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COURT OF APPEALS
STATE OF COLORADO
Address: 2 E. 14th Avenue
Denver, CO 80203
Telephone: (720) 625-5150
El Paso County 2017CV31772
Plaintiff-Appellant:
CELENA ESTHER JEAN BERNACHE,
v.
Defendant-Appellee:
GARY BROWN. COURT USE ONLY
Attorneys for Appellee
Name(s): Randy S. Metz, No.: 48101
Firm: Park & Metz, LLP
Address: 329 Main Street,
Carbondale, CO 81623
Case Number:
2019CA000485
Phone Number: (970) 340-4977
Fax Number: (970) 963-5095
E-Mail Address: [email protected]
DEFENDANT-APPELLEE’S ANSWER BRIEF
DATE FILED: September 23, 2019 12:42 PM FILING ID: D534D88CCE553 CASE NUMBER: 2019CA485
2
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 or
C.A.R. 28.1, and C.A.R. 32, including all formatting requirements set forth in these
rules. Specifically, the undersigned certifies that:
The brief complies with the applicable word limits set forth in C.A.R. 28(g) or
C.A.R. 28.1(g).
X It contains 8,414 words (principal brief does not exceed 9,500 words;
reply brief does not exceed (5,700 words).
The brief complies with the standard of review requirements set forth in
C.A.R. 28(a)(7)(A) and/or C.A.R. 28(b).
X For each issue raised by the appellant, the brief contains under a
separate heading before the discussion of the issue, a concise statement: (1) of the
applicable standard of appellate review with citation to authority; and (2) whether
the issue was preserved, and if preserved, the precise location in the record where
the issue was raised and where the court ruled, not to an entire document.
X In response to each issue raised, the appellee must provide under a
separate heading, before the discussion of the issue, a statement indicating whether
appellee agrees with appellant’s statements concerning the standard of review and
preservation for appeal and, if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of
the requirements of C.A.R. 28 or 28.1, and C.A.R. 32.
Park & Metz, LLP.
s/ Randy S. Metz
Randy S. Metz, Esq., Atty # 48101
Attorney for Defendant-Appellee
3
TABLE OF CONTENTS
I. PLAINTIFF-APPELLANT’S ISSUES PRESENTED FOR REVIEW ........ 7 II. STATEMENT OF THE CASE ...................................................................... 7 A. NATURE OF THE CASE AND DISPOSITION: ......................................... 7 B. RELEVANT FACTUTAL AND PROCEDURAL HISTORY: .................... 7
1. Pleadings......................................................................................................... 7 2. Relevant Procedural History Prior to Trial. ................................................... 8 3. The Honorable Chad Miller’s January 14, 2019 Order Re: Defendant’s
Request for Ruling Re: Evidentiary Issue. ..................................................... 9 4. Relevant Procedural History at Trial. ...........................................................10
i. Plaintiff Stipulated to the Admission of the Police Report in its Entirety,
Which Included the Unidentified Fact Witness Statement Without Requiring
the Defendant as the Initial Proponent of this Evidence to Satisfy the
Conditions Precedent Set Forth in the Statute or the Trial Court’s Order. ....10 ii. Plaintiff Opened the Door and Interjected the Unidentified Fact Witness
Statement in Plaintiff’s Own Opening Statement. .........................................11 iii. Plaintiff Further Failed to Make Any Contemporaneous Objections to the
Parties or Witnesses Being Examined on this Statement, Including the Cross-
Examination of Plaintiff in Plaintiff’s Case-In-Chief. ...................................12 iv. Plaintiff Waived Further Voir Dire to Ascertain Any Basis for
Disqualification after the Juror Identified that She Knew the Police Officer
Fact Witness ...................................................................................................14 III. SUMMARY OF ARGUMENT ...................................................................16 IV. ARGUMENT ...............................................................................................19 A. PLAINTIFF WAIVED ANY AND ALL OBJECTIONS TO THE
ADMISSION OF THE POLICE/ACCIDENT REPORT AND UNIDENTIFIED
FACT WITNESS STATEMENT WHEN PLAINTIFF STIPULATED TO THE
ADMISSION OF THE POLICE/ACCIDENT REPORT IN ITS ENTIRETY AS
TRIAL EXHIBIT NO.1 WITHOUT REQUIRING DEFENDANT AS THE
INITIAL PROPONENT OF THIS EVIDENCE, TO SATISFY THE
CONDITIONS PRECEDENT SET FORTH IN THE STATUTE AND IN THE
TRIAL COURT’S ORDER. FURTHER, PLAINTIFF’S OWN
INTRODUCTION OF THIS EVIDENCE BY REFERRING TO IT IN
PLAINTIFF’S OPENING STATEMENT FOR PLAINTIFF’S OWN
STRATEGIC ADVANTAGE, CONSTITUTED INVITED ERROR AND
WAIVER. ..............................................................................................................19 1. Standard of Review and Preservation. .........................................................19 2. Plaintiff Stipulated to the Admission of the Police/Accident Report in its
Entirety as Trial Exhibit No. 1 Without Requiring that it be Accompanied
4
by the Conditions Precedent Set Forth in the Statute and in the Trial Court’s
Order and Consequently, Plaintiff Waived This Issue for Appeal. .............20 3. Plaintiff’s Appeal Must be Barred by the “Doctrine of Invited Error.” .......24 4. The Trial Court’s Reliance on the Statute Was Correct (Plain Reading). ...29
B. C.R.E. RULE 606(B) PROHBITS THE USE OF A JUROR’S POST-
VERDICT STATEMENTS TO IMPEACH THE VERDICT UNLESS IT
FALLS WITHIN THREE NARROW EXCEPTIONS, NONE OF WHICH ARE
PRESENT HERE. PLAINTIFF FAILED TO PRESERVE THE JUROR’S
PURPORTED POST-VERDICT STATEMENT FOR REVIEW. PLAINITFF
WAIVED FURTHER VOIR DIRE TO ASCERTAIN ANY JUROR
DISQUALIFCIATIONS. PLAINTIFF’S CHARACTERIZATION OF THE
JUROR’S PURPORTED POST-VERDICT STATEMENT IS THE PRODUCT
OF SPECULATION AND IS DENIED. ..............................................................34 1. Standard of Review and Preservation of Issues. ..........................................34 2. Plaintiff Failed to Preserve the Juror’s Purported Post-Trial Statements for
Review. .........................................................................................................35 3. None of C.R.E. Rule 606(b)’s Three Narrow Exceptions Apply to the
Juror’s Purported Post-Trial Statement. .......................................................36 4. Plaintiff Waived Further Voir Dire of After the Juror Identified that she
knew the Fact Witness. .................................................................................38 V. CONCLUSION ............................................................................................39
5
TABLE OF AUTHORITIES
Cases
Austin v. People, 106 Colo. 506, 107 P.2d 798 (1940) ............................................39
Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo.1996) ...................38
Beeghly v. Mack, 20 P.3d 610 (Colo. 2001). ...........................................................33
Bohrer v. DeHart, 961 P.2d 472 (Colo.1998) .........................................................37
Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705 (1995) ..................................27
Common Sense Alliance v. Davidson, 995 P.2d 748 (Colo. 2000) ..........................32
Crespin v. People, 635 P.2d 918 (Colo.App.1981) .................................................39
DOT v. Stapleton, 97 P.3d 938 (Colo. 2004) ...........................................................32
Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380 (Colo.1998) .................28
Higgs v. District Court, 713 P.2d 840 (Colo.1985) .................................................29
Horton v. Suthers, 43 P.3d 611 (Colo.2002) ...........................................................27
Keith v. Kinney, 140 P.3d 141, 153 (Colo. App. 2005) ...........................................36
Malpica-Cue v. Fangmeier, 395 P.3d 1234 (Colo.App.2017) ................................37
Mishkin v. Young, 107 P.3d 393 (Colo. 2005) .........................................................32
Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90, 91 (1964) ....................................27
People v. Garcia, 752 P.2d 570 (Colo.1988)...........................................................38
People v. Greenwell, 830 P.2d 1116 (Colo.App.1992) ...........................................39
People v. Gregor, 26 P.3d 530 (Colo.App.2000) ....................................................28
People v. Hise, 738 P.2d 13 (Colo. App. 1986). ......................................................23
People v. Lopez, 129 P.3d 1061 (Colo. App. 2005) ................................................20
People v. McCoy, 764 P.2d 1171 (Colo.1988) ........................................................38
People v. Miller, 981 P.2d 654 (Colo.App.1998) ....................................................23
People v. Raglin, 21 P.3d 419, (Colo.App.2000) ....................................................28
People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973) .......................................27
People v. Zapata, 779 P.2d 1307 (Colo. 1989)........................................................20
Photostat Corp. et al. v. Ball, 338 F.2d 783 (10th Cir. 1964) .................................39
Ravin v. Gambrell, 788 P.2d 817 (Colo.1990) ................................................. 36, 37
Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2000) .........27
Smith v. Executive Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010) ....................32
Stewart ex rel. Stewart v. Rice, 47 P.3d 316 (Colo.2002) .......................................37
U.S. Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949 (5th
Cir.1990) ...............................................................................................................23
United States v. Fonseca, 744 F.3d 674, (10th Cir.2014) .......................................23
United States v. Mejia–Alarcon, 995 F.2d 982 (10th Cir. 1993) ..............................23
Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986) .................................29
Westrac, Inc. v. Walker Field, Colo., Public Airport Authority, 812 P.2d 714 (Colo.
