v. Newman

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
July 23, 2020

2020COA108

No. 16CA2201, People v. Newman — Evidence — Competency
of Juror as Witness — Inquiry into Validity of Verdict or
Indictment — Extraneous Prejudicial Information

A division of the court of appeals addresses for the first time

the definition of “legal content” as that term is used to define what

constitutes “extraneous prejudicial information” under CRE

606(b). The division concludes that, in the context of CRE 606(b),

extraneous “legal content” refers to a statement of law that is

inconsistent with or supplemental to the instructions provided by

the trial court. Because the defendant presented credible evidence

that extraneous prejudicial information may have been introduced

to the jury, the division concludes that the trial court erroneously

denied the defendant’s motion for a new trial without affording him

an evidentiary hearing.
COLORADO COURT OF APPEALS 2020COA108

Court of Appeals No. 16CA2201
City and County of Denver District Court No. 15CR5700
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Damon D. Newman,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE TOW
Román and Pawar, JJ., concur

Announced July 23, 2020

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Jurors are generally permitted, even expected, to lean on their

own experience and background — including “their professional

expertise and education” — during deliberations. Kendrick v.

Pippin, 252 P.3d 1052, 1065 (Colo. 2011), abrogated on other

grounds by Bedor v. Johnson, 2013 CO 4. But what if that

professional expertise and education is in the law? In this appeal,

we must explore the boundaries of what a juror who is a lawyer

may do and say during deliberations. In doing so, we address for

the first time the definition of “legal content” as that term is used to

define what constitutes “extraneous prejudicial information” under

CRE 606(b). We conclude that, in the context of CRE 606(b),

extraneous “legal content” refers to a statement of law that is

inconsistent with or supplemental to the instructions provided by

the trial court.

¶2 After a jury convicted defendant, Damon D. Newman, of sexual

assault, but before he was sentenced, Newman filed a motion for a

new trial, asserting that one of the jurors — a lawyer — introduced

extraneous prejudicial information during deliberations. The trial

court denied the motion without a hearing. Because Newman

provided competent evidence that extraneous prejudicial

1
information was improperly before the jury, we conclude that he

was entitled to a hearing on two of the claims in his motion. Thus,

we vacate the judgment of conviction and remand for an evidentiary

hearing on Newman’s request for a new trial.

I. Background1

¶3 In March 2011, D.B. reported to the Denver Police Department

that she had been sexually assaulted at gunpoint. As part of the

ensuing investigation, D.B. completed a sexual assault examination

kit. The examination revealed DNA belonging to an unidentified

male.

¶4 Newman, who had been living in Colorado at the time of the

assault, moved to California in the spring of 2012. Newman was

later arrested in California on an unrelated offense, and a DNA

sample was obtained from him. In October 2015, Denver police

were alerted that Newman’s DNA had been run through the CODIS

multistate DNA database and was a preliminary match with the

1The factual background set forth here is gleaned from the evidence
presented at trial. In the event Newman is successful in obtaining a
new trial on remand, we do not intend for this recitation to be taken
as having any preclusive effect, as the determination of the facts
would remain in the sole purview of a new jury.

2
DNA from the March 2011 assault. Newman was then extradited to

Colorado and charged with one count of sexual assault armed with

a deadly weapon.

¶5 At trial, Newman testified in his own defense. He admitted to

having sexual relations with D.B. but maintained that it was

consensual. Following the trial, a jury convicted Newman as

charged.

¶6 Prior to sentencing, Newman filed a motion for a new trial

asserting that he was denied his constitutional right to a fair trial

because extraneous prejudicial information had improperly been

before the jury during their deliberations. Accompanying Newman’s

motion was a signed and sworn affidavit from one of the jurors —

Juror S.P. — which alleged that Juror M.O., a practicing attorney,

had made a number of statements during deliberations concerning

criminal law and proceedings. It also alleged that he had conducted

outside research regarding character evidence and shared the

results of his research with the rest of the jury.

¶7 The trial court denied Newman’s motion for a new trial without

conducting a hearing, concluding that none of the statements

detailed in the affidavit constituted extraneous prejudicial

3
information, and thus the court could not consider the statements

under CRE 606(b). Newman filed a motion for reconsideration, but

that too was denied.

¶8 Ultimately, Newman was sentenced to an indeterminate term

of thirty-two years to life in prison. He now appeals the denial of

his motion for new trial.

II. Standard of Review

¶9 “The decision of a trial court to grant or deny a new trial is a

matter entrusted to the court’s discretion and will not be disturbed

on review absent an abuse of that discretion.” People v. Wadle, 97

P.3d 932, 936 (Colo. 2004). A trial court abuses its discretion when

its decision is manifestly arbitrary, unreasonable, or unfair, People

v. Clark, 2015 COA 44, ¶ 215, and it “necessarily abuse[s] its

discretion if it base[s] its ruling on an erroneous view of the law or

on a clearly erroneous assessment of the evidence,” Wadle, 97 P.3d

at 936 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405

(1990)).

