SHEPARD, Chief Justice.
James Griffin asks for a new trial on his carjacking charges because an alternate juror improperly expressed her belief in his guilt during his jury's deliberations. He also says his former attorney should have been allowed to testify that another man confessed to the crime. We affirm.
Facts and Procedural History
Around 2:45 p.m. on March 5, 1997, Clifford Wright was driving to a hair appointment when he saw Patricia Griffin standing at the corner of Massachusetts and College Avenues in Indianapolis. Although the two had never met, Ms. Griffin accepted a ride home and agreed to see Wright after his appointment, around 5:30. When Wright returned to Ms. Griffin's house, he was invited in by a man who identified himself as James. A woman named Twyanna was also there, but Ms. Griffin was not.
The three chatted for about twenty minutes and at one point James left the room. When he returned, Twyanna asked him if he got his pistol. James and Twyanna asked Wright for "a ride around the corner," and he agreed. (R. at 289.) Minutes after the three left in Wright's car, Twyanna asked Wright if he realized he was being "set up." (R. at 290-91.) Wright reached for his keys but Twyanna jerked his hand away. Wright was forced out of the car after handing over his billfold and $33.
Wright viewed 500 police photographs but did not spot James. When the police learned that Ms. Griffin had a brother named James, they showed Wright another six photos, from which Wright positively identified Griffin. A jury found Griffin guilty of carjacking, a class B felony,
On appeal, Griffin raised four issues. Griffin v. State, 735 N.E.2d 258 (Ind.Ct. App.2000). We address the two contentions noted above, and summarily affirm the Court of Appeals on the remainder.
I. The Alternate Juror's Statement
After Griffin's jurors deliberated for about two and a half hours, they sent a note advising the judge that they could not agree on a verdict. The judge replied, "Please continue." (R. at 435.)
Griffin asserts, based on juror affidavits submitted with his motion to correct error, that several jurors then sought to break the deadlock by asking the alternate her opinion on Griffin's guilt. This violated the judge's specific instruction prohibiting the alternate's participation in deliberations.
One juror stated in her affidavit that the alternate's input "affected my vote." (R. at 164.)
Juror misconduct involving an out-of-court communication with an unauthorized person creates a rebuttable presumption of prejudice. Currin v. State, 497 N.E.2d 1045, 1046 (Ind.1986). The trial court nonetheless denied Griffin's motion:
(R. at 190.)
A threshold question is whether the juror affidavits may be considered at all. Indiana Evidence Rule 606(b), adopted in 1994, says:
Griffin argues that the alternate's opinion was an "outside influence" under the third exception, and we agree. The affidavits are therefore admissible, at least as evidence (which the State did not refute) that the alternate improperly participated in jury deliberations. We therefore proceed to consider the ramifications of this conduct.
A defendant seeking a new trial because of juror misconduct must show that the misconduct (1) was gross and (2) probably harmed the defendant. Lopez v. State, 527 N.E.2d 1119 (Ind.1988). We review the trial judge's determination on these points only for abuse of discretion, with the burden on the appellant to show that the misconduct meets the prerequisites for a new trial. Mitchell v. State, 726 N.E.2d 1228 (Ind.2000) (citations omitted).
To meet his burden, Griffin relies in part on one juror's assertion that the
This Court has long supported the rule prohibiting jurors from later impeaching their verdicts. The policies underlying this rule are important. Allowing such juror affidavits could defeat the jury's solemn acts under oath, open the door to post-trial jury tampering, and allow dissatisfied jurors to destroy a verdict after assenting. Id.
Moreover, if impeachment were allowed, "[t]he sanctity of verdicts would [ ] be diminished and no verdict could ever be final. Jurymen would forever be harassed." Turczi v. State, 261 Ind. 273, 275, 301 N.E.2d 752, 753 (1973) (citations omitted). For these reasons we have historically been reluctant to open the door to a "contest of affidavits and counter-affidavits and arguments and re-arguments as to why and how a certain verdict was reached. Such an unsettled state of affairs would be a disservice to the parties litigant and an unconscionable burden upon citizens who serve on juries." Stinson v. State, 262 Ind. 189, 198, 313 N.E.2d 699, 704 (1974).
