Caylao-Do v. Logue

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 1, 2025

2025COA42

No. 23CA0195, Caylao-Do v. Logue — Evidence — Competency
of Juror as Witness — Inquiry into Validity of Verdict or
Indictment; Juries — Batson Challenges

In this negligence action, plaintiff sued defendant, a police

officer, for damages sustained when the officer’s patrol car hit the

plaintiff. The jury returned a verdict in favor of the plaintiff and

awarded damages that exceeded the Colorado Governmental

Immunity Act (CGIA) cap.

A division of the court of appeals holds that the constitutional

exception to CRE 606(b)’s no-impeachment rule does not apply to

an allegation that, during deliberations, a juror expressed

anti-police bias. The division also concludes that any error in a

trial court’s decision to sustain a party’s Batson objection, and

thereby retain the juror subject to the objection, is harmless unless

the striking party can show that the juror was not fair and
impartial. Finally, the division confirms that the CGIA’s damages

cap is inclusive of costs and prejudgment interest.
COLORADO COURT OF APPEALS 2025COA42

Court of Appeals No. 23CA0195
City and County of Denver District Court No. 21CV33936
Honorable David H. Goldberg, Judge

Quinessa Caylao-Do,

Plaintiff-Appellee and Cross-Appellant,

v.

Officer John Logue, in his individual capacity, and City and County of Denver,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE HARRIS
Brown and Lum, JJ., concur

Announced May 1, 2025

The Wilhite Law Firm, Zachary Elsner, Denver, Colorado; Spark Justice Law
LLC, Laura B. Wolf, Englewood, Colorado, for Plaintiff-Appellee and Cross-
Appellant

Katie McLoughlin, Acting City Attorney, David L. Murphy, Assistant City
Attorney, Denver, Colorado, for Defendants-Appellants and Cross-Appellees
¶1 Plaintiff, Quinessa Caylao-Do, sued the defendants, Officer

John Logue and the City and County of Denver (collectively, the

City), for negligence after Logue struck Caylao-Do with his police

car and injured her. The jury returned a verdict in favor of

Caylao-Do.

¶2 On appeal, the City contends that the trial court erred by

sustaining Caylao-Do’s Batson objection to a peremptory strike,

permitting purported violations of a motions in limine order, and

denying its motion for a new trial based on a juror’s alleged

anti-police bias. On cross-appeal, Caylao-Do argues that the court

erred by applying the Colorado Governmental Immunity Act (CGIA)

damages cap to costs and prejudgment interest.

¶3 We discern no error. Accordingly, we affirm the judgment.

I. Background

¶4 On the night of the incident, Caylao-Do, a basketball player at

the University of Colorado, was celebrating her birthday in Denver.

She and a friend took an Uber to another friend’s home, but the

Uber driver would not complete the ride because Caylao-Do, who

had been drinking, did not feel well. Caylao-Do and her friend

stepped into an alley to call another Uber.

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¶5 While the women were waiting, Logue turned his police car

into the alley and struck Caylao-Do from behind, knocking her to

the ground. Thinking he had hit a cardboard box, Logue reversed

to dislodge the “box” and dragged Caylao-Do along the pavement

under his car.

¶6 Caylao-Do suffered physical and emotional injuries that

prevented her from playing basketball after the incident. She sued

the City for negligence.

¶7 Following a four-day trial, the jury awarded Caylao-Do

$579,795.65 in damages. The jury apportioned 90% of the fault for

the incident to Logue and 10% to Caylao-Do. However, pursuant to

the CGIA, section 24-10-114(1), C.R.S. 2024, the trial court limited

recoverable damages to $387,000, inclusive of costs and interest.

II. The City’s Appeal

A. The Court’s Batson Ruling

¶8 The City argues that the court erred by upholding Caylao-Do’s

Batson challenge to its peremptory strike of a Black venireperson.