¶ 10 The underlying issue of whether extraneous prejudicial

information was before the jury presents a mixed question of law

and fact. Kendrick, 252 P.3d at 1064; People v. Holt, 266 P.3d 442,

4
444 (Colo. App. 2011). We review de novo the trial court’s

conclusions of law, but we defer to the court’s findings of fact if they

are supported by competent evidence in the record. People v.

Harlan, 109 P.3d 616, 624 (Colo. 2005). But see Kendrick, 252 P.3d

at 1064 (“We apply an abuse of discretion standard to the court’s

findings of fact . . . .”).

III. Applicable Law

A. CRE 606(b)

¶ 11 A juror is generally prohibited from testifying about any

“matter or statement occurring during the course of the jury’s

deliberations” or about “the effect of anything upon his or any other

juror’s mind or emotions.” CRE 606(b); Kendrick, 252 P.3d at 1063.

Nor may a court receive an “affidavit or evidence of any statement

by [a] juror” concerning as much. CRE 606(b); Kendrick, 252 P.3d

at 1063. This rule seeks to “promote finality of verdicts, shield

verdicts from impeachment, and protect jurors from harassment

and coercion,” and thus “strongly disfavors any juror testimony

impeaching a verdict.” Harlan, 109 P.3d at 624; see also Kendrick,

252 P.3d at 1063.

5
¶ 12 However, notwithstanding the rule’s broad limitations, CRE

606(b) contains narrow exceptions, one of which permits a juror to

testify as to “whether extraneous prejudicial information was

improperly brought to the jurors’ attention.” CRE 606(b)(1). To

determine whether a defendant is entitled to a new trial based on

the jury’s exposure to extraneous prejudicial information, a court

employs a two-part inquiry. Kendrick, 252 P.3d at 1063; Harlan,

109 P.3d at 624. First, “a court makes a determination that

extraneous information was improperly before the jury.” Harlan,

109 P.3d at 624. Second, “based on an objective ‘typical juror’

standard, [a court] makes a determination whether use of that

extraneous information posed the reasonable possibility of prejudice

to the defendant.” Id.

¶ 13 “When a party seeks to impeach a verdict based on an

allegation of juror misconduct, the party has a limited right to an

evidentiary hearing on those allegations.” Kendrick, 252 P.3d at

1063. However, CRE 606(b) limits a trial court’s ability to inquire

into such allegations. Clark, ¶ 218. “[I]n order to satisfy CRE

606(b), before granting a hearing the court must first conclude that

the party alleging misconduct has presented competent evidence

6
that extraneous prejudicial information was before the jury.”

Kendrick, 252 P.3d at 1063-64 (citing Harlan, 109 P.3d at 624).

¶ 14 We note that the supreme court has used the phrase

“competent evidence” in this context in two different ways. In

Harlan, 109 P.3d at 623, the supreme court referred to “competent

evidence” as the standard for reviewing the trial court’s findings of

fact after an evidentiary hearing. But in Kendrick, 252 P.3d at

1063-64, the phrase refers to the threshold showing necessary to be

entitled to an evidentiary hearing in the first place. Clearly, these

required showings cannot be the same, lest the quantum of

evidence creating the entitlement to the hearing would necessarily

also be sufficient to warrant relief in every case in which a hearing

was granted — thus making any hearing unnecessary. Rather, in

the context of the showing necessary to be entitled to a hearing,

“competent evidence” merely means evidence that is admissible

under CRE 606(b), People v. Garcia, 752 P.2d 570, 583 (Colo. 1988),

which indicates that prejudicial extraneous information may have

been before the jury, Clark, ¶ 239.

7
B. Extraneous Prejudicial Information

¶ 15 In Kendrick, our supreme court reiterated that “jurors are

required to consider only the evidence admitted at trial and the law

as given in the trial court’s instructions.” 252 P.3d at 1064

(quoting Harlan, 109 P.3d at 624). Accordingly, “any information

that is not properly received into evidence or included in the court’s

instructions is extraneous to the case and improper for juror

consideration.” Id. (quoting Harlan, 109 P.3d at 624). The court

observed that extraneous prejudicial information consists of (1)

“legal content and specific factual information” (2) “learned from

outside the record” (3) that is “relevant to the issues in a case.” Id.

1. Legal Content

¶ 16 We turn first to the question of what constitutes “legal

content.” Because Kendrick involved a challenge to extraneous

factual, rather than legal, information, the supreme court did not

define the term “legal content.” See id. at 1066 (considering only a

“juror’s use of her background in engineering and mathematics to

calculate . . . speed, distance, and reaction time”). Indeed, no

published case in Colorado has yet provided a definition of “legal

content” in this context. Nor, as relevant here, has any Colorado

8
case navigated the fine line between a lawyer-juror’s permitted

application of her background professional and educational

experience and the impermissible introduction of “legal content . . .

learned from outside the record.” Id. at 1064 (citing Harlan, 109

P.3d at 625). Resolving the issue before us requires that we do so

now.