The problem, of course, is how to protect such vital defendants' rights as the right to confront witnesses (which may be violated if a jury considers information that was not in evidence) or the right to an impartial jury, if the best (and often only) witnesses to jury improprieties cannot be heard. See Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The U.S. Supreme Court considered that dilemma over a century ago and held that a juror "may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (quoting Woodward v. Leavitt, 107 Mass. 453 (1871)). This Court adopted the Mattox approach in Fox v. State, 457 N.E.2d 1088, 1093 (Ind.1984).
Ten years after Fox, we adopted Rule 606(b) as Indiana law on juror impeachment of verdicts. This is our first occasion to decide whether the common law prohibition against a juror testifying about how an outside influence affected his decision still applies when a defendant invokes one of the Rule 606(b) exceptions.
Federal practice may inform our analysis. Federal Rule of Evidence 606(b) is very similar to Indiana's rule.
This approach would seem to restrain the potential for a losing party to provoke virtual re-enactments of the deliberation through competing affidavits purporting to describe the thought processes of individual jurors. As Judge Allen Sharp observed, one risk in allowing juror impeachment of verdicts is that "[i]t is all too easy for ingenious counsel to prepare carefully worded affidavits to cast doubt on a jury verdict." Lindsey v. State, 282 N.E.2d 854, 861 (Ind.App.1972).
Thus, the fact that one juror says the alternate's input "affected" her decision is not part of the analysis governing the request for a new trial. Rather, the trial court must consider the alternate's conduct in the overall trial context. The alternate did not add any fresh perspective to the discussion; the other jurors were well aware that the State's case relied on a strong eyewitness identification.
Our skepticism takes into account the fact that an alternate is like a regular juror in two important respects: the alternate has been through the same voir dire to safeguard against bias or knowledge of information not in evidence, and has heard exactly the same evidence. Intrajury influence is not sufficient to overturn a verdict. See, e.g., Johnson v. State, 700 N.E.2d 480, 481 (Ind.Ct.App.1998) ("Jurors may not decide, in hindsight, that the weighing process overcame their spirit or will."). See also Ferguson v. State, 489 N.E.2d 508, 510 (Ind.1986) (citations omitted) ("[T]he legal bar to the impeachment of a verdict by a juror who participated in its return is greatest where the interchange between jurors is the source of the problem, and not a communication from some nonjuror.").
An alternate is not, of course a member of the jury, and he or she qualifies as an outside influence under Rule 606(b). Here, however, the alternate's only influence was adding one more "me, too" to the collective voice of the jury majority. Under the facts presented, Griffin has not shown either gross misconduct or probable harm. The trial judge therefore acted within the bounds of his discretion in denying relief based on juror misconduct.
II. Hearsay Cloaked as Impeachment
In pretrial proceedings, the court granted use immunity to William Dulin, Patricia Griffin's former boyfriend. It also granted a defense request to treat Dulin as a hostile witness "if he is called." (R. at 198.) Dulin took the stand and in response to defense questioning denied having confessed to Griffin's former attorney, Lorinda Youngcourt, that he committed the carjacking.
Griffin then called Youngcourt and sought to elicit her testimony that Dulin had confessed to the crime.
Griffin argues that the court should have permitted the question under Ind. Evidence Rule 607,
We recently held, however, that under Rule 607 "a party is forbidden from placing a witness on the stand when the party's sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment." Appleton v. State, 740 N.E.2d 122, 125 (Ind.2001) (citations omitted)("Because [the witness] owned the home where the events began and observed the three assailants attack the victims, it is reasonable that the State wanted him to testify for purposes other than impeachment."). The Court of Appeals had earlier recited a similar proposition:
Dulin did not witness any of the relevant events here.
The question in Appleton was whether the State called a witness solely to create the opportunity to impeach him with his pretrial statement. Appleton, 740 N.E.2d
We affirm the judgment of the trial court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
(R. at 431-32.)