1. Relevant Facts

¶9 At the end of voir dire, the City exercised two of its five

peremptory strikes against Jurors W and H, who were, according to

2
the trial court, the only Black venirepersons.1 Caylao-Do objected

to the strikes under Batson v. Kentucky, 476 U.S. 79 (1986). The

court overruled the objection with respect to Juror H, and her

dismissal from the venire is not at issue on appeal.

¶ 10 As for Juror W, Caylao-Do’s lawyer argued that there did not

seem to be a basis to strike her “other than her race.” The court

then asked defense counsel to provide a basis for the strike.

Counsel initially mentioned that Juror W was young2 and studying

psychology. When Caylao-Do’s lawyer noted that other jurors had

training in the healthcare field, defense counsel interjected with

additional reasons: Juror W was an athlete and a part-time

student. Caylao-Do’s lawyer again referenced similarly situated

jurors, including a non-Black juror who had played collegiate sports

at a higher level than Juror W.

1 The City says there was a third Black venireperson who ultimately

served on the jury. The record on appeal does not include
information about the racial make-up of the venire or the jury.
2 Juror W was twenty-nine years old. The City did not peremptorily

strike prospective jurors who were twenty-six and twenty-eight.

3
¶ 11 The trial court was not persuaded by defense counsel’s

reasons. It found that the true motive for the peremptory strike

was “race based” and upheld the Batson challenge.

¶ 12 Following the court’s ruling, defense counsel offered additional

reasons for the strike: “based on a lot of things,” Juror W was likely

to be “sympathetic to the plaintiff”; also, she was self-employed.

¶ 13 The court did not find the additional reasons compelling. It

explained that nothing about Juror W, including the proffered

reasons, suggested she would be “less than fair and impartial.”

When defense counsel countered that the City could exercise its

peremptory strikes even on fair and impartial jurors, so long as the

reason for the strike was not “race based,” the court responded that

it believed the strike was based on Juror W’s race.

2. Legal Principles and Standard of Review

¶ 14 Racially motivated peremptory strikes violate both the

objecting party’s and the prospective juror’s constitutional rights to

equal protection. People v. Johnson, 2024 CO 35, ¶ 12.

¶ 15 To protect these rights, the Supreme Court has outlined a

three-step process for determining whether a peremptory strike is

discriminatory:

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[O]nce the opponent of a peremptory challenge
has made out a prima facie case of racial
discrimination (step one), the burden of
production shifts to the proponent of the strike
to come forward with a race-neutral
explanation (step two). If a race-neutral
explanation is tendered, the trial court must
then decide (step three) whether the opponent
of the strike has proved purposeful racial
discrimination.

Purkett v. Elem, 514 U.S. 765, 767 (1995).

¶ 16 The critical question at step three is whether, in light of all the

evidence, the proffered reason was pretextual and the strike was

actually motivated by discriminatory intent. People v. Ojeda, 2022

CO 7, ¶ 28; see also Elem, 514 U.S. at 768 (explaining that

“implausible” justifications “may (and probably will) be found to be

pretexts for purposeful discrimination”). To answer this question,

the trial court evaluates the persuasiveness of the proponent’s

justification for the strike, People v. Wilson, 2015 CO 54M, ¶ 14, by

considering, among other things, “the striking party’s demeanor,

the lack of questioning about the reason given,” and “whether the

striking party struck similarly situated jurors of a different race,”

Johnson, ¶ 49. “If the [proponent]’s asserted race-neutral reasons

do not hold up, and ‘the racially discriminatory hypothesis’ better

5
fits the evidence, then the trial court must uphold the Batson

challenge.” Wilson, ¶ 14.

¶ 17 On appeal, each step of the Batson analysis is subject to a

separate standard of review. Ojeda, ¶ 30. We review de novo the

trial court’s rulings at step one and step two, which involve

questions of law. Id. But at step three, the trial court must make a

factual determination as to whether the challenger has shown a

discriminatory motive for the strike. Thus, we review step three

rulings under the highly deferential clear error standard. Id.