¶ 17 Though our supreme court has not defined the term, we do

find guidance in some of the court’s prior decisions.

¶ 18 In Harlan, during their deliberations in the death penalty

phase of a case, one or more jurors consulted various passages

from the Bible regarding the punishment for murder and

introduced that information into the jury room for consideration by

other jurors. 109 P.3d at 629. The court observed that “‘Holy

Scripture’ has factual and legal import for many citizens and the

actual text introduced into the deliberations without authorization

by the trial court plainly instructs mandatory imposition of the

death penalty, contrary to state law.” Id. at 633. “Such a ‘fact’ is

not one presented in evidence in this case and such a ‘legal

instruction’ is not the law of the state or part of the court’s

instructions.” Id. at 632. Thus, to the extent the Biblical passages

9
were considered legal, rather than factual, they were improper

because they conflicted both with Colorado law and with the trial

court’s instructions.

¶ 19 In Wiser v. People, 732 P.2d 1139 (Colo. 1987), a juror

consulted a dictionary for a definition of burglary, which was one of

the crimes with which the defendant was charged. Id. at 1140. The

court concluded that the juror’s conduct was improper. Id. at 1141.

“Jurors are required to follow only the law as it is given in the

court’s instructions; they are bound, therefore, to accept the court’s

definitions of legal concepts and to obtain clarifications of any

ambiguities in terminology from the trial judge, not from extraneous

sources.” Id. (quoting Niemand v. Dist. Court, 684 P.2d 931, 934

(Colo. 1984)).

¶ 20 Indeed, Niemand also provides some guidance. In that case,

the supreme court was not directly addressing a claim involving a

juror introducing extraneous prejudicial information. Rather, the

trial court had already ordered a new trial because a juror had

independently researched various definitions in Black’s Law

Dictionary related to second degree murder and manslaughter. 684

P.2d at 932-33. The supreme court was asked to resolve whether,

10
having been convicted only of second degree murder in the first

trial, the defendant could be retried for first degree murder after his

conviction was vacated as a result of the juror’s misconduct. Id. at

934. But, relevant to our inquiry, in Niemand, the court

acknowledged that the juror’s misconduct included reviewing

definitions of terms such as “malice,” “depravity of heart,”

“passionless,” “implied malice,” and “atrocity,” among others. Id. at

932 & n.1. Significantly, these terms were not included in any of

the trial court’s instructions to the jury.

¶ 21 Finally, in Alvarez v. People, 653 P.2d 1127 (Colo. 1982), the

trial court had provided the jury with the standard definition of

“reasonable doubt.” Id. at 1130 & n.7. “One of the jurors was

troubled as to whether her doubts were ‘reasonable,’ ‘imaginary,’ or

‘vague,’ terms used in the reasonable doubt instruction, and she

consulted her dictionary at home for the definitions of these words.”

Id. at 1130. After discussing her research with another juror, she

decided that her doubts were not reasonable, and she voted to find

the defendant guilty. Id. The supreme court stated that “[t]here

can be no question but that a juror’s consultation of a dictionary to

11
assist in understanding legal terminology in the court’s instructions

is improper.” Id. at 1131.

¶ 22 Another division of this court faced a similar claim. In Holt,

the prosecution conceded, and the division agreed, that where the

defendant was charged with vehicular eluding, several jurors acted

improperly when they consulted a dictionary definition of “elude.”

However, the division rejected the defendant’s challenge to one

juror’s statement that, based on his personal experience, vehicular

eluding was a minor traffic violation the penalty for which is a “slap

on the wrist.” Holt, 266 P.3d at 444. The division observed that the

juror did not introduce into the jury room language from the

Colorado Revised Statutes or “an article purporting to describe or

characterize the penalty for vehicular eluding.” Id. at 446. The

division stated that

[t]he emphasis on the exception for legal
content precludes any suggestion that lawyers
and other individuals trained in certain
aspects of the law may use knowledge acquired
through their training and experience in
deciding what law applies to resolve a matter
before them and share that knowledge with
other members of the jury.

Id. at 445-46 (emphasis added).

12
¶ 23 As these cases make clear, “legal content” means a statement

of law.

¶ 24 But does legal content include more than just statements of

law? For example, if a juror is a lawyer, is any comment related to

the legal aspects of the case necessarily within the proscription

against introducing “legal content”? For the reasons that follow, we

answer these questions “no.”

