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.
1 ¶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:
4 [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.
¶ 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
9 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.”
10 ¶ 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.
¶ 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.
¶ 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.
¶ 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
19 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.
20 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.
23 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
25 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.
26 ¶ 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.