App. 1991) ..................................................................................................... 35, 36
6
Wiser v. People, 732 P.2d 1139 (Colo.1987) ...........................................................38
Statutes C.R.S. § 42-2-121 ......................................... 8, 17, 18, 21, 24, 30, 31, 32, 33, 34, 35
Rules
C.R.C.P. 47(a) ..........................................................................................................39
C.R.E. Rule 103…………………………………………………………………...23
C.R.E. Rule 606(b) ................................................................................ 19, 36, 37, 38
C.R.E. Rule 802 .......................................................................................... 30, 33, 34
C.R.E. Rule 803(8) ...................................................................................................30
F.R.E. Rule 803(8) ...................................................................................................30
Rulings on Evidence, 22 Colo. Prac., Handbook On Evidence ER 103 (2018-2019
ed.).........................................................................................................................23
7
I. PLAINTIFF-APPELLANT’S ISSUES PRESENTED FOR REVIEW
1. Did the District Court err in determining that a hearsay statement
contained in the traffic accident report by an unidentified witness was
admissible at trial?
2. Did juror misconduct have a material effect on the trial?
II. STATEMENT OF THE CASE
A. NATURE OF THE CASE AND DISPOSITION:
The underlying action arises out of a motor vehicle incident that occurred on
November 5, 2015, on southbound Highway 85 at or near the intersection of
Highway 85 and Southmoor Drive in the City of Fountain, El Paso County,
Colorado.
On January 31, 2019, following a two-day trial bifurcated as to liability
only, the jury returned a verdict in favor of the Defendant.
B. RELEVANT FACTUTAL AND PROCEDURAL HISTORY:
1. Pleadings.
Plaintiff’s Complaint averred inter alia, Defendant’s negligence caused the
accident. Defendant, in his Answer to Plaintiff’s Complaint pled inter alia the
Sudden Medical Doctrine as an Affirmative Defense. See Def,’s Ans. to Pl’s
Compl., CF, p 17. Defendant also attached a copy of the accident/police report as
an exhibit to Defendant’s Answer. EX (Trial) p 1-2.
8
Corporal Galen Steele, Fountain Police Department, prepared the following
“Officer Narrative”:
Upon my arrival, I was contacted by a witness who told me he was
traveling southbound on Highway 85 behind Vehicle #1. The
unidentified driver told me he saw the driver “Stiffen up” and lean
towards the right like he was having a heart attack. The witness stated
that the vehicle drifted towards the left towards oncoming traffic
before hitting the center median. I told the witness to standby while I
checked for injuries. The witness took off before I could obtain his
identifying information.
See Police/Accident Report as EX (Trial) p 2.
2. Relevant Procedural History Prior to Trial.
On December 18, 2018, defense counsel filed a Memorandum and Request
for Ruling Re: Evidentiary Issue. On December 26, 2019, Plaintiff filed a Motion
in Limine to Preclude Any Testimony About the Statement Made in the Police
Report by the Unidentified Witness. On January 3, 2019, Defendant filed his
Response to Plaintiff's Motion in Limine arguing, inter alia:
C.R.S. § 42-2-121 states that all official reports of the State of
Colorado, such as the traffic accident report in this case, are
admissible in all municipal, county and district courts within the state
of Colorado, without further foundation, and are statutory exceptions
to the hearsay rule.
Defendant further argued inter alia:
[I]n addition, that the accident report in this case, containing the
statement by the witness, which C.R.S. § 42-2-121 states is prima
facia proof of the information contained in the report, and which is a
hearsay exception and can be admitted in this case.
9
CF, p 192
See Def’s Resp. to Pl’s Mot in Limine.
On January 10, 2019, Plaintiff filed her Reply in Further Support of her Motion
in Limine.
3. The Honorable Chad Miller’s January 14, 2019 Order Re: Defendant’s
Request for Ruling Re: Evidentiary Issue.
On January 14, 2019, the Honorable Chad Miller entered an Order regarding
Defendant’s Request for Evidentiary Ruling. The Order stated as follows:
The motion/proposed order attached hereto: GRANTED. This matter
comes before the court on the issue of admissibility of a statement by
an unidentified witness found in the police/accident report. The court
has reviewed the following motions as well as the cases and statutes
cited within:
1. Defense Memorandum and Request for Ruling re:
Evidentiary issue filed December 18, 2018;
2. Plaintiff's Motion in Limine to Preclude any
Testimony about the Statement Made in the Police
Report by the Unidentified Witness filed
December 26, 2018;
3. Defendant Gary Brown's Response to Plaintiff's
Motion in Limine to Preclude any Testimony
about the Statement Made in the Police Report by
the Unidentified Witness filed January 3, 2019,
and;
4. Plaintiff's Reply in Further Support of His Motion
in Limine to Preclude any Testimony about the
Statement Made in the Police Report by the
Unidentified Witness filed on January 10, 2019.
The court finds that based on the information provided in the
police/accident report there is not sufficient evidence to provide a
foundation for an 803(1) present-sense impression exception or an
803(2) excited-utterance exception. The court is however persuaded
10
that CRS 42-2-121 provides guidance on this issue stating that the
police/accident report in question is a statutory exception to Rule
802 (Hearsay) provided it is accompanied by a certificate and cover
page as outlined in the statute.
The court therefore orders that the police/accident report is
admissible as long as it is accompanied by the appropriate certificate
and cover page.
See Order of Hon. C. Miller dated Jan. 14, 2019 re: Def.’s Request for Evid.