¶ 25 First, we are hesitant to construe “legal content” so broadly, as

too expansive a definition risks nullifying the General Assembly’s

intent that attorneys be permitted to serve as jurors. See Ch. 159,

sec. 6, § 16-10-103, 1998 Colo. Sess. Laws 466 (repealing the

statutory provision that automatically disqualified all lawyers from

serving on a jury). The legislature must have understood that

lawyers serving as jurors would, just as any other jurors,

necessarily draw on their experiences in performing their duties.

For example, a lawyer-juror must be able to draw on his or her

education and experience in assessing the evidence, and any

reasonable inferences to be drawn from it.

¶ 26 In United States v. McCall, No. CR 00-0505 WHA, 2009 WL

10681057 (N.D. Cal. Dec. 22, 2009), the United States District

13
Court for the Northern District of California rejected an argument

that a juror introduced extraneous information when she

“necessarily drew on her particular expertise [as a lawyer], not

common to all jurors as part of the personal experiences all jurors

bring to the deliberations.” Id. at *3. Citing precedent from the

Ninth Circuit, the court noted that “a juror’s personal experience

and knowledge including specialized professional training may be

part of jury deliberations and is not extrinsic evidence.” Id. (citing

Grotemeyer v. Hickman, 393 F.3d 871 (9th Cir. 2004)). Accordingly,

the court suggested that a lawyer-juror’s “general legal knowledge”

that is “not in any way specific to [the defendant] or the issues in

the present action” is not extraneous prejudicial information. Id. at

*4. The court reasoned that “[i]f defendant McCall were correct that

lawyers necessarily share ‘extrinsic information’ with other jurors

during deliberations by drawing on their expertise as attorneys, it

would be impossible for lawyers to serve on juries at all.” Id. at *3.

Moreover, the court also cautioned that “[o]ur system would grind

to a halt if venirepersons could be left on the jury and then be

criticized after the verdict for doing nothing more than what was

imminently (sic) foreseeable.” Id.

14
¶ 27 Although the McCall court did not speak in terms of “legal

content,” its reasoning is nevertheless applicable here. If we were to

construe the concept of “legal content” so broadly as to encompass

any information drawn from a lawyer-juror’s professional

background, attorneys would effectively be prohibited from serving

as jurors. But, as noted above, that would conflict with the intent

of our legislature. See Ch. 159, sec. 6, § 16-10-103, 1998 Colo.

Sess. Laws 466.

¶ 28 Nor can we conclude that a lawyer-juror’s legal training is

problematic merely because that lawyer-juror will have pre-existing

views about the law, or because his or her discussion of the case

during deliberations will necessarily involve his or her experience

with or understanding of legal principles and the legal system.

“[V]irtually every juror will have preconceived notions about the

legal process . . . .” Holt, 266 P.3d at 446 (quoting Fullwood v. Lee,

290 F.3d 663, 684 (4th Cir. 2002)). Construing “legal content” too

broadly ignores the fact that, “[a]s a practical matter, it is

impossible to select a jury free of preconceived notions about the

legal system or to prevent discussion of such information in the jury

room.” Id. Indeed, “[n]either Kendrick nor prior supreme court

15
decisions evidence an intent to categorize such discussions as

extraneous information under CRE 606(b)(1).” Id. To do so could

expose jurors to greater post-trial scrutiny, which would undermine

CRE 606’s purpose to “promote finality of verdicts, shield verdicts

from impeachment, and protect jurors from harassment and

coercion.” Harlan, 109 P.3d at 624; see Holt, 266 P.3d at 446.

¶ 29 Finally, “we are compelled to err in favor of the lesser of two

evils — protecting the secrecy of jury deliberations at the expense of

possibly allowing irresponsible juror activity.” Garcia v. People, 997

P.2d 1, 7 (Colo. 2000) (quoting United States v. Thomas, 116 F.3d

606, 623 (2d Cir. 1997)). Narrowly construing “legal content”

prioritizes such secrecy and promotes free discussion during

deliberations.

¶ 30 Thus, we conclude that “legal content” in this context is

limited to statements of law.

2. Outside the Record

¶ 31 Turning to Kendrick’s second prong, we must explore when a

lawyer-juror’s statements will be deemed extraneous.

¶ 32 Clearly, if a juror conducts an independent investigation into

either the facts or the law, that juror introduces information from

16
outside the record. See Wadle, 97 P.3d at 937 (researching on the

internet to learn about the effects of an anti-psychotic medication

mentioned during testimony); Wiser, 732 P.2d at 1140 (consulting a

dictionary for a definition of the crime charged). But what if the

juror does not engage in an outside investigation, and relies on his

or her memory and knowledge? Where is the line between a lawyer-

juror appropriately drawing on his or her professional expertise and

education and improperly introducing legal content?

