Certiorari Denied February 23, 1976. See 96 S.Ct. 1119.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
Defendants-appellants contend that the District Court of the Virgin Islands, Division of St. Croix, erred in denying their motion for a new trial.
On August 13, 1973, defendants were found guilty of first degree murder, first degree assault, and robbery.
Defendants press two arguments in seeking to persuade us that the trial court's refusal to grant a new trial was an abuse of "its sound discretion."
I. FINDINGS OF THE TRIAL JUDGE
A. Standard of Review
Where, as here, the findings of the trial court are based on non-demeanor evidence, there is a diversity of views as to the proper scope of appellate review. Some adopt the position that the "clearly erroneous" standard of F.R.Civ.P. 52(a) should apply to all findings of fact; others espouse the practice of de novo review on the theory that the trial court has no advantage over the appeals court in assessing inanimate evidence. Compare 9 C. Wright & A. Miller, Federal Practice and Procedure, §§ 2585-2587 (1971), with 5A J. Moore, Federal Practice, ¶ 52.04 (2d ed. 1974). Our circuit has not, however, taken either of these approaches.
Some of the past decisions of this court have reviewed cases tried solely on papers, without oral testimony, differently, depending on whether the facts set forth in the papers are stipulated or disputed. In the former circumstance, it was recognized that "the Court of Appeals may, within certain limits, substitute its factual conclusions and inferences for those of the" trial court. Demirjian v. C. I. R., 457 F.2d 1, 4 (3d Cir. 1972). See also Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 659 n. 34 (3d Cir. 1968), cert. denied, 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969). In the latter situation, the court has scrutinized facts not dependent on demeanor evidence according to the clearly erroneous standard. United States v. United Steel-workers of America, 271 F.2d 676, 685 & 688 (3d Cir.), aff'd, 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959).
B. Affidavits of Allick and Rodgers
After careful review of the record, we have concluded that these findings of the trial judge are fully supported by the evidence:
See trial judge at 26 and notes 4 and 13 above.
In evaluating the testimony of Allick, the trial judge made these comments, inter alia, concerning pressures on Allick to change his verdict and his fears about returning to the community at the end of the trial:
With reference to Rodgers' credibility, the trial judge stated:
C. Findings Without Adequate Support in the Record
Juror Agneta Cappin
Matron Foye denied the conversation. H.T. 299. The trial judge, finding both women to be credible witnesses, chose to believe Foye rather than Cappin because he knew that Foye "was grateful for the opportunity to earn extra income as a jury matron." Trial judge at 19. We do not consider these credibility findings to lack adequate support in the record. However, we do hold that the trial judge's reliance on his personal, subjective belief about the needs and motives of Matron Foye was an improper ground for rejecting Cappin's concededly credible testimony.
In basing his fact-finding on personal knowledge, the trial judge was, in effect, taking judicial notice of extra-record, adjudicative facts. See generally K. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 406-07 (1942). "With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy." Advisory Committee's Notes to F.R.E. (Federal Rules of Evidence) Rule 201(b); cf. F.R.E. Rule 201(a) and (b). A second hallmark of facts properly the subject of judicial notice is that they be either matters of common knowledge or "capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy . . .." Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962); 9 Wright & Miller, supra, § 2410 at 339. Facts possessing these characteristics are entitled to be considered by a judge without first being proved through the routine processes of introducing evidence.
J. Wigmore, Evidence, § 2569 at 539-40 (3d ed. 1940). It is apparent that the trial judge's knowledge about Matron Foye falls into this latter category of personal knowledge and, therefore, does not qualify for judicial notice. It follows that the trial judge erred in rejecting Cappin's testimony on the ground stated.
Similarly untenable is the trial judge's finding that juror Torres could not have heard any rumors while she was resting in the judge's chambers, since that finding was based solely on the judge's personal knowledge of the soundproofing in his chambers. Trial judge at 10.
As an antidote to these errors in the fact-finding process, our inquiry into the validity of the verdict will assume both that Cappin's testimony was accurate, see United States v. Brumbaugh, 471 F.2d 1128, 1130 (6th Cir.), cert. denied, 412 U.S. 918, 93 S.Ct. 2732, 37 L.Ed.2d 144 (1973), and that Torres could hear discussions outside the judge's chambers.
II. IMPEACHMENT OF THE VERDICT
Any attempt to impeach a jury verdict initially encounters two evidentiary obstacles: (1) producing evidence competent to attack the verdict, and (2) establishing the existence of grounds recognized as adequate to overturn the verdict. And even where both obstacles are cleared, there must be a finding that the party seeking to impeach the verdict has suffered prejudice from the misconduct of the jury.
