author: FABE, Justice.

text:
    CITY OF KODIAK, Kodiak Police Department, and William D. Marsh, Appellants, v. Martha SAMANIEGO, Appellee.
    No. S-10365.
    Supreme Court of Alaska.
    Jan. 23, 2004.

      Frank S. Koziol, Law Office of Frank S. Koziol, Anchorage, for Appellants.

      Jeffrey A. Friedman and Kenneth R. Friedman, Friedman, Rubin & White, Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

Martha Samaniego sued the City of Kodiak for false confinement and battery when Sergeant Marsh of the Kodiak Police Department grabbed her and prevented her from leaving the scene of an Immigration and Naturalization investigation. At trial, the jury found that Sergeant Marsh had falsely confined and battered Martha Samaniego. The City of Kodiak appeals (1) the superior court’s denial of its summary judgment motion on the question whether exigent circumstances justifying Marsh’s detention of Martha existed as a matter of law; (2) the court’s refusal to give a jury instruction proposed by Kodiak; (3) the court’s evidentiary rulings concerning expert testimony and a knife at the scene; and (4) the court’s award of attorney’s fees to Martha Samaniego. Because the superior court’s legal decisions were correct and its evidentiary determinations fell well within its discretion, we affirm the superior court’s rulings.

II. FACTS AND PROCEEDINGS

A. Factual History

In April 1994 Kodiak Police Sergeant William D. Marsh responded as back-up to a traffic stop conducted by Kodiak Police Officer Bohae and two Immigration and Naturalization Service (INS) agents. Bohae and the INS agents were investigating whether the people in the stopped car had documentation proving that they were in the United States legally. While the INS agents and Bohae questioned the individuals, Julia Samaniego drove up and stopped at the scene because she knew the people under investigation. She was driving with four of her children, including her daughter Martha, and a friend.

One of the INS officers approached Julia Samaniego’s car and asked her where she was from. According to the INS officer, Julia Samaniego replied “Mexico.” The INS officer asked Julia Samaniego for her immigration documents, and Samaniego replied that the documents were at her house. The INS officer then asked whether Julia Saman-iego had any identification with her, to which Samaniego replied “no.” At that point, Sergeant Marsh approached Julia Samaniego’s car.

At this point, Sergeant Marsh and Julia Samaniego’s accounts of what happened diverge. According to Julia Samaniego, Sergeant Marsh told her “get out of the car or I [will] do it for you” and proceeded to pull her by the arm out of the car. According to Sergeant Marsh, he asked Julia Samaniego to step out of her car and offered his arm to help her. Julia Samaniego left the car and had a conversation with Marsh. While they were talking, the INS agent spoke to Saman-iego’s children, who were still in the car. According to Martha Samaniego, who was fifteen years old at the time, the agent asked the children individually where they were from and whether they had identification. Martha testified that when the agent asked her where she was from, she first replied “Mexico,” but she then told the agent that she was just kidding and that she was born in the United States. Martha then decided to go home to get her mother’s immigration and identification papers. She left the car and started to walk away. Martha explained that when her mother saw her walking away, her mother told her to wait and asked her where she was going.

It is uncontested that after Martha explained where she was going, Marsh grabbed her. Julia Samaniego pulled Martha behind her and stood between Martha and Sergeant Marsh. Martha testified that Julia told Marsh not to touch Martha. According to Martha, Marsh then attempted to arrest Julia and started to walk her to the back of the Samaniegos’ car. Martha watched this as she was being held with her hand behind her back by an INS agent. Martha testified that during this confrontation, her mother’s shirt had lifted up, and Martha wanted to reach out and pull it back down. Martha explained that she slipped out of the jacket she was wearing, left the INS officer holding the jacket, and took a step forward toward her mom to pull the shirt down. According to Martha, another officer stopped her and then the INS agent regained control over her, holding her until the incident was over.

Also relevant to this appeal are facts concerning a knife at the scene of the incident. On April 9, 1994, before the confrontation with the police occurred, the Samaniego family went to a rodeo. At the rodeo, Martha Samaniego found a knife, which she gave to her mother who put it into her pocket. Besides keeping the knife away from her kids, Julia Samaniego testified at her deposition that she did not know what she planned to do with the knife. The knife was never used during the confrontation nor was it discovered by the police until after Julia was arrested.

B. Procedural History

Martha Samaniego sued the City of Kodiak, the Kodiak Police Department, and Kodiak Police Sergeant William D. Marsh for assault and battery, false arrest, and false imprisonment. The parties stipulated that Martha Samaniego’s case against the City of Kodiak be consolidated with her mother Julia Samaniego’s ease as both cases involved common issues of law and fact.

Martha and Julia Samaniego filed a pretrial motion in limine to exclude any evidence “concerning or referring to the pocketknife possessed by Julia Samaniego at the time of her arrest.” Kodiak opposed the motion, arguing that introduction of evidence of the knife was integral to its case. Over Kodiak’s objection, Superior Court Judge Sharon L. Gleason granted the motion to bar any reference to Julia Samaniego’s possession of the knife. The superior court also noted that if Kodiak believed that the evidence became admissible during trial, it could raise the issue with the court outside of the jury’s presence.

Kodiak moved for summary judgment against Martha Samaniego arguing that it was entitled to prevail on the question whether exigent circumstances existed as a matter of law. The superior court denied this motion.

The Samaniegos moved to exclude the testimony of Michael A. Brave, one of Kodiak’s expert witnesses. Brave is an expert on the use of force. The court granted the motion to exclude Brave’s testimony, finding that his expert opinion contained credibility determinations regarding the witnesses in the ease and would usurp the court’s role in instructing the jury on the applicable law of “reasonable force.” For these reasons, the superior court concluded that Brave’s opinion would not assist the jury as required by Alaska Rule of Evidence 702.

Martha Samaniego presented four issues to the jury: (1) whether Marsh, without legal justification, falsely confined Martha Saman-iego at the scene; (2) whether Marsh, without legal justification, falsely confined Martha Samaniego when he brought her to the police station and kept her there; (3) whether Marsh, without legal justification, committed a battery on Martha Samaniego when he kept her from leaving the scene; and (4) whether Marsh, without legal justification, committed a battery on Martha Samaniego when he handcuffed her.

The jury found for Martha Samaniego on two of her claims. The jury determined that Marsh falsely confined Martha at the scene, but not when he brought her to the police station and kept her there. The jury found that the confinement at the scene was not a legal cause of injury to Martha and thus awarded her $1 in nominal damages. Finding that Marsh committed a battery on Martha when he kept her from leaving the scene, but not when he handcuffed her, the jury awarded Martha $35,000 for pain, suffering, and emotional distress resulting from the battery. The jury rejected Martha’s claim for punitive damages against Marsh. The superior court entered final judgment for Martha for $35,001 in damages, plus $12,887.67 prejudgment interest, $7,288.87 attorney’s fees, and $1,725.80 costs, for a total judgment of $56,903.34.

Kodiak appeals the superior court’s denial of its summary judgment motion, the court’s refusal to give the jury a certain proposed instruction, its exclusion of evidence regarding the knife and Brave’s expert testimony, and its award of Alaska Civil Rule 82 attorney’s fees to Martha Samaniego.

III. STANDARD OF REVIEW

We review a superior court’s denial of a motion for summary judgment under the independent judgment standard. Under that standard, we determine whether any genuine issue of material fact exists and whether the movant is entitled to judgment on the law. We view the facts in the light most favorable to the non-movant.

In reviewing the superior court’s rulings on jury instructions, we apply our independent judgment to determine whether the challenged or refused instruction states the law correctly. We then evaluate whether any error was prejudicial by putting ourselves “⅛ the position of the jurors and determining whether the error probably affected their judgment.’” The appellant bears the burden of proving prejudicial error.

We review the superior court’s evi-dentiary decisions under the abuse of discretion standard. We will find that the superi- or court abused its discretion only when we are left “with a definite and firm conviction, after reviewing the record as a whole, that the trial court erred in its ruling.”

We will overturn a superior court’s award of attorney’s fees “only upon a showing of abuse of discretion or a showing that the award is manifestly unreasonable.”

IV. DISCUSSION

A. The Trial Court Properly Applied the Exigent Circumstances Test To Determine Whether the Detention of a Witness Is Permissible.