3. Discussion

¶ 18 The City asserts that the court committed two errors in its

Batson analysis: first, it failed to make findings at each step; and

second, in determining that the strike was based on Juror W’s race,

the court applied the heightened standard that governs challenges

for cause.

¶ 19 True, before moving to step two, the court did not expressly

find that Caylao-Do had met her burden at step one to make out a

prima facie case of discrimination. But once the court asked

defense counsel to provide a reason for the strike, the question of

whether Caylao-Do had cleared step one became moot. See Wilson,

6
¶ 12. And no one disputes that at step two, the City offered race-

neutral reasons for the peremptory strike. Thus, even without

making explicit findings, the court was required to proceed to a

step-three determination as to whether the City’s proffered reasons

were a pretext for a discriminatory or “race based” strike. See

People v. Austin, 2024 CO 36, ¶ 20 (“Once a race-neutral reason is

given, the court should move to Batson’s third step.”).

¶ 20 We are also unpersuaded by the City’s argument that at step

three, the court erroneously applied the standard for a for-cause

strike. In our view, the court’s reference to Juror W’s ability to be

fair and impartial was simply part of its explanation for why it had

rejected the City’s proffered justification for the strike. By

emphasizing Juror W’s impartiality, the court was relaying its

skepticism about the City’s reasons for concluding that Juror W

would be a poor juror for the defense. As the court confirmed a

moment later, it knew that the City could peremptorily strike a

juror for any reason, except one based on the juror’s race or other

protected characteristics. The court was not confused about the

applicable legal standard. Rather, it found, as a factual matter,

that the City’s reasons for the strike were a pretext and the strike

7
was, in fact, motivated by the juror’s race. We see no basis for

disturbing that finding. See People v. Beauvais, 2017 CO 34, ¶ 25

(explaining that, because the findings at step three largely turn on

credibility determinations, a reviewing court generally defers to the

trial court’s ultimate finding concerning discriminatory intent).

¶ 21 But regardless, to obtain a reversal, the City would have to

establish prejudice, and it has not endeavored to do so. A trial

court’s erroneous ruling upholding a Batson challenge, even if it

results in the denial of a peremptory challenge, does not require

reversal of the judgment. See Rivera v. Illinois, 556 U.S. 148,

157-58 (2009); see also Laura A. Newman, LLC v. Roberts, 2016 CO

9, ¶¶ 3, 23, 26 (If a court errs by restricting a party’s peremptory

challenges, the appealing party must show that the error

“substantially influenced the outcome of the case.”).

¶ 22 The City has not alleged, much less shown, that Juror W was

biased or otherwise incompetent to serve on the jury.

Consequently, the “trial judge’s refusal to excuse [Juror W] did not

deprive [the City] of [its] constitutional right to a fair trial before an

impartial jury.” Rivera, 556 U.S. at 158; see also People in Interest

of R.J., 2019 COA 109, ¶ 29 (The court’s error in exercising

8
peremptory challenges on one party’s behalf was harmless because

a party does not have a right “to a particular mix of impartial

jurors.”).

B. Violations of Motions in Limine Order

¶ 23 Next, the City says that reversal is warranted because

Caylao-Do’s counsel violated the court’s in limine order.

1. Relevant Facts

¶ 24 Before trial, the City filed motions in limine to preclude

evidence of Caylao-Do’s lost future professional basketball wages

and of unrelated police violence and racial justice protests.

¶ 25 Regarding lost future wages, the City argued that the evidence

was inadmissible, primarily because it was the subject of expert

testimony and Caylao-Do’s coach was not an expert and had not

been endorsed as one. Regarding the unrelated police violence and

protests, the City argued that “[Caylao-Do’s] counsel [might]

attempt to enflame the jury with irrelevant rhetoric regarding the

race of the parties, police violence, and ongoing movements for

social and political justice.” It asked the court to exclude “any

questioning, argument, or suggestions of race-based motivations or

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bias, incidents of police violence, or racial-justice movements or

protests.” The court granted both motions in limine.

