield guilty, Rule must the defendant relied on ra- indicating that he right constitutional a defendant's Pena-Rodriguer's determine cial must be jury, in that a trial court impartial guilt: validity explore the the discretion afforded it because he's ePena-Rodrigues "did of a motion allegations the context of such men take whatever and Mexican Mexican trial. for a new they want." a evidence of question whether T34 The e controlling physically men are Mexican be admissible racial bias should they have a sense of women because 606(b), cases, notwithstanding Rule some what- they can "do and think entitlement Villar, territory. In hardly uncharted they with women. ever want" Appeals for the First Court of United States because, e guilty Pena-Rodriguez "was the usual Tanner whether Circuit considered as an ex-law experience H.C.'s] [Juror protect a defendant's suffice to safeguards officer, men had Mexican enforcement racial or impartial where right believe them to that caused bravado opposed type alleged, as bias is ethnic wanted do whatever could in Tanner. at issue misconduct women." Villar, In emailed F.3d at 85-87. e patrol, "nine used to Juror H.C. Where to re following the verdict counsel defense men were ten Mexican out of times said, guess "I we're port ‍​​​​​‌‌‌​‌​​‌​‌‌‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​​‌​​‌​​‌​‍that another women being aggressive toward guilty [Hispanics] cause all the trou profiling, but young girls." (internal quotation marks at 81 ble." e witness was Pena-Rodriguez's alibi omitted). Similarly, in Kittle v. United because, things, he among other credible (D.C.2013), States, | 1147-48 65 A.3d illegal." "an alleging judge post-verdiet juror wrote to the are that "all 'blacks' felt that some this circumstances of my In 1 32 present Villar guilty." Like the both safeguards identified that the case reveal racially state motivated Kittle involved protect always adequate are not Tanner guilt. directly to the defendant's tied ments right to an criminal defendant's in War- the comment Unlike Villar, concluded In the First Circuit in this multiple statements ger, H.C.'s Juror on protections relied that "the four criminal toward a racial bias case evince аdequate provide safe do not Tanner Court And, these importantly, defendant. racially and ethnical context of guards in the inability to H.C.'s reveal Juror statements during delibera ly comments biased in this crucial issue impartially the decide Kittle, also F.3d at see tions." Pena-Rodriguez committed case: whether ("[The built into the protections A.3d at 1154 crimes, he instead charged or whether by Tanner do identified process alibi. had a credible constitu adequately protect jury free from trial and to a to "the tional majority claims to adhere T 33 The bias."). Although the Tanner racial or ethnic Su- in United States trend" unmistakable protect a defendant's safeguards serve "refusing to deem law preme Court case trial, they to a Maj. 1 24 Sixth op. unconstitutional." 488 U.S. at misconduct. expressly focus has n.6. Yet view, they are my 2789.3 107 S.Ct. possibility acknowledged the during recess- large quantities alcohol sumed juror interview fol- in an Tanner, 3. In was ... lowing ingested that he "felt like the trial cocaine; marijuana, es, smoked jurors multiple con- big party'; on one 296 position the best always adequate to determine whether an