A. The Evidentiary Obstacles: Competency and Sufficiency
1. Competent Testimony.
It is frequently said to be the rule that a juror may not impeach his own verdict once the jury has been discharged.
2. Grounds sufficient to overturn a verdict
Those incidents of jury misconduct which may be attested by the jurors and those which furnish a basis for setting aside a verdict overlap extensively. Indeed, courts often seem to treat the two concepts interchangeably in deciding whether a verdict may be successfully impeached. See Jorgensen v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947); Comment, Impeachment of Jury Verdicts, 25 U.Chi.L.Rev. 360, 363ff. (1958) [hereinafter Comment]. For this reason, it is not possible to abstract from the cases any neat and comprehensive list of grounds upon which a verdict may be overborne. It is possible, however, to categorize roughly common fact patterns which have been held to call a verdict into question. Other than incompetency of a juror during jury service, see United States v. Dioguardi, supra at 79, and Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947), these are all incidents of "extraneous influence:"
The fourth category of cases — those in which an incident impugns the disinterestedness of the court — can also be viewed as turning on Sixth Amendment values. Thus, in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the Court held that a new trial was required because the two principal prosecution witnesses were deputies who also had charge of the sequestered jury. The Court found that in a trial where credibility was a crucial issue, the status of the two witnesses lent a credibility to their testimony which was not developed by evidence at the trial. "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-73, 85 S.Ct. at 550.
In addition to the Sixth Amendment, however, the duty of the court "to protect the integrity of its own processes," McKinney, supra, Godbold, J., dissenting at 1032-33, requires that no verdict be the product of partiality, or its semblance, on the part of the court. This duty is the more binding because of the weight jurors are likely to accord information emanating from court personnel. See Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); United States v. Pittman, 449 F.2d 1284 (9th Cir. 1971); Truscott v. Chaplin, 403 F.2d 644 (3d Cir. 1968).
As normal jury pressures and intra-jury influences may not be impeached by juror evidence, so also they constitute no grounds for overturning a verdict. See cases cited at notes 26 and 27, supra; United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959). Nor, indeed, is a verdict invalid merely because the jurors' generalized knowledge about the parties, or some other aspect of the case, is an ingredient of the decision. Though "the specific guarantees of an impartial jury and of confrontation," as well as "the more general one of due process," proscribes consideration of specific extra-record facts about the case on trial, it is not necessary that the jurors be "totally ignorant about a" case. United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971).
McKinney, supra at 1022-23.
B. Misconduct Alleged By Defendants
The trial judge determined that several rumors were circulating among the jurors during their deliberations. He found that at least some of the jurors learned of killings which had occurred on St. Croix during the trial, and concluded that "[t]he news must have come from the outside since it was true." Trial judge at 8. The judge further found that "general rumors of FBI investigations of jurors' families" were circulated among the jurors. Because a similar report was broadcast over a local radio station, the trial judge surmised that the rumor was common throughout the island and had "filtered into the jury room
The defendants characterize all these rumors as threats. They point to the rumors and to the alleged conversations between certain jury attendants and jurors, see Part I and note 13, supra, as instances of impermissible outside influences on the verdict which require that it be set aside. We disagree.
The only rumors that can even qualify as outside influences are those which were assigned an outside source by the trial judge. The rumors about specific jurors are clearly in the category of intra-jury discussions which meet neither the competency nor the sufficiency criteria for overriding the verdict. The rumors concerning other killings on St. Croix and the FBI investigation of persons involved in the case are not so easily categorized. It is clear that they are not "extraneous influences" merely by virtue of having an outside source, however. See II-A, supra. It is also apparent that the rumors are dissimilar from the types of occurrences which were roughly categorized above as "extraneous influence" cases. Although it may appear, superficially, that they might qualify as communications between jurors and third parties, closer examination establishes that the rumors do not resemble that class of cases either.
The third-party communication cases break down, factually, into three major subclasses: (1) cases where jurors glean from non-jurors facts or opinions concerning the liability or guilt of a defendant; (2) cases involving attempts by outsiders to influence the verdict through intimidation or bribery of jurors; (3) cases where jurors come into personal contact with persons related to one side or another of the controversy before the jury. See generally Comment, supra at 366-69.
The trial judge made no finding that any contact, either direct or indirect, with any non-juror, brought the FBI investigation and murder rumors to the jury's attention. In fact, the trial judge was not able to discover the origin of these rumors. See pages 151-152 above. Absent a finding as to the rumors' origin, the element of bias, obvious in the types of third-party communications cases discussed above, is lacking here.
