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.

                                     5
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


                                    7
  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)).


                                     8
¶ 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


                                    9
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,


                                   10
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

                                  11
¶ 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).

                                     12
  (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


                                      13
  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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