The issue of what test to apply to the detention of a witness arose in two contexts during the trial proceedings. First, Kodiak argued in its motion for summary judgment that exigent circumstances existed as a matter of law. Therefore, Kodiak argued, Marsh was authorized to use reasonable force to stop Martha Samaniego, a potential witness, from leaving the scene. In support of its position, Kodiak argues for the first time on appeal that no exigency should be required for a police officer to use reasonable force to detain the driver and passengers of a vehicle for the duration of a traffic violation investigation or INS investigation. Second, Kodiak appeals the superior court’s refusal to give Kodiak’s proposed jury instruction, which permitted the jury to find that Marsh was legally justified in using reasonable force to stop Martha from leaving the scene because she was a material witness to the INS investigation of her mother.

1. Exigent circumstances are required to justify the stop of a witness to a crime.

The court of appeals addressed the question whether police may detain a wdtness at a crime scene in Metzker v. State and Castle v. State. In Metzker, it noted that “courts generally seem to be in agreement that the fourth amendment does not allow the police to stop potential witnesses to the same extent as suspects of a crime.” The court of appeals concluded that “police are justified in stopping witnesses only where exigent circumstances are present, such as where a crime has recently been reported.”

Metzker involved a possible assault victim who ran away from the police, was intoxicated, and may have been in need of medical attention. After fleeing the police, the victim flagged down a passing truck and left the scene. Another officer responded to the request to locate and stop the truck. And shortly thereafter, the second officer spotted the truck, stopped it, and spoke with both the victim and the driver of the truck. The Metzker court determined that these facts— specifically the serious nature of the crime and a potentially injured victim — constituted exigent circumstances thereby justifying the stop of the truck driver as a witness to the crime.

The court of appeals revisited the question of when police may detain a witness at a crime scene in Castle v. State. In Castle, a Fairbanks police officer stopped a vehicle because one of its headlights was out. The officer discovered that the driver’s license was revoked. As the officer took the driver into custody, Castle, who was a passenger in the car, stepped out of the car and walked away. The officer chased and caught Castle, and searched him for drugs, finding plastic bags containing cocaine residue. When Castle challenged the legality of the stop, the state asserted that the officer was authorized to stop Castle because the officer knew that Castle was a witness to a crime: driving with a revoked license. The court of appeals in Castle reiterated its holding in Metzker: “the police are justified in stopping witnesses only where exigent circumstances are present.” The court concluded that the officer’s seizure of Castle ■ could not be justified under the theory that Castle was a witness to a crime because of the lack of exigent circumstances. The Castle court reasoned that the crime was over, that there was no ongoing or recently committed unsolved crime, that the officer had already taken the driver into custody, that the officer had no reason to believe that Castle possessed knowledge that would materially aid the investigation, and that the officer was not acting to ensure the health or safety of a crime victim as was the case in Metzker.

Kodiak argues for the first time on appeal that we should overrule Metzker and Castle and find that no exigency is required for a police officer to detain the driver and all passengers in the vehicle or at the scene for the duration of a traffic stop. If the driver or passengers fail to comply with an order to remain, Kodiak advocates permitting an officer to use reasonable force to detain them at the scene.

In his treatise, Search and Seizure, La-Fave endorses the limits .that the ALI Model Code of Pre Arraignment Procedure places on the detention of witnesses. He contends that the Fourth Amendment does not allow potential witnesses to be stopped to the .same extent as those suspected of crimes. The Model Code also supports requiring exigent circumstances for the stop of a witness. It takes the position that an officer may detain a witness only when: a serious crime occurred recently; the officer reasonably believes that the witness’s information will materially assist in the investigation; and the detention is necessary. The Code requires that

(i) [t]he officer [have] reasonable cause to believe that a misdemeanor or felony, involving danger or forcible injury to persons or of appropriation of or danger to property, has just been committed near the place where he finds such person, and (ii) the officer [have] reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and (iii) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime.[]

Many courts have adopted the exigent circumstances requirement. The Ninth Circuit in United States v. Ward reasoned that no exigent circumstances existed to justify pulling a driver over for questioning as a witness when there was no crime “afoot” and no emergency situation nor any need for immediate action — such as a fear that the driver would leave town. And in Hawkins v. United States, the District of Columbia Court of Appeals found the stop of a crime victim unreasonable when “there was no fast-moving scenario, no just-completed crime, and no flight.”

While the brief detention of a potential witness may be necessary under certain circumstances, we conclude, as did the court in Metzker v. State and Castle v. State, that exigent circumstances are required to justify the stop of a witness to a crime. Accordingly, the superior court did not err in applying the exigent circumstances standard to Kodiak’s request for summary judgment.

2. The superior court did not err in denying Kodiak’s motion for summary judgment.

Kodiak argues that the trial court erred in denying its motion for summary judgment against Martha. In its motion for summary judgment, Kodiak argued that Marsh was authorized to use reasonable force to stop Martha, a potential witness, from leaving the scene of an ongoing INS investigation of Julia Samaniego. Kodiak cited the court of appeals’s decision in Metzker v. State for the proposition that a police officer may use reasonable force to prevent a witness from leaving the scene of a crime, where exigent circumstances exist. According to Kodiak, because Marsh “reasonably believed the INS investigation was continuing when Martha tried to leave the scene ... [a]n exigent circumstance” existed.

The superior court denied Kodiak’s motion for summary judgment, reasoning: “Based on sworn testimony presented by [Martha Samaniego] with her opposition to the motion, a jury could conclude that a reasonable officer would not have felt it necessary or appropriate to use the force alleged to prevent Martha from leaving the scene.” The superior court determined that Kodiak had not demonstrated, as a matter of law, that exigent circumstances existed to excuse Marsh’s detention of Martha. We review the superior court’s denial of a summary judgment motion de novo.

In order to determine that the superior court erred in denying Kodiak’s motion for summary judgment, we would need to conclude that there is no factual dispute and that exigent circumstances existed as a matter of law. As both Metzker and Castle illustrate, the determination of whether exigent circumstances exist is fact specific. The Metzker and Castle courts each considered whether the crime involved was serious; whether it was reasonable to believe that questioning the witness would materially aid the investigation; and whether the health or safety of a crime victim was at risk. The superior court was correct in concluding that there were factual disputes as to the reasonableness of Marsh’s belief that Martha had information regarding Julia’s immigration status and that preventing Martha from leaving would aid the INS investigation. Thus, summary judgment was inappropriate because a factual dispute existed.

Additionally, the trial court was correct in its conclusion that Kodiak had not demonstrated, as a matter of law,’ that exigent circumstances existed to justify Martha’s detention as a witness. Kodiak argues that this case is analogous to Metzker. According to Kodiak, Marsh was entitled to stop Martha Samaniego as a witness to a crime because a federal misdemeanor immigration offense had been admitted by Julia and was still being investigated; Martha was a material witness to such an offense; and questioning Martha could reveal useful information about the crime such as whether or not a green card existed and, if so, whether it was still valid.

But Kodiak’s argument fails, as the facts of Metzker are distinguishable from those in the case before us. In Metzker, the court of appeals found the police officer’s stop was justified by exigent circumstances. Specifically, “the police were justified in stopping [the vehicle] because a passenger in that vehicle was thought to be an assault victim who had just fled the police, who was intoxicated, and who was possibly in need of medical treatment.” Here, no such exigent circumstances were present.

Indeed, this case is more analogous to Castle v. State, where the court recognized that the officer “was not investigating an ongoing or recently committed unsolved crime.” Similarly, Julia Samaniego’s crime was over — as soon as the INS agent approached her and asked whether she had her immigration documents or any form of identification, Samaniego admitted that she did not. As in Castle, Officer Marsh “had no reason to believe that [Martha Samaniego] possessed knowledge that-would materially aid” his investigation of Julia Samaniego’s alleged offense. Additionally, as in Castle, Officer Marsh was not acting to “ensure the health or safety of a crime victim, as was [the case] in Metzker.” Thus, Kodiak failed to demonstrate, as a matter of law, that exigent circumstances existed to justify. Marsh’s stop of Martha Samaniego. We conclude that the superior court did not err by denying Kodiak’s motion for summary judgment.

3. The superior court did not err in refusing to give Kodiak’s proposed jury instruction because, the superior coiirt correctly concluded that no exigency existed that would justify detaining Martha as a witness.

