Malpica-Cue v. Fangmeier

COLORADO COURT OF APPEALS 2017COA46
Court of Appeals No. 16CA0164
City and County of Denver District Court No. 14CV34510
Honorable Elizabeth A. Starrs, Judge
Adrian Malpica-Cue,
Plaintiff-Appellee,
v.
Benjamin A. Fangmeier,
Defendant-Appellant.
ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE J. JONES
Dailey and Berger, JJ., concur
Announced April 6, 2017
Marra Leavitt LLC, Marcie B. Leavitt, Arvada, Colorado, and Ramos Law, LLC,
Jessica L. Derakhshanian, Wheat Ridge, Colorado, for Plaintiff-Appellee
Hall & Evans, LLC, Alan Epstein, Denver, Colorado; Temple & Associates,
Christopher J. Witte, Lone Tree, Colorado, for Defendant-Appellant
¶1 Defendant, Benjamin A. Fangmeier, appeals the district
court’s order denying his motion to decrease the amount of
damages awarded at trial based on an affidavit from the jury
foreman asserting that the jury entered a number by mistake on the
special verdict form. Construing a 2007 amendment to CRE 606(b),
we vacate the order and remand the case.
I. Background
¶2 Plaintiff, Adrian Malpica-Cue, sued Mr. Fangmeier for
damages resulting from a car accident. After a trial, the jury filled
out Special Verdict Form B, answering “Yes” to the following two
questions: (1) “Did the Plaintiff, Adrian Malpica-Cue, have injuries,
damages and losses?”; and (2) “Was the Defendant’s negligence a
cause of any of the injuries, damages and losses claimed by the
Plaintiff?” The jury then answered questions concerning damages
as follows:
a) What is the total amount of the Plaintiff’s damages, if
any, for non-economic losses or injuries? Non-economic
losses or injuries are those losses or injuries described in
paragraph 1 of Instruction 10. You should answer “0” if
you determine there were none.
ANSWER: $2,500.00
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b) What is the total amount of the Plaintiff’s damages, if
any, for economic losses? Economic losses are those
losses described in numbered paragraph 2 of Instruction
No. 10. You should answer “0” if you determine there
were none.
ANSWER $18,373.38
c) What is the total amount of the Plaintiff’s damages, if
any, for physical impairment or disfigurement? In
computing damages in this category, you shall not
include any damages for losses or injuries already
determined above. You should answer “0” if you
determine there were none.
ANSWER: $20,873.38
¶3 Each of the six jurors signed the special verdict form. The trial
judge read the verdict, and each separate amount of damages,
aloud in open court. The judge then asked the jury, “Was this and
is this your verdict?” The jury foreman replied, “Yes, it is.” The
judge then asked, “Would any of the lawyers — would either of the
parties want me to poll the jury?” Both Mr. Fangmeier’s and Mr.
Malpica-Cue’s counsel answered, “No, your honor.”
¶4 According to Mr. Fangmeier’s post-trial motion, after the court
dismissed the jury, but while the jurors were still in the courthouse,
defense counsel spoke with some of the jurors about the amount of
damages they had awarded. They told counsel that they had
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intended to award $2,500 for noneconomic losses, $18,373.38 for
economic losses, and $0 for physical impairment or disfigurement.
The jury had therefore intended to award total damages of only
$20,873.38, but the noneconomic and economic damages had
mistakenly been added together, and the total had been mistakenly
entered on the line designated for “physical impairment or
disfigurement.” Defense counsel told the court clerk that all six
jurors agreed that they had made a mistake on the verdict form and
wanted to fix it. The judge denied defense counsel’s request to
reconvene the jury that day, and told him to file a motion on the
issue.
¶5 Mr. Fangmeier subsequently filed a motion asking the court to
vacate the jury verdict awarding $41,746.76, and to enter a
judgment in the amount of $20,873.38, under C.R.C.P. 59 and 60.
The motion included an affidavit from the jury foreman saying that
the jury had made a mistake when it had filled out the verdict form.
Specifically, the foreman’s affidavit said,
We all deliberated and agreed to award the
plaintiff $2,500 for non-economic damages
(pain and suffering) and $18,373.38 for
economic damages (medical bills) and nothing
more. We agreed to award the plaintiff the
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total amount of $20,873.38. We made a
mistake in completing the verdict form and we
wrote the total amount of our award on the
line for permanent impairment. We did not
intend to give the plaintiff anything for
permanent impairment.
The motion also included a photograph of notations on the dry
erase board that the jury had used during deliberations.