In determining that the rumors in this case do not qualify as "extraneous influences," we rely not only upon factual distinctions but upon our analysis of the rationale underlying the "extraneous influence" cases. No Sixth Amendment values are implicated by these rumors.
Nor is the integrity of the court put in jeopardy by the spread of such rumors among the jury. The rumors had no official source. See note 13, supra. Since "a complete sanitizing of the jury room is impossible," McKinney, supra at 1022, as well as unnecessary, McMann, supra at 817, the court has not failed in its duty to sequester the jury merely because rumors such as these managed to penetrate to the jury room. See also Rideau v. Louisiana, 373 U.S. 723, Clark, J., dissenting, at 733, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).
Finally, were we to set aside the jury verdicts because of these rumors, we would be defeating the purposes served by the competency-sufficiency rules in this area of the law. See II-A, supra. If rumors such as these, filtering into the jury from no known source, were held sufficient to impeach these verdicts, jury tampering and harassment would be encouraged and we "would add unduly to the already fragile state of criminal convictions." McMann, supra at 817. Particularly in a locale like the Virgin Islands, where the small area and population are conducive to the rapid spread of information about anything that occurs, and "where it might be impossible to find 12 jurors who were totally ignorant about a defendant," we find it difficult to imagine any verdict which would not be subject to challenge on the basis of claims like those raised here. McMann, supra at 817-18. In our view, we cannot allow impeachment by incidents of this type. United States v. Kafes, 214 F.2d 887, 889 (3d Cir. 1954).
Conversations between jurors and jury attendants, however, stand on a different footing than do the rumors just discussed. Numerous cases treat such communications as "extraneous influences." See cases cited note 25, supra. See also United States v. Brumbaugh, supra. Thus, the occurrence of the conversation between Matron Foye and juror Cappin, see Part I, supra, would require us to set aside the verdict, if that conversation were prejudicial to the defendants.
Even though a party establishes, by competent evidence, an act of
In United States v. Brumbaugh, supra at 1129, the following exchange took place between a juror and a court bailiff:
Although the juror involved was voting not guilty at the time, the trial court's determination that no prejudice resulted from the incident was upheld on appeal. The trial court's finding was based, in part, upon the juror's averment that he had not been affected by the bailiff's remarks.
In the present case, Cappin did not indicate whether she considered herself influenced by the matron's statement.
It thus appearing that no prejudice accrued to the defendants from the only occurrence which was both legally cognizable and sufficient to impeach the jury verdict, we find no abuse of discretion in the trial judge's refusal to order a new trial. The judgment of the district court will be affirmed.
Rodgers testified that the wording of the affidavit was not his, but was dictated by Johnny Ross, who urged Rodgers to aid "civil rights" by signing an affidavit. Rodgers identified his signature on the affidavit, but stated that he had signed "a piece of paper" in the office of one of the defendant's attorneys without looking at the paper he signed. H.T. 99-102; 105-111. See also 85-87; 100-11; 286-94.
With reference to the credibility of Allick and Rodgers, see note 13 below and part I-B at pages 146-147 below. In this court's previous decision in this case (see note 2 above), claims that (1) the trial judge was disqualified from conducting the proceedings in the district court (502 F.2d at 931-33), and (2) the trial judge had coerced the jury's verdict through requiring continuing deliberations and through its instructions (502 F.2d at 935-36), were rejected.
Finding (4) was conceded by defendants to be non-material. Brief for Appellants at 15.
In addition to the reasons stated by the trial judge for discounting Allick's testimony at the hearing, we note that Allick, as the one juror who consistently voted for acquittal until August 12, 1973, would have a special stake in overturning the verdict. See, e. g., H.T. 165, 197, for testimony indicating Allick's bias.
(Federal Rules of Evidence Annotated, West Pub. Co., p. 55)
See also Hearings on H.R. 5463 Before the Comm. on the Judiciary of the United States Senate, 93rd Cong., 2d Sess., at 357 (1974). Rule 606(b) does not, of course, apply to this case, which preceded it. However, the Congress recognized that the rule, as adopted, tracked the existing case law.
Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947). See also Comment, supra at 366ff.
Moreover, the linchpin of Remmer was the trial court's failure to inform the defendant and his attorney that the juror had been approached. The case was remanded for an adversary hearing to "determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial," since the "trial court should not decide and take final action ex parte on information such as was received in this case . . . ." 347 U.S. 229-30, 74 S.Ct. 451. See also Fillippon v. Albion Veiu Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). This crucial issue is not raised by the present case.