Lead Opinion
¶ 1 Secrecy of jury deliberations and juries free of bias are both core values of our jury system. But where a defendant seeks to prove that a juror exhibited racial bias during deliberations, these values conflict. Resolving this conflict is a matter of first impression in Colorado.
¶ 2 A jury convicted defendant, Miguel Angel Pena-Rodriguez, of unlawful sexual contact and harassment. He now challenges the judgment of conviction, contending the trial court committed multiple errors involving the jury. Defendant's primary contention concerns one juror's alleged failure to disclose racial bias, constituting juror misconduct.
¶ 3 We conclude that CRE 606(b) renders juror affidavits describing statements of racial bias made during deliberations inadmissible, and we decline to hold CRE 606(b) unconstitutional as so applied because defendant failed to conduct specific voir dire on racial bias. Rejecting defendant's other contentions, we affirm.
I. Background
¶ 4 Defendant was charged with attempted sexual assault on a child, unlawful sexual contact, and harassment based on his contact with two teenage girls. During voir dire, the trial court and counsel questioned the venire on several topics, including, as relevant here, whether any of the potential jurors:
• Had "any feeling for or against" either party;
• "Are" in law enforcement or had family or close friends in law enforcement;
• Could not "render a verdict solely on the evidence presented at trial and the law," without regard to "any other ideas, notions, or beliefs about the law";
• Had taken "law classes of any kind";
• Thought this would not be a "good case" for them to serve as "a fair juror";
• Wanted to discuss "anything else" privately with the court.
Defendant's assertion of misconduct involves H.C., whose only response to these questions was that he had taken classes in real estate and contract law. He agreed to put aside this knowledge when rendering his verdict and was sworn in as Juror 11.
¶ 5 The prosecution relied on pretrial and in-court identification of defendant by the victims, but presented no physical evidence. Defendant's sole witness testified to having been with defendant at a different location when the charged offenses occurred. The jury convicted defendant of unlawful sexual contact and harassment but could not reach a verdict on the sexual assault charge.
¶ 6 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. Defendant moved for access to all of the jurors' contact information. Despite receiving affidavits from defense counsel stating the "who, what, when, and where" of the allegation, as the trial court had requested, the court refused to grant "carte blanche" access to jurors. Instead, it ordered:
• Defendant would specify the gender of the jurors who made the allegations;
• The trial court would then permit defense counsel to contact jurors of that gender, provided that the contact was limited to identifying the two jurors who made the allegations;
• Defense counsel could then secure affidavits from the two jurors addressing only what statements the allegedly biased juror had made concerning his bias.
¶ 7 The first affidavit quoted Juror 11 as having said that he thought defendant "did it because he's Mexican and Mexican men take whatever they want." This affidavit referenced unspecified "other statements" made by Juror 11 about "Mexican men being physically controlling of women because they have a sense of entitlement and think they can 'do whatever they want' with women."
¶ 8 Similarly, the second affidavit indicated that Juror 11 had said that he "believed that the defendant was guilty because in his experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women." The affidavit also averred that Juror 11 had said that "where he used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls." According to this affidavit, Juror 11 also said that he "did not think the alibi witness was credible because, among other things, he was 'an illegal.' "
¶ 9 The trial court agreed to hold an evidentiary hearing on whether Juror 11 had misrepresented information during voir dire. However, because the court determined that Juror 11 had not been asked about racial bias during voir dire, the hearing would be limited to Juror 11's law enforcement experience and why he had not responded when asked about such experience. Defendant objected that the scope of the hearing was too narrow, arguing that Juror 11 was asked about racial bias. The court overruled both objections.
¶ 10 During the evidentiary hearing, Juror 11 testified that a distant relative was a law enforcement officer and that he had friends in law enforcement. Juror 11 only had a vague recollection of being asked about his law enforcement background, and said that any question did not "pointedly ask [ ]" about past employment. He said that he did not intentionally misrepresent his past employment, but thought that his law enforcement experience "forty years ago" was irrelevant.
¶ 11 The trial court found that while Juror 11 had misrepresented his law enforcement background during voir dire, the misrepresentation was inadvertent. Defendant does not appeal this ruling. Finding that Juror 11's law enforcement experience was too remote to show actual bias against defendant, the trial court refused to grant a new trial.
II. Denial of Motion for New Trial
¶ 12 The record refutes defendant's contention that the trial court abused its discretion in finding that Juror 11 was not specifically asked about racial bias in voir dire. Thus, we conclude that the court properly limited the evidentiary hearing to Juror 11's law enforcement connections. Defendant has not appealed the trial court's finding that Juror 11 made no deliberate misrepresentations about those connections. And, because the record also supports the trial court's finding that Juror 11's law enforcement connections did not create actual bias, we further conclude that the court properly denied defendant's motion for new trial.