Kodiak challenges the court’s refusal to instruct the jury “that Marsh was entitled to use reasonable force to stop a material witness from leaving the scene of a criminal investigation by the INS agents.”

The proposed instruction provided:

■ William Marsh was legally justified to use reasonable force to stop Martha Sa-maniego from leaving the scene as a witness to the INS investigation into Julia Samaniego’s immigration status if, based upon the preponderance of the evidence, William Marsh:
1. Reasonably believed the INS investigation into Julia Samaniego’s immigration status was ongoing at the time he stopped Martha.
2. Exigent circumstances existed at the time William Marsh stopped Martha Sa-maniego.

First we must address whether Kodiak properly preserved the right to appeal the superior court’s refusal to give the requested instruction. Alaska Rule of Civil Procedure 51 provides that a party may not assign as error the failure to give a particular instruction “unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.”

Before closing arguments, jury instructions were discussed. When Judge Gleason told the parties that it was “time ... for objections to instructions,” Kodiak’s attorney raised the issue of its proposed instruction on reasonable force to stop a material witness, stating:

And then you have given us legal justification on the stopping of Martha at the scene, those are 15 and 16, and we had requested an instruction based on the theory of Martha being a material witness, leaving the scene, material witness to the immigration investigation, potential criminal investigation of Julia Samaniego, and I think the court decided not to give us that?

Judge Gleason. responded: “Right. My reading of the Metzlcer and Castle cases would make that my view that that instruction is inappropriate.” To that, Kodiak’s attorney replied: “Right.” Then the proceedings moved on without further discussion of the court’s refusal to give Kodiak’s proposed instruction.

Alaska Rule of Civil Procedure 51 provides that a party must object to the failure to give an instruction. Where an attorney wishes to note an objection to the court’s failure to give an instruction, he or she must state “distinctly the matter to which the party objects and the grounds of the objection.” Here, Kodiak’s counsel’s remark did not clearly lodge an objection. On the other hand, Kodiak did broach the issue of the trial court’s failure to give its proposed instruction. While Kodiak may have intended to raise the issue to challenge the court’s refusal to give the instruction, its response of “Right” to the trial court’s denial of the proposed instruction did not distinctly state an objection or the grounds as required by Rule 51. However, even if the objection was preserved, Kodiak’s claim fails on the merits.

In reviewing a proposed instruction, we must consider whether the proposed instruction correctly stated the law. The proposed jury instruction asserted that if exigent circumstances existed, Marsh was legally justified in using reasonable force to stop Martha Samaniego from leaving the scene of the INS investigation. The instruction states the holding of Metzlcer correctly and in that sense correctly states the law. However, Judge Gleason concluded that the exigent circumstances requirement of Metz-lcer and Castle was not satisfied, rendering the proposed instruction inappropriate. A review of the record supports her view because the key facts about the event at the scene of the INS investigation are not disputed. It is uncontested, for example, that Marsh grabbed Martha Samaniego. The question then is whether Marsh’s act of restraining Martha was justified.

The trial court was correct in its determination that no facts in the record suggested that “exigent circumstances” existed at the scene. Marsh was not privileged to detain Martha for Julia’s investigation. As in Castle, Marsh “was not investigating an ongoing or recently committed unsolved crime.” Additionally, Marsh “had no reason to believe that [Martha Samaniego] possessed knowledge that would materially aid” his investigation of Julia’s alleged offense. Finally, Marsh was not acting to “ensure the health or safety of a crime victim, as was true in Metzlcer.” Thus, the superior court was correct in rejecting the instruction because as a matter of law no exigent circumstances existed.

B. The Superior Court Acted Within Its Discretion in Precluding Evidence of the Knife-.

On April 9, 1994, before the confrontation with the police, the Samaniego family went to a rodeo. At the rodeo, Martha Sa-maniego found a knife, which she gave to her mother who put it into her pocket. Besides keeping the knife away from her kids, Julia Samaniego testified at her deposition that she did not know what she planned to do with the knife.

Before trial, Julia and Martha Samaniego moved to preclude at trial the presentation of evidence concerning the knife that Julia possessed at the time of her arrest. Kodiak opposed the Samaniegos’ motion in limine, arguing generally that evidence of the knife was relevant to its ease and specifically, with regard to Martha, that “Martha’s attempted intervention into the fray can [ ] be explained as an attempt to interfere with the arrest and prevent the police from discovering the butterfly knife.”

The superior court ordered Kodiak not to introduce evidence referring to or concerning Julia Samaniego’s possession of a knife, but noted that if Kodiak believed during trial that the evidence had become admissible, it should raise the issue with the court outside the presence of the jury. The superior court found that while Julia Samaniego’s possession of the knife might have some relevance, the prejudicial impact of the evidence outweighed its probative value.

At trial, the subject of the admissibility of evidence regarding the knife resurfaced. After Julia Samaniego’s direct testimony, the court discussed the issue of the knife with counsel. The court engaged in a Rule 403 balancing and reiterated its pretrial ruling that there would be no mention of the knife at trial. The court concluded that evidence of the knife might confuse the jury because the legality of the possession was uncertain. The court reasoned that the issue of the knife was “unnecessary or outside the central focus of the issues in this case,” and recognized that evidence of the knife could result in unfair prejudice: “[A] jury is more likely to make its decision on an emotional basis when a knife is flipped out in front of them and they’re advised that Mrs. Samaniego had this knife on her [person] when, in point of fact, it was irrelevant in stage one [Marsh’s detention of Martha at the car].”

On appeal, Kodiak argues that the superior court abused its discretion in barring evidence of the knife from trial because the evidence was relevant and important to its case. But the superior court acknowledged that evidence of the knife was relevant both in its pre-trial order and in its discussions of the knife during trial. As this court has recognized, “[rjelevant evidence is always subject to exclusion if, in the discretion of the trial court, its probative value is outweighed by the danger of prejudice or confusion, or by considerations of undue delay.-” Our case law “recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance.” Thus, while the evidence of the knife may have been relevant to Kodiak’s ease, the superior court still had considerable latitude to exclude that relevant evidence under Alaska Rule of Evidence 403.

Alaska Rule of Evidence 403 provides that the superior court may exclude relevant evidence if the probative value of that evidence “is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Consequently, we will only overturn a superior court’s Rule 403 balancing determination if there has been an abuse of discretion.

The superior court did not err in precluding evidence regarding the knife. The court acted within its discretion in finding that evidence of the knife could lead the jury to make its decision on an emotional basis or could confuse the jury because of uncertainty as to whether possessing the knife was legal. Because the superior court did not abuse its discretion in excluding evidence of the knife, we affirm the superior court’s decision.

C. The Trial Court Did Not Err in Precluding Kodiak’s “Use of Force” Expert Witness.

Before trial, Julia and Martha Sa-maniego moved to exclude at trial the testimony of Michael A. Brave, Kodiak’s “use of force” expert witness. Brave prepared an eight-page preliminary expert witness report for Kodiak in 1996 in which he addressed the use of a stun gun on Julia. He included two short paragraphs that described Marsh’s seizures of Martha as “objectively reasonable.” Brave based this assertion on his belief that because Marsh and the INS agent had probable cause to believe that Julia Samaniego had violated the law, Marsh had reasonable suspicion to grab Martha as a witness to prevent her from leaving the scene.

The superior court granted the motion to exclude Brave’s expert testimony, determining that Brave’s opinion as to the reasonableness of force standard would not assist the jury and therefore did not satisfy the requirements of Alaska Rule of Evidence 702. The court reasoned that this testimony would not help the jury because it would “usurp[ ] the court’s role of instructing the jury on the applicable law.” The superior court also noted that Kodiak sought to have Brave apply the standard of reasonable force to the facts of the case. The court found this problematic because “[i]n so testifying, Mr. Brave may be making his own credibility determinations regarding the witnesses in the case.”

On appeal, Kodiak argues that the superior court erred in excluding Brave’s testimony because the testimony would have been helpful to the jury. Kodiak asserts that Brave would have testified to the verbal and physical “options available to Marsh as he confronted the situation of Martha walking away from a criminal investigation scene.” Kodiak maintains that Brave would have explained to the jury “why, through the use of force,” it was important for Marsh to keep Martha Samaniego, a witness, at the investigation scene. Brave did not make these points in his report or in any subsequent offer of proof. Indeed the vast majority of Brave’s testimony went to the appropriate use of a stun gun. Although Marsh used a stun gun on Julia Samaniego, there was no stun gun involved in the incident between Marsh and Martha.

