Sammy L. Johnson appeals his convictions for Theft,
Did juror misconduct deny Johnson a fair trial?
After Johnson was convicted on the above charges and an habitual offender determination was made, a juror reported to Johnson's counsel that the other five jurors pressured her into the guilty finding on the theft charge. She executed an affidavit, which in pertinent part stated:
Record at 128. Based upon the affidavit, Johnson filed a Motion to Correct Errors. Johnson claimed that the guilty verdict for theft was not based upon a unanimous verdict and should be set aside. He requested that the habitual offender finding premised upon the erroneous theft verdict be set aside as well. The trial court denied the motion.
Johnson contends that the verdict was the product of undue influence exerted by five of the jurors, thus it is unreliable. He acknowledges that at common law, a verdict was not subject to impeachment by evidence from the jurors who returned it. See Harrison v. State, 575 N.E.2d 642 (Ind.Ct.App.1991). An exception existed for evidence that jurors were exposed to "improper, extrinsic materials during their deliberations." Id. at 646. Johnson, without analytical development, argues that the psychological coercion to which
In 1994, the Indiana Rules of Evidence were adopted. Ind. Evidence Rule 606(b) provides:
The rule precludes consideration of the juror's affidavit which does not fit in one of the three exceptions.
No reported decision in Indiana addresses the specific exceptions within Evid.R. 606(b). It is noteworthy that similar rules are employed by many states, and the rule mimics that found in the federal rules. Thus, cases from other jurisdictions are instructive.
The circumstances in Kailukiak v. State, 959 P.2d 771 (Alaska App.1998) are similar to those present in the instant case. After the verdict, a juror told defense counsel that during deliberations, she felt the other jurors intimidated and pressured her into finding the defendant guilty. The court elaborated,
Id. at 779.
The Kailukiak court found no error in the trial court's refusal to hear testimony from the jurors after the verdict. In fact, the court noted that the trial court was prohibited from inquiring into the intentions of the jurors during deliberations. Id. Examples of matters upon which jurors may be questioned concerning outside influences are: "fraud, bribery, threats or coercion by third parties, or other acts of third parties in obstruction of justice." Id. Specifically excluded by the rule is the reception of testimony regarding purported intimidation or harassment by other jurors. Id. (citing United States v. Stansfield, 101 F.3d 909 (3rd Cir. 1996)).
Plainly, exception (3) within 606(b), regarding outside influences improperly brought to bear upon a juror, envisions sources outside of the jury. All of the jurors receive the same instructions regarding their deliberations. Jurors are called upon to consciously weigh the decision. A balancing process is inherent. Jurors may not decide, in hindsight, that the weighing process overcame their spirit or will. The rule is in place to prohibit the type of attack Johnson seeks to mount.
STATON and RUCKER, JJ., concur.