A. Standard of Review
¶ 13 Post-trial rulings involving alleged juror misconduct are reviewed for an abuse of discretion. People v. Mollaun,
B. Law
¶ 14 The United States and Colorado Constitutions guarantee criminal defendants a right to trial by an impartial jury. U.S. Const. amends. VI, XIV ; Colo. Const. art. II, §§ 16, 25 ; Dunlap v. People,
¶ 15 Further, not all juror misrepresentations merit a new trial. Allen v. Ramada Inn, Inc.,
¶ 16 Actual bias requires more than an abstract belief in a defendant's guilt. Beeman v. People,
• A juror's husband, son, and father-in-law being police officers and the juror stating she would "end up" being biased. People v. Prator,, 821 (Colo.App.1992), aff'd, 833 P.2d 819 (Colo.1993) ; 856 P.2d 837
• A juror having a "close association with not only the law enforcement establishment, but also with this crime scene, and with the co-employee who had attended to this murder victim." People v. Rogers,, 888 (Colo.App.1984) ; 690 P.2d 886
• A juror's husband being a police officer, the prosecution witness being "familiar" to her, and the prosecutor having been the juror's former teacher. People v. Reddick,, 280, 44 Colo.App. 278 , 1360 (1980). 610 P.2d 1359
In contrast, juror ties such as the following were insufficient:
• A juror recognizing the victim as her daughter's acquaintance. People v. Drake,, 367 (Colo.App.1992) ; 841 P.2d 364
• A juror realizing a witness testifying to "tangential" facts was a former acquaintance. Dunoyair,. 660 P.2d at 895-96
C. Application
1. Limiting the Hearing to Law Enforcement Connections
¶ 17 After reviewing the voir dire record,
¶ 18 The record contains some support for these conclusions. For example, before voir dire, the trial court told defense counsel that "in the past, some of our jurors have been vocal in their dislike of people who aren't in the country legally. I don't know if that's an
¶ 19 Thus, we decline to disturb the finding that because Juror 11 was not asked about racial bias in voir dire, defendant could not explore this subject at the hearing. Here, the trial court found that there "were no questions asked about the defendant's ethnicity" during voir dire. Based on this finding, the court impliedly concluded that Juror 11 could not have been expected to respond about any potential racial bias, the subject that defendant sought to explore in the hearing. This is a factual determination, distinct from our conclusion below that defendant waived his as-applied constitutional challenge to CRE 606(b), an issue we resolve de novo.
¶ 20 Although some of the questions asked might have elicited a response concerning racial bias, our review is limited to whether the record presents any basis for the trial court's decision. See Harlan,
2. "Actual Bias" Not Caused by Law Enforcement Connections
¶ 21 Defendant accepts the finding that Juror 11's misrepresentation of his law enforcement background was inadvertent, but contends that the trial court abused its discretion in finding no actual bias. However, defendant does not explain, nor does the record suggest, any such actual bias arising from Juror 11's limited law enforcement experience.
¶ 22 Juror 11's previous employment as an officer and general acquaintances with officers do not involve a personal relationship with any party or witness. Further, his employment in law enforcement ended more than four decades before trial, making it highly improbable that such service would have overlapped with any party working on the case. Juror 11's relationships with present law enforcement personnel do not suggest bias because they are limited to some friends and a distant relative, none of whom has any connection to the case.
¶ 23 In addition, law enforcement witnesses played a relatively minor role in the case. See Dunoyair,
¶ 24 Therefore, we conclude that the trial court did not abuse its discretion in denying defendant's motion for new trial.
III. Admissibility of Juror Affidavits Under CRE 606(b)
¶ 25 Defendant next contends 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. We reject this contention because we conclude that the statements do not fall within the exceptions to CRE 606(b), and thus the record contains no admissible evidence of Juror 11's bias.
A. Standard of Review
¶ 26 Interpretation of court rules is an application of law, requiring de novo
B. Law
¶ 27 CRE 606(b)
• Any issue or statement made during deliberations;
• The effect anything has on a juror's deliberations; or
• Any mental processes related to the jury's verdict.
This limitation protects the finality of verdicts and allows jurors to deliberate without fear of reprisal, coercion, or criticism. See Stewart v. Rice,
¶ 28 CRE 606(b) contains three exceptions. As relevant here, juror testimony is admissible to show that "extraneous prejudicial information" was brought to the jury's attention and that "outside influence" was brought to bear on a juror.
¶ 29 A defendant is entitled to a new trial if a reasonable possibility exists that the jury verdict was tainted by extraneous prejudicial information or outside influences. Harper v. People,
C. Application
1. "Validity of the Verdict"
¶ 30 Defendant first contends CRE 606(b) does not apply to statements made during deliberations when offered to show racial bias because the inquiry is not into the deliberative process. However, CRE 606(b) applies to evidence of statements made during deliberations offered to attack "the validity of a verdict." Here, by seeking a new trial based on juror misconduct, defendant is attacking the validity of the verdict.
