Neil v. Espinoza , 1987 Colo. LEXIS 669 ( 1987 )

ROVIRA, Justice.

Defendant David Neil, a Denver police officer, shot and killed Arthur Espinoza on July 31, 1977. Espinoza’s six children filed suit against defendant¹ in 1977 under 42 U.S.C. § 1983 (1982),² alleging that defendant’s killing of their father deprived them of their fourteenth amendment liberty interests in familial association without due process of law.³

Trial to a jury was held in March of 1985. The trial court entered judgment on the jury verdict in the amount of $150,000 compensatory and $5,000 punitive damages for each plaintiff and against defendant. Defendant appealed to the court of appeals, and we granted his petition for a writ of certiorari before judgment pursuant to C.A.R. 50.

Defendant cites three errors in the court below as requiring reversal. First, the plaintiffs should have been required to prove not only that defendant killed Arthur Espinoza knowingly, but also that he did so with the intent to deprive the plaintiffs of their familial association rights. Second, the trial court should not have entered judgment on a non-unanimous jury verdict and should not have considered an affidavit of one of the jurors in entering judgment. Third, the trial court should have declared a mistrial on the grounds that one of the jurors failed to disclose relevant information on voir dire.

Because we agree with defendant’s second contention, we vacate the judgment and remand for a new trial.⁴

I.

The jury originally returned a verdict in favor of plaintiffs and awarded $5,000 to each plaintiff as punitive damages. The jury placed a question mark, however, in the space provided on the verdict form for compensatory damages. After the members of the jury were told by the judge that they had to specify a sum to award compensatory damages, and that they could not award punitive damages without compensatory damages, they were sent back to the jury room to clarify their verdict. Upon further deliberation, they returned a verdict form with the amount of $150,000 entered as compensatory damages and $5,000 as punitive damages for each plaintiff.

Counsel for defendant requested that the jury be polled, and the first five jurors responded affirmatively to the court’s query, “Was this and is this your verdict?” When Raymond Rector, the sixth juror, was questioned, the following colloquy took place:

The Clerk: Mr. Rector, was this and is this your verdict?

Mr. Rector: May I ask a question, your Honor?

The Court: You may.

Mr. Rector: Can this be decided, the actual damages, by majority vote?

The Court: No, it has to be unanimous.

Mr. Rector: It was by majority.

The Court: In that event, you haven’t reached unanimity as to the actual damages in this case_ [A]m I correct there is no unanimity as to the actual damages in this case? You were asked by the poll whether it was and is it your verdict. Are one or more of you saying this is—

Mr. Rector: I’m prepared to say that it was not unanimous.

The Court: Under those circumstances, I have no alternatives but to declare that the jury has not reached a verdict as to either claim for relief in this case and I’m going to discharge the jury. You don’t feel [there] would be any point in continuing any more? Very well.

The jury was thereupon discharged and left the courtroom. The court then stated:

In view of the polling of the jury and the statement by one of the jurors that the actual damages that were added to the verdict form was done by majority rather than unanimous vote, the Court is going to entertain a Motion for New Trial and ask this be reset on all issues.

The court set a briefing schedule for post-trial motions, but before briefs were submitted the court entered judgment against defendant and in favor of each plaintiff in the amount of $150,000 compensatory and $5,000 punitive damages.

Plaintiffs thereafter filed a brief in support of the entry of judgment and appended to their brief an affidavit of Rector that included the following statement:

[I]n stating that the verdict was a majority decision, I was feeling uncomfortable because I felt that the compensatory damages award should be much greater for each child. That is the reason that I stated that the verdict was not my verdict.

Defendant timely objected to the entry of judgment and moved that the affidavit of Rector be stricken. At oral argument on the post-trial motions, the court denied relief to defendant and explained:

The Court ... felt that inasmuch as it had a verdict signed by all six jurors that the Court had no alternative but to enter judgment on the verdict, if nothing more than a springboard for the motions of counsel as it related to the declaration of a mistrial.