Alaska Rule of Evidence 702 governs the admissibility of expert testimony at trial. The rule provides:

If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or other-wise[]

In Spenard Action Committee v. Lot 3, we explained that Rule 702’s helpfulness standard “requires that experts ‘stop short of stating their own conclusions on [points that] the jury is at least equally capable of [determining].’ ” Specifically, in Spenard, we held that the superior court abused its discretion in admitting police expert testimony that an establishment was operating as a house of prostitution. We noted that courts generally “prefer to let a jury apply general standards supplied by experts to the specific facts of a case in order to reach its own conclusion,” rather than have the expert testify to her own conclusion.

The superior court acted within its discretion in determining that Brave’s testimony would not assist the trier of fact. Brave’s report contained solely conclusory opinions that Marsh’s actions toward Martha “were at all time[s] objectively reasonable,” and that Marsh’s seizure of Martha was objectively reasonable under the totality of the circumstances. But Brave’s legal conclusion that Marsh properly seized Martha as a material witness conflicts with the trial court’s correct conclusion that exigent circumstances did not exist. The superior court did give an instruction providing legal justification for Marsh’s action if the jury determined that Marsh reasonably believed that Martha was subject to an INS investigation. Brave’s expert testimony would not have been helpful to the jury on this point because his opinion was based on Martha’s status as a witness, not as a subject of investigation. Because the superior court did not abuse its discretion, we affirm its decision on this issue.

D. The Superior Court Err Did Not Err in Declining To Adjust Martha Sa-maniego’s Attorney’s Fees Award.

After trial, Martha moved for prejudgment interest and attorney’s fees. In response, Kodiak argued that Martha Samaniego was not the prevailing party and thus not entitled to attorney’s fees. The superior court rejected Kodiak’s argument and awarded Martha Samaniego $12,887.67 in prejudgment interest and $7,288.87 in attorney’s fees.

On appeal, Kodiak argues that Martha Samaniego’s attorney’s fees award should be adjusted downward because Kodiak’s award against Julia Samaniego was adjusted downward by ten percent.

As a threshold matter, Kodiak argues this for the first time on appeal. There is no evidence that Kodiak raised this argument below and Kodiak has thus waived the argument. Moreover, we will overturn a superior court’s award of attorney’s fees “only upon a showing of abuse of discretion or a showing that the award is manifestly unreasonable.” Kodiak has not made such a showing. Martha Samaniego was the prevailing party in this case and there is no basis for adjusting Martha’s award downward solely because the superior court saw fit to do so in Julia’s case. We affirm the superior court’s award of attorney’s fees to Martha Samaniego.

Y. CONCLUSION

Because the trial court did not err in denying Kodiak’s summary judgment motion, refusing to give a jury instruction proposed by Kodiak, excluding Brave’s expert testimony and the evidence about the knife, and awarding attorney’s fees to Martha Samaniego, we AFFIRM the superior court’s determinations.

      . The appeals in Martha and Julia's cases were brought separately and Julia Samaniego's appeal was decided in Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003).

      . Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).

      . Id.; Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan, 874 P.2d 937, 941 n. 8 (Alaska 1994).

      . 956 P.2d at 474.

      . General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214 (Alaska 1998).

      . Id. (quoting Vincent by Staton v. Fairbanks Mem’l Hasp., 862 P.2d 847, 851 (Alaska 1993)).

      . id.

      . Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (citation omitted).

      . Id. (citation omitted).

      . Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).

      . 797 P.2d 1219 (Alaska App.1990).

      . 999 P.2d 169 (Alaska App.2000).

      . 797 P.2d at 1221.

      . Id.

      . 999 P.2d at 170.

      . Id. at 173 (quotations and citation omitted).

      . Id. at 173-74.

      . Id.

      . 4 Wayne LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(b) (3d ed.1996).

      . ALI Model Code of Pre-Arraignment Procedure § 110.0(l)(b) (1975).

      . United States v. Ward, 488 F.2d 162 (9th Cir. 1973); Hawkins v. U.S., 663 A.2d 1221 (D.C.1995); State v. Ryland, 241 Neb. 74, 486 N.W.2d 210 (1992) (concluding that stop violated the Fourth Amendment when it was for sole purpose of obtaining witness statement about previous accident because it was "not an emergency matter”).

      . 488 F.2d at 162.

      . 663 A.2d at 1226-27.

      . 797 P.2d 1219 (Alaska App.1990).

      . 999 P.2d 169 (Alaska App.2000).

      . 797 P.2d at 1221.

      . Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).

      . Id. at 474.

      . Castle, 999 P.2d at 173-74; Metzker, 797 P.2d at 1222.

      . Castle, 999 P.2d at 173 (citing Metzker, 797 P.2d at 1221).

      . Id.

      . Id. at 173-74.

        .Id. at 174.

      . Alaska R. Civ. P. 51(a).

      . Id.

      . Id.; see also Jaso v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996); Brown v. Estate of Jonz, 591 P.2d 532 (Alaska 1979); Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).

      . General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214 (Alaska 1998).

      . 999 P.2d at 173.

      . Id. at 173-74.

      . Id. at 174.

      . See Alaska R. Evid. 403.

      . Shane v. Rhines, 672 P.2d 895, 898 (Alaska 1983).

      . Alaska R. Evid. 403 advisory committee’s note; see also Yukon Equip. v. Gordon, 660 P.2d 428, 436 (Alaska 1983); Lerchenstein v. State, 697 P.2d 312 (Alaska App.1985).

      . Alaska R. Evid. 403.

      . Alaska Northern Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska 1983).

      . Alaska R. Evid. 702(a).

      . 902 P.2d 766, 780-81 (Alaska 1995) (quoting 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 350, at 628 (1994)).

      . Id. at 781.

      . Id. at 781.

      . See Willoya v. State, 53 P.3d 1115, 1120 (Alaska 2002).

      . Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clarence G. HAMMEL, Petitioner-Appellant, v. Hal SIMPSON, State Engineer; Rio Grande Canal Water Users Association, Respondents-Appellees.
    No. 03SA36.
    Supreme Court of Colorado, En Banc.
    Feb. 2, 2004.
    Anthony L. Martinez, Salida, Colorado, Attorney for Petitioner-Appellant.
    Ken Salazar, Attorney General, Lori J. Coulter, Assistant Attorney General, Shana Smilovits, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents-Appellees.
   PER CURIAM.

In this abandonment ease, we apply the principles of law governing abandonment of a water right in Colorado. The critical element in any abandonment case is intent. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo.2000). Abandonment need not be proved directly; the water court may infer the intent to abandon from the facts of the case. Here, the trial court found that no beneficial use of water from the decreed well was made from at least 1974 to 1998.

Once a presumption of intent to abandon is established by non-use of water for ten years; the burden shifts to the owner of the water right to rebut this presumption. § 37-92-402(11), 10 C.R.S. (2003); East Twin Lakes Ditches & Water Works, Inc. v. Bd. of County Comm’rs, 76 P.3d 918 (Colo.2003). In order to rebut the presumption, the owner of the water right must present more than mere subjective declarations of a lack of intent to abandon the water right. Rather, the owner “must establish some fact or condition that excuses the nonuse or shows the owner’s intent not to abandon the water right.” Haystack Ranch, 997 P.2d at 552.

Because our review of the record does not disclose any evidence rebutting the presumption of abandonment, we affirm the water court’s order.


author: Judge KAPELKE.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Haywood JENKINS, Defendant-Appellant.
    No. 01CA1336.
    Colorado Court of Appeals, Div. IV.
    Feb. 27, 2003.
    As Modified on Denial of Rehearing May 15, 2003.
    Certiorari Denied Jan. 26, 2004.

      Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    James Grimaldi, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Haywood Jenkins, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted murder and first degree assault. He also appeals his habitual criminal adjudication and sentence. We affirm.

According to the prosecution’s evidence, shortly after moving in with the victim and her children, defendant began abusing the victim both mentally and physically. One night, after the victim refused to perform oral sex, defendant poured gin mixed with rubbing alcohol on her and set her on fire. Although the victim was seriously burned, defendant' kept her in her room, prevented her from seeking medical attention and from having contact with her children, and repeatedly threatened to kill her. After six days, defendant finally relented and drove her to a hospital, instructing her to report that she had been injured in a cooking fire. He told her he would be home alone with her children and would kill them if she told anyone the truth about what had happened.

