NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5639
Appellant, ) Trial Court No. 4FA-93-2713 Cr
)
v. ) O P I N I O N
)
JOHN TITUS, )
)
Appellee. ) [No. 1517 - March 14, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellant. Arthur Lyle Robson, Fairbanks, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
A Fort Yukon jury found John Titus guilty of first-degree
sexual assault. In the week following this verdict, Titus and a
defense investigator interviewed several jurors, asking them why
they had voted to convict. Based on these interviews, Titus filed
a motion for a new trial in which he asserted that the jurors had
improperly considered matters outside the evidence during their
deliberations.
Superior Court Judge Mary E. Greene held a hearing on this
motion. At this hearing, several jurors testified concerning state-
ments that various jurors had made during deliberations. Based on
the testimony of these jurors, Judge Greene concluded that Titus's
jury had discussed matters outside the evidence þ specifically, the
possibility that Titus had been drunk during the episode litigated
at his trial, as well as Titus's reputation for committing
antisocial acts when he was drunk. Because the jury had discussed
these matters, Judge Greene ruled that Titus was entitled to a new
trial. The State now appeals Judge Greene's ruling.
The main question presented in this appeal is whether
Judge Greene was authorized to receive affidavits and take testimony
concerning the details of the jury's deliberations. As we explain
in more detail below, we conclude that Alaska Evidence Rule 606(b)
barred the superior court from considering the affidavits and the
testimony offered at the hearing. Thus, the superior court should
have denied Titus's motion for a new trial.
Facts of the case
A Fairbanks grand jury indicted John Titus for first-
degree sexual assault, AS 11.41.410(a). The crime was alleged to
have occurred in the village of Venetie. Under Alaska Criminal Rule
18(e), Titus was entitled to ask the superior court to hold his
trial in the locality nearest Venetie that had the facilities to
accommodate a felony trial. In Titus's case, that locality was Fort
Yukon. See Alaska Criminal Rule 18(b) and Alaska Administrative
Bulletin 27 (as amended effective December 13, 1993).
Fort Yukon is a town of approximately 750 inhabitants.
Titus was well-known in Fort Yukon. At the time of this offense,
he was the village chief in nearby Venetie, and he was a member of
the Yukon Flats Regional Board of Education. In addition, Titus was
a publicly-acknowledged recovering alcoholic who was active in the
local Native sobriety movement.
Apparently believing that a Fort Yukon jury would be more
favorably inclined toward him than a Fairbanks jury, Titus asked to
have his trial held in Fort Yukon. The State opposed this request
precisely because Titus was so well-known in Fort Yukon, and for the
additional reason that the case had generated significant publicity
in Fort Yukon. Over the State's objection, the superior court
granted Titus's request.
Jury selection began on March 7, 1994. It lasted almost
two days. Of 48 prospective jurors, 21 were excused for cause.
Several of the jurors excused for cause indicated that, because of
their knowledge of Titus and/or their association with him, they
would be biased against the State and would likely not vote for
conviction. Titus exercised only seven of the ten peremptory
challenges allowed to him under Alaska Criminal Rule 24(d). Of the
twelve jurors ultimately selected to try Titus, all but one either
knew Titus personally or knew of Titus and had heard about the case
prior to trial. Four of the jurors were employees of the local
school district. (As noted above, Titus was a member of the
regional Board of Education.)
At the end of the first day of jury selection, and again
at the end of the second day, the State asked the superior court to
move the case back to Fairbanks. The prosecutor argued that a
change of venue was required because of the near impossibility of
finding jurors who were unfamiliar with Titus, the witnesses, and
the facts of the case. However, Titus reaffirmed his desire to be
tried in Fort Yukon, and the superior court refused to change the
site of the trial.
The trial itself took little more than one day. The jury
found Titus guilty. Titus asked Judge Greene to allow him to remain
free on bail for two more weeks so that he could collect the furs
from his traplines. Judge Greene granted this request. (EN1)
While Titus was free on bail, he approached several of the
jurors, protested his innocence, and demanded to know why they had
voted to convict him. At the same time, an investigator employed
by the Public Defender Agency also interviewed several of the
jurors, asking them to relate the details of the jury's
deliberations and to explain why the jury had voted to convict
Titus.
On March 16th, Titus filed a motion for a new trial,
alleging jury misconduct. Titus's primary allegation was that "at
least two jurors made statements [during deliberations] regarding
contacts [they had had] with Mr. Titus outside the courtroom which
affected their opinions of him and his credibility".