¶ 31 CRE 606(b) applies broadly, Mollaun,
¶ 32 Defendant cites no Colorado case holding that parties may attack verdicts using statements made during deliberations, provided that no analysis of the deliberative process is necessary. Under CRE 606(b), three distinct categories of testimony are inadmissible during "an inquiry into the validity of a verdict," one of which is juror testimony regarding "any matter or statement occurring during the course of the jury's deliberations" (emphasis added). Because no other language in CRE 606(b) limits this broad prohibition, we do not deviate from the text of the rule. See Black v. Waterman,
2. "Extraneous Prejudicial Information"
¶ 34 Colorado courts interpret "extraneous prejudicial information" to include physical materials and specific facts not admitted into evidence, as well as legal knowledge beyond that contained in jury instructions. People v. Harlan,
¶ 35 The Colorado Supreme Court's touchstone in identifying extraneous information is whether "the experience used by the juror in deliberations [is] part of the juror's background, gained before the juror was selected to participate in the case and not as the result of independent investigation into a matter relevant to the case." Kendrick,
We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs.... We hold only that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions.
Id.; accord Holt,
¶ 36 Here, Juror 11's alleged statements of bias during deliberations illustrated beliefs about an ethnic minority group, formed by his experiences. His opinions were not the result of an independent investigation performed after being sworn to serve on the jury. Rather, Juror 11 viewed the testimony before him through the lens of his experiences and personal beliefs. While these beliefs may be repugnant, they are no more "extraneous" to deliberation than a juror's religious beliefs, as discussed in Harlan.
¶ 37 A few cases from other jurisdictions consider racial bias "extraneous prejudicial information."
¶ 38 Therefore, we conclude that the "extraneous prejudicial information" exception is inapplicable.
¶ 39 Colorado follows a plain language approach to the CRE 606(b) exceptions, Stewart,
¶ 40 Here, the affidavits do not suggest interference from any party outside the jury room. To the contrary, the statements at issue illustrate Juror 11's beliefs and opinions, which, as explained above, lie at the core of what should be considered "internal." Defendant makes no coherent argument why these statements made within the walls of the jury room were an "outside influence."
¶ 41 Therefore, we further conclude that the "outside influence" exception does not apply.
¶ 42 Accordingly, the juror affidavits were inadmissible under CRE 606(b).
IV. Constitutionality of CRE 606(b) As-Applied
¶ 43 Alternatively, defendant argues that, if none of the exceptions in CRE 606(b) applies, racial bias so taints a defendant's rights under the Fifth, Sixth, and Fourteenth Amendments that refusal to consider evidence of a juror's racially biased statements during deliberations renders CRE 606(b) unconstitutional as-applied. We do not decide whether considering evidence of such bias might be constitutionally required, however, because defendant waived his ability to challenge the verdict on this basis by failing to sufficiently question jurors about racial bias in voir dire.
A. Verdict Finality and Juror Privacy
¶ 44 CRE 606(b) codified common law protections of verdict finality and juror privacy, Stewart,
¶ 45 The United States Supreme Court balanced similar evidentiary and constitutional concerns in Tanner v. United States,
¶ 46 However, lower federal courts and state courts disagree whether the Tanner factors adequately protect a defendant's right to trial by an impartial jury where rules such as CRE 606(b) would bar evidence of a juror's racial bias. In Benally,
¶ 47 Courts that are less confident in the protection given by the Tanner factors do not offer common reasoning. Some courts hold the analog to CRE 606(b) unconstitutional only when a juror misrepresented information about bias in voir dire. E.g., United States v. Henley,
B. Waiver of Constitutional Challenge to Juror Bias
¶ 48 A defendant has a constitutional right to a fair trial by an impartial jury, which may be defeated by the presence of a biased juror. People v. Lefebre,
¶ 49 While the United States Constitution guarantees the right to a fair trial by an impartial jury, it does not provide a particular test to ensure this right. Frazier v. United States,
¶ 50 "The purpose of voir dire is to determine whether a juror is biased or prejudiced in any way." People v. Binkley,
¶ 51 Given the important role voir dire serves in assuring impartial juries, criminal defendants have both the right and the duty to secure an impartial jury through "diligent inquiry" into potential jurors' racial bias. Maes v. Dist. Court,
C. Application
¶ 52 No Colorado court has addressed whether the Tanner factors are sufficient to protect the right to a jury free of racial bias. However, we need not decide the issue here. We have upheld the trial court's factual finding that defendant did not ask about racial bias during voir dire. See part II. C.1, supra. Thus, because defendant could have asked such questions and challenged Juror 11 for cause based on his answers, defendant waived the right to assert that, as applied here, CRE 606(b) violates his right to an impartial jury.