¶ 26 During closing argument, Caylao-Do’s counsel told the jury

that her discussion of damages would focus on “the loss of a career

and what that means.” She immediately clarified that “[w]e’re not

asking you to guess what [Caylao-Do] could have earned as a pro

basketball player,” but instead to consider “the value of [her] lost

dream.” Counsel described the commitment and sacrifices

necessary to play high-level youth and college basketball and

compared that endeavor “to a full-time job.” She told the jury that

“one way to think about” damages was to “estimate the value of

each year, substituting a reasonable salary,” for the time period

that Caylao-Do did play basketball — to compensate her for her

past efforts that would no longer lead to a professional career.

¶ 27 Later, during rebuttal closing, counsel said, “According to [the

City], if you have any blood alcohol level whatsoever, you have the

right to be run over by a police officer on duty. He has no obligation

to use his lights or due care or look around him.”

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¶ 28 Defense counsel did not contemporaneously object to any of

these statements. On appeal, the City contends that counsel’s

comments violated the trial court’s in limine order.

2. Discussion

¶ 29 We agree with Caylao-Do that the City failed to preserve this

issue for appeal.

¶ 30 A motion in limine preserves a claim that the trial court

erroneously admitted evidence the appellant sought to exclude. See

Bernache v. Brown, 2020 COA 106, ¶¶ 4, 12. But it does not

preserve a claim that the other party violated an in limine order

excluding evidence the party had sought to admit. See People v.

Dinapoli, 2015 COA 9, ¶¶ 19-24. In the former circumstance, a

contemporaneous objection when the expected evidence is

introduced amounts to a useless formality. Id. at ¶ 21. But in the

latter circumstance, “an objection does not merely revive an

argument that the court has already rejected.” Id. at ¶ 22. Rather,

the objection allows the court to determine, at the relevant time,

whether the admission of evidence or argument by counsel actually

violates the pretrial order. See id.; State Farm Mut. Auto. Ins. Co. v.

Goddard, 2021 COA 15, ¶¶ 84-85.

11
¶ 31 An objection was particularly important here because it is not

readily apparent that counsel’s comments fall within the order’s

prohibition. Counsel did not present lay opinion testimony in the

guise of expert testimony, nor did she argue that the jury should

award damages for lost future wages. And the connection between

an officer’s responsibility for a collision involving an inebriated

pedestrian and police violence or social justice protests is even more

tenuous. If the City thought that counsel’s comments were

precluded by the court’s order, it had to “alert the trial court” and

present its “argument against the other party’s action.” Dinapoli,

¶ 22. It could not sit silently while the order was supposedly

violated and then move for a new trial based on the error. Id.

¶ 32 For these reasons, we conclude that the issue is not preserved.

In a civil case, unpreserved issues are deemed waived. O’Connell v.

Biomet, Inc., 250 P.3d 1278, 1282 (Colo. App. 2010).

¶ 33 We decline the City’s request, raised in its reply brief, to apply

plain error review to its unpreserved claim. For one thing, we do

not consider arguments raised for the first time in a reply brief. See

Gomez v. Walker, 2023 COA 79, ¶ 9 n.3. And in any event, plain

error review in civil cases applies only in unusual or special

12
circumstances and, even then, “only ‘when necessary to avert

unequivocal and manifest injustice.’” Scholle v. Ehrichs, 2022 COA

87M, ¶ 86 (quoting Wycoff v. Grace Cmty. Church of Assemblies of

God, 251 P.3d 1260, 1269 (Colo. App. 2010)), aff’d in part and rev’d

in part, 2024 CO 22. There are no such circumstances here.

C. The City’s Motion for a New Trial Based on Juror Misconduct

¶ 34 Lastly, the City argues that the trial court erred by denying its

motion for a new trial based on allegations that a juror was biased

against the police.

