People v. Pena-Rodriguez, No. 11CA0034.

Docket NºNo. 11CA0034.
Citation412 P.3d 461
Case DateNovember 08, 2012
CourtCourt of Appeals of Colorado

412 P.3d 461

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Miguel Angel PENA–RODRIGUEZ, Defendant–Appellant.

No. 11CA0034.

Colorado Court of Appeals, Div. I.

Nov. 8, 2012.
Rehearing Denied Dec. 6, 2012.
*


412 P.3d 465

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

The Law Office of Jonathan D. Rosen, PC, Jonathan D. Rosen, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge WEBB.

¶ 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.
412 P.3d 466

Without objection, defendant complied with this procedure, which resulted in two juror affidavits.

¶ 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, 194 P.3d 411, 416 (Colo.App.2008). To abuse its discretion, a court's decision must be "manifestly arbitrary, unreasonable, or unfair, or based on an erroneous view of the law." Id. A court has not abused its discretion if the record provides some support for its action. Cf. People v. Harlan, 8 P.3d 448, 464 (Colo.2000) (finding that, despite voir dire irregularities, because the record provided support for the trial court's rulings, the trial court did not abuse its discretion), overruled on other grounds by People v. Miller, 113 P.3d 743 (Colo.2005).

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, 173 P.3d 1054, 1081 (Colo.2007). While voir dire is not a constitutional right, People v. Reynolds, 159 P.3d 684, 688 (Colo.App.2006), Colorado court rules allow defendants to examine potential

412 P.3d 467

jurors for partiality. See Crim. P. 24(a). If a juror is asked a material question during voir dire and fails to answer that question truthfully, the court may grant a new trial. People v. Borrelli, 624 P.2d 900, 903 (Colo.App.1980) ; see People v. Rael, 40 Colo.App. 374, 375–76, 578 P.2d 1067, 1068 (1978). However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific questions about the subject of the misrepresentation during voir dire. See Seventh Day Adventist Ass'n of Colorado v. Underwood, 99 Colo. 139, 141–42, 60 P.2d 929, 930 (1936) (refusing to address in a motion for new trial the assertion that potentially biased jurors prevented a fair trial, as no "specific questions" were asked about this bias in voir dire).

¶ 15 Further, not all juror misrepresentations merit a new trial. Allen v. Ramada Inn, Inc., 778 P.2d 291, 292 (Colo.App.1989). If the misrepresentation was inadvertent, a defendant must show the juror's "actual bias" to obtain a new trial. People v. Dunoyair, 660 P.2d 890, 896 (Colo.1983).

¶ 16 Actual bias requires more than an abstract belief in a defendant's guilt. Beeman v. People, 193 Colo. 337, 340, 565 P.2d 1340, 1342 (1977). Rather, the circumstances must...

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2 practice notes
  • People v. Bohl, Court of Appeals No. 16CA0644
    • United States
    • Colorado Court of Appeals of Colorado
    • November 1, 2018
    ...[defendant’s Crim. P. 24(b)(1)(X) challenge based on bias] for an abuse of discretion[.]"); People v. Pena-Rodriguez , 2012 COA 193, ¶ 69, 412 P.3d 461 ("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 fi......
  • People v. Burke, Court of Appeals No. 18CA0625
    • United States
    • Colorado Court of Appeals of Colorado
    • November 15, 2018
    ...constitutional right not to testify. I believe that Pena-Rodriguez should be so extended. When People v. Pena-Rodriguez , 2012 COA 193, 412 P.3d 461, was decided by a division of our court, I dissented from the majority’s conclusion that CRE 606(b) ’s no-impeachment rule should prevail over......
2 cases
  • People v. Bohl, Court of Appeals No. 16CA0644
    • United States
    • Colorado Court of Appeals of Colorado
    • November 1, 2018
    ...[defendant’s Crim. P. 24(b)(1)(X) challenge based on bias] for an abuse of discretion[.]"); People v. Pena-Rodriguez , 2012 COA 193, ¶ 69, 412 P.3d 461 ("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 fi......
  • People v. Burke, Court of Appeals No. 18CA0625
    • United States
    • Colorado Court of Appeals of Colorado
    • November 15, 2018
    ...constitutional right not to testify. I believe that Pena-Rodriguez should be so extended. When People v. Pena-Rodriguez , 2012 COA 193, 412 P.3d 461, was decided by a division of our court, I dissented from the majority’s conclusion that CRE 606(b) ’s no-impeachment rule should prevail over......

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