At the ensuing hearing, three jurors testified. Their
testimony focused on the jury's discussion of Titus's use of alcohol
and on whether any jurors had expressed fear of Titus when he was
drinking. Each of the three jurors gave a different account of the
comments made during deliberations.
The first juror to testify was Evelyn James. According
to Evelyn (EN2), a comment about drinking was made during the early
part of the deliberations. One of the jurors mentioned that the
charged rape had taken place during Venetie's spring carnival. This
juror noted that spring carnival was a time when many people drink,
and the juror wondered whether Titus had been drinking on the night
before the incident. Evelyn testified that, when the juror raised
this subject,
we [the other jurors] stopped her[.] ... [W]e
told her that [this issue] was not brought out
in court, [so] we couldn't talk about that.
And then the lady to the left of me said,
"Well, if I was walking down the road and I saw
John Titus drinking, coming up the road, I
would go on the other side of the road."
Titus's attorney then asked Evelyn whether the juror on the left had
meant that she would go to the other side of the street out of fear
that Titus would rape her. Evelyn replied that she did not know
what this juror had meant þ whether she would have crossed the
street out of fear or simply out of common-sense avoidance of a
drunk person. Evelyn later stated that she interpreted the juror's
comment as expressing a common-sense desire to avoid a drunken
individual. Evelyn could not recall whether any other jurors had
agreed with the one juror's statement about crossing the street to
avoid encountering Titus when he was intoxicated.
In addition, Evelyn testified that one of the jurors
remarked that they had seen Titus drinking in Fort Yukon before the
trial began; however, no one responded to this remark. Evelyn told
the court that, aside from these comments, she did not think that
there was further mention of Titus's drinking during the jury's
deliberations.
The second juror to testify was Vera James. She too
recalled a juror saying that she would cross the street to avoid
Titus if he were intoxicated. According to Vera, two or three
jurors (including herself) agreed with this statement. Vera later
explained that she agreed with the statement because an intoxicated
person is a "nuisance" and should be avoided.
Vera told the court that "several [jurors] made comments
about [Titus's] drinking", and that one of the jurors specifically
mentioned seeing Titus drinking on the streets of Venetie and Fort
Yukon a few days before trial. Vera also testified that, during
deliberations, one juror commented that Titus had been drinking
during the period when the incident occurred.
On cross-examination, Vera stated that the comments about
Titus's drinking occurred early in the deliberations, and that
discussion of this issue ended when one or more of the jurors
reminded them all that they should not discuss facts outside the
record.
The third juror to testify was Sarah Knudson. She
remembered that some jurors made general comments about Titus's
drinking. Knudson testified that one juror stated: "If I was on
the same road with John Titus and he was drunk, I would go on the
other side. If I was on the same side, he would ... grab me and
rape me." Knudson also recalled another juror's agreeing with this
statement. Knudson testified that these comments occurred while the
jurors were eating their dinner, not during their formal delib-
erations. She told the court that the comments about Titus's
drinking were "attack[s] [on] his character when he was
intoxicated", and that some jurors remarked on "what a different
person [Titus] was when he wasn't involved in alcohol".
Based upon the three jurors' testimony, Judge Greene found
that the jury had engaged in misconduct, and she therefore granted
Titus's motion for a new trial. Judge Greene found that the jury
had discussed "[i]nformation not contained in the trial record" þ
specifically, "that Titus was drinking extensively" both "at the
time of the alleged rape in Venetie and before the trial [in Fort
Yukon]". Further, Judge Greene concluded that the votes of one or
more jurors were likely influenced by the jurors' discussion of the
changes in Titus's behavior when he was intoxicated, and by their
discussion of the likelihood that Titus had been drinking at the
time of the offense.
Alaska Evidence Rule 606(b) prohibited the superior court
from examining the jurors concerning their discussions of
Titus's character, his alcoholism, and the effect that
intoxication could have on his behavior.
As noted in the commentary to Alaska Evidence Rule 606(b),
there was general agreement at common law "that the mental
operations and the emotional reactions of jurors during the
deliberative process should not be the subject of later inquiry".
However, there was "substantial disagreement" among common-law
jurisdictions concerning the precise extent to which jurors might
be examined about other aspects of their deliberations. Commentary,
Alaska Evidence Rule 606(b), first paragraph. For example, it was
only nine years ago that the United States Supreme Court resolved
the question of whether jurors could be examined regarding other
jurors' use of drugs and alcohol during deliberations. (The Supreme
Court's decision, Tanner v. United States, 483 U.S. 107, 107 S.Ct.