¶ 53 Defendant offers no reason to conclude here that diligent voir dire would have left his rights to a jury free of racial bias unprotected. Nor are we willing to assume that because voir dire is insufficient to protect against racial bias, waiver cannot be based on deficient voir dire. While racial issues create distinct challenges for trial counsel, many sources address conducting meaningful voir dire as to race.
¶ 54 Furthermore, while some prospective jurors may be hesitant to admit racial bias, prospective jurors may be hesitant to admit gender bias, religious bias, age bias, bias based on sexual orientation, or bias against a defendant's immigration status. Holding, as a matter of law, that voir dire was inadequate to address bias, racial or otherwise, would restrict section 16-10-103(1)(j), which allows challenges for cause based on bias, to personal bias against a specific defendant. Neither the statutory language nor any case supports such a restrictive approach.
¶ 55 Such a holding would defeat the core purpose of voir dire, which is to "determine whether any prospective jurors are possessed of beliefs that would cause them to be biased in such a manner as to prevent the defendant from obtaining a fair and impartial trial." People v. Robinson,
¶ 56 Although a purpose of voir dire is to identify potential juror bias, see Binkley,
¶ 57 Colorado courts adhere to the rule that "[a] challenge for cause is waived if counsel does not use reasonable diligence during jury selection to determine whether the grounds for such a challenge exist." Asberry,
¶ 58 Furthermore, a waiver based on counsel's failure to adequately question jurors in voir dire is not subject to the "knowing, voluntary, and intentional" standard used for waivers of certain rights by defendants, as the dissent suggests it should be. Examples of waivers subject to this standard include the right to counsel, the right of a defendant to testify, the entrance of a guilty plea, Hinojos-Mendoza v. People,
¶ 59 No Colorado case holds that voir dire into juror bias, exercising challenges for cause, and passing the panel for cause are decisions made only by the defendant.
¶ 60 Therefore, while counsel may, in fact, decide for strategic reasons not to question jurors on racial bias, a defendant cannot claim his rights were violated when an opportunity existed to protect those rights but his counsel failed to do so for tactical reasons. See People v. Mann,
¶ 61 Alternatively, even if deficient voir dire does not constitute a waiver, courts should not "resolve constitutional questions or make determinations regarding the extent of constitutional rights unless such a determination
¶ 62 Therefore, we conclude that because defendant failed to inquire into racial bias in voir dire, we will not decide whether the constitutional balance requires CRE 606(b) to yield.
V. Juror Access Limitations
¶ 63 Defendant contends that the trial court misapplied Crim. P. 24(a)(4) and Crim. P. 33(c) when limiting his access to jurors before the evidentiary hearing, interfering with his rights under the United States and Colorado Constitutions. However, this interference does not amount to constitutional error, and because any error in limiting access to jurors after trial was harmless, we do not reverse.
A. Standard of Review
¶ 64 Under the general harmless error standard, appellate courts reverse only when the record suggests that an error substantially affected the fairness of proceedings. People v. Gaffney,
B. Preservation
¶ 65 The Attorney General's assertion that defendant failed to preserve this issue is unpersuasive. Defendant moved for access to all juror contact information in anticipation of seeking an evidentiary hearing into grounds for new trial. Instead, the trial court required defense counsel to detail the "who, what, when, and where" of the alleged misconduct before limiting contact to only the female jurors. Further, defendant was allowed to obtain affidavits from only the two jurors who approached defense counsel after trial, reporting that Juror 11 was racially biased. Thus, the trial court denied defendant's motion, at least in part. Therefore, defendant is able to appeal the trial court's restrictions. Cf. Resolution Trust Corp. v. Parker,
C. Defendant's Argument
¶ 66 Defendant argues that the trial court abused its discretion by erroneously interpreting Crim. P. 33(c)
¶ 67 In addition, defendant asserts that parties should have unfettered post-trial access to jurors absent evidence of harassment or criticism of the jurors' service. For this proposition, he cites public policy considerations
D. Analysis
¶ 68 The United States Constitution does not guarantee a defendant the right to question jurors post-verdict. Cf. Haeberle v. Texas Int'l Airlines,
¶ 69 Assuming, while not deciding, that the trial court erred or abused its discretion in applying Crim. P. 24(a)(4) and Crim. P. 33(c), we find any error harmless. Defendant sought juror information to determine if Juror 11 had failed to disclose his law enforcement connections and possible biases in voir dire. After examining the voir dire, the court held an evidentiary hearing limited to Juror 11's law enforcement connections. Additional information that defendant could have obtained from jurors is irrelevant to the sole basis for the court's decision on the scope of the evidentiary hearing-what was asked in voir dire.