¶6 The district court denied Mr. Fangmeier’s motion, saying that
Rule 606(b) precluded it from considering the foreman’s affidavit.
II. Discussion
¶7 Mr. Fangmeier contends that the jury foreman’s affidavit is not
precluded under Rule 606(b) because an exception to that rule
allows juror testimony regarding “whether there was a mistake in
entering the verdict onto the verdict form.” We agree with Mr.
Fangmeier, though we also conclude that the affidavit, by itself,
while entitling Mr. Fangmeier to a hearing on the issue, does not
require a changing of the verdict.
A. Standard of Review
¶8 We review a district court’s interpretation of an evidentiary
rule de novo. People v. Reed, 216 P.3d 55, 56-57 (Colo. App. 2008).
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B. Analysis
¶9 Under Rule 606(b), a juror may not testify regarding “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 the rule gives three exceptions: a
juror may testify regarding “(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.” CRE 606(b).1 We consider only the third
exception.
¶ 10 In its order denying Mr. Fangmeier’s post-trial motion, the
district court relied heavily on Stewart ex rel. Stewart v. Rice, 47
P.3d 316 (Colo. 2002). The facts in Stewart are nearly identical to
1 In Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855
(2017), the Court held that the Sixth Amendment to the United
States Constitution may require a court to consider evidence of a
juror’s racial bias in circumstances where common law and rules of
evidence otherwise would not permit such consideration. This case
does not involve such an issue.
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those presented by this case: the defendant caused a car accident;
the court told the jury to fill out a special verdict form awarding
damages for three separate categories — noneconomic, economic,
and physical impairment; there were separate lines on which the
jury could enter damages for each category; the amounts that the
jury awarded for the first two categories added up to the amount
entered for the third category; the trial judge read the verdict aloud
and polled each juror to confirm the verdict; and defense counsel
submitted affidavits from five of the six jurors asserting that the
jury had not intended to award any damages for physical
impairment, but had mistakenly written the total of the first two
categories on the line for the third category. Id. at 317-18. The
supreme court held that the jurors’ affidavits could not be
considered, and the verdict could not be altered, because the
alleged mistake did not fall within the plain language of either of the
(then) two exceptions to Rule 606(b) — for extraneous prejudicial
information and outside influence. Id. at 317, 320, 323. The
supreme court also held that there was no implicit “clerical error”
exception to Rule 606(b). Id. at 324-27.
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¶ 11 Despite the factual similarity of Stewart to this case, we
conclude that, in light of a 2007 amendment to Rule 606(b),
Stewart does not control.
¶ 12 Though there were only two exceptions to Rule 606(b) in 2002
when the supreme court decided Stewart, in 2007 the supreme
court amended Rule 606(b) “to bring it into conformity with the
2006 amendments to the federal rule, providing that juror
testimony may be used to prove that the verdict reported was the
result of a mistake in entering the verdict on the verdict form.” CRE
606 committee cmt. The nearly identical federal rule was amended
in 2006 in response “to a divergence between the text of the Rule
and the case law that has established an exception for proof of
clerical errors.” Fed. R. Evid. 606 advisory committee’s note to
2006 amendment; see also CRE 606 committee cmt. The
divergence in federal case law was represented by two different
approaches — a broad exception to the rule and a narrow
exception. The “broader exception,” which was not adopted,
permitted “juror testimony to prove that the jurors were operating
under a misunderstanding about the consequences of the result
that they agreed upon.” Fed. R. Evid. 606 advisory committee’s
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note to 2006 amendment; see, e.g., Eastridge Dev. Co. v. Halpert
Assocs., Inc., 853 F.2d 772, 783 (10th Cir. 1988); Attridge v.
Cencorp Div. of Dover Techs. Int’l, Inc., 836 F.2d 113, 116 (2d Cir.
1987); see also Chalmers v. City of Chicago, 431 N.E.2d 361, 365
(Ill. 1982). This approach was rejected “because an inquiry into
whether the jury misunderstood or misapplied an instruction goes
to the jurors’ mental processes underlying the verdict, rather than
the verdict’s accuracy in capturing what the jurors had agreed
upon.” Fed. R. Evid. 606 advisory committee’s note to 2006
amendment; see also 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 606.04[4][b], at 606-39 (Mark S.
Brodin ed., 2d ed. 2015).
¶ 13 Instead, the amendment adopted a narrow approach that “is
limited to cases such as ‘where the jury foreperson wrote down, in
response to an interrogatory, a number different from that agreed
upon by the jury, or mistakenly stated that the defendant was
‘guilty’ when the jury had actually agreed that the defendant was
not guilty.’” Fed. R. Evid. 606 advisory committee’s note to 2006
amendment (quoting Robles v. Exxon Corp., 862 F.2d 1201, 1208
(5th Cir. 1989)).