1. Relevant Facts

¶ 35 After the jury returned its verdict, the City moved for a new

trial, alleging that a juror had reported that Juror S expressed

“anti-police bias” during deliberations. The motion included an

affidavit from the accusing juror, who asserted the following:

• While watching body camera footage, Juror S “commented on

how ‘the blue line protects their own’ in response to the police

officers seemingly not asking Ms. Caylao-Do about her

condition.”

• Juror S said several times that the City and the police “always

fuck up” and that “they’re trying to ‘cover their ass.’”

13
• Juror S told the other jurors that it was their “job as a jury to

‘help [Caylao-Do].’”

• When asked “what justice looked like from his perspective,”

Juror S said something like, “getting the City of Denver to

‘cough up.’”

• Juror S was “the loudest voice in the room and resort[ed] to

insults and cursing.”

• Juror S thought the officer was 100% at fault, but he

eventually agreed to apportion 10% of the fault to Caylao-Do.

Initially, Juror S “felt the $1.7 million” requested by Caylao-Do

was fair, but he ultimately agreed to “meet in the middle” on

damages “because he needed to get back to work.”

¶ 36 The court denied the motion for a new trial, concluding that

the accusing juror’s affidavit was inadmissible under CRE 606(b) to

impeach the verdict. In reaching that conclusion, the court rejected

the City’s argument that the affidavit’s allegations fell within the

judicially crafted “constitutional” exception to the rule.

2. Legal Principles and Standard of Review

¶ 37 Courts have long enforced a “no-impeachment” rule, which

generally prohibits using juror testimony to contest a verdict. See

14
Warger v. Shauers, 574 U.S. 40, 45-47 (2014). The

no-impeachment rule is now codified in CRE 606(b) and its

substantially similar federal counterpart, Fed. R. Evid. 606(b). See

Stewart v. Rice, 47 P.3d 316, 321 (Colo. 2002).

¶ 38 Under CRE 606(b), on a challenge to the verdict, a juror may

not testify “as to any matter or statement occurring during the

course of the jury’s deliberations” or reveal anything about the

jurors’ “mental processes in connection” with their decision to

“assent to or dissent from the verdict.” And a juror’s affidavit is

inadmissible if it pertains to any “matter about which the juror

would be precluded from testifying.” CRE 606(b).

¶ 39 The rule has three exceptions, however: a juror may testify

about (1) extraneous prejudicial information improperly brought to

the jurors’ attention; (2) any outside influence that was improperly

brought to bear on a juror; and (3) any mistake in entering the

verdict on the verdict form. Id.

¶ 40 The Supreme Court has also recognized a narrow

constitutional exception. In Warger, the Court rejected an

argument that Fed. R. Evid. 606(b) permitted the use of a juror’s

post-verdict testimony to establish that another juror lied during

15
voir dire. 574 U.S. at 42. But it acknowledged that a constitutional

exception to the rule might be required for “cases of juror bias so

extreme that, almost by definition, the jury trial right has been

abridged.” Id. at 51 n.3.

¶ 41 Three years later, the Court was presented with such a case.

In Peña-Rodriguez v. Colorado, two jurors submitted affidavits

detailing another juror’s explicit racist statements directed at the

Hispanic defendant. 580 U.S. 206, 212-13 (2017). The Court held

that the no-impeachment rule must yield when “a juror makes a

clear statement that indicates he or she relied on racial stereotypes

or animus to convict a criminal defendant.” Id. at 225.

¶ 42 Even with these exceptions, the no-impeachment rule retains

its broad prohibition on the use of juror testimony to challenge a

verdict. See People v. Burke, 2018 COA 166, ¶ 10 (explaining that

CRE 606(b) prohibits juror testimony to impeach a verdict even on

grounds including “mistake, misunderstanding of the law or facts,

failure to follow instructions, lack of unanimity, or application of

the wrong legal standard”) (citation omitted). And for good reason.

The rule protects jurors from harassment and coercion, thereby

encouraging full and vigorous deliberations, and “gives stability and

16
finality to verdicts.” Peña-Rodriguez, 580 U.S. at 218. “Thus,

absent a recognized exception, juror testimony (through an affidavit

or otherwise) is inadmissible to impeach a verdict.” People v.