¶ 70 At the evidentiary hearing, Juror 11 was questioned about his law enforcement experience, as well as having friends and relatives who served in law enforcement. After hearing the testimony, the trial court determined that, given the high threshold to show actual bias, supra Part II.B, Juror 11's answers did not merit a new trial. We fail to understand, and defendant does not suggest, what additional questions Juror 11 would have been asked, had defendant contacted other jurors.
¶ 71 Even if defendant could have obtained from other jurors additional information of statements by Juror 11 showing actual bias, any statements made during deliberations
¶ 72 Therefore, we conclude that any error was harmless.
VI. Impaneling a Numbers Jury
¶ 73 Finally, we conclude the trial court did not commit plain error by impaneling a numbers jury.
A. Standard of Review
¶ 74 When the defendant fails to object to a trial court empaneling a numbers jury, appellate review is for plain error. People v. Robles,
B. Analysis
¶ 75 A division of this court in People v. Robles,
• Neither the court nor counsel commented on the use of numbers rather than names;
• There was no indication of the procedure being unusual;
• Neither the court nor counsel indicated that referring to jurors by number implied that defendant was dangerous;
• Defendant was able to conduct meaningful voir dire despite use of numbers rather than names.Id.
¶ 76 The record shows these same factors here. The trial court told counsel that it was common practice to refer to jurors solely by number and no further mention was made of this process by anyone. Also, the use of numbers did not impact the effectiveness of voir dire. Defendant does not indicate why Robles should not control and we decline to deviate from its reasoning.
¶ 77 Therefore, the trial court did not commit plain error.
VII. Conclusion
¶ 78 The judgment of conviction is affirmed.
Judge LOEB concurs.
Judge TAUBMAN dissents.
Notes
The judge who conducted defendant's trial and subsequent proceedings was different from the judge who conducted voir dire.
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying." CRE 606(b).
E.g., Tobias v. Smith,
These other factors are: the court's and counsel's ability to observe jurors during trial; the ability of jurors to report misconduct by other jurors before trial; and the ability to admit nonjuror testimony to show misconduct. Tanner,
The Tenth Circuit has expressed concern about the lack of any limiting principle in a case-by-case approach: "If confidentiality can be breached whenever a court, after the fact, thinks the advantages of doing so are important enough, much of the damage has already been done." Benally,
Other jurisdictions are in accord. See, e.g., State v. Shepherd,
If Juror 11 misrepresented his biases, post-trial relief could have been sought on that basis.
See, e.g., Roberto Aron et al., Trial Communication Skills § 30:4 (2d ed. 2011); Alafair S. Burke, Prosecutors and Peremptories,
Requiring that a defendant participate-knowingly, voluntarily, and intentionally-in voir dire and challenges for cause would be unworkable. For example, the trial court would have to fashion an advisement that explained the nuances of the tactical decisions made in voir dire. Cf. People v. Arguello,
United States v. Zarnes,
Desir involved a Fed.R.Crim.P. 33 motion for postconviction relief based on "newly discovered" evidence. The defendant claimed that a juror was a personal acquaintance who knew of the defendant's criminal record, violating the right to an impartial jury. Desir,
By discussing adverse effects of trial strategy, we do not express an opinion on how an ineffective assistance of counsel claim based on these effects should be resolved.
We take no position on whether Benally 's analysis of the Tanner factors would control appropriately preserved constitutional challenges to CRE 606(b).
Crim. P. 33(c) provides, in relevant part, "[a] motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits."
E.g., Stewart,
"Orientation And Examination Of Jurors. An orientation and examination shall be conducted to inform prospective jurors about their duties and service and to obtain information about prospective jurors to facilitate an intelligent exercise of challenges for cause and peremptory challenges.... (4) Jurors shall not be required to disclose personal locating information, such as address or place of business in open court and such information shall not be maintained in files open to the public. The trial judge shall assure that parties and counsel have access to appropriate and necessary locating information." Crim. P. 24(a).
See supra note 14.
Our conclusion of harmlessness is not approval of the trial court's actions. The severe limitations on juror access seem unnecessary given defendant's legitimate interest in investigating possible constitutional violations.
Dissenting Opinion
¶ 79 This case presents the important issue of whether CRE 606(b) must yield to the Sixth Amendment right to an impartial jury where evidence is presented of a juror's previously unknown racial bias arising during jury deliberations. Although this is an issue of first impression in Colorado, numerous state and federal courts are divided on the issue. Because I disagree with the majority that CRE 606(b) prohibits consideration of Juror 11's apparent racial bias, I respectfully dissent. To the contrary, I would hold that CRE 606(b) must yield to the Sixth Amendment right of defendant, Miguel Angel Pena-Rodriguez, to an impartial jury, because racial bias apparently influenced Juror 11's decision-making process. Accordingly, I believe the trial court erred by not considering evidence of racial bias arising during deliberations, and by limiting the scope of Pena-Rodriguez's motion for new trial to the issue of whether Juror 11 misrepresented his law enforcement background. Further, I would reverse Pena-Rodriguez's conviction and remand for further proceedings, because the trial court's error is not harmless beyond a reasonable doubt.