not to uncover racial bias inquiry before the renders its verdict. necessary is to vindicate a defen dant's Sixth right impar First, majority acknowledges, 186 as the 88; tial Kittle, See 586 F.3d at see also attorneys may, legitimate defense tactical Thus, 65 A.3d at 1155-56. the Villar court reasons, question jurors choose not to remanded that case to the trial court during racial dire and instead at juror's decide report whether the warranted tempt prejudice through to root out more inquiry. further 586 F.3d at 89.5 ¶18 generalized Maj. n.5; questioning. op. Villar, n.5; Kittle, see also 586 F.8d at 87 138 Should the trial court conclude that A.Sd at 1155. And even when inquiry defense attor further appropriate, it must then neys willing probe are topic this sensitive determine actually whether a was bi directly, jurors may be reluctant to admit If ased. such a sat on the Villar, during racial bias voir dire. 586 F.3d defendant is entitled ato new trial without having Second, jurors juror's to establish that the at 87. might report not bias af racial fected the verdict. See Commonwealth v. during comments made deliberations before they McCowen, the verdict because unwilling 461, are 735, 458 Mass. 939 N.E.2d jurors, (Mass.2010) ("Beсause confront their fellow or they because actual report believe cannot such comments trial, affects the essential fairness of the verdict, rendering before or because defendant juror's who has established a actu are post-verdict unaware that testimony is al bias is entitled to a new trial without Kittle, putatively inadmissible. 65 A.3d at needing to show that the bias affected 1155; People see also v. Pena-Rodriguez, jury's verdict."); People Dunoyair, v. of. 193, ¶ 120, 2012 COA (Colo.1983) 2012 WL 5457362 660 P.2d 895-96 (implying (Taubman, J., dissenting) (noting that that a presumptively prejudiced defendant court instructed the it would and entitled to a new trial if he or she not be able to anyone communicate with biased). dur establishes that a actually was deliberations). ing maj. op. Contre Only 24. if the defendant fails to establish that a Third, jury by observations of the counsel actually biased must he show that and the court generally trial are un the "statements so infected the deliberative likely Villar, to uncover racial process bias. 586 F.3d with racially ethnically charged or maj. op. fourth, see 124. And language non- stereotypes prejudiced jurors report racially cannot biased state defendant's guilt to have his decid ments made to which ed jury on the evidence they obviously Villar, do not have access. McCowen, admitted at trial." 939 N.E.2d at Therefore, 765. 586 F.3d at contrary maj. op. 87. Contra People's 124. For ar reasons, all these protections the Tammer gument, do Pena-Rodriguez may be entitled to always provide adequate safeguards of a a new trial regardless of the effect of Juror impartial jury.4 H.C.'s comments on the verdict. 137 In my majority 39 The the trial court should admits that Tanner did have discretion in some circumstances to ad- implicate "the exact issue of racial bias" mit racially evidence of biased summarily statements but concludes: "[Wle cannot dis- during juror deliberations. As the Vil- dividing cern a line types between different noted, lar court judge the trial will often be bias or Maj. misconduct." op. 1 23. and that asleep high some fell or were (7th Cir.1987), F.2d 1155, 1159 Benally, 115-16, during trial. 483 U.S. at S.Ct. 2739. Price, F.3d at and Williams v. 343 F.3d (3d Cir.2003)). 223, 225-35 among Kittle, the court noted a federal split appeals question courts of on the whether evi 5. On remand, the trial court denсe of racial or ethnic bias should be admissi deter ultimately stand, mined that the verdict should ble and persua concluded that Villar was more upheld appeal. decision was conflicting sive than United decisions. See 65 A.3d ail Villar, (1st Fed.Appx. States v. Cir. (comparing 1153-54 & n.9 Villar, 586 F.3d at 85-87, Henley, United States 2011) 238 F.3d curiam), (per denied, ‍​​​​​‌‌‌​‌​​‌​‌‌‌‌​‌​‌‌​​‌​‌‌​​‌​​‌​​‌​​‌​​‌​​‌​‍cert. (9th Cir.2001), Gagnon, and Shillcutt v. 131 S.Ct. 2167, 179 L.Ed.2d 947 finality juror pri- of policies T41 The holding this our limit disagree. I would I are well racial underlie CRE vacy of evidence post-verdict case to of directly the issue Moreover, every stray goes com- bias that not ethnic founded. differs Racial bias guilt. the defendant's stereotype warrants reflecting a racial ment © compro- in that it forms of from other However, presents the this case hearing. Ashok See legitimacy. institutional mises Warger. contemplated exception extreme Ad Box": Chandran, the "Black Color have been alleged to multiple comments The Deliberations, 5 in Jwror dressing Racism other case were heard made in this (2015). 44-45, A 28, & L. J. Race Colum. directly the determination tied to and were would cireumstances to such holding limited According the guilt. the defendant's of threat to a real-world respond reflect and affidavits, H.C. ex- Juror post-verdict two right. See of the integrity Pena-Rodri- ways in various pressed n.3, at 529 135 S.Ct. U.S. simply I Mexican." he's guez "did because n.3. "[plro- majority that agree with the cannot Furthermore, majority overstates secrecy jury deliberations" is of tecting the of the demise potential about its concerns justice in our importance "paramount of such in this allegations jury system should 122, trump it must maj. op. system," motion for new in a case be admissible his fun- to vindicate opportunity secrecy that "the majority reasons The trial. damental impor paramount of jury deliberations of influence of racial bias. by the jury untainted 122, maj. op. system," justice in our tance my to foreclose consideration jurors are free acknowledge that yet fails to precisely what presented Aman here is allegations publicly. to discuss Jury Wolin, Happens in the R. What da in the funda- public confidence "shatter[s] ... But Jury Room Stays in the Room by jury." Id. Accord- of trial mental notion Between the Sixth A It?: Should respectfully I dissent. ingly, Conflict Evidence Fedеral of to state that JUSTICE I am authorized (2012). 262, 606(b), 294-95 L.Rev. 60 UCLA join in dis- this EID and HOOD JUSTICE harassment of "post-verdict Concerns , sent. 128, similarly mis maj. op. are jurors," allow critical of commentators placed: 'Even juror bias have post-verdict evidence ing 606(b)(1) exception in Rule observed already creates information for extraneous 158M 2012 COA contact losing party to an incentive for Colorado, of the State The PEOPLE has been rendered. a verdict

jurors after Plaintiff-Appellee, Challenges Goldman, Post-Verdict See Lee De During Juror Made Racial Comments v. 1, liberations, Syracuse L.Rev. 9-10 DIAZ, Joseph Phillip Defendant- fear that majority's broader Appellant. unbend survive absent jury system No. 11CA0656. 22,6 606(b), maj. op. 1 application of Rule ing jury system has groundless; proven has Appeals, Court of Colorado jurisdictions where collapsed in Div. I. cireumstances, discretion, in rare have courts Sept. racial bias. post-verdiet evidence to allow (Taubman, J., dis Pena-Rodrigues, 1 128 Nov. 2012.* Rehearing Denied Cf. post-verdict evidence (observing that senting) 7, 2015. May As Modified Colorado; rarely has surfaced racial bias would thus, any exception to CRE only infrequently). invoked lay Pless, down be safe to would not case that "it majority quotes McDonald

6. The might be instances 267-68, there rule because inflexible 59 L.Ed. 35 S.Ct. testimony could not be post- such permitting in which (1915), proposition that principles violating plainest without delibera- excluded impropriety verdict evidence Maj. op. system. 268-69, justice." 238 U.S. McDonald, undermine tions would omitted). (internal recognized {22. in that marks S.Ct. 783 Yet quotation

Case Details

Case Name: Pena-Rodriguez v. People

Court Name: Supreme Court of Colorado

Date Published: May 18, 2015

Citation: 350 P.3d 287

Docket Number: Supreme Court Case 13SC9

Court Abbreviation: Colo.