Ruling (emphasis added). CF p 343
4. Relevant Procedural History at Trial.
i. Plaintiff Stipulated to the Admission of the Police Report in its Entirety,
Which Included the Unidentified Fact Witness Statement Without
Requiring the Defendant as the Initial Proponent of this Evidence to
Satisfy the Conditions Precedent Set Forth in the Statute or the Trial
Court’s Order.
[the Court] Anything we need to take care of before we get a jury,
though, anything this morning? I know everybody kind of brought
stuff in Friday. Everything good to go? We’ll start with the plaintiffs.
Any issues?
[Plaintiff’s counsel] MR. LOMENA: No, I don’t think so, Your
Honor.
THE COURT: Okay.
TR 1/28/19, p 3:11-16
***
THE COURT: Jury notebooks. Do we have a position on anything
specific we want in there or don’t want in there?
MR. LOMENA: Well, since all the exhibits are stipulated to, I don’t
think there’s anything that they can’t see.
THE COURT: What’s that?
MR. LOMENA: Since all the exhibits are stipulated to, I don’t think
there’s anything that they can’t see.
11
TR 1/28/19, pp 5:23-6:4 (emphasis added)
***
MR. BURTZOS: No, that wouldn’t be there. The exhibit notebooks
are all stipulated to, so the Court will get one – I assume the Court
will get one.
MR. LOMENA: I gave him one, yes.
THE COURT: And I haven’t looked at it yet, because I wanted to
check with you before I did, but I do have one up here.
MR. LOMENA: Yeah. And we plan on handing the jury the
notebooks before we – I mean, the exhibit books before we start.
TR 1/28/19, pp 6:22-7:4
***
MR. BURTZOS: …
Here is what you have in your notebook. This is the Police Report.
You have that here. That’s Exhibit 1. Here’s what the officer says,
“On my arrival I was contacted by a witness who told me he was
traveling southbound on Highway 85 behind vehicle number 1.”
That’s Mr. Brown. So, he’s behind him. “The unidentified driver told
me that he saw the driver stiffen up and lean towards the right like he
was having a heart attack. The witness stated the vehicle drifted
towards the left towards oncoming traffic before hitting the center
median.” That’s what the witness saw. Saw him stiffen up like he was
having a heart attack. There’s evidence that something happened to
him very fast, very suddenly and very unexpectedly.
TR 1/28/19, p 100:5-16
ii. Plaintiff Opened the Door and Interjected the Unidentified Fact
Witness Statement in Plaintiff’s Own Opening Statement.
MR. LOMENA:
The defendant is going to tell you that on that morning, he was
traveling down Highway 85 and the next thing that he remembers is
waking up or regaining consciousness as the airbags in his car were
deploying. He doesn’t remember jumping the median. He doesn’t
remember taking out a sign. And he doesn’t remember striking
Celena’s vehicle. Now, the defendant is claiming he is not negligent
because he suffered a sudden medical emergency. The crucial word
12
there is “sudden.” That means he has to prove to you that he had some
medical condition that he was not aware of beforehand and had no
control over, that happened suddenly while he was driving. Now, he
has a problem with that. He doesn’t remember what happened. He just
remembers driving, and in his own words, “waking up when the
airbags deployed.” He can’t tell you what that sudden medical
emergency was. More importantly, he can’t prove to you that any
sudden medical emergency even happened. The sole basis of his
belief that some sudden medical emergency happened is a statement
given to the investigating officer, Officer Steele, by an unidentified
witness. That means we don’t know who this witness is, we don’t
know anything about him. We can’t even tell you his name. We don’t
know how close he was to the defendant to be able to see what was
going on in his car. We don’t know anything about him. All we know
is that he told the officer that he was traveling at some distance behind
the defendant when he saw him stiffen up, lean-forward and to the
right like he was having a heart attack. We believe the evidence will
show you that the defendant just fell asleep, which looks eerily
similar to what the unidentified witness described…
(emphasis added)
TR 1/28/19, pp 95:9-96:10
iii. Plaintiff Further Failed to Make Any Contemporaneous Objections to
the Parties or Witnesses Being Examined on this Statement, Including
the Cross-Examination of Plaintiff in Plaintiff’s Case-In-Chief.
THE COURT: You may call your first witness.
MR. LOMENA: Your Honor, I call to the stand the plaintiff Celena
Bernache.
Please feel free to look at your juror notebooks.
TR 1/28/19, p 103:3-5 (Emphasis added)
***
MR. BURTZOS: …
Q: Did you read the Police Report in this case?
A: I did, yes.
Q: And we have that as Exhibit 1 in our notebooks. So I wanted to
kind of talk to you about that.
13
A: Okay.
TR 1/28/19, p 110: 21-25
***
Q: My question is, ma'am, when did you first read this Exhibit 1
Police Report?
A: It was some time after the accident.
TR 1/28/19, p 111:10-12
***
Q: - so let’s take a look at page 2. Now, there’s a narrative there
from the officer. Do you see that?
A: Uh huh.
Q: Is that a yes, ma'am?
A: Yes.
Q: So, the officer’s statement, let’s kind of go through that
together. It says, “Upon my arrival, I was contacted by a
witness who told me he was traveling southbound on Highway
85 behind vehicle number 1.” That’s been identified as Mr.
Brown. Do you understand that?
A: Yes.
Q: And then this driver told the officer that he saw Mr. Brown or
the driver of that vehicle “stiffen up and lean toward the right,
like he was having a heart attack.” Do you see that?
A: Uh huh. Yes, I do.
Q: Okay. At any time before you sued Mr. Brown, did you ever
think that maybe he was having a medical problem?
TR 1/28/19, pp 111:20-112:11
***
MR BURTZOS:
Q: And do you disbelieve the officer’s report about a witness
saying that he saw Mr. Brown stiffen up like he was having a
heart attack?
A: I don’t disbelieve that, at all.
Q: Do you know agree that maybe something happened to him or
was reported to have happened to him?
A: I believe that he may have fallen asleep. That’s my belief.
TR 1/28/19, p119:15-22
14
iv. Plaintiff Waived Further Voir Dire to Ascertain Any Basis for
Disqualification after the Juror Identified that She Knew the Police
Officer Fact Witness
THE COURT: Okay. And I will certainly let the parties inquire
further about that if they have questions, and they probably will.
Okay. I’m going to have essentially the same question, but as far as
witnesses in the case. So, I’m going to have the attorneys read a list of
witnesses they may call. Listen carefully and tell me if you know any
of these people.
TR 1/28/19, p 25:6-11
***
MR. BURTZOS: The defendant will call Mr. Brown himself, as well
as Corporal Gaylen Steele of the Fountain Police Department and Dr.
Stanley Ginsburg, a neurologist on video from Denver.
THE COURT: Does anybody know any of those individuals? Okay,
we’ve got one hand. Any more hands? No. I’m going to remember
that my rows are reversed, which would make you Ms. Langfels.
MS LANGFELS: Uh huh.
THE COURT: Okay. Who did you know?
MS. LANGFELS: Officer Steele.
THE COURT: Okay. And again, without telling us what you think of
Officer Steele, would anything about your relationship or knowledge
of Officer Steele affect your ability to be a fair and impartial juror on
this case?
MS. LANGFELS: No.
THE COURT: Okay. So you’d be able to treat Officer Steele just like
any other witness?
MS. LANGFELS: Yes.