I. Background
¶ 80 I adopt the majority's recitation of the relevant facts, but reiterate those important to my dissent.
¶ 82 The first affidavit stated that Juror 11 said, "I think he did it because he is Mexican and Mexican men take what they want." The affidavit also stated that Juror 11 "made other statements concerning Mexican men being physically controlling of women because they have a sense of entitlement and think they can 'do whatever they want' with women." The second affidavit added:
[Juror 11] believed that the defendant was guilty because in his experience as [an] ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.... He said that where he used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.... He said that he did not think the alibi witness was credible because, among other things, he was "an illegal."
The trial court declined to consider this evidence in conjunction with Pena-Rodriguez's motion for a new trial, because Pena-Rodriguez did not question the jurors specifically regarding racial bias in voir dire, and because the court believed such testimony to be barred by CRE 606(b).
II. Preservation of Constitutional Challenge
¶ 83 The majority holds that because Pena-Rodriguez did not ask questions specifically related to racial bias during voir dire, his constitutional as-applied challenge to CRE 606(b) fails. I disagree.
A. Standard of Review
¶ 84 The majority applies an abuse of discretion standard and defers to the trial court's determination that Pena-Rodriguez did not ask sufficient questions regarding racial bias during voir dire. I disagree with the application of this standard, and would instead review the trial court's conclusion de novo.
¶ 85 Whether the questions asked during voir dire were sufficient is a mixed question of fact and law. People v. Matheny,
¶ 86 Here, the historical facts include questioning during voir dire. To the extent these facts were at issue, I would afford deference to the trial court's findings. However, whether the voir dire legally constituted a sufficient inquiry into potential racial bias is a question of law that must be reviewed de novo. Accordingly, I believe it is necessary to conduct a de novo review of whether the questions asked sufficiently addressed racial bias before deciding whether Pena-Rodriguez's failure to ask certain questions regarding racial bias constitutes a waiver of his right to an impartial jury.
B. Duty During Voir Dire
¶ 87 The majority relies on Maes v. District Court,
¶ 88 In Maes, the defendant attempted to question potential jurors about racial bias during voir dire.
¶ 89 The supreme court reversed the trial court's ruling, holding that the defendant's "right to inquire on voir dire concerning prejudice against a person of a minority race" is undisputed.
¶ 90 For two reasons, I do not read the court's dictum to create a rule that requires counsel to explicitly inquire into issues of racial bias. First, dictum is not controlling precedent. Z.J. Gifts D-2, L.L.C. v. City of Aurora,
¶ 91 As discussed below, Pena-Rodriguez's counsel asked sufficient questions during voir dire to satisfy this obligation. Counsel was not required to ask specifically about racial bias, because legitimate tactical considerations militated against doing so. In United States v. Villar,
many defense attorneys have sound tactical reasons for not proposing specific voir dire questions regarding racial or ethnic bias because it might be viewed as insulting to jurors or as raising an issue defense counsel does not want to highlight.... [V]oir dire using questions about race or ethnicity may not work to a defendant's benefit where one of the [suspects] was described [based on his race].
¶ 92 Similarly, questions specifically addressing racial prejudice may be less effective in detecting racial bias than open-ended questions regarding a juror's ability to be fair. See Roberto Aron et al., Trial Communication Skills § 30:4 (2d ed. 2011) ("Counsel should ask potential jurors open-ended questions and let them talk about themselves, so as to better perceive those attitudes and beliefs potentially relevant to the case that might otherwise remain hidden.")
¶ 93 Thus, it is unlikely the supreme court intended to create an absolute rule, which could cause a defendant's race to prejudice him or her. At most, Maes requires counsel to ensure that sufficient questions are asked during voir dire to determine whether the jurors are "capable and willing to decide the case solely on the evidence before [them]."
¶ 94 Here, sufficient questions were asked during voir dire to establish that the jurors would base their verdict on the facts of the case, rather than on bias or prejudice. Specifically, the jurors were asked whether they could "render a verdict solely on the evidence presented at trial and the law," without regard to "any other ideas, notion, or beliefs about the law." See Wilson,
C. Waiver of Constitutional Rights
¶ 95 Even if Pena-Rodriguez was obligated to ask further about racial bias, for three reasons his failure to do so would not result in a waiver of his constitutional right to an impartial jury. First, nothing in Maes suggests that the supreme court intended for such a waiver to occur. Second, in reaching its conclusion that Pena-Rodriguez waived his rights, the majority cites five cases: People v. Asberry,
¶ 96 First, Maes did not address the question of waiver at all. Its above-quoted language about the "duty" of defense counsel was dictum, as noted above.