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¶ 14 Because the Colorado Supreme Court amended Rule 606(b)
expressly to conform to the federal rule amendment, we hold that
the added “mistake” exception is likewise narrow and limited to
cases where the verdict rendered is not the verdict to which the jury
agreed. See Stewart, 47 P.3d at 321 (“When our rule is similar to
the federal rule, we may look to the federal authority for guidance in
construing our rule.”); Leiting v. Mutha, 58 P.3d 1049, 1052 (Colo.
App. 2002) (“Cases interpreting a similar federal rule of evidence are
instructive.”).
¶ 15 In this case, the mistake alleged is the type of “mistake” or
“clerical error” contemplated by the added exception. In essence,
the jury foreman asserts that he mistakenly wrote down $20,873.38
(the sum of the damages for the noneconomic and economic losses)
in a space where he should have written the amount the jury agreed
to — $0. Put another way, all of the jurors agreed that Mr.
Malpica-Cue should not recover anything for physical impairment
or disfigurement, but the foreman misread the verdict form. This
type of mistake is distinguishable from those in cases — reflecting
the rejected broader exception — where jurors agreed on an amount
of damages (that is, agreed to the figure as shown on the verdict
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form), but later claimed that they did so as a result of
misunderstanding the meaning or effect of the instructions, and
would have awarded different damages had they properly
understood the instructions. Compare Craig Outdoor Advert., Inc. v.
Viacom Outdoor, Inc., 528 F.3d 1001, 1022 (8th Cir. 2008) (“Clerical
error might involve . . . a transposed number in the damages
amount set forth on the verdict form.”), and Karl v. Burlington N.
R.R. Co., 880 F.2d 68, 74 (8th Cir. 1989) (“A clerical error would be
one where the foreperson wrote down . . . a damage amount
different from that agreed upon by the jury.”), and Kading v.
Kading, 683 P.2d 373, 376-77 (Colo. App. 1984) (correctable clerical
error where the amount awarded for one count was inadvertently
switched with the amount for a different count against the same
defendant), and Harmon Cable Commc’ns of Neb. Ltd. P’ship v.
Scope Cable Television, Inc., 468 N.W.2d 350, 367-70 (Neb. 1991)
(correctable clerical error where the jury foreman made a
transpositional error in filling out the special verdict forms), with
United States v. Morris, 570 F. App’x 151, 153-54 (3d Cir. 2014) (no
correctable clerical error where jury misunderstood the
instructions), and Munafo v. Metro. Transp. Auth., 381 F.3d 99,
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107-08 (2d Cir. 2004) (no correctable error where jurors “most likely
misjudged the legal effect” of a question), and Plummer v. Springfield
Terminal Ry. Co., 5 F.3d 1, 3-4 (1st Cir. 1993) (no correctable error
where jurors agreed on verdict amounts but allegedly
misunderstood the legal effect of assessing degrees of fault), and
Lahaina Fashions Inc. v. Bank of Haw., 319 P.3d 356, 370 (Haw.
2014) (no correctable clerical error where jury realized its answers
caused a result opposite from what it intended), and Shadoan v.
Cities of Gold Casino, 224 P.3d 671, 675 (N.M. Ct. App. 2010) (no
correctable clerical error where jurors misunderstood the outcome
and effect of their decision regarding damages).2
2 Other cases as well have held that the type of mistake in this case
is correctable, and that jurors may testify regarding the verdict to
which the jury actually agreed. See United States v. Dotson, 817
F.2d 1127, 1130 (5th Cir.) (court changed the tendered verdict
when juror testimony confirmed that the wrong box had been
checked on verdict form), vacated in part on other grounds on reh’g,
821 F.2d 1034 (5th Cir. 1987); Boston Gas Co. v. Century Indem.
Co., 793 F. Supp. 2d 511, 521 (D. Mass. 2011) (where evidence
supported alleged jury mistake, court did not reconvene jury
because the trial was held four years earlier; rather, the court
vacated the verdict because it was against the weight of evidence),
aff’d, 708 F.3d 254 (1st Cir. 2013); TeeVee Toons, Inc. v. MP3.Com,
Inc., 148 F. Supp. 2d 276, 277-79 (S.D.N.Y. 2001) (court allowed
juror testimony regarding calculation error and ordered a new trial);
Sifers Corp. v. Ariz. Bakery Sales Co., 133 F.R.D. 607, 608 (D. Kan.