Archuleta, 2021 COA 49, ¶ 20.

¶ 43 While we leave the decision whether to grant or deny a motion

for a new trial to the trial court’s discretion, id. at ¶ 13, we review

de novo the court’s interpretation of a rule of evidence, Gonzales v.

People, 2020 CO 71, ¶ 26.

3. Discussion

¶ 44 The City says that Juror S’s “extreme” anti-police bias fits

within the constitutional exception to CRE 606(b), and, therefore,

the court erred by denying the motion for a new trial without

considering the accusing juror’s affidavit.

¶ 45 As an initial matter, we will assume, without deciding, that

Juror S’s comments, or at least some of them, demonstrate an

actual bias against police officers. And we will assume, again

without deciding, that Peña-Rodriguez’s constitutional exception

applies in civil cases. See Harden v. Hillman, 993 F.3d 465, 481

(6th Cir. 2021).

17
¶ 46 But the Peña-Rodriguez Court made quite clear that the

constitutional exception to the no-impeachment rule applies only to

instances where racial animus substantially motivated a juror’s

finding of guilt. 580 U.S. at 211. A narrow carve-out for racial bias

was necessary, the Court explained, because racial bias is different

than other kinds of juror biases. Id. at 223-24. Racial bias causes

“systemic injury to the administration of justice” by undermining

“the promise of equal treatment under the law,” and it is

particularly difficult to root out because traditional safeguards are

not effective at disclosing that kind of bias. Id. at 224-25.

¶ 47 The City does not direct us to, and we have not found, a single

case in any jurisdiction that extends the constitutional exception

beyond its original application to racial bias. In Burke, the only

Colorado case to have considered the exception’s scope, the division

concluded that Peña-Rodriguez did not “support the recognition of a

separate constitutional exception to CRE 606(b)” for juror bias

based on a defendant’s failure to testify at trial. Burke, ¶¶ 29-30.

¶ 48 Nonetheless, the City relies on Burke, arguing that the

division’s reasoning supports an extension of the constitutional

exception to anti-police bias. In reaching its conclusion, the Burke

18
division explained that its case lay “on the other side of the divide

from Pena-Rodriguez” because the case “[did] not involve juror bias

that relates to any characteristic personal to the defendant, and

because it involve[d] anomalous behavior from a single juror.” Id. at

¶ 27.

¶ 49 According to the City, those distinctions prove its point; here,

the juror’s anti-police bias did relate to “a personal characteristic of

the defendant — that [he] is a police officer,” and anti-police bias is

widespread, or at least was at the time of trial. We see a couple of

problems with the City’s argument.

¶ 50 First, by “characteristic personal to the defendant,” the Burke

division did not mean the defendant’s job. That is obvious from the

context, given that the division was distinguishing between its case

and Peña-Rodriguez, which involved bias based on the defendant’s

immutable or innate personal characteristic — race. “[A] person’s

job is generally not an immutable or fundamental characteristic.”

Montes De Oca-Bolanos v. Whitaker, 748 F. App’x 140, 141 (9th Cir.

2019); Ospina Hernandez v. U.S. Att’y Gen., 404 F. App’x 387, 390

(11th Cir. 2010) (“Because Petitioner could change jobs, his position

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as a sports coach is not an immutable characteristic that is

fundamental to his identity.”).