2739, 97 L.Ed.2d 90 (1987), is discussed in detail below.)
Common-law cases did agree that jurors could be questioned
regarding "extraneous influences" on the jury's deliberative
process. For example, in Mattox v. United States, 146 U.S. 140,
149; 13 S.Ct. 50, 53; 36 L.Ed. 917 (1892), the Supreme Court held
that jurors could be examined regarding the possibility that, during
the trial, they had heard or read prejudicial information about the
defendant that had not been admitted into evidence. And in Parker
v. Gladden, 385 U.S. 363, 365; 87 S.Ct. 468, 470; 17 L.Ed.2d 420
(1966), the Court ruled that jurors could testify concerning remarks
by a non-juror that might have influenced the jury's deliberations
(the bailiff's comment to the jurors that the defendant was
"wicked", and that if there was any error in the trial, the supreme
court would fix it).
In situations that did not fall within this exception for
external influences, common-law decisions tended to adhere to the
rule against admitting jurors' testimony to impeach a verdict. See
McDonald v. Pless, 238 U.S. 264, 267-69; 35 S.Ct. 783, 784-85; 59
L.Ed. 1300 (1915) (holding that a court could not receive jurors'
testimony that they had determined the amount of damages by
resorting to a "quotient verdict" þ that is, by having each juror
write down the amount of damages he thought was proper, then
dividing the total by twelve); Davis v. United States, 47 F.2d 1071,
1071-72 (5th Cir. 1931) (holding that jurors' failure to hear or
understand the trial judge's instructions was an internal matter
that could not be inquired into); United States v. Dioguardi, 492
F.2d 70, 79 (2nd Cir. 1974) (holding that a court could not hold an
after-verdict inquiry into a juror's apparent mental incompetence).
Eighty years ago, in McDonald v. Pless, the Supreme Court
explained the rationale of these common-law decisions restricting
inquiry into the jury's deliberations:
[L]et it once be established that verdicts
solemnly made and publicly returned into court
can be attacked and set aside [based] on the
testimony of those who took part in [the
decision,] and all verdicts could be, and many
would be, followed by an inquiry in the hope of
discovering something which might invalidate
the [jury's] finding. Jurors would be harassed
and beset by the defeated party in an effort to
secure from them evidence of facts which might
establish misconduct sufficient to set aside a
verdict. ... [T]he result would be to make
[the jury's] private deliberation[s] the
constant subject of public investigation þ to
the destruction of all frankness and freedom of
discussion and conference.
McDonald v. Pless, 238 U.S. at 267-68, 35 S.Ct. at 784, quoted in
Tanner v. United States, 483 U.S. at 119-120, 107 S.Ct. at 2747.
Titus's case þ specifically, Titus's acts of approaching
several jurors and demanding to know why they had voted to convict
him þ demonstrates the sort of jury harassment that the Supreme
Court condemned in McDonald and Tanner. The legal question
presented here, however, is whether the jurors' ensuing testimony
was admissible to impeach their verdict. The answer turns on
whether the jurors' knowledge of Titus's reputation and behavior
constituted an extraneous influence on their deliberations.
As suggested in the commentary to Alaska's Evidence Rule
606(b), the common-law cases never fully defined the concept of
"extraneous influence". These cases left a gray area in which
litigants might colorably claim either that juror inquiry was
allowed or that juror inquiry was forbidden. Congress enacted
Federal Evidence Rule 606(b) in an attempt to regulate post-verdict
jury inquiries. In Tanner, the Supreme Court was called upon to
explicate Evidence Rule 606(b).
The defendants in Tanner were convicted of mail fraud and
conspiring to defraud the United States government in connection
with Tanner's procurement of a government contract. 483 U.S. at
109-113, 107 S.Ct. at 2742-43. The defendants sought a new trial
based on the affidavits of two jurors. The two jurors asserted that
several members of the jury had consumed excessive amounts of
alcohol or had smoked marijuana during the trial, to the point that
these jurors were unable to follow the evidence or meaningfully
participate in deliberations. 483 U.S. at 113-17, 107 S.Ct. at
2744-45. The questions presented to the Supreme Court were whether
the two jurors' affidavits were admissible to impeach the jury's
verdict, and whether the district court was obliged to examine the
remaining jurors regarding these allegations. 483 U.S. at 116-17,
107 S.Ct. at 2745.
Federal Evidence Rule 606(b) states that, with two
exceptions, a court conducting a post-verdict inquiry into the
validity of a verdict can not receive jurors' evidence "as to any
matter or statement occurring during the course of the jury's
deliberations", nor as to "the effect of anything upon [their
verdict]". The exceptions to this prohibition are that jurors "may
testify on the question whether extraneous prejudicial information
was improperly brought to the jury's attention or whether any
outside influence was improperly brought to bear upon any juror".