TR 1/28/19, pp 25:16-26:8
***
[THE COURT]: …
Is there any reason, whether I have asked the question or not, why if
you are selected as a juror, you could not or would not be fair and
impartial in deciding this case? Again, if you don’t feel comfortable
discussing it here, we could discuss the matter out of the presence of
the rest of the jury panel. So, this is kind of the catch-all, all right. If
there’s something we haven’t talked about that, “Hey, this isn’t going
15
to work for me and you need to know,” or “Hey, I can’t be fair,” now
is the time. Pretty quickly here, I’m going to turn it over to the
attorneys. Anybody, something I asked or didn’t ask that anyone
wants to weigh in on after sitting here and hearing other people’s
answers? Okay. I’m not seeing any hands. All right. In that case, we
will move on and I will let the parties start. And we’ll start with the
plaintiff.
TR 1/28/19, pp 37:14-38:2
***
MS. LAGLE: Okay. That’s great. That’s great. Anybody else have
any relationships with law enforcement that they want to talk about? I
had two people volunteer. I know more of you have family.
MS. LANGFELS: I know a lot of people at Fountain PD only because
my husband was a dispatcher there.
MS. LAGLE: How long was your husband a dispatcher?
MS. LANGFELS: Five years.
MS. LAGLE: And I’m going to mess this up, too. Can you pronounce
your last name?
MS. LANGFELS: Langfels.
MS. LAGLE: Langfels. Okay. Langfels. I will still butcher that. I’m
sorry. So, we learned that you know the officer, Officer Steele,
involved in this case. Would you be willing to describe for me just
briefly kind of just what your relationship with him is?
MS. LANGFELS: I just know him through my husband.
MS. LAGLE: Okay. Just kind of know the name.
MS. LANGFELS: My husband has a relationship. It’s just like, “Hi,
how are you doing,” with me.
MS. LAGLE: Okay. Do you think that your husband’s relationship
with that police officer will color your thinking of the testimony he
gives?
MS. LANGFELS: No.
MS. LAGLE: Does your husband’s work experience with the police
department, does that make you more likely to believe a police officer
or less likely?
MS. LANGFELS: No.
MS. LAGLE: Doesn’t matter either way?
MS. LANGFELS: No. My father-in-law was a police officer down
there, too.
MS. LAGLE: Okay. He’s got a lot of contacts down there. Okay. Fair
16
enough. Does your family live down in Fountain there? That makes
sense. So, is there anybody else who has really positive or really
negative experiences with law enforcement that they want to talk
about? I mean, I’ll start off so you guys feel a little more comfortable.
The very first day of law school, 1 I got pulled over because the cop
did not think I was old enough to drive without a parent in the car. But
I was driving on a permit. That was a great way to start law school.
Anybody have any experiences like that? No? Nothing, not even a
speeding ticket, guys?
TR 1/28/19, pp 43:14-45:5
III. SUMMARY OF ARGUMENT
Plaintiff's first issue presented on appeal, that trial court erred in determining
that a hearsay statement contained in the traffic accident report by an unidentified
witness was admissible at trial, is without merit for at least three threshold reasons.
First, the trial court’s Order of January 14, 2019 granting Defendant’s
Motion Re: Evidentiary Ruling was expressly conditioned upon the police/accident
report in question being “…accompanied by a certificate and cover page as
outlined in the statute.” See Order of Hon. C. Miller dated, Jan. 14, 2019 Re:
Def.’s Request for Evid. Ruling, CF, p 343; see also, C.R.S. § 42-2-121. Plaintiff,
however, stipulated to the admission of the two-age police/accident report in its
entirety, including the unidentified fact witness statement as Trial Exhibit No. 1,
without requiring that the Defendant, as the initial proponent of this evidence,
satisfy the conditions precedent set forth in the statute and in the trial court’s order.
EX (trial) p 1-2. In fact, Plaintiff’s counsel prepared and submitted the Juror
17
Notebook, including Trial Exhibit No.1, sans the requisite certification and cover
page.
Plaintiff cannot stipulate to the admission of the police/accident report in its
entirety as Trial Exhibit No. 1, and then claim it was error for the trial court to
admit this evidence. If Plaintiff believes that it was error to admit the
police/accident report in its entirety, including the unidentified fact witness
statement, following a jury defense verdict in this case, then it was Plaintiff’s error
in stipulating to the admission of the police/accident report in the first place, which
Plaintiff now complains. Consequently, Plaintiff waived any and all objections to
the admissibility of the two-page police/accident report including the unidentified
fact witness statement contained therein by stipulating to its admission as Trial
Exhibit No. 1.
Second, Plaintiff opened the door and interjected the police/accident report
and the unidentified fact witness statement into this case by Plaintiff referring to it
in Plaintiff’s Opening Statement in support of one of Plaintiff’s negligence theories
against the Defendant. Namely, that the unidentified fact witness statement
supported Plaintiff’s contention that Defendant had negligently fallen asleep while
driving and caused the accident. Consequently, Plaintiff “invited the error” of
which Plaintiff now complains, which cannot support a basis for reversal on
appeal.
18
Third, the plain language of C.R.S. § 42-2-121 is clear on its face. C.R.S. §
42-2-121 defines the police/accident report such as the one at issue in this case, as
an “official record and document of the state of Colorado.” See C.R.S. § 42-2-121.
C.R.S. § 42-2-121 further makes clear that the police/accident report “shall be
admissible in all municipal, county, and district courts within the state of
Colorado without further foundation, shall be statutory exceptions to rule 802 of
the Colorado rules of evidence, and shall constitute prima facie proof of the
information contained therein.” (Emphasis added). Consequently, the trial court
did not err when it entered the order admitting the police/accident report into
evidence contingent on the proponent of the evidence satisfying the statutory
conditions precedent to its admission.
Plaintiff’s second issue on appeal, as to Plaintiff’s allegations of juror
misconduct and more specifically, that a juror had misrepresented herself during
voir dire based on the juror’s purported post-verdict statements to Plaintiff’s
counsel regarding the weight that she had given to the police officer fact witness’
testimony, must similarly fail for at least three threshold reasons. First, C.R.E.
Rule 606(b) bars juror’s post-verdict statements to impeach the verdict unless it
falls within three narrow exceptions. None of the three narrow exceptions are
present in the instant case. Second, Plaintiff failed to memorialize or record the
juror’s purported post-verdict statement. Consequently, there is no valid post-
19
verdict juror statement for review on appeal. To the contrary, there is only
Plaintiff’s counsel’s argument and characterization of the juror’s purported post
verdict statement, which Defendant denies. Consequently, Plaintiff has waived
this issue for appeal. Third, Plaintiff failed to conduct further voir dire of the juror
at issue after this juror had identified that she knew the police officer fact witness
to ascertain any bias or basis for disqualification and consequently, has waived this
issue for appeal.
IV. ARGUMENT
A. PLAINTIFF WAIVED ANY AND ALL OBJECTIONS TO THE
ADMISSION OF THE POLICE/ACCIDENT REPORT AND
UNIDENTIFIED FACT WITNESS STATEMENT WHEN PLAINTIFF
STIPULATED TO THE ADMISSION OF THE POLICE/ACCIDENT
REPORT IN ITS ENTIRETY AS TRIAL EXHIBIT NO.1 WITHOUT
REQUIRING DEFENDANT AS THE INITIAL PROPONENT OF THIS
EVIDENCE, TO SATISFY THE CONDITIONS PRECEDENT SET FORTH
IN THE STATUTE AND IN THE TRIAL COURT’S ORDER. FURTHER,
PLAINTIFF’S OWN INTRODUCTION OF THIS EVIDENCE BY
REFERRING TO IT IN PLAINTIFF’S OPENING STATEMENT FOR
PLAINTIFF’S OWN STRATEGIC ADVANTAGE, CONSTITUTED
INVITED ERROR AND WAIVER.