¶ 33 As the supreme court noted in Kendrick, “[t]he line between a

juror’s application of her background professional and educational

experience to the record evidence and a juror’s introduction of legal

content or specific factual information learned from outside the

record can be a fine one.” Kendrick, 252 P.3d at 1066.

¶ 34 The court in Kendrick “repeatedly emphasized that jurors may

properly rely on their professional and educational expertise to

inform their deliberations so long as they do not ‘bring in’ or

‘introduce’ legal content learned from outside the record.” Holt, 266

P.3d at 445 (citing Kendrick, 252 P.3d at 1056, 1063, 1065-66).

This admonishment safeguards the court’s exclusive authority to

instruct the jury. See Harlan, 109 P.3d at 624 (“[J]urors are

17
required to consider only the . . . law as given in the trial court’s

instructions . . . .”). In other words, the focus is on ensuring that

the trial court, and not the lawyer-juror, is the source of all the law

the jury considers.

¶ 35 Again, as the division recognized in Holt, lawyer-jurors may

not “use knowledge acquired through their training and experience

in deciding what law applies to resolve a matter before them and

share that knowledge with other members of the jury.” 266 P.3d

445-46. Thus, if the lawyer-juror (or any other juror) introduces a

statement of law that is inconsistent with or supplemental to the

instructions provided by the trial court, that statement is

necessarily outside of the record. Accord In re Stankewitz, 708 P.2d

1260, 1262 (Cal. 1985) (defining “extraneous law” for purposes of

impeaching a jury verdict as “a statement of law not given to the

jury in the instructions of the court”).

3. Relevant to Issues in the Case

¶ 36 The third prong of Kendrick requires that the challenged

information be relevant to the issues before the jury. 252 P.3d at

1064. Again, this is part of the threshold inquiry into whether a

18
party is entitled to an evidentiary hearing. Id. at 1063-64 (citing

Harlan, 109 P.3d at 624).

¶ 37 Recall that in Holt, the division rejected the defendant’s

challenge to a juror’s observation, based on his personal experience,

as to the severity of the offense and any potential punishment.

Although this was in part based on the division’s conclusion that

the statement was not legal content, it also noted that “the severity

of the vehicular eluding charge was not relevant to the issues in

this case.” Holt, 266 P.3d at 445.

¶ 38 In People v. Bohl, a juror in a homicide case had apparently

conducted independent research regarding decomposition of a body

after there was testimony that the body was decomposed during the

autopsy. 2018 COA 152, ¶ 19. However, the key issue in the case

was not how long the victim had been dead, but rather how long the

victim had endured blunt force trauma before she died, as that

related to whether the defendant had the requisite intent for first

degree murder. Id. at ¶ 20. The defendant was not entitled to

impeach the verdict because, in part, “any extraneous information

that [the juror] obtained was not relevant to a key issue at trial.” Id.

at ¶ 26 (citing Wiser, 732 P.2d at 1143).

19
¶ 39 And in Niemand, the juror misconduct involved researching

legal concepts that were related to the homicide charges at issue,

but were not specifically elements. 684 P.2d at 932 & n.1.

¶ 40 Thus, if a statement of law relates to the definition or elements

of the crime, it clearly satisfies the third prong of Kendrick. See,

e.g., Wiser, 732 P.2d at 1141. But statements of law are also

improper if they relate to any other issue before the jury. See Holt,

266 P.3d at 445.

4. Reasonable Possibility of Prejudice

¶ 41 Even if an attorney-juror introduces extraneous legal content,

however, the defendant must still demonstrate prejudice. Harlan,

109 P.3d at 625. The test for whether an “extraneous” statement is

also “prejudicial” is an objective one: “The relevant question for

determining prejudice is whether there is a reasonable possibility

that the extraneous information influenced the verdict to the

detriment of the defendant.” Id. Under this test, “a reviewing court

cannot consider evidence of actual impact on specific jurors in the

case.” Id. Instead, it must look solely to whether there was a

“realistic possibility that the communication would influence the

verdict of a typical juror.’” Wadle, 97 P.3d at 937.

20
¶ 42 In order to determine whether extraneous information created

such a realistic possibility, the court may consider the following

factors: (1) how the extraneous information relates to critical issues

in the case; (2) how authoritative is the source consulted; (3)

whether a juror initiated the search for the extraneous information;

(4) whether the information obtained by one juror was brought to

the attention of another juror; (5) whether the information was

presented before the jury reached a unanimous verdict; and (6)

whether the information would be likely to influence a typical juror

to the detriment of the defendant. Harlan, 109 P.3d at 625.

¶ 43 In sum, like any other juror, a lawyer-juror must refrain from

engaging in an independent investigation into a legal or factual

matter relevant to the case. See Clark, ¶ 222. But a lawyer-juror

must also refrain from introducing any statements of law (even if

from memory) that conflict with or are supplemental to the

instructions of law provided by the trial court. If a defendant

presents competent evidence, admissible under CRE 606(b), that a

lawyer-juror introduced such a statement of law related to an issue

that was before the jury, and that there is a realistic possibility that

21
this information would influence a typical juror in reaching a

verdict, the defendant is entitled to an evidentiary hearing.