The victim told hospital personnel she had been injured in a grease fire. When pressed for details, however, she either stopped talking or gave inconsistent accounts. After about two weeks of treatment, the victim was released from the hospital. She remained bedridden for about a year.

Eventually, the victim reported the incident.

I.

Defendant contends that the trial court’s denial of his pro se motion for substitution of counsel violated his due process right to assistance of counsel. We disagree.

A defendant’s motion to discharge an attorney is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on review absent an abuse of discretion. People v. Apodaca, 998 P.2d 25 (Colo.App.1999).

An indigent defendant is entitled to effective appointed counsel, but is not entitled to new counsel of his or her choice. Further, a defendant must demonstrate good cause to require substitution of counsel. People v. Fisher, 9 P.3d 1189 (Colo.App.2000).

When an indigent defendant moves to discharge counsel, the trial court must inquire into the reasons for the dissatisfaction. People v. Apodaca, supra. Before change of counsel is warranted, the court must determine that the defendant has some well-founded reason for believing that the appointed attorney cannot or will not completely represent him or her. If the defendant establishes good cause, such as a conflict of interest or a complete breakdown of communication, the court must appoint substitute counsel. People v. Arguello, 772 P.2d 87 (Colo.1989). Conversely, if the court has a reasonable basis for concluding the attorney-client relationship has not so deteriorated that counsel could not provide effective assistance, the court can properly refuse to appoint new counsel. People v. Apodaca, supra.

Here, prior to trial, defendant filed a motion to dismiss his counsel and for appointment of alternative counsel. Defendant argued that his counsel was not defending him zealously and had not spent adequate time with him to obtain the details and information necessary to investigate possible defenses. Specifically, defendant asserted that his attorney met with him only once in nine months, had not discussed potential witnesses, and had not given him copies of discovery, which he said he needed to review to help plan trial strategy.

The court held a hearing on defendant’s motion. At the hearing, defendant stated, “I just would like to have something done in my favor, you know? I have been sitting there and never even talked to anybody and stuff, all the way to January 3. He said he would get on it and check and subpoena some things for the record and stuff like that.”

The coui’t denied the motion, noting that defendant was not claiming a conflict of interest, but instead asserting that counsel’s preparation for trial had been inadequate. The court stated that it was familiar with counsel’s experience, expertise, and thoroughness and was satisfied with counsel’s “professionalism, expertise, and zeal.”

The record indicates that the court did not make any further inquiry as to defendant’s stated concerns, nor did it ask for any response by counsel. The court appeared to base its denial of the request on its assessment of defense counsel’s general expertise and zeal, rather than on counsel’s level of performance in this specific representation. We read People v. Arguello, supra, as contemplating a more fact-specific inquiry than that conducted by the trial court here.

Nevertheless, the record substantiates the court’s conclusions that defendant was not asserting a conflict of interest and that he had not shown a complete breakdown of communication. Nor had he shown any prejudice from counsel’s failure to take specific steps in the representation.

Under the circumstances, we therefore find no abuse of discretion by the trial court in denying defendant’s motion for substitute counsel.

II.

Defendant next contends that the trial court violated his right to due process and a fair jury trial by allowing an expert witness to express opinions outside the scope of his field of expertise. We disagree.

Trial courts have broad discretion in determining the admissibility of expert testimony pursuant to CRE 702, and the exercise of this discretion will not be overturned absent manifest error. Lanari v. People, 827 P.2d 495 (Colo.1992).

CRE 702 governs the trial court’s determination regarding the admissibility of expert testimony. The court’s inquiry should focus on whether the proffered evidence is both relevant and rehable. The court must determine the reliability of the principles underlying the expert’s opinion, the qualifications of the witness, and the usefulness of the testimony to the jury. People v. Shreck, 22 P.3d 68 (Colo.2001).

Here, the physician who treated the victim’s burns was accepted by the court as an expert witness in the area of general surgery and as a critical care physician “having to do with burn care.”

During his testimony, the witness stated that the victim’s burns were inconsistent with the type of burns she would have received from a grease fire or a pressure cooker.

The witness also testified that the pattern of the victim’s burns indicated that her back had been resting against something and been protected from the flames. He then stated that the burn pattern was consistent with the prosecution’s scenario that when rubbing alcohol was poured on the victim’s body and lighted, she had been sitting in bed, with her back against the wall, wearing a nightgown and a pair of underpants with an elastic waist.

This testimony was properly admitted under CRE 702. The witness had extensive knowledge and experience with burns and burn patients. He had participated in a study of fabric inflammability involving analysis of differing burn patterns on various types of clothing. His education, experience, and knowledge as a physician studying burns and treating burn victims allowed him to give specialized testimony that would assist the jury in understanding the physical evidence concerning the burns and in assessing whether that evidence was consistent with the other evidence and the parties’ theories of the case.

While the witness acknowledged that, without extrinsic information, he could not determine what the victim had been wearing, such an acknowledgment goes to the weight rather than the admissibility of the testimony.

We thus find no error.

III.

Defendant next contends that the trial court erred in allowing a psychologist to testify concerning the credibility of the victim and to base her opinion testimony on the criminal charges filed against defendant. We reject the contention.

An expert may not give opinion testimony as to whether a witness is telling the truth on a specific occasion. People v. Lafferty, 9 P.3d 1132 (Colo.App.1999). However, under CRE 702, an expert may testify concerning whether the victim’s behavior or demeanor is consistent with that of typical victims of abuse. People v. Fasy, 829 P.2d 1314 (Colo.1992). Further, an expert witness may base an opinion on facts or data perceived by or made known to him or her at or before the hearing. CRE 703.

Here, the psychologist who provided counseling to the victim at the hospital was received by the court as an expert in psychology and psychological treatment of those suffering from trauma, particularly trauma from burns. The psychologist testified that the victim had seemed fearful and very quiet, refusing to discuss any details of the events. She testified that she found it very unusual for a burn patient — especially one with such serious and painful burns — to wait six days to come in for treatment and that it was also unusual for burn patients not to want to talk about their injuries. The psychologist also stated that although the victim was having a very hard time with pain, she would not cooperate at all in learning how to manage her pain better.

The psychologist testified that when she treated the victim, she did not believe the injuries resulted from an assault. However, she felt there was “something [the victim] wasn’t telling us.” She further testified she had treated between fifteen and twenty patients who received their burns as the result of an assault. According to her, such patients generally did not feel safe and had more problems managing pain than non-assault burn victims, because the pain was a constant reminder of what someone had done to them.

She then opined that the victim’s behavior was consistent with that of a person burned as a result of assault. She stated that she did not form this opinion when she treated the victim, but instead when she later heard that assault charges had been filed.

The psychologist did not testify that the victim’s burns had been caused by an assault. Rather, she stated that the victim’s behavior was consistent with that of a patient whose burns were the result of an assault. As permitted by CRE 703, she based her opinion on facts made available to her before the trial. Contrary to defendant’s assertion, she was not basing her conclusion on the state’s decision to prosecute defendant, but rather on the fact that the assault scenario would explain the victim’s behavior, which was consistent with that of an assault victim.

Defendant also contends that the psychologist’s testimony was inadmissible because it addressed the credibility of a witness in the trial. We disagree.

During the psychologist’s testimony, defendant objected on the ground that she was testifying as to. the victim’s credibility. The court oveiTuled the objection, finding that “all she is doing is giving opinion consistent with and incorporated in her area of expertise which is a characterization of behaviors manifested by [the victim] while she was under the doctor’s care.”

As discussed, this testimony did not focus on the victim’s credibility, but instead on the fact that her behavior, including her delay in seeking treatment, was consistent with the alleged assault scenario.

We therefore perceive no error.

IV.

Defendant next contends that the trial court violated his constitutional right to be present and his right to counsel by responding to two jury questions outside the presence of counsel. We perceive no basis for reversal.

The record does not include a transcript showing that the trial court’s responses were made outside the presence of defendant and his counsel. But, even if the court’s responses were so made, there is no reversible error.