¶ 97 Second, the cases on which the majority relies are distinguishable. Asberry, Ma, Crespin, and Lewis are distinguishable because they involve waiver of a defendant's right to challenge a juror where the defendant knew of the juror's disqualifying characteristic, but failed to adequately challenge the juror on that ground. None of the cases cited by the majority involves an instance where the defendant was unaware of a juror's potential or actual bias. Here, however, Pena-Rodriguez had no knowledge of Juror 11's alleged bias. Accordingly, the rule set forth in these cases, that a challenge for cause to a juror's qualifications is waived through lack of diligence, should only apply to cases where the basis for a challenge is known during voir dire. Thus, these cases are distinguishable.
¶ 98 Cevallos-Acosta is also distinguishable, because the division declined to consider a denial of a challenge for cause because the defendant failed to preserve his challenge.
¶ 99 Accordingly, these cases do not support the majority's conclusion that the failure to ask questions about race during voir dire prevents a defendant from making an as-applied constitutional challenge to CRE 606(b), based on previously unknown bias and the Sixth Amendment right to an impartial jury.
¶ 100 Third, Pena-Rodriguez did not waive his right to an impartial jury knowingly, voluntarily, and intentionally. Although there is no Colorado case discussing the waiver of a defendant's constitutional right to an impartial jury, our courts have held that a waiver of a defendant's Sixth Amendment right to a jury must occur knowingly, voluntarily, and intentionally. Hinojos-Mendoza v. People,
¶ 101 The majority cites State v. Shepherd,
¶ 102 Holmes v. State,
¶ 103 Finally, People v. Rogers,
¶ 104 Here, Pena-Rodriguez did not waive his right to an impartial jury knowingly and voluntarily. At no point before or during trial was he aware of Juror 11's apparent racial bias. Additionally, the lack of questioning specifically addressing racial bias cannot be considered a knowing and voluntary waiver of a fundamental constitutional right. See People v. Curtis,
¶ 105 Holding that the Sixth Amendment right to an impartial jury outweighs CRE 606(b) would not render section 16-10-103(1)(j) a nullity. As I state below, my opinion is limited to the facts in this case-apparent racial prejudice of one juror. Section 16-10-103(1)(j), however, applies to any situation in which a juror's state of mind evinces bias against a party. Accordingly, while my opinion may limit application of this statute in those cases in which allegations arise of a racially biased juror, it does not render the statute a nullity.
¶ 106 Accordingly, I conclude Pena-Rodriguez did not waive his Sixth Amendment right to an impartial jury, and therefore may challenge Rule 606(b) as applied.
¶ 107 Pena-Rodriguez asserts that CRE 606(b) is unconstitutional as applied because it prevents him from protecting his Sixth Amendment right to an impartial jury. I agree.
¶ 108 A juror compromises the constitutional guarantees of our justice system when he or she forgoes his or her role as a fact finder and, instead, forms conclusions of guilt or innocence based on racial bias. "A racially biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged." Turner v. Murray,
¶ 109 Colorado courts have consistently held that "an impartial jury is a fundamental element of the constitutional right to a fair trial." Morrison v. People,
¶ 110 The right to a jury free of racial bias is of particular importance. See Aldridge v. United States,
¶ 111 Batson v. Kentucky,
¶ 113 As the majority opinion notes, numerous state and federal courts have admitted evidence of racial bias, arising from jury deliberations, through multiple theories-both constitutional and rule-based. See, e.g., Villar,
¶ 114 On appeal, the People rely on Tanner and United States v. Benally,
¶ 115 In Tanner, the defendant attempted to introduce juror testimony that during deliberations some jurors were intoxicated. Tanner,
¶ 116 In contrast, here, according to the affidavit of another juror, Juror 11 said, "I think [Pena-Rodriguez] did it because he's Mexican, and Mexican men take whatever they want." This statement, if Juror 11 indeed made it, clearly demonstrates that, unlike the jurors in Tanner, Juror 11 did not fairly consider the evidence presented, and instead based his decision on Pena-Rodriguez's Hispanic background. Accordingly, Tanner is distinguishable.