IV. Analysis

¶ 44 Newman contends that the trial court erroneously denied his

motion for a new trial. He argues that, contrary to the findings of

the trial court, his supporting affidavit sufficiently alleged that six of

Juror M.O.’s statements constituted extraneous prejudicial

information improperly before the jury. Accordingly, he argues not

only that the court was permitted to consider the statements under

CRE 606(b), but that Juror M.O.’s misconduct warranted a new

trial. We address in turn each of Juror M.O.’s statements as

presented in the affidavit and relied upon by Newman in this

appeal.

A. Statement on the Significance of Character Witnesses

¶ 45 Juror S.P.’s affidavit alleged that during deliberations, Juror

M.O. produced a piece of paper with a definition written on it. She

recounted the incident as follows:

On the morning of August 15, 2016, during
deliberations and prior to reaching a verdict,
the juror who works as a lawyer addressed the
group. He said he had been thinking all
weekend about the character witnesses not

22
being asked certain questions about Mr.
Newman’s personality. He said “I knew taking
the bar would come in handy” and then pulled
a piece of paper out of his pocket with a
definition of law on it. It was something about
character witnesses. I could not see what was
written on the paper because I was sitting on
the opposite side of the table.

I do not recall the specific wording of the
definition but it included what could and could
not be asked of character witnesses. The
lawyer did not provide us with the source of
this information. Since he said taking the bar
came in handy I assumed it was a legal
definition.

The lawyer read the definition off of the piece
of paper. After reading the definition the
lawyer told the group something to the effect
of, Mr. Newman is a bad guy or they would
have asked different questions and you should
infer that from the lack of questions asked of
the character witnesses.

The parties do not dispute that the lawyer referred to in the affidavit

was M.O.

¶ 46 The People concede, and we agree, that the affidavit

sufficiently alleged that Juror M.O. introduced extraneous

information into deliberations under CRE 606(b). The affidavit

unequivocally describes Juror M.O. presenting a legal definition.

Indeed, the affidavit suggests that, rather than drawing from his

23
background legal knowledge, Juror M.O. conducted outside

research and shared the results of that research with other jurors.2

And while Juror S.P. could not recall the precise definition that

Juror M.O. offered, the affidavit nonetheless alleges that Juror M.O.

shared a statement of law pertaining to the admissibility of

character evidence. Moreover, as the statement was used to draw

inferences as to Newman’s character, it was relevant to Newman’s

credibility. See People v. Hall, 107 P.3d 1073, 1075 (Colo. App.

2004) (“[C]haracter evidence may be defined as evidence that

directly relates to the general credibility of the witness . . . .”

(quoting 28 Charles A. Wright & Victor J. Gold, Federal Practice and

Procedure § 6113 (1993))). Given the nature of the case, Newman’s

credibility was critical. Thus, the affidavit provided competent

evidence that Juror M.O. introduced “legal content . . . learned from

outside the record and relevant to the issues in a case.” Kendrick,

252 P.3d at 1064.

2 To be sure, the allegation that Juror M.O. injected this definition
into the jury’s deliberations is alone sufficient to allege the
introduction of extraneous legal content; the fact that this legal
definition was apparently the product of independent research
rather than stated by Juror M.O. from memory merely compounds
the misconduct.

24
¶ 47 However, the People dispute that Juror M.O.’s statement, as

described in the affidavit, was prejudicial. Specifically, the People

cite to Holt for the proposition that the affidavit was insufficient to

support such a finding because it did not describe Juror M.O.’s

statement with more specificity. The People’s argument, however,

misses the point.

¶ 48 In Holt, the trial court conducted a hearing on the defendant’s

request for a new trial. 266 P.3d at 443. In other words, Holt does

not stand for the proposition that the affidavit and motion alone

must proffer sufficient evidence to establish Newman’s right to a

new trial. Rather, as noted above, Newman need only bring forth

sufficient admissible evidence to demonstrate that he may be so

entitled. By doing so, Newman is then entitled to a hearing at

which he can further develop his claim. Here, the trial court denied

Newman’s motion without a hearing, even though Newman

specifically requested that the trial court hold an evidentiary

hearing on the motion.

¶ 49 As noted, Newman asserts that Juror M.O. provided a

definition of character evidence and used it to urge the jury to reject

Newman’s credibility and conclude that he was a bad person. We

25
conclude that this is competent evidence and that a typical juror

may have been swayed by this extraneous information.3 Because

Newman “has put forth competent evidence, in the form of an

affidavit, which indicates prejudicial extraneous information may

have been before the jury,” he is entitled to an evidentiary hearing.

