ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent Westerfeld Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
JAMES R. GRIFFIN, ) ) Appellant (Defendant Below ), ) No. 49S02-0101-CR-43 ) In the Supreme Court v. ) ) STATE OF INDIANA, ) No. 49A02-9909-CR-647 ) In the Court of Appeals Appellee (Plaintiff Below ). )
September 7, 2001
James Griffin asks for a new trial on his carjacking charges because an alternate juror improperly expressed her belief in his guilt during his jurys deliberations. He also says his former attorney should have been allowed to testify that another man confessed to the crime. We affirm.
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 Wrights 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,
See footnote and the court sentenced him
to six years with three suspended.
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.
See footnote Ind. Appellate Rule
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 Griffins guilt. This violated the judges specific instruction prohibiting
the alternates participation in deliberations.
See footnote The alternate answered that she thought Griffin
was guilty because the victims identification was reliable based on his twenty-minute conversation
with the carjacker.
One juror stated in her affidavit that the alternates 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 Griffins motion:
The Court finds that based on the evidence presented, the comments allegedly made by the alternate juror, did not rise to the level of impermissible juror misconduct as there was no showing that if the alternate, in fact, did improperly speak during deliberations, that this affected the decision of any of the twelve regular jurors. In fact, each of the jurors was individually polled after the verdict and each orally said it was their individual and collective verdict.
(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:
Inquiry into Validity of Verdict or Indictment. 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 jurys deliberations or to the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the jurors mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jurys attention or (3) whether any outside influence was improperly brought to bear upon any juror. A jurors affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
Griffin argues that the alternates 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 judges 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 jurors assertion that
the alternates opinion affected her vote. (R. at 164; Appellants Br. at
11.) We must therefore decide whether this statement impeaching the jurys verdict
is admissible. In doing so we look to the history and policy
behind the general rule that jurors may not later seek to nullify their
verdicts via affidavit. See, e.g., Taylor v. Garnett, 110 Ind. 287, 11
N.E. 309 (1887).
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 jurys solemn acts under oath, open the door to
post-trial jury tampering, and allow dissatisfied jurors to destroy a verdict after assenting.
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 (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 (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)
Federal practice may inform our analysis. Federal Rule of Evidence 606(b) is
very similar to Indianas rule.
See footnote Federal courts generally continue to follow the
Mattox, and will accept juror affidavits stating that deliberations were tainted
by improper information or influence, but disregard any statements on the effect of
that information or influence on the jurors decision. See 2 Stephen A.
Saltzburg et al., Federal Rules of Evidence Manual 905 (7th ed. 1998).
As the Seventh Circuit has explained:
In evaluating a claim that the jury was improperly influenced by extraneous material, a district court must ignore a jurors comment regarding how a particular piece of material disposed the juror toward a particular verdict, and the district court must make an independent determination of the likely effect of the prejudicial material.
United States v. Paneras, 222 F.3d 406, 412 n.1 (7th Cir. 2000)(quoting United
States v. Berry, 92 F.3d 597, 601 (7th Cir. 1996)).
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 Alan 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 alternates input affected her decision
is not part of the analysis governing the request for a new trial.
Rather, the trial court must consider the alternates 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 States case relied on
a strong eyewitness identification.See footnote It is difficult to believe that if eleven
other jurors favored conviction, the twelfth only acceded because the alternate also favored
conviction when the majority solicited one more view.
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 alternates 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.
Griffin then called Youngcourt and sought to elicit her testimony that Dulin had
confessed to the crime.
See footnote The prosecutor objected on grounds of hearsay and
the court sustained the objection.
Griffin argues that the court should have permitted the question under Ind. Evidence
Rule 607,See footnote which allows a party to attack his or her own witnesss
credibility, and Rule 613(b),See footnote which allows evidence of a prior inconsistent statement made
by a witness (with certain restrictions).See footnote Because the purpose of his question
was to impeach Dulin with his prior inconsistent statement, Griffin says, the trial
court erred in sustaining the prosecutors objection.
We recently held, however, that under Rule 607 a party is forbidden from
placing a witness on the stand when the partys sole purpose in doing
so is to present otherwise inadmissible evidence cloaked as impeachment.
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:
We agree . . . that [T]he rule allowing a party to impeach his own witness may not be used as an artifice by which inadmissible matter may be revealed to the jury through the device of offering a witness whose testimony is or should be known to be adverse in order, under the name of impeachment, to get before the jury a favorable extrajudicial statement previously made by the prior witness.
The Pelican, Inc. v. Downey, 567 N.E.2d 847, 850 (Ind. Ct. App. 1991) (quoting State v. Keithly, 227 Neb. 402, 406-07, 418 N.W.2d 212, 215 (1988)).
Dulin did not witness any of the relevant events here. See footnote The defense attorneys requests that Dulin be immunized and to question him as a hostile witness, with Youngcourt waiting in the wings, make it clear that he expected Dulin to deny having confessed to the carjacking and that the purpose of the exercise was to generate testimony pointing the finger at Dulin.See footnote
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 at 125. Here, the defense called Dulin solely to create an
opportunity to impeach him with Youngcourts otherwise inadmissible hearsay testimony. The trial
court properly declined to permit it.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.