The defendant in a criminal ease has a fundamental right under the Colorado Constitution to have counsel present when the court responds to questions from the jury. Key v. People, 865 P.2d 822 (Colo.1994). Defense counsel has the right to present argument and to make objections to the court’s responses. Therefore, a trial court commits constitutional error by responding to the jury’s questions without first making reasonable efforts to obtain the presence of defense counsel. Leonardo v. People, 728 P.2d 1252 (Colo.1986).

In cases of constitutional error involving the right to counsel, reversal is required unless the reviewing court concludes that the error was harmless beyond a reasonable doubt. Leonardo v. People, supra.

Here, after the jury began deliberations, it submitted to the court two questions. The first question read: “Could we have access to the timeline chart, witness chart and the testimony tape of [the victim].” The court made this written response: “The timeline chart and witness charts were not admitted into evidence and are therefore not to be taken to the jury room. You may see the video of [the victim] played by the court bailiff.” The court’s response concerning the videotape reflected the parties’ prior agreement.

The second question read: “Is it possible for us to have access to [two witnesses’] testimony during trial? We are getting involved in lots of speculation and it is clouding our decision-making progress.” The court responded: “My ruling is based on prior rulings. No transcripts of witness testimony are allowed to go to the jury, so the answer is no. Also, purely from a practical perspective, the transcripts do not exist, and [the court reporter] is not here to provide them.”

A trial court’s determination whether to allow the jury to review a transcript of trial testimony is a matter of sound discretion. Here, as in Franklin v. People, 734 P.2d 133 (Colo.App.1986), because defendant has not shown an abuse of that discretion or any reasonable likelihood of prejudice, even if the court’s responses were made outside the presence of defense counsel, the constitutional error was harmless beyond a reasonable doubt. See Key v. People, supra; Franklin v. People, supra.

V.

Defendant next contends that the trial court violated his right to due process and the prohibition against double jeopardy by retracting a directed verdict of acquittal on the charge of attempted first degree murder. We disagree.

Any judicial effort to avoid a deadlocked jury must ensure that the trial court does not authorize the jurors to sacrifice any of their conscientious opinions for the sake of reaching a unanimous verdict. Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971).

In People v. Lewis, 676 P.2d 682 (Colo.1984), the supreme court offered guidelines for instructing a deadlocked jury deliberating on a charge involving lesser offense. The court should first ask the jury whether further deliberation will yield progress towards a unanimous verdict. If the jury indicates that progress toward a unanimous verdict is unlikely, the court should inquire whether the jury is divided over guilt as to any one of the offenses and nonguilt as to all the offenses, or whether the division centers only on the particular degree of guilt. If the jury deadlock concerns only the degree of guilt, the court should consider an additional instruction charging the jury to return a guilty verdict on the lesser offense, so long as every essential element of the lesser offense is necessarily included in the greater offense and all the jurors unanimously agree on the defendant’s guilt as to either the lesser or the greater offense under consideration.

Here, on the third day of deliberations, the jury sent the court a note reading: “We have reached an impasse [o]n the count of 1st Degree Attempt to Murder. Our vote as of this time is 11-1. What is our next step?”

The court held a hearing and followed the procedures set forth in People v. Lewis, supra. After determining the deadlock related to whether to convict on the offense of first degree murder, the court instructed the jury:

You have previously been instructed on the lesser included offense ... which goes along with attempted murder in the first degree, and that’s a part of your instructions. If there is unanimity as to the lesser included offense, the Court directs that you should return a verdict as to the lesser included offense, as to that count, provided there is unanimity — everyone agrees. And then I direct that you should deliberate as to the remaining counts.

Later that day, the jury sent out another note asking for a fuller explanation of the word “culpable.” The note also asked whether the jury still could render a guilty verdict on the attempted first degree murder count. The court replied in a written note that the term “culpable” was defined in the jury instructions and that, because no verdict had been received by the court as to any charge, the jury might return any verdict upon which there was unanimous agreement.

The trial court correctly followed the procedures set forth in People v. Lewis, sttpra, and defendant has not demonstrated that the court authorized the jurors to sacrifice any of their conscientious opinions for the sake of reaching a unanimous verdict. Further, we reject defendant’s assertion that the court actually entered a directed verdict or that, by its comments, the court precluded the jury from ultimately arriving at a unanimous not guilty verdict on the attempted first degree murder charge.

The court indicated that the jury should return the guilty verdict on the lesser charge only if it had reached a unanimous decision as to that charge. Notably, defendant’s trial counsel did not interpret the court’s instruction as a directed verdict, nor do we. Cf. United States v. Rivas, 99 F.3d 170 (5th Cir.l996)(rejecting contention that a “cease deliberating” instruction constitutes a direct verdict implicating double jeopardy rights).

We therefore find no error.

VI.

Defendant contends that the trial court violated his constitutional right to due process by holding that any collateral challenge to allegedly unconstitutional prior convictions used in the habitual criminal proceeding was time barred. We disagree.

Absent a showing of justifiable excuse or excusable neglect, a collateral attack upon any felony conviction other than a class 1 felony is time barred if not brought within three years of the conviction. Section 16 — 5— 402, C.R.S.2002; People v. Wiedemer, 852 P.2d 424 (Colo.1993).

Whether a defendant has shown justifiable excuse or excusable neglect is a question of fact to be resolved by the trial court. People v. Wiedemer, supra.

While it is a violation of due process to use unconstitutional convictions in a later criminal proceeding to enhance punishment, People v. Padilla, 907 P.2d 601 (Colo.1995), a state may attach reasonable time limitations to the assertion of federal constitutional rights. See People v. Wiedemer, supra; People v. Vigil, 983 P.2d 805 (Colo.App.1999).

Here, defendant was charged with four habitual criminal counts. Defendant filed a motion challenging his prior convictions, and following a hearing, the court determined that defendant had not shown justifiable excuse or excusable neglect and that collateral attack on three of the convictions was therefore time barred. The court then concluded that the fourth conviction had been constitutionally obtained and could be used in the habitual criminal proceeding.

The court acted properly in examining-each prior conviction and determining that defendant had not established justifiable excuse or excusable neglect as to the lateness of his challenges. We thus find no error.

VII.

Finally, defendant contends that his conviction should be reversed because of cumulative error. We disagree.

Although an appellate court may find that individual errors do not require reversal, numerous irregularities may in the aggregate show the absence of a fair trial. People v. Roy, 723 P.2d 1345 (Colo.1986).

Here, we conclude that any errors, considered either individually or cumulatively, did not deprive defendant of a fair trial.

The judgment and sentence are affirmed.

Judge ROTHENBERG and Judge DAILEY concur.


author: Judge WEBB.

text:
    Chrystal Y. BLACK, Plaintiff-Appellant, v. Warren WATERMAN, as Sheriff of the Montrose County Sheriff’s Department; and G.R. Rowan, in his individual capacity, and as undersheriff of the Montrose County Sheriffs Department, Defendants Appellees.
    No. 02CA0172.
    Colorado Court of Appeals, Div. III.
    March 27, 2003.

      Killian and Guthro, P.C., J. Keith Killian, James P. Guthro, Beecher Threatt, Grand Junction, Colorado, for Plaintiff-Appellant.
    Younge & Hockensmith, P.C., Earl G. Rhodes, Jodie L. Behrmann, Grand Junction, Colorado, for Defendant-Appellee Warren Waterman.
    No Appearance for Defendant-Appellee G.R. Rowan.
   Opinion by

Judge WEBB.

In this employment discrimination case, plaintiff, Chrystal Y. Black, appeals from the judgment entered on a jury verdict in her favor on liability, but awarding no compensatory damages against defendants, Warren Waterman, Montrose County Sheriff, and G.R. Rowan, Montrose County undersheriff. She also appeals from the trial court’s orders declining to award her back pay or front pay damages and denying her motion for a new trial on compensatory damages. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff worked as a dispatcher and administrative assistant in the sheriffs office for several years until the sheriff discharged her after she complained of sexual harassment by the undersheriff. Plaintiff also asserted that she was subjected to various retaliatory actions, culminating in her discharge. Defendants presented evidence of plaintiffs complicity in some inappropriate workplace conduct, of her consensual relationship with the undersheriff, and of a non-diseriminatory reason for her discharge.

The jury found that the undersheriff discriminated against plaintiff by sexually harassing her or exposing her to a hostile work environment and that the sheriff retaliated against her for complaining of unlawful conduct.