Clark, ¶ 239. At the evidentiary hearing, Newman should be given

the opportunity to present evidence “regarding the source of the

extraneous information, the manner of its acquisition, its content,

and its presence and use in the jury room during deliberations.”

Harlan, 109 P.3d at 625.4

¶ 50 On remand, the trial court cannot consider any evidence of

Juror S.P.’s reaction to Juror M.O.’s statement, and instead must

solely determine whether there was a “realistic possibility that the

communication would influence the verdict of a typical juror.’”

Wadle, 97 P.3d at 937. Thus, we reject Newman’s argument that

3 Of course, our inquiry is limited to the threshold question of
whether Newman has presented enough evidence to be entitled to a
hearing. The ultimate determination of whether there was
extraneous prejudicial information introduced to the jury remains
for the trial court to make upon the conclusion of the hearing.
4 This necessarily means that Newman’s counsel should be provided

the necessary information to contact M.O. in order to call him to
testify at the hearing.

26
we — and presumably the trial court — need not ask how a typical

juror would have reacted, because we know how S.P. did react.

This contention misunderstands the purpose of focusing on the

typical juror. S.P.’s — or any other juror’s — testimony about

specific reactions to this extraneous information is prohibited by

CRE 606(b). Harlan, 109 P.3d at 625 (“[A] reviewing court cannot

consider evidence of actual impact on specific jurors in the case.”).

B. Statement on the Significance of a Buccal Swab

¶ 51 Juror S.P. described the following discussion regarding

Newman’s prior buccal swab:

I am not certain if the discussion regarding Mr.
Newman’s prior record began on Friday or
Monday morning. On Monday however, it was
discussed at length and another juror, [P.S.],
commented that Mr. Newman had to have
committed other felonies to get a buccal swab
done. She presented this to the group as a
fact. She told the group that it was likely to
have been a prior sex offense. [Juror P.S.] told
the group she had been on three other juries.
The attorney said that [Juror P.S.] was correct.
I tried to propose additional ways DNA would
be entered into the system but the lawyer and
[Juror P.S.] stated that I was wrong and it
absolutely had to have been a felony. It was
written on the board as a reason to convict.

27
¶ 52 The affidavit indicates that Juror M.O. agreed with, and later

reiterated, another juror’s conclusion that Newman “had to have

committed other felonies to get a buccal swab done.” But the

statement is not one of law. Nor is it the introduction of new

factual information. Rather, it is a factual conclusion drawn from

the evidence before the jury. Thus, the affidavit does not allege that

Juror M.O. introduced any “legal content [or] specific factual

information.” Kendrick, 252 P.3d at 1064. Nor does it suggest that

Juror M.O. did anything more than permissibly apply his

professional or general background to the record evidence.

Accordingly, as to this statement, the affidavit did not provide

competent evidence of extraneous prejudicial information. Id. As

such, this statement is inadmissible and cannot be considered by

the trial court. CRE 606(b).

C. Statement on Prior Bad Acts Evidence

¶ 53 Juror S.P. further alleged as follows:

The lawyer told the group that Mr. Newman
was not asked about his sex life because those
questions would have allowed for the district
attorney to ask about all the prior things Mr.
Newman was accused of or convicted of.

28
¶ 54 This allegation presents a closer call. On the one hand, the

statement does not explicitly state that Juror M.O. offered a specific

statement of what the law was in this area, as opposed to simply

drawing an inference regarding what the lack of evidence may

mean. Seen in this way, Juror M.O.’s statement arguably does no

more than describe his “mental processes” during deliberations. On

the other hand, his statement appears to explain, albeit incorrectly,

rules of evidence concerning the admissibility of prior acts evidence.

And, although the affidavit does not allege that Juror M.O.

conducted outside research to obtain a specific rule or legal

definition, as noted above, even a statement made from memory can

introduce extraneous legal content if it is a statement of law that is

inconsistent with or supplemental to the trial court’s instructions.

¶ 55 Further, as alleged, this statement implicates Newman’s

character. As our supreme court has recognized, character

evidence can be properly used “to discredit the truthfulness of a

defendant,” but is also capable of being improperly used “to prove

the defendant committed the offense charged.” People v. Harding,

104 P.3d 881, 887 (Colo. 2005), overruled on other grounds by

29
Moore v. People, 2014 CO 8. Either way, the statement was related

to an issue before the jury.

¶ 56 In context, the lawyer-juror’s alleged statement may have been

an expression of what the law is in this critical area. Thus,

Newman has met the threshold to obtain an evidentiary hearing on

this allegation.