Having reviewed [Rector’s] affidavit, the Court feels that the defendants were not prejudiced inasmuch as the juror Rector would have given a larger sum of money, obviously the fact that he must have inherently agreed with the lesser sum of money.

The court shortly thereafter issued a minute order holding, in part,

Defendants’ Motion to Strike the Affidavit of Juror Raymond Rector is denied. The court is well aware of authorities prohibiting the use of a juror Affidavit from probing the mental processes of the jury. However, the Affidavit of Juror Rector is an explanation of what he said in the jury box at the time the jury was polled, and does not impermissibly reveal the juror’s mental processes.

II.

The trial court’s entry of judgment after the jury was discharged was improper under the controlling rules of procedure:

(o) New Trial if No Verdict. When a jury is discharged or prevented from giving a verdict for any reason, the action shall be tried anew.

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(s) Verdict Recorded, Disagreement. The verdict, if agreed upon by all jurors, shall be received and recorded and the jury discharged. If all the jurors do not concur in the verdict, the jury may be sent out, or may be discharged.

C.R.C.P. 47.

Once the trial court learned that the verdict was not unanimous, it could either have sent the jury out for further deliberation or else discharged the jury. C.R.C.P. 47(s). The court determined that further deliberations would be futile, and thus chose to discharge the jury. Having done so, it had no choice but to order a new trial. C.R.C.P. 47(o).

As we have explained in analogous circumstances, “once a jury has been discharged, and the members of the jury dispersed, the court cannot reconstitute the jury and poll the individual members to determine their intent in rendering a ver-dict_” Kreiser v. People, 199 Colo. 20, 22, 604 P.2d 27, 28 (1979). Here, the court discharged the jury after polling. Although the court did not formally reconstitute the jury, its action in entering judgment and later in receiving the affidavit of Rector presented precisely the problem we faced in Kreiser: The court attempted to give force to a defective verdict after the jury was discharged.

By entering judgment on the jury verdict as signed by the jurors, the court disregarded Rector’s declaration during polling that the verdict was not, in fact, unanimous. We cannot approve the court’s action. To permit a court to ignore the results of polling would be to render polling a wholly unnecessary procedure and deprive litigants of the opportunity to ensure that verdicts are, as required by law, unanimous.

Moreover, the trial court erred by failing to strike the affidavit of Rector. CRE 606(b) prohibits the use of any testimony by jurors for the purpose of resurrecting or impeaching a verdict except in limited circumstances:

Inquiry into validity of verdict or indictment. 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors’ attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

CRE 606(b).

Our previous decisions, decided both under the Colorado Rules of Evidence and under common law, have given substantial weight to the interests protected by shielding verdicts from impeachment by the testimony of jurors: “[t]o allow such inquiry could subject jurors to harassment and coercion after the verdict and create uncertainty on the finality of verdicts.” Santilli v. Pueblo, 184 Colo. 432, 433-34, 521 P.2d 170, 171 (1974) (cannot impeach verdict by testimony showing jury misunderstood instructions). See also Pletchas v. Von Poppenheim, 148 Colo. 127, 132, 365 P.2d 261, 264 (1961) (cannot admit testimony that jurors doubled damage award because they believed attorney received 50% fee); Morris v. Redak, 124 Colo. 27, 36-37, 234 P.2d 908, 912-13 (1951) (trial court properly excluded affidavits explaining jurors’ interpretation and use of certain facts). Cf. People v. Collins, 730 P.2d 293, 302 (Colo.1986) (trial court may consider testimony that juror was coerced into agreeing to verdict); Alvarez v. People, 653 P.2d 1127, 1131 n. 9 (Colo.1982) (“affidavits may be considered when misconduct and external influences are involved,” but not “to reveal the mental processes of the jurors in reaching their verdict”).

As two leading commentators explained about the nearly identical federal rule:⁵

A point of central importance in [the Rule’s] descriptive phrases is this: It would have been hard to paint with a broader brush, and in terms of subject, Rule 606(b)’s exclusionary principle reaches everything which relates to the jury’s deliberations unless one of the exceptions applies.