¶ 51 Second, this case, like Burke, involves “anomalous behavior

from a single juror.” Burke, ¶ 27. Unlike racial bias, which the

Supreme Court characterized as a “familiar and recurring evil” that

implicates unique institutional concerns, “neither history nor

common experience shows that the jury system is rife with” anti-

police bias. Peña-Rodriguez, 580 U.S. at 224. If there is any

evidence to support the City’s bald assertion that “virulent” bias

against the police systemically infects the jury process, it was not

presented to the trial court or to this division.3

¶ 52 Pointing out that, in this particular case, some members of the

venire had negative experiences with or expressed concerns about

the police does not advance the City’s position. By the City’s own

3 The only authority the City cites to support its position is Stealth

Juror: The Ultimate Defense Against Bad Laws and Government
Tyranny, a 2002 book written by Trent Hammerstein and published
by the now-defunct Paladin Press, whose website advertised books
on subjects like “Knives and Knife Fighting” and “Espionage and
Investigation.” See Paladin Press, Legal Statement,
https://perma.cc/GR5X-PQ2Z. But even accepting the book as a
legitimate source of information, the City’s description of it does not
suggest that so-called “stealth jurors” are biased against the police.

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admission, the traditional safeguard of voir dire disclosed the jurors

who had those concerns, and they were either rehabilitated or

excused from jury service. See id. at 224-25 (explaining that while

traditional safeguards like voir dire tend to root out most juror

biases, they are not as effective at uncovering racial bias). And in

the case of Juror S, another juror felt free to raise the alleged bias,

albeit post-trial. Id. at 225 (explaining that while jurors are likely to

raise most juror misconduct issues with the court, they are unlikely

to accuse a fellow juror of racial bias).

¶ 53 Nor can the City gain any mileage from Archuleta. The

Archuleta division considered whether CRE 606(b) applied to juror

misconduct that occurs before deliberations begin. Archuleta, ¶ 21.

Contrary to the City’s reading, the division did not hold that “the

severity of the bias” controls whether the no-impeachment rule

applies; rather, the division held that it is the “nature of the

misconduct alleged” (i.e., whether the misconduct was “based on

external or internal influences”), and “not when it occurred[,] that

matters.” Id. at ¶¶ 25-26. And here, the City does not dispute that

Juror S’s alleged anti-police comments “fall[] on the ‘internal’ side of

the line.” Id. at ¶ 25 (quoting Warger, 574 U.S. at 51).

21
¶ 54 Then there is the fact that the only courts to have addressed

this question have rejected the argument that allegations of pro- or

anti-police bias fall within the constitutional exception to the

no-impeachment rule. See United States v. Brown, 934 F.3d 1278,

1293, 1302-03 (11th Cir. 2019) (Testimony that some jurors

“harbored bias against police officers” and relied on their

“misconceptions about police” to reach a verdict was inadmissible

because, “outside of racial bias, [Fed. R. Evid.] 606(b) prohibits

inquiries into alleged . . . prejudices of the jury.”); Bryant v.

Mascara, No. 2:16-CV-14072, 2018 WL 3868709, at *6 (S.D. Fla.

Aug. 14, 2018) (unpublished order) (“Allegations of bias in favor of

police officers do not meet the narrow exception to the no

impeachment rule . . . for allegations of racial bias.”).

¶ 55 Under the City’s interpretation of CRE 606(b), the

constitutional exception would swallow the rule. Any allegation of

an occupation-based bias could override the no-impeachment rule,

subjecting juries to the “unrelenting scrutiny” that the

Peña-Rodriguez court sought to avoid by crafting a narrow exception

for racial bias. 580 U.S. at 224.

22
¶ 56 Accordingly, we hold that the constitutional exception to CRE

606(b) does not apply to allegations of anti-police bias. The trial

court, therefore, did not err by denying the City’s motion for a new

trial.4

III. Caylao-Do’s Cross-Appeal

¶ 57 On cross-appeal, Caylao-Do argues that the trial court erred

by concluding that the CGIA damages cap applies to costs and

prejudgment interest.

A. Relevant Facts

¶ 58 As noted, the jury awarded Caylao-Do $579,795.65 (reduced

to $521,816.09 based on a finding that she was 10% at fault). The

parties agreed that the CGIA limitation on damages allowed for a

maximum award of $387,000.5 The issue in dispute is whether the

damages cap was inclusive of costs and prejudgment interest. The

4 To the extent the City provides additional reasons that the motion

for a new trial should have been granted, we do not consider those,
as they were not raised in its motion for a new trial. See Al-Hamim
v. Star Hearthstone, LLC, 2024 COA 128, ¶ 24 (explaining that in
civil cases, issues not raised in or decided by the trial court will not
be addressed for the first time on appeal).
5 The Secretary of State adjusts the CGIA damages cap every four

years. See Colorado Secretary of State, Certificate (Jan. 5, 2022),
https://perma.cc/4FAP-YS2X.