1991) (after discharge, jury informed bailiff that jury foreman had
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¶ 16 Because Rule 606(b) now provides an exception for the type of
jury mistake alleged in this case, we conclude that the district court
erred in refusing initially to reconvene the jurors the day the trial
ended and later in failing to reconvene the jurors to ascertain their
true verdict in response to Mr. Fangmeier’s post-trial motion.3
¶ 17 But it does not follow that Mr. Fangemeier is entitled, on this
record, to a change in the verdict. The question is whether all
jurors agreed that Mr. Malpica-Cue should recover nothing for
physical impairment. And though it has been said that the foreman
“is the spokesman for the jury as a whole,” Kading, 683 P.2d at
376, we believe the court must attempt to ascertain whether the
foreman’s position actually reflects the views of all of the jurors.
See Munafo, 381 F.3d at 108 (affidavit of single juror insufficient);
Karl, 880 F.2d at 74; Cont’l Cas. Co. v. Howard, 775 F.2d 876, 885
written damages amount in the wrong space on the verdict form,
resulting in an award to the wrong party; court permitted
correction).
3 The fact that the court polled the jurors is not a bar to considering
the foreman’s affidavit. E.g., Sifers Corp., 133 F.R.D. at 607
(correcting verdict after jurors had been polled); Lahaina Fashions,
Inc. v. Bank of Haw., 319 P.3d 356, 361 (Haw. 2014) (trial court
acted within its discretion in reconvening jurors; jurors had been
polled).
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(7th Cir. 1985). This is so for two reasons. First, “[w]hen [an]
individual juror[] raise[s] [an] allegation[] of verdict inaccuracy,
courts must proceed with ‘great caution’ to avoid ‘giv[ing] to the
secret thought of one the power to disturb the expressed
conclusions of [all jurors]’ and thereby encourage ‘tampering with
individual jurors subsequent to the verdict.’” Munafo, 381 F.3d at
108 (quoting Mattox v. United States, 146 U.S. 140, 148 (1892));
accord Karl, 880 F.2d at 74; Cont’l Cas. Co., 775 F.2d at 885. And
second, attempting to determine actual agreement by all jurors
gives effect to each party’s right to poll the jurors to verify the
legitimacy of the verdict. C.R.C.P. 47(q); Crim. P. 31(d).
¶ 18 The motion and affidavit, however, allege facts sufficient to
justify an evidentiary hearing to ascertain the jurors’ true verdict.
On remand, the court shall attempt to reconvene all of the jurors. If
the court is able to do so, it shall ask all of them whether the
verdict reflected on the verdict form is the verdict to which they
actually agreed, and if it is not, what verdict they agreed to. If the
court cannot reconvene all of the jurors, the court should question
those whom it is able to convene. In either case, the court must
also consider any objective evidence bearing on the jurors’ actual
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agreement. Such objective evidence may include the fact that the
amount shown on the verdict form for physical impairment equals
the total of the amounts shown on the verdict form for noneconomic
and economic losses, the degree to which the amounts shown on
the verdict form can be explained by the evidence, and any other
relevant objective circumstance that does not entail inquiring into
the jurors’ process of reasoning.4
¶ 19 If after considering the testimony and other evidence the court
is not persuaded that a correctable mistake was made (in that all
jurors agreed to a particular different verdict), the verdict shall
stand.5 But if the court determines otherwise, the court shall
correct the verdict.
4 Hanna v. State Farm Insurance Co., 169 P.3d 267 (Colo. App.
2007), does not, contrary to Mr. Malpica-Cue’s assertion, stand for
the proposition that jurors cannot be reconvened to determine their
actual verdict after they have been discharged and have left the
courthouse. That case did not discuss the exceptions to CRE
606(b). Those exceptions frequently come into play after jurors
have been discharged. And we note that in some of the cases
applying the third exception, jurors were reconvened after they had
left the courthouse. Though the possibility of outside influence
increases after jurors are discharged, we are confident that any
such influence can ordinarily be exposed through questioning.
5To be clear, if fewer than all the jurors testify about their true
verdict, the court should not change the verdict unless the court
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III. Conclusion
¶ 20 The order is vacated, and the case is remanded for
proceedings consistent with this opinion.
JUDGE DAILEY and JUDGE BERGER concur.
concludes that doing so is consistent both with the juror testimony
and the relevant objective evidence. If all of the jurors testify, and
all agree the same mistake was made, the court may correct the
verdict based on that testimony alone.
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