1. Standard of Review and Preservation.
Defendant-Appellee disagrees with Plaintiff-Appellant’s standard of review
on appeal. Defendant-Appellee also disagrees with Plaintiff-Appellant as to the
preservation of the issue regarding whether the trial court erred in admitting the
police/accident report and the unidentified fact witness statement for appeal. To
the contrary Plaintiff stipulated to the admission of the police/accident report
20
including the unidentified fact witness statement in its entirety as Trial Exhibit No.
1. Plaintiff thereafter, opened the door to this evidence by Plaintiff referring to the
unidentified fact witness statement in Plaintiff’s Opening Statement for Plaintiff’s
own strategic advantage. Consequently, Plaintiff invited the error regarding the
admission of this evidence, which Plaintiff now complains of on appeal.
Accordingly, Plaintiff’s claim is not reviewable under any standard. See People v.
Zapata, 779 P.2d 1307, 1309 (Colo. 1989); People v. Lopez, 129 P.3d 1061, 1065
(Colo. App. 2005).
2. Plaintiff Stipulated to the Admission of the Police/Accident Report in its
Entirety as Trial Exhibit No. 1 Without Requiring that it be Accompanied by
the Conditions Precedent Set Forth in the Statute and in the Trial Court’s
Order and Consequently, Plaintiff Waived This Issue for Appeal.
The trial court’s order regarding Defendant’s Motion Re: Evidentiary Ruling
was not a “definitive order” because it specifically called for Defendant, as the
initial proponent of this evidence, to first satisfy of all the required conditions
precedent set forth in the statute and the trial court’s order as a perquisite to its
admissibility. Specifically, both C.R.S. § 42-2-121 and the trial court’s Order
required that the police/accident report at issue be accompanied by statutorily
required certification and cover letter as a condition precedent to its admissibility.
More specifically, the trial court’s order, stated in pertinent part as follows:
The court finds that based on the information provided in the
police/accident report there is not sufficient evidence to provide a
foundation for an 803(1) present sense impression exception or an
21
803(2) excited utterance exception. The court is however persuaded
that CRS 42-2-121 provides guidance on this issue stating that the
police/accident report in question is a statutory exception to Rule
802 (Hearsay) provided it is accompanied by a certificate and cover
page as outlined in the statute.
The court therefore orders that the police/accident report is
admissible as long as it is accompanied by the appropriate certificate
and cover page.
See Order of Hon. C. Miller, dated, Jan. 14, 2019 Re: Def.’s Request for
Evid. Ruling (emphasis added). CF 343
Plaintiff, in the instant case, stipulated to the admission of the
police/accident report in its entirety, including the unidentified fact witness
statement as Trial Exhibit No.1 without requiring that the Defendant as the initial
proponent of this evidence satisfy the conditions precedent to is admission
pursuant to the statute and the trial court’s order. The two-page police report at
issue, which Plaintiff stipulated into evidence at Trial Exhibit No. 1 does not
contain the requisite certificate and cover page outlined in the statute. EX (trial), p
1-2. Moreover, Plaintiff rather, than object to the non-complaint police report
instead stipulated to its admission as Trial Exhibit No. 1 and then in fact, prepared
the juror Notebook with Trial Exhibit No. 1 included. Consequently, Plaintiff
waived any objection to the admission of the police/accident in its entirely and the
unidentified fact witness statement therein by stipulation.
Plaintiff’s argument in Plaintiff’s Opening Brief that the unidentified fact
witness statement was more prejudicial than probative is similarly, without merit.
22
See Pl’s Opening Brief at pp. 13-15. Here, as discussed in greater detail below,
Plaintiff not only stipulated to the admission the police report in entirety including
the unidentified fact witness statement as Trial Exhibit No.1, Plaintiff then
proceeded to interject this statement into this case by Plaintiff’s counsel referring
to it in Plaintiff’s Opening Statement for Plaintiff’s own strategic advantage.
Consequently, Plaintiff not only waived any objection to the admission of this
evidence in the first instance by stipulation but plaintiff further invited the error,
which Plaintiff now complains of by interjecting the unidentified fact witness
statement into this case for Plaintiff’s own strategic advantage, which any
objection to this statement for purposes of appeal, which serve as a basis for
reversal.
It is well settled Colorado law that a party may waive objection by “opening
the door,” “When a party opens the door to inadmissible evidence, an opponent
may then inquire into the previously barred matter.” People v. Miller, 981 P.2d
654, 659 (Colo.App.1998); C.R.E. Rule 103. Rulings on Evidence, 22 Colo. Prac.,
Handbook On Evidence ER 103 (2018-2019 ed.). Consequently, when an
opponent acts contrary to a pretrial order, the party must contemporaneously object
to preserve an appellate argument the court should have prohibited the action.
People v. Hise, 738 P.2d 13, 16–17 (Colo. App. 1986).
The principle that a definitive pretrial ruling preserves an evidentiary issue
23
for appeal is intuitive when the parties follow the court’s pretrial order. United
States v. Mejia–Alarcon, 995 F.2d 982 at 986 (10th Cir. 1993). However, when a
party violates the court's pretrial order, common sense militates in favor of
requiring a contemporaneous objection. See United States v. Fonseca, 744 F.3d
674, 683 (10th Cir.2014).
Indeed, not requiring a contemporaneous objection would create an
undesirable incentive: the party who received a favorable pretrial ruling could sit
silently while the ruling was violated at trial and then, if the party received an
adverse verdict, move for a new trial based on the error. See U.S. Aviation
Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir.1990).
In this case, it was Plaintiff who in essence, violated the pretrial order which
required the proponent of this evidence to satisfy all of the conditions precedent set
forth in the statute and trial court’s order prior to the police/accident report’s
admission. See C.R.S. § 42-2-121; Order of Hon. C. Miller, dated, Jan. 14, 2019
Re: Def.’s Request for Evid. Ruling CF 343; EX (trial) p 1-2.
Common sense dictates that if Plaintiff had wanted to preserve the issue of
whether the trial court had erred in ruling on Defendant’s Motion re: Evidentiary
Ruling to admit the police/accident report in its entirety, including the unidentified
fact witness statement, then Plaintiff would have: (1) not have stipulated to the
admission of the Police Report in its entirety as Trial Exhibit No. 1; (2), required
24
the Defendant, as the initial proponent of this evidence, satisfy all of the conditions
precedent set forth in the statute and in the trial court’s order as a prerequisite to
admission at trial; (3) not have opened the door to this evidence by inviting error
and interjecting this evidence at trial by referring to it in Plaintiff’s opening
statement, questioning witnesses about the unidentified fact witness statement; and
(4), raised a contemporaneous objection to this evidence in the event, that
Defendant attempted to introduce such evidence in Defendant’s Opening Statement
or in Defendant’s Case-in-Chief without satisfying the statutory conditions
precedent pursuant to the trial court’s order. Plaintiff, in the instance case, failed
to do any of one of these four actions and as such, waived appeal on this issue.
3. Plaintiff’s Appeal Must be Barred by the “Doctrine of Invited Error.”
Plaintiff, as noted above, not only stipulated to the admission of the
police/accident report in its entirety, including the unidentified fact witness
statement as Trial Exhibit No.1, and then prepared the Juror Notebook with Trial
Exhibit No. 1 and provided them to the jurors to review, Plaintiff also took over as
the initial proponent of this evidence by opening the door and referring to this
statement in Plaintiff’s Opening Statement for Plaintiff’s own strategic advantage.