After the jury returned its verdict, plaintiff filed a motion that the trial court award her back pay and front pay and a motion for a new trial on compensatory damages. The court denied both motions.

I. Back Pay and Front Pay

Plaintiff first argues the trial court misapplied the law in denying her back pay and front pay on the bases that she was not the prevailing party and the jury did not award compensatory damages. We agree with plaintiff and conclude that a remand to reconsider awarding back pay and front pay is required.

We examine trial court damage awards in employment discrimination cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, for abuse of discretion, but review underlying legal questions de novo. United States E.E.O.C. v. W & O, Inc., 213 F.3d 600 (11th Cir.2000).

As relevant here, 42 U.S.C.A. § 1981a; Civil Rights Act of 1964, § 706(g), as amended, 42 U.S.C.A. § 2000e-5(g) provides that a plaintiff who establishes employment discrimination “may” obtain equitable relief including reinstatement and back pay. Although front pay is not expressly listed as a remedy in Title VII, the power to grant equitable relief has been interpreted as including front pay. McCue v. Kansas, 165 F.3d 784 (10th Cir.1999).

Back pay is determined by measuring the difference between a plaintiffs actual earnings and the earnings that would have been received, but for discrimination, to the date of judgment. Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999). Front pay can be awarded for compensation that will be lost from the judgment date until reinstatement or, in lieu of reinstatement, until the plaintiffs earning capacity has fully recovered from the effects of discrimination. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001).

The Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(l), amended Title VII by allowing for recovery of compensatory and punitive damages. Compensatory damages involve mental and emotional suffering. 42 U.S.C. § 1981a. Congress recognized that compensatory and punitive damages may be especially appropriate in sexual harassment cases where neither back pay nor front pay has been lost. See H.R.Rep. No. 102-40 (1991), U.S.Code Cong. & Admin.News 1991, 549.

The 1991 Civil Rights Act also made a jury trial available as to liability, compensatory damages, and punitive damages. However, relief under § 706(g) of Title VII is equitable and can be awarded only by the court. See, e.g., McCue v. Kansas, supra (equitable remedies include back pay and front pay, while legal remedies include compensatory and punitive damages).

These legal and equitable remedies differ in that back pay and front pay are not subject to the caps on recovery of compensatory damages set forth in the 1991 Civil Rights Act, are not considered elements of compensatory damages, and do not count against the compensatory damages caps. Pollard v. E.I. du Pont de Nemours & Co., supra; Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir.1999).

Courts indulge a strong presumption that a plaintiff who has proved discrimination is entitled to back pay to the date of judgment. E.E.O.C. v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir.1994); Nord v. U.S. Steel Corp., 758 F.2d 1462 (11th Cir.1985). However, in its discretion a trial court may deny back pay to a. successful Title VII plaintiff. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

Trial courts enjoy considerable discretion in determining the availability and amount of front pay because the court must predict future events and consider complicated and interlocking factors. McCue v. Kansas, supra; Mason v. Okla. Tpk. Auth., 115 F.3d 1442 (10th Cir.1997).

Here, the trial court held plaintiff was not entitled to back pay or front pay:

This windfall amount is claimed after a jury, having heard all the evidence, found in its verdict that the Plaintiff incurred no damages. Even though the jury determined that the Plaintiff was subjected to sexual harassment from the actions of Un-dersheriff Rowan and to retaliatory aetion by Sheriff Waterman, she sustained no damages. It would be a strange outcome to award her $313,684.00 merely for bringing this action when a jury of her peers, after hearing her testimony, held that she had “0” damages. The Defendant Waterman contends ... that the Plaintiff was, in fact, not the prevailing party in this aetion. The Court agrees with the Defendant. The Plaintiff did not receive any monetary damages nor nominal damages in the jury’s verdict. The .Court is now being requested to reach a different conclusion than that of the jury. Without a monetary recovery as determined by a jury verdict, the Plaintiff simply has not prevailed and, hence, is not entitled to an award of back pay and front pay.

We conclude the trial court applied two incorrect legal standards.

First, plaintiff prevailed because she received a verdict on detailed special interrogatories finding defendants discriminated and retaliated against her. See Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074 (10th Cir.1998)(a verdict in favor of plaintiff constitutes a victory on a significant legal issue and serves a public purpose, even if plaintiff receives no damages).

Second, courts may award back pay and front pay even though the plaintiff recovers no compensatory damages. See, e.g., Amantea-Cabrera v. Potter, 279 F.3d 746 (9th Cir.2002); Corti v. Storage Tech. Corp., 304 F.3d 336 (4th Cir.2002); United States E.E.O.C. v. W & O, Inc., supra; Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir.1995).

Back pay and front pay preexisted compensatory damages, which constitute an additional form of relief. See Pollard v. E.I. du Pont de Nemours & Co., supra. Thus, even in the absence of compensatory damages, back pay and front pay may still be necessary to effectuate Title VII’s purposes of eradicating employment discrimination and making a discrimination victim whole. Cf. Albemarle Paper Co. v. Moody, supra (identifying purposes of relief under Title VII).

Accordingly, we conclude the reasons articulated by the- trial court to deny plaintiff equitable relief are legally insufficient, and therefore on remand the trial court must reconsider an award of back pay and front pay. The trial court can better address arguments in defendants’ answer brief, such as whether retaliation caused any wage loss, whether plaintiff would have been discharged in any event, and whether plaintiff’s unclean hands preclude equitable relief, assuming, without deciding, that the verdict does not foreclose some or all of these arguments.

In this regard, we note that, if the trial court declines to award back pay or front pay, it must “carefully articulate its reasons.” Albemarle Paper Co. v. Moody, supra, 422 U.S. at 422 n. 14, 95 S.Ct. at 2373; see also Estate of Pitre v. W. Elec. Co., 975 F.2d 700 (10th Cir.1992); E.E.O.C. v. Rath Packing Co., 787 F.2d 318 (8th Cir.1986).

II. New Trial on Compensatory Damages

Plaintiff next contends the trial court committed various errors in denying her motion for a new trial on compensatory damages. We agree only that the trial court erred in striking an affidavit that described possible juror misconduct during voir dire and remand for further proceedings on that issue, as discussed in subsection E below. Otherwise, we find no error.

A.

Plaintiff argues the trial court erred in refusing a new trial pursuant to C.R.C.P. 59(d)(1) because an instruction misled the jury. However, plaintiff has not preserved this issue for appeal.

Under C.R.C.P. 51, a party must make all objections to a proposed jury instruction before the instructions are submitted to the jury. Except in very rare circumstances, only these objections are proper for consideration in a motion for a new trial, on appeal, or on certiorari. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984); Robinson v. City & County of Denver, 30 P.3d 677 (Colo.App.2000).

Here, plaintiff contends the following portion of an instruction misled the jury: “In calculating damages, you should not consider any back pay or front pay that the plaintiff lost. The award of front pay and back pay should you find the defendant(s) liable, tuill be calculated and determined by the court” (emphasis added). According to plaintiff, the jury must have concluded that an award of back pay and front pay by the court was guaranteed upon their finding of liability.

Plaintiff tendered this instruction. Moreover, plaintiff did not object to this jury instruction before the trial court submitted the instructions to the jury.

Accordingly, we will not consider her appellate objection to this instruction.

B.

Plaintiff next argues the trial court erred in refusing a new trial pursuant to C.R.C.P. 59(d)(5) because the jury’s damage award was inadequate. We disagree.

The decision to grant a new trial for excessive or inadequate damages rests in the trial court’s sound discretion. Koch v. Dist. Court, 948 P.2d 4 (Colo.1997). A trial court should grant a new trial on damages only when the damages are grossly and manifestly inadequate or so small as to indicate clearly and definitely that the jury neglected to consider the evidence, Millican v. Wolfe, 701 P.2d 107 (Colo.App.1985), or was influenced by bias, passion, prejudice, or other improper motives. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382 (1951).

Here, the jury was properly instructed to award damages in an amount that would fairly compensate plaintiff for emotional pain, suffering, inconvenience, and mental anguish that she proved were caused by defendants’ wrongful conduct.

The jury heard testimony from plaintiff and two experts concerning her panic disorder, anxiety, agoraphobia, and posttraumatic stress disorder during and after the harassment and retaliation. These experts based their opinions on symptoms described by plaintiff, on their observations of her, and on treatment records from her counselor, physiologist, and social worker, none of whom testified.