D. Louisell & C. Mueller, 3 Federal Evidence § 287 at 121 (1979).

Rector’s affidavit stated, in essence, that he dissented from the jury’s award of compensatory damages because he thought the award inadequate. That feeling on his part is, contrary to the trial court’s finding, very-much the sort of “mental process” into which the litigants and the court may not inquire. Because Rector could not have been called upon to explain why he dissented from the jury’s verdict, his affidavit should not have been received for that purpose.

In addition, the court found that the defendant suffered no prejudice from the irregular verdict since Rector would merely have awarded more damages than the other members of the jury. See Alvarez, 653 P.2d at 1131-32 (discussing — but not deciding — necessity of showing prejudice from juror misconduct). It was inappropriate for the court to have required defendant to show prejudice since the court’s action in rejecting the jury’s verdict after polling the jurors and then discharging the jury was tantamount to declaring a mistrial. Thus, there was no longer any verdict to resurrect or impeach. Moreover, even if there had been, Rector’s affidavit was the sole evidence upon which the court relied as establishing a lack of prejudice; because the affidavit was inadmissible, it cannot support the court’s finding.

Finally, plaintiffs argue that the verdict was at least sufficient to establish defendant’s liability even if the amount of damages was not decided unanimously. Because we cannot consider Rector’s affidavit as establishing unanimity with respect to liability, we must rely on the verdict and subsequent polling to determine whether the jury was unanimous with respect to defendant’s liability. Although Rector’s responses to the court’s questions may be read as indicating only his disagreement with the amount of damages, they may also be read as suggesting his dissent from the jury’s awarding any actual damages. Without more definitive evidence of the jury’s agreement as to defendant’s liability, we cannot state with confidence that defendant’s liability was established to the satisfaction of all the jurors.

Accordingly, the judgment is vacated and the case remanded for a new trial on all issues.

MULLARKEY, J., concurs in part and dissents in part. KIRSHBAUM, J., joins in the concurrence and dissent.

1 . Also named as defendants were the City and County of Denver and two other police officers. The case against the two police officers was dismissed during trial, and a mistrial was declared as to the City and County of Denver after the jury was unable to reach a verdict. This appeal involves only Officer Neil.

2 . 42 U.S.C. § 1983 (1982):

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

3 .The trial court originally dismissed the action on the basis that plaintiffs had failed to exhaust their remedies under the Colorado Wrongful Death statute, but we reversed the order of dismissal and reinstated the complaint. Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981), dismissed, 456 U.S. 430, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982).

4 . Because the second issue is dispositive, we decline to address the first and third questions.

With respect to the first question, defendant urges us to overrule Espinoza v. O’Dell, 633 P.2d 455 (Colo.1981), cert. dismissed, 456 U.S. 430, S.Ct. 1865, 72 L.Ed.2d 237 (1982), in part and to adopt the Tenth Circuit’s holding in Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir.1985). Trujillo held that in a section 1983 action by relatives of a deceased, the relatives must prove not only that the defendant killed the deceased, but further that the defendant did so with the intent to deprive the relatives of their constitutional rights to familial association.

Defendant did not object to the jury instructions at trial, and even the instructions he tendered (but which were rejected) did not include the principle of law he now asks us to adopt. This issue was not raised until defendant submitted a supplement to his post-trial briefs, and plaintiffs did not respond. The trial court ruled that it was required to follow our decision in Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981), cert. dismissed, 456 U.S. 430, 102 S.Ct. 1865, 72 L.Ed.2d 237 (1982), notwithstanding the Tenth Circuit's decision. Because the defendant did not properly preserve any objection to the jury instructions, our opinion with respect to Trujillo would be merely advisory, and we therefore decline to address defendant’s first argument.

5 . The federal rule is different only in that it uses "jury’s" in place of "jurors’” in the first sentence.