More specifically, Plaintiff referred to this statement in Plaintiff’s Opening
Statement strategically and in support of one of Plaintiff’s negligence theories
against Defendant namely, that Defendant had negligently fallen asleep while
25
driving which caused the accident.
Plaintiff’s counsel, in his Opening Statement, stated to the juror in pertinent
part, as follows:
[Plaintiff’s counsel]:
The defendant is going to tell you that on that morning, he was
traveling down Highway 85 and the next thing that he remembers is
waking up or regaining consciousness as the airbags in his car were
deploying. He doesn’t remember jumping the median. He doesn’t
remember taking out a sign. And he doesn’t remember striking
Celena’s vehicle. Now, the defendant is claiming he is not negligent
because he suffered a sudden medical emergency. The crucial word
there is “sudden.” That means he has to prove to you that he had some
medical condition that he was not aware of beforehand and had no
control over, that happened suddenly while he was driving. Now, he
has a problem with that. He doesn’t remember what happened. He just
remembers driving, and in his own words, “waking up when the
airbags deployed.” He can’t tell you what that sudden medical
emergency was. More importantly, he can’t prove to you that any
sudden medical emergency even happened. The sole basis of his
belief that some sudden medical emergency happened is a statement
given to the investigating officer, Officer Steele, by an unidentified
witness. That means we don’t know who this witness is, we don’t
know anything about him. We can’t even tell you his name. We don’t
know how close he was to the defendant to be able to see what was
going on in his car. We don’t know anything about him. All we know
is that he told the officer that he was traveling at some distance behind
the defendant when he saw him stiffen up, lean forward and to the
right like he was having a heart attack. We believe the evidence will
show you that the defendant just fell asleep, which looks eerily
similar to what the unidentified witness described.
TR 1/28/19, pp 95:9-96:10
Plaintiff’s statement, “…We believe the evidence will show you that the
defendant just fell asleep, which looks eerily similar to what the unidentified
26
witness described…” directly correlates Plaintiff’s negligence theory against the
Defendant, that Defendant had negligently fell asleep while driving, which in turn
caused the accident.1 Accordingly, Plaintiff’s appeal must be barred by the
Doctrine of Invited Error.
The Doctrine of Invited Error captures the principle that “a party may not
complain on appeal of an error that he has invited or injected into the case; he must
abide by the consequences of his acts.” People v. Zapata, 779 P.2d 1307, 1309
(Colo.1989).
The Doctrine of Invited Error is triggered by actions taken by a party in the
course of litigation. Thus, the Doctrine of Invited Error, while encompassing the
conceptual basis of estoppel, is properly invoked only against actions taken in the
course of litigation:
Invited error is a cardinal rule of appellate review applied to a wide
range of conduct. It ... prevents a party from inducing an inappropriate
or erroneous [ruling] and then later seeking to profit from that error.
The idea of invited error is ... to protect principles underlying notions
of judicial economy and integrity by allocating appropriate
responsibility for the inducement of error. Having induced an error, a
party in a normal case may not at a later stage of the [proceedings] use
the error to set aside its immediate and adverse consequences.
Horton v. Suthers, 43 P.3d 611 (Colo.2002), citing Roberts v. Consolidation
1 TR 1/28/19, pp. 95:9-96:1; see also, TR 1/29/19, pp. 172:8-12.
[Mr. Lomena]
Q. All right. And if you feel asleep while driving on November 5th, you were
negligent correct?
A. I don’t believe I said that I was negligent?
27
Coal Co., 208 W.Va. 218, 539 S.E.2d 478, 488 (2000).
Accordingly, the doctrine “[o]perates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product of error, when
that party urged the lower court to adopt the proposition now alleged to be error.”
Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 717 (1995).
The Doctrine of Invited Error has been applied against both plaintiffs and
defendants in both criminal and civil cases. See, e.g., Palmer v. Gleason, 154 Colo.
145, 147–48 389 P.2d 90, 91 (1964) (invoking the doctrine against a defendant in a
civil case); People v. Shackelford, 182 Colo. 48, 511 P.2d 19, 20 (1973) (invoking
the doctrine against a defendant in a criminal case).
Further, the doctrine is not limited to cases in which a party requests that the
court take a particular action and then later complains of that same action. Hansen
v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384–85 (Colo.1998). The
doctrine applies where one party expressly acquiesces to conduct by the court or
the opposing party. See, e.g., id, at 1385 (holding that the invited error doctrine
applied where the trial court rejected a jury instruction tendered by defendant State
Farm and State Farm elected not to tender a replacement instruction, thereby
implicitly agreeing with the court's action); People v. Gregor, 26 P.3d 530, 532
(Colo.App.2000) (holding the invited error doctrine applied where the defendant
acquiesced to a jury instruction); People v. Raglin, 21 P.3d 419, 423
28
(Colo.App.2000) (holding that the invited error doctrine applied where the
defendant expressly declined the trial court's offer to replace a juror with an
alternate juror).
Here, Plaintiff stipulated to the admission of the police/accident report in its
entirety as Trial Exhibit No. 1, without requiring Defendant as the initial proponent
of this evidence to first satisfy the required conditions precedent set to its
admission as set forth in the statute and the trial court’s order. Plaintiff thereafter,
took over and assumed the role as the proponent of this evidence by Plaintiff
introducing and interjecting the statement, which Plaintiff now complains was
error to admit in Plaintiff’s opening statement and in support of one of Plaintiff’s
own negligence theories against Defendant. Namely that the Defendant negligently
fell asleep while driving, and thus, caused the accident. See TR 1/28/19, pp. 5:23-
6:4; TR 1/28/19, pp. 95:9-96:10.
If, Plaintiff believes that now following the defense verdict that it was
“error,” to admit the police/accident report and the unidentified fact witness
statement therein, then it was Plaintiff’s error by stipulating to the admission of the
non-complaint police/accident report without making a further contemporaneous
objection and then interjecting this statement into this care for plaintiff’s own
strategic advantage.
Had Plaintiff’s counsel not stipulated to the admission of the police/accident
29
report in its entirety as Trial Exhibit No. 1, and then strategically introduce the
statement in Plaintiff’s opening statement but, instead had wanted to preserve the
issue of the admissibility of the unidentified fact witness statement for review on
appeal, Plaintiff should have contemporaneously objected to the proponent seeking
to introduce this evidence at trial, on the basis the proponent of this evidence had
failed to comply with the required conditions precedent to admissibility as set forth
in the statute as well as the trial court’s order. See Higgs v. District Court, 713
P.2d 840, 859 (Colo.1985) (The denial of a motion in limine should not eliminate
the requirement of a contemporaneous objection to the evidence when such
evidence is offered at trial); see also, Uptain v. Huntington Lab, Inc., 723 P.2d
1322, 1336 (Colo. 1986)(While the contemporaneous objection need not recite in
detail the specific objections outlined in the motion in limine, and may be made
outside the presence or hearing of the jury, the objection should at least incorporate
by reference all or part of the objections previously urged and add any new
objections to the challenged evidence that the objecting party desires to make.
Only in this way can trial and appellate courts be certain that the objecting party,
for reasons of trial strategy or otherwise, was not abandoning the objections
raised at a pretrial motion in limine.)(Emphasis added)
4. The Trial Court’s Reliance on the Statute Was Correct (Plain Reading).
Plaintiff argues that the trial court’s Order admitting the accident/police
30
report pursuant to C.R.S. § 42-2-121 as a statutory exception to C.R.E. Rule 802,
was error. Plaintiff is incorrect. Plaintiff’s argument in Plaintiff’s Opening Brief
that Statute is “eerily similar” to F.R.E. Rule 803(8) and therefore, similarly C.R.E.