However, the evidence also showed that plaintiff had a history of anxiety, depression, sleeplessness, and other symptoms similar to those testified to by her experts. She had been on prescription antidepressant medication for several years before she experienced sexual harassment in the sheriffs office. And plaintiff had suffered sexual abuse as a child.

From this evidence, we cannot conclude as a matter of law that the verdict of no compensatory damages is grossly or manifestly inadequate. The jury could have decided plaintiffs emotional suffering was a continuation of her earlier emotional problems. See Lee’s Mobile Wash v. Campbell, 853 P.2d 1140 (Colo.1993)(jury verdict awarding no damages upheld where the plaintiff had experienced mental impairment before the accident and his symptoms could have been caused by several other factors, including prior psychological problems). The jury also could have rejected the testimony concerning plaintiffs recent emotional suffering as not credible. See, e.g., Murphy v. Glenn, 964 P.2d 581 (Colo.App.1998). And although the verdict for plaintiff on sexual harassment means that the jury found at least some of the undersheriffs conduct unwelcome, the jury could have been swayed by evidence of plaintiffs apparently willing participation in some of the conduct that she later claimed was improper.

The cases on which plaintiff relies, Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971), and Martinez v. Shapland, 833 P.2d 837 (Colo.App.1992), are distinguishable. In both of those cases, the verdicts awarding only special damages and no damages, respectively, could not be reconciled with uncontrovert-ed and indeed uncontrovertible evidence of physical injury resulting from the accidents. Here, in contrast, plaintiffs claimed emotional suffering is not objectively verifiable, but rather depends on her credibility and that of her experts as to causation, nature, and degree.

Accordingly, we conclude the trial court did not abuse its discretion in refusing to grant a new trial because the jury’s damage award was inadequate.

C.

Plaintiff next argues the trial court erred in refusing a new trial on damages because the jury failed to follow the instructions. We are not persuaded.

As discussed above, the jury verdict was not manifestly inadequate and therefore does not indicate the jury failed to follow the instructions. See Millican v. Wolfe, supra.

Moreover, CRE 606(b), discussed in subsection E below, bars any inquiry into the jury’s deliberative process to show misunderstanding of an instruction. See People v. Collins, 730 P.2d 293 (Colo.1986); Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974).

Accordingly, we conclude the trial court did not err in refusing to grant a new trial on this ground.

D.

Plaintiff next argues the trial court erred- in refusing a new trial on damages because, based on a scheduling discussion with the trial court, the jury believed it had to return a verdict by 6 p.m. However, plaintiff did not raise this issue in the trial court, and we generally do not decide issues raised for the first time on appeal. See, e.g., Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo.1985); Wisehart v. Zions Bancorporation, 49 P.3d 1200 (Colo.App.2002).

E.

Plaintiff finally contends the trial court erred in refusing a new trial because of a juror’s alleged misrepresentation or concealment in response to questions by plaintiffs counsel during voir dire. We conclude the trial court erred in striking the portion of another juror’s affidavit submitted by plaintiff describing this possible misconduct. Plaintiff discovered this issue only after the jury returned its verdict. Therefore, we conclude remand for an evidentiary hearing and factual findings as to possible juror misconduct is necessary to resolve this aspéct of plaintiffs motion for a new trial.

The purpose of voir dire is to determine whether any potential juror has beliefs that would interfere with a party’s right to receive a fair and impartial trial. People v. Rudnick, 878 P.2d 16 (Colo.App.1993).

If discovered during trial, a potential juror’s failure to answer questions truthfully during voir dire may justify replacing the juror with an alternate or may require a mistrial. When mendacity is discovered only after the jury renders a verdict, a new trial may be warranted. People v. Dunoyair, 660 P.2d 890 (Colo.1983). However, untruthful answers on voir dire do not per se entitle a party to a new trial. Allen v. Ramada Inn, Inc., 778 P.2d 291 (Colo.App.1989).

When a juror deliberately misrepresents important information potentially relevant to a preemptory challenge or knowingly conceals a bias or hostility towards a party, that fact may necessitate a new trial because the juror’s knowing misrepresentation or concealment alone shows that the juror is likely incapable of rendering a fair and impartial verdict. People v. Dunoyair, supra.

If a juror’s misrepresentation or nondisclosure was inadvertent, however, then the aggrieved party must show the nature of the misrepresented or undisclosed information “was such as to create an actual bias.” People v. Dunoyair, supra, 660 P.2d at 896. Absent this showing, we presume the juror followed the instructions and based a decision on the evidence and the law. Rose v. Colo. Factory Homes, 10 P.3d 680 (Colo.App.2000).

Evaluation of juror misrepresentation or concealment often implicates CRE 606(b), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors’ attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Under this plain language, we exclude “juror testimony or affidavits divulging juror deliberations, thought processes, confusion, mistake, intent, or other verdict impeaching grounds.” Stewart v. Rice, 47 P.3d 316, 322 (Colo.2002). Thus, investigation into juror misconduct must “cease once ‘any possibility’ arises that the juror is acting during deliberations based on his or her view of the sufficiency of the evidence.” People v. Kriho, 996 P.2d 158, 167 (Colo.App.1999). However, CRE 606(b) does not bar inquiry into matters that arise before jury deliberations begin. See Wilson v. O'Reilly, 867 P.2d 92 (Colo.App.1993); see also United States v. Henley, 238 F.3d 1111 (9th Cir.2001)(interpreting similar Fed.R.Evid. 606(b)).

Here, during voir dire, plaintiffs attorney asked the panel about “too many groundless and frivolous lawsuits.” Prospective juror A said that he considered sexual harassment “a waste of time,” believed that the law on sexual harassment was wrong, and believed that women who encounter harassment in a male-dominated workplace, but cannot handle it should just “change jobs.” After juror A was excused, the attorney then asked how other prospective jurors felt about “frivolous or groundless lawsuits.” Juror M did not respond.

Plaintiffs motion for a new trial included an affidavit from juror B, seated next to juror M, who said juror M told her — immediately after the “change jobs” statement and before plaintiffs attorney renewed the question — that she shared this view. Juror B’s affidavit also explained that during deliberations, juror M refused to consider awarding plaintiff compensatory damages, which was corroborated in an affidavit from another juror.

Defendants submitted an affidavit from juror M saying “she does not remember making any statement to juror [B] that [she] agreed with the remarks of the potential juror [A], who said that sexual harassment lawsuits were not applicable under the facts of this case” and “at all times she followed the instructions of the court with the intent of being a fair-minded juror.”

In opposing plaintiffs new trial motion, defendants cited CRE 606(b). The trial court denied plaintiffs motion for a new trial on damages in a written order, saying, without explanation, that the motion was merit-less and striking all juror affidavits from the record. We conclude the trial court erred in finding CRE 606(b) barred that part of juror B’s affidavit discussing juror M’s statement during voir dire. See Wilson v. O’Reilly, supra.

We agree with the trial court that the portion of juror B’s affidavit and all of the other juror’s affidavit, which discuss the jury’s deliberative process, are barred by CRE 606(b). However, we need not penetrate the jury’s deliberative process to conclude that juror B’s affidavit warranted an evidentiary hearing concerning juror M’s alleged failure to disclose bias during voir dire. Compare Allen v. Ramada Inn, Inc., supra (new trial ordered because juror who was rape victim deliberately failed to respond when asked whether she had been or knew anyone who had been raped), with People v. Christopher, 896 P.2d 876 (Colo.1995) (judgment affirmed because juror’s inadvertent failure to disclose acquaintance with testifying officer was of only peripheral significance).

Accordingly, we vacate this aspect of the trial court’s order and remand the issue to the trial court for an evidentiary hearing and factual findings whether juror M misrepresented or concealed her beliefs during voir dire, whether the misrepresentation or concealment was deliberate or inadvertent, and whether a new trial on compensatory damages is required. Cf. People v. Meis, 837 P.2d 258 (Colo.App.1992)(remand for findings whether juror was able or qualified to perform duties in light of uncertainty whether trial court considered necessary factors).

The trial court’s orders declining to award back pay or front pay and declining to consider the issue of juror M’s alleged nondisclosure during voir dire are reversed, and the case is remanded for further proceedings on those matters consistent with this opinion. In all other respects, the judgment and orders are affirmed.

Judge DAVIDSON and Judge ROY concur.