¶ 117 Although Tanner is distinguishable, its rationale is helpful to analyze whether Pena-Rodriguez's Sixth Amendment right to an impartial jury outweighs the policy interests behind enforcing CRE 606(b). In Tanner, the Supreme Court balanced the defendant's Sixth Amendment right to an unimpaired jury
¶ 118 Here, however, the four Tanner factors do not provide adequate safeguards in the context of a juror motivated by racial bias. See Villar,
¶ 119 Second, the majority suggests that the Sixth Amendment does not require Rule 606(b) to yield because there is "no reason to conclude that diligent voir dire would have left [defendant's] rights to a jury free of racial bias unprotected." However, Justices of the Supreme Court have recognized that the protections provided by voir dire are insufficient to protect against racial bias, because jurors may be reluctant to admit their bigotry in open court. See, e.g., McDonough,
¶ 120 Third, it is unlikely that jurors will report juror misconduct prior to the verdict, because they are usually instructed by the court not to communicate with anyone outside the jury. Here, the court orally instructed the jury, "[D]uring [deliberations] you will not be able to communicate with anyone." The court also referred to the "confidential" nature of deliberations, and repeated that the jurors were not allowed to talk to anyone besides other jurors. Similar instructions were given in the adjournment instructions, which every juror read and signed. The adjournment instructions additionally emphasized that the jurors could not contact any attorney, witness, or party. Accordingly, it is possible that the jurors believed that they could not bring Juror 11's statements to the court's attention until after deliberations ended.
¶ 121 Fourth, nonjurors are not privy to deliberations, and thus would be unable to report racially biased statements made during jury deliberations. See
¶ 122 Thus, the Tanner procedural protections are insufficient safeguards against racial prejudice. Accordingly, I conclude that the policy considerations behind CRE 606(b) do not outweigh a defendant's Sixth Amendment right to a fair trial.
¶ 123 Contrary to the majority's conclusion, I do not believe that finding CRE 606(b) unconstitutional as applied in this case would open a Pandora's box to charges of racially biased jurors participating in jury deliberations. There are no published cases in Colorado involving evidence of racial bias arising during deliberations which is first discovered after a verdict. Thus, it does not appear to be a common occurrence. Additionally, my view here is limited to allegations of juror bias against distinct racial groups.
IV. Remedy
¶ 124 Having concluded the trial court erred, I would remand for an evidentiary hearing to determine whether Pena-Rodriguez was prejudiced by Juror 11's apparent racial bias. See Villar,
¶ 125 I would direct the trial court on remand to conduct an evidentiary hearing to determine, at the very least, (1) whether Juror 11 made the statements of apparent racial bias attributed to him in the two affidavits; (2) whether Juror 11 based his decision of guilt on racial bias rather than the facts presented, (3) whether Juror 11's statements affected the views of other jurors, and (4) whether any other juror expressed racial bias. I would defer to the trial court to determine the best procedure for making such a determination.
V. Juror Contact Information
¶ 126 Having decided that I would remand the case for further proceedings, I need not determine whether a defendant has a right to unfettered access to juror information following trial. However, under the plain wording of Crim. P. 24(a)(4), juror contact information in this case would be "appropriate and necessary." Thus, without deciding the issue of whether an unfettered right to jury information exists, I would order the trial court to provide juror contact information to both parties to facilitate a complete investigation into potential bias. The trial court could limit defense counsel's contacts with jurors to the issue of racial bias.
¶ 127 Finally, providing such information in this case would not result in a "fishing expedition," because two juror affidavits already
¶ 128 Accordingly, I respectfully dissent.
I recognize that courts have referred to people of Hispanic heritage as belonging to racial, ethnic, and national origin groups. See, e.g., Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland,
The majority opinion cites this authority, and others, to support its conclusion that Pena-Rodriguez should have asked questions specifically addressing racial bias. However, this authority notes that open-ended questions are better for detecting racial and other biases. Thus, this observation conflicts with the majority's assertion that specific questioning regarding bias was required to preserve Pena-Rodriguez's constitutional challenge.
I do not disagree with the majority's discussion of the general application and function of CRE 606(b) in section III.B. of the majority opinion. However, because I conclude that the Sixth Amendment requires consideration of racial bias arising during jury deliberations, I do not need to decide whether evidence of bias would also be admissible under the exceptions contained in CRE 606(b)(1) and (2). I would note, however, that federal and state courts have allowed consideration of such evidence under these exceptions, in rules identical to CRE 606. See Tobias v. Smith,
Benally, in turn, relied on Williams v. Price,
The Court's discussion in Tanner was limited to whether the defendant's right to an unimpaired jury allowed consideration of the juror testimony. Tanner,
For these same reasons, I conclude that Benally was decided improperly, and therefore I decline to rely on it.
For purposes of my dissent, I need not address whether the Sixth Amendment right to an impartial jury should trump CRE 606(b) in cases of alleged discrimination by jurors on the basis of gender, religion, sexual orientation, or immigration status.
While I would not order a specific procedure for the trial court to follow on remand, I would note that Commonwealth v. McCowen,