Rule 803(8) is similarly, without merit. See Pl’s Opening Brief at p.12. The
Statute does not refer to C.R.E. Rule 803(8). Moreover, Plaintiff’s argument
completely ignores the plain and clear reading of the statute.
Pursuant to C.R.S. § 42-2-121 (c)(I)(A) and (II), official reports of the State
of Colorado, such as the police/accident report at issue in this case, are admissible
in all municipal, county and district courts within the State of Colorado without
further foundation, and shall be statutory exceptions to Rule 802 of the Colorado
Rules of Evidence. They also constitute prima facia proof of the information
contained therein.
C.R.S. § 42-2-121(c)(I)(A) defines a police/accident report such as the one
at issue in this case, as an “official record and document of the state of Colorado.”
C.R.S. § 42-2-121 (c)(I)(A) (c)(I), states in pertinent part, as follows:
The following records and documents filed with, maintained by, or
prepared by the department are official records and documents of the
state of Colorado:
(A) Accident reports;
C.R.S. § 42-2-121 further states:
(II) In any trial or hearing, all official records and documents of the
state of Colorado, as defined in subparagraph (I) of this paragraph (c),
31
shall be admissible in all municipal, county, and district courts within
the state of Colorado without further foundation, shall be statutory
exceptions to rule 802 of the Colorado rules of evidence, and shall
constitute prima facie proof of the information contained therein, if
such record or document is accompanied by a certificate stating that
the executive director of the department or the executive director's
appointee has custody of such record or document and is
accompanied by and attached to a cover page which:
(A) Specifies the number of pages, exclusive of such cover page,
which constitutes the record or document being submitted; and
(B) Bears the signature of the executive director of the department
or the executive director's appointee attesting to the genuineness of
such record or document; and
(C) Bears the official seal of the department or a stamped or printed
facsimile of such seal.
C.R.S. § 42-2-121 (emphasis added).
It is well settled that in interpreting a statute, this Court’s goal “is to
determine and give effect to the intent of the legislature and adopt the statutory
construction that best effectuates the purposes of the legislative scheme.” Mishkin
v. Young, 107 P.3d 393, 396 (Colo. 2005). In determining legislative intent, “a
statute must be read and considered as a whole and should be interpreted so as to
give consistent, harmonious, and sensible effect to all its parts.” Common Sense
Alliance v. Davidson, 995 P.2d 748, 755 (Colo. 2000). This Court looks first to the
plain language of the statute, giving the language its commonly accepted and
understood meaning. Smith v. Executive Custom Homes, Inc., 230 P.3d 1186, 1188
(Colo. 2010). This Court presumes “that the General Assembly understands the
legal import of the words it uses and does not use language idly, but rather intends
32
that meaning should be given to each word.” DOT v. Stapleton, 97 P.3d 938, 943
(Colo. 2004).
Here, the plain language of C.R.S. § 42-2-121 is clear on its face. By its
plain and clear language and terms, the police/accident report, such as the one at
issue in this case, is defined as an “official record and document of the state of
Colorado.” See C.R.S. § 42-2-121. C.R.S. § 42-2-121 further makes clear that the
police/accident report “shall be admissible in all municipal, county, and district
courts within the state of Colorado without further foundation, shall be statutory
exceptions to rule 802 of the Colorado rules of evidence, and shall constitute
prima facie proof of the information contained therein.” (Emphasis added).
The General Assembly through the use of the word “Shall” and the phrases
“shall be admissible in all municipal, county, and district courts within the state
of Colorado without further foundation,” shall be statutory exceptions to rule
802 of the Colorado rules of evidence,” “shall constitute prima facie proof of the
information contained therein” could not be more clear that the police/accident
report such as the one in this case (admitted by stipulation of the parties as Trial
Exhibit No. 1) was at all times admissible in the underlying District Court and
“without further foundation” as a “statutory exception to Rule 802 of the
Colorado Rules of Evidence” and “constituted prima facia proof of the
information contained therein.” C.R.S. § 42-2-121.
33
C.R.S. § 42-2-121 does not set forth limitations as to different types of
hearsay evidence that may be set forth in the police report. C.R.S. § 42-2-121,
“[U]nder the rule of interpretation expressio unius exclusio alterius, the inclusion
of certain items implies the exclusion of others.” Beeghly v. Mack, 20 P.3d 610,
613 (Colo. 2001).
Thus, by specifying that under C.R.S. § 42-2-121 the police/accident report
“shall be admissible in all, district courts within the state of Colorado without
further foundation, shall be statutory exceptions to rule 802 of the Colorado
rules of evidence, and shall constitute prima facie proof of the information
contained therein,” the General Assembly is clear that entire police/accident report
be admissible as a statutory exception to C.R.E. Rule 802. See C.R.S. § 42-2-121.
Stated another way, had the General Assembly intended that certain types of
hearsay contained within the police/accident report fall outside of C.R.S. § 42-2-
121 statutory exception to C.R.E. Rule 802, the General Assembly would have
carved out specific exceptions within C.R.S. § 42-2-121 as to certain categories of
hearsay evidence within the police/accident report, which the General Assembly
did not do.
It should be noted, that although the statute provides that the police/accident
report shall be admitted in the District Court without further foundation, Defendant
also presented the police officer who prepared the police/accident report as a fact
34
witness at the time of trial for foundation. There was no objection by Plaintiff to
this evidence at the time of trial.
Accordingly, Defendant-Appellee respectfully submits, that the trial court
did not err when it entered the order admitting the police/accident report into
evidence contingent on the proponent of the evidence satisfying the statutory
conditions precedent pursuant C.R.S. § 42-2-121(II)(A)-(C), prior to its admission.
B. C.R.E. RULE 606(B) PROHBITS THE USE OF A JUROR’S POST-
VERDICT STATEMENTS TO IMPEACH THE VERDICT UNLESS IT
FALLS WITHIN THREE NARROW EXCEPTIONS, NONE OF WHICH
ARE PRESENT HERE. PLAINTIFF FAILED TO PRESERVE THE
JUROR’S PURPORTED POST-VERDICT STATEMENT FOR REVIEW.
PLAINITFF WAIVED FURTHER VOIR DIRE TO ASCERTAIN ANY
JUROR DISQUALIFCIATIONS. PLAINTIFF’S CHARACTERIZATION
OF THE JUROR’S PURPORTED POST-VERDICT STATEMENT IS THE
PRODUCT OF SPECULATION AND IS DENIED.
1. Standard of Review and Preservation of Issues.
Defendant-Appellee disagrees with Plaintiff-Appellant’s standard of review
on appeal. Defendant-Appellee also disagrees with Plaintiff-Appellant that
Plaintiff-Appellant preserved the issue of the juror’s purported post-verdict
comments to Plaintiff’s counsel for review. To the contrary, as noted below,
Plaintiff failed to record the juror’s purported post-verdict statement. Plaintiff’s
purported post-verdict statements are not part of the record in this case.
Consequently, because Plaintiff failed to preserve the juror’s purported post-
verdict statements for review on appeal, Plaintiff’s claim is not reviewable under
35
any standard. Westrac, Inc. v. Walker Field, Colo., Public Airport Authority, 812
P.2d 714, 718 Colo. App. 1991) (bare statements by a party cannot supply that
which must appear in the record).