D. Statement on Ineffective Assistance of Counsel and Attorney
Misconduct

¶ 57 Juror S.P. alleged that Juror M.O. offered the following

reasoning to discount part of Newman’s testimony:

During deliberations I asked the rest of the
jury about Mr. Newman’s testimony that he
had [the complaining witness’s] number in his
phone. The attorney stated they don’t have the
phone, it does not exist, Mr. Newman is a liar.
He told the group that if they had the phone
they would have brought it. The attorney told
us that if they had the phone Mr. Newman
could file against his attorneys for incompetent
counsel and the attorneys could be disbarred.
The attorney presented this to the group as if it
was the law.

¶ 58 The first part of Juror M.O.’s statement is not one of law.

Rather, it is a reasonable inference that any juror could draw from

the fact that the phone was not presented as evidence — i.e., that

30
the phone messages did not exist and that Newman’s testimony was

not credible.

¶ 59 The second part of Juror M.O.’s statement concerning attorney

misconduct is arguably one of law. But even if this statement

constituted legal content, it was not “relevant to the issues in [the]

case,” Kendrick, 252 P.3d at 1064, as the issue of whether

Newman’s attorney was competent was not before the jury. See

Holt, 266 P.3d at 445 (holding that a juror’s statement regarding the

severity of the charge was not relevant to the issues in the case

because the jury does not consider punishment when deliberating).

Because the first part of the statement was neither legal content nor

factual information, and the second part of the statement (to the

extent it was legal content) was not relevant to the issues before the

jury, this statement is also inadmissible under CRE 606(b).

E. Statement That the Complaining Witness Did Not Have to
Participate in the Trial

¶ 60 As to the complaining witness’s credibility, Juror S.P. alleged

that Juror M.O. made the following statements:

At another point during deliberations the
attorney told the group that [the complaining
witness] did not have to be at trial. He said
[she] had the power to drop the charges and

31
never be contacted about this again. The
attorney told us that [the complaining witness]
must be telling the truth since she is still
coming to court five years later.

The lawyer told us [the complaining witness]
could have walked away at any point in the
last five years and this would have been let go.
He said if this did not happen [she] would have
simply walked away. He told us that it was
[the complaining witness’s] choice to come
relive the event and experience it all over
again. The lawyer told the group that by
choosing to testify [the complaining witness]
placed herself in danger of perjury charges and
jail time if she were not telling the truth. He
said she would never take that risk if she was
lying. The attorney was very sure [the
complaining witness] did not have to continue
with the case and could have walked away
without any repercussion.

¶ 61 The statements as recounted in the affidavit were not

statements of law or factual information. Rather, Juror M.O. was

simply offering his opinion as to why the jury ought to believe the

complaining witness. To the extent his statements touched on the

possibility of perjury charges, the affidavit does not indicate that he

provided any sort of definition or explanation of perjury. Indeed,

any lay juror could, in similar circumstances, opine that a witness

should be believed because that witness would not likely perjure

himself or herself; we cannot see how the fact that a lawyer-juror

32
says it would give it any more weight. Thus, in our view, Juror

M.O. was not introducing a statement of law, but was permissibly

applying his professional or general knowledge to inform

deliberations. See Kendrick, 252 P.3d at 1066; Holt, 266 P.3d at

447. Thus, the affidavit lacks the necessary content to provide even

a threshold showing of competent evidence that the information

was prejudicial. Therefore, this statement is inadmissible. CRE

606(b).

F. Statement That a Non-Unanimous Verdict Would Result in a
Mistrial

¶ 62 Finally, Juror S.P. questioned what would happen if the jury

did not reach a unanimous verdict. She alleged in her affidavit that

Juror M.O. offered the following answer:

[Juror M.O.] told us that it would result in a
hung jury and a mistrial. He told us that
would require a new trial but that would never
happen. He said [the complaining witness]
would never come back and testify again. He
told us it would be too traumatic for her and
we would be letting a rapist back out into the
community.

¶ 63 First, the affidavit does not allege that Juror M.O. suggested

that Newman legally could not be retried. Thus, in our view, his

statement that a new trial would not occur was not a statement of

33
law. And to the extent his comment about the consequences of not

reaching a unanimous verdict — i.e., a hung jury and a mistrial —

could be considered a statement of law, it was not relevant to the

elements of the charge or to any other issue before the jury. Thus,

this statement, too, is inadmissible. CRE 606(b).

V. Conclusion

¶ 64 The judgment of conviction is vacated. The case is remanded

to the trial court with instructions to hold an evidentiary hearing

regarding the allegations pertaining to Juror M.O.’s introduction of

a statement of law concerning character evidence and his statement

concerning the implication of Newman not having been asked about

prior conduct. If, after the hearing, the trial court finds that Juror

M.O. introduced extraneous legal content that was prejudicial to

Newman, it shall grant the motion for new trial. If the trial court

again denies the motion for new trial, it shall resentence Newman

and enter a new judgment of conviction.

JUDGE ROMÁN and JUDGE PAWAR concur.

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