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trial court determined that it was and entered judgment in favor of

Caylao-Do in the amount of $387,000.

B. Discussion

¶ 59 Subject to various exceptions not relevant here, the CGIA

limits damages recoverable from a public entity or public employee

as follows: “For any injury to one person in any single occurrence,”

the “maximum amount . . . shall be . . . the sum of three hundred

fifty thousand dollars” (as adjusted). § 24-10-114(1)(a).

¶ 60 Caylao-Do contends that we should read section

24-10-114(1)(a)(I) to exclude costs and interest from the damages

cap. But in interpreting this provision of the CGIA, we are hardly

writing on a blank slate. The supreme court has essentially settled

this question, as Caylao-Do acknowledges.

¶ 61 In Lee v. Colorado Department of Health, the supreme court

construed an earlier version of section 24-10-114(1) to mean that

“the total amount of the judgment, inclusive of interest and costs,

must not exceed the recovery limitations imposed by” the damages

cap — then $150,000 for an injury to one person in a single

occurrence. 718 P.2d 221, 229 (Colo. 1986). The version of the

statute then in effect was identical in all relevant respects to the

24
current provision, except that it included an exception when a

public entity opted to carry insurance in an amount in excess of the

statutory cap. See § 24-10-114(2)(a), C.R.S. 1985. Under those

circumstances, the court said, an injured party was entitled to

recover damages up to the limit of the entity’s insurance policy.

Lee, 718 P.2d at 229. Because the trial court had not considered

the extent of the entity’s insurance coverage, the supreme court

remanded the case for a determination of whether the exception

applied. Id.

¶ 62 A month after the Lee decision was issued, the legislature

amended section 24-10-114 to delete subsection (2)(a)’s insurance

coverage exception to the statutory cap. Ch 166, sec. 12,

§ 24-10-114(2), 1986 Colo. Sess. Laws 879. But it left undisturbed

subsection (1)(a), which, according to Lee, creates a damages cap

inclusive of costs and interests. See Far Horizons Farm, LLC v.

Flying Dutchman Condo. Ass’n, 2023 COA 99, ¶ 22 (“[W]e presume

that the General Assembly was aware of existing case law

construing a statute when it amended the statute.”).

¶ 63 Caylao-Do concedes that the supreme court has determined

“that costs and interest are subject to the CGIA’s limitation on

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damages.” She says, though, that Lee was either wrongly decided

or has been “vitiated by subsequent developments.”

¶ 64 First, whatever we may think of Caylao-Do’s critiques of Lee,

the decision is binding on us, as are all supreme court decisions.

Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 47. So we may

not disregard the court’s interpretation of the statutory language or

reassess the persuasiveness of its policy considerations.

¶ 65 Second, no subsequent developments cast doubt on Lee’s

holding. Caylao-Do notes that the version of the statute the Lee

court interpreted has been amended. True, but as we have

explained, not the subsection that applies here. And she says that

at the time Lee was decided, a later-repealed chief justice directive

generally precluded courts from assessing costs against a public

entity. That might be true, too, but Lee specifically held that “a

public entity which has been sued pursuant to [the CGIA] may be

taxed costs” and assessed “interest” “in connection with the

judgment entered against it.” 718 P.2d at 229. Thus, the repealed

chief justice directive is not relevant.

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¶ 66 For these reasons, we conclude that the trial court properly

applied the statutory cap to limit damages to $387,000, including

costs and prejudgment interest.

IV. Disposition

¶ 67 The judgment is affirmed.

JUDGE BROWN and JUDGE LUM concur.

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