2. Plaintiff Failed to Preserve the Juror’s Purported Post-Trial Statements
for Review.
Plaintiff’s characterization of the juror’s purported post-verdict statement if
any, as, misconduct or having a material impact on the verdict is denied as the
product of Plaintiff’s bald speculation and is unsupported by the record in this
case. See Pl’s Opening Brief at p.15. As noted above, the juror’s purported post-
verdict statement is not part of the record in this case. There is only Plaintiff’s
characterization of the juror’s purported post-verdict statement, which is denied.
Further, Plaintiff’s counsel had a fair opportunity to conduct further voir dire of the
juror in question to ascertain any bias or other basis for disqualification but instead,
chose not to.
Accordingly, because the juror’s purported post-verdict statement, if any, is
not part of the record, Plaintiff failed to preserve this issue for purposes of review.
Westrac, Inc. v. Walker Field, Colo., Public Airport Authority, 812 P.2d 714, 718
Colo. App. 1991) (bare statements by a party cannot supply that which must appear
in the record); Keith v. Kinney, 140 P.3d 141, 153 (Colo. App. 2005)
(Arguments not presented to or ruled on by the trial court are deemed waived
and cannot be raised for the first time on appeal.
36
3. None of C.R.E. Rule 606(b)’s Three Narrow Exceptions Apply to the
Juror’s Purported Post-Trial Statement.
C.R.E. Rule 606(b) applies to all civil and criminal cases. Ravin v.
Gambrell, 788 P.2d 817, 820 (Colo.1990). C.R.E. Rule 606(b) is a broad ban
against the solicitation and use of juror testimony, affidavits,
or statements addressing the validity of a jury verdict. The rule provides two
narrow exceptions as follows:
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.
C.R.E. 606(b). Stewart ex rel. Stewart v. Rice, 47 P.3d 316, 320 (Colo.2002) as
mod on denial of reh’g (June 3, 2002).
In Malpica-Cue v. Fangmeier, 395 P.3d 1234, ¶ 14 (Colo.App.2017), this
Court added the third narrow exception, “mistake” but limited such exception to
cases where the verdict rendered is not the verdict to which the jury agreed.
Malpica, at id.
C.R.E. Rule 606(b) has three fundamental purposes: to promote finality of
verdicts, shield verdicts from impeachment, and protect jurors from harassment
and coercion. Ravin v. Gambrell, 788 P.2d at 820.
During post-trial and appellate proceedings, courts must view the jury’s
verdict in the light most favorable to it. Bohrer v. DeHart, 961 P.2d 472, 477
37
(Colo.1998) (“We defer to jury verdicts when jurors have been properly instructed
and the record contains evidence tsupport the jury’s findings.”)
C.R.E. Rule 606(b) protects the jurors in performing their public service and
their post-verdict privacy. It acts to restrain disappointed litigants. The law
presumes that jurors have followed the court's instructions and have discharged
their duties faithfully. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315,
1331 (Colo.1996).
Under C.R.E. Rule 606(b), juror testimony or affidavits divulging juror
deliberations, thought processes, confusion, mistake, intent, or other verdict
impeaching ground are excluded. See, e.g., People v. Garcia, 752 P.2d 570, 584
(Colo.1988) (refusing to accept affidavits regarding jurors’ mental
processes); People v. McCoy, 764 P.2d 1171, 1177 (Colo.1988) (“It is well
established ... that a juror’s affidavit that attempts to explain the mental processes
of the jury cannot be used to impeach a jury verdict.”).
Colorado law supports a plain meaning application of C.R.E. Rule 606(b)
and its stated exceptions. Wiser v. People, 732 P.2d 1139, 1143 (Colo.1987). An
attempt to make the jurors witnesses without a basis in C.R.E. Rule 606(b)’s
exceptions constitutes an abuse of the rule, the jury instruction, the jurors, and the
administration of justice. Stewart ex rel. Stewart v. Rice, 47 P.3d 316, 325–26
(Colo. 2002), as modified on denial of reh’g (June 3, 2002).
38
Accordingly, in the instance case, because none of the three exceptions to
C.R.E. Rule 606(b) are present or applicable, Plaintiff’s appeal must be denied.
4. Plaintiff Waived Further Voir Dire of After the Juror Identified that she
knew the Fact Witness.
Plaintiff waived further voir dire of after the juror informed Plaintiff’s
counsel that she knew the police fact witness. The importance of
adequate voir dire was articulated in Photostat Corp. et al. v. Ball, 338 F.2d 783,
786 (10th Cir. 1964): “the very purpose of voir dire examination is to develop the
whole truth concerning the prospective juror’s state of mind, not only to enable the
trial judge to determine actual bias, but to enable counsel to exercise his intuitive
judgment concerning the prospective juror’s suspected bias or prejudice.”
Moreover, C.R.C.P. 47(a) permits voir dire so that the parties can “obtain
information about prospective jurors to facilitate an intelligent exercise of
challenges for cause and peremptory challenges.” People v. Greenwell, 830 P.2d
1116 at 1118 (Colo.App.1992). A challenge for cause is waived only if counsel
fails to use reasonable diligence on voir dire to determine if a challenge for cause
exists. Crespin v. People, 635 P.2d 918 (Colo.App.1981) citing Austin v.
People, 106 Colo. 506, 107 P.2d 798 (1940). The test for reasonable diligence is
whether counsel availed himself of an opportunity to ascertain the
disqualification. Crespin, supra, 635 P.2d at 920.
Here, Plaintiff’s counsel had a fair opportunity to further question juror
39
Langfels during voir dire once juror Langfels stated that she knew the police
officer to determine whether a challenge for cause existed and to ascertain
whether there was any potential bias or other basis for disqualification. Plaintiff’s
counsel chose not to question further. Moreover, even assuming arguendo that
the juror’s purported post-verdict statement was preserved for the record for
review, which is denied, to extent that Plaintiff’s counsel believes that the juror
should have disclosed that she purportedly knew the witness and knew how he
worked and thought, then it was Plaintiff’s responsibility to ask the appropriate
questions to illicit this information on voir dire. It is not the juror’s responsibility
to provide a response to questions on voir dire that were not asked. Plaintiff’s
counsel’s strategic choice not to conduct any further voir dire of this witness
constitutes waiver of this issue.
V. CONCLUSION
For all of the foregoing reasons, Defendant-Appellee respectfully requests
that the Court affirm the jury’s verdict.
40
Respectfully submitted,
Park & Metz, LLP
By: /S/ Randy S. Metz
Randy S. Metz, Esquire
ATTY. ID No. 48101
329 Main St., 2nd Fl.
Carbondale, CO, 81623
Phone Number: (970) 340-4977
FAX Number: (970) 963-5905
E-mail: [email protected]
41
CERTIFICATE OF SERVICE OF DEFENDANT-APPELLEE’S
ANSWER BRIEF
I Randy S. Metz, hereby certify that a true and correct copy of the
foregoing Answer Brief on behalf of Defendant-Appellee, Gary Brown has been
served this date upon all interested parties and/or counsel by way of ICCES as
follows:
Edward Lomena, Esquire
Michael David, Esquire
McDivitt Law Firm 19 East Cimarron Street
Colorado Springs, CO 80903
Park & Metz, LLP
By: /S/ Randy S. Metz
Randy S. Metz, Esquire
ATTY. ID No. 48101
329 Main St., 2nd Fl.
Carbondale, CO, 81623
Phone Number: (970) 340-4977
FAX Number: (970) 963-5905
E-mail: [email protected]
Dated: September 23, 2019
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