After reviewing the legislative history of Federal Evidence Rule
606(b), the Supreme Court concluded that Rule 606(b) was intended
to protect jurors from after-the-fact inquiries such as the one
proposed by the defendants in Tanner. Thus, the Court held, Rule
606(b) does not allow a court to receive juror affidavits or to
examine jurors regarding allegations of juror intoxication.
As the Supreme Court explained in Tanner, the original
form of Rule 606(b) (as proposed in 1972 by the Supreme Court) was
intended to prohibit jurors from testifying about matters occurring
during deliberations, with the exception of such extraneous
influences as media accounts and bribes or threats to jurors. The
House Judiciary Committee protested that the Supreme Court's
proposed rule went too far. The Judiciary Committee pointed out
that, under the Court's proposed rule, litigants would be unable to
prove that the jury had engaged in classic forms of misconduct such
as returning a quotient verdict; further, jurors would be prevented
from testifying that one or more jurors had been so intoxicated as
to be unable to participate in deliberations. Tanner, 483 U.S. at
122-23, 107 S.Ct. at 2749 (quoting House of Representatives Report
No. 93-650, pp. 9-10 (1973); United States Code Congress'l & Admin.
News 1974, p. 7083). The House Judiciary Committee, convinced that
juror testimony should be admissible to establish any "objective
juror misconduct", rejected the Court's proposed rule and
substituted another that greatly broadened a court's ability to
examine jurors about their verdicts. Tanner, 483 U.S. at 123, 107
S.Ct. at 2749.
However, the Senate rejected the House of Representative's
proposal. The Senate pointed out that the House version of Rule
606(b)
would have the effect of opening verdicts up to
challenge on the basis of what happened during
the jury's internal deliberations, for example,
where a juror alleged that the jury refused to
follow the trial judge's instructions or that
some of the jurors did not take part in
deliberations.
Permitting an individual [juror] to attack
a jury's verdict based upon the jury's internal
deliberations has long been recognized as
unwise[.] ... [Such a rule] would permit the
harassment of former jurors by losing parties
as well as the possible exploitation of
disgruntled or otherwise badly-motivated ex-
jurors.
Public policy requires a finality to
litigation. And common fairness requires that
absolute privacy be preserved for jurors to
engage in the full and free debate necessary to
the attainment of just verdicts. Jurors will
not be able to function effectively if their
deliberations are to be scrutinized in post-
trial litigation. In the interest of pro-
tecting the jury system and the citizens who
make it work, rule 606 should not permit any
inquiry into the internal deliberations of the
jurors.
Tanner, 483 U.S. at 124-25, 107 S.Ct. at 2749-50 (quoting Senate
Report No. 93-1277, p. 13-14; United States Code Congress'l & Admin.
News 1974, p. 7060).
Because of the House and Senate's disagreement, the matter
was referred to a joint conference committee. The Conference
Committee's report highlighted Congress's understanding of the
difference between the House and Senate versions of Rule 606(b):
The House bill allows a juror to testify about
objective matters occurring during the jury's
deliberation, such as the misconduct of another
juror or the reaching of a quotient verdict.
The Senate bill does not permit juror testimony
about any matter or statement occurring during
the course of the jury's deliberations.
Tanner, 483 U.S. at 125, 107 S.Ct. at 2750 (quoting House of
Representatives Conference Report No. 93-1597, p. 8 (1974); United
States Code Congress'l & Admin. News 1974, p. 7102).
After considering these competing versions, the Conference
Committee recommended adoption of the Senate version of the rule.
Tanner, 483 U.S. at 125, 107 S.Ct. at 2750. Congress accepted this
recommendation and enacted the Senate version into law. Id.
Based on this legislative history, as well as the common-
law precedents that jurors could not be examined concerning insanity
or mental incompetence, the Tanner Court held that Evidence Rule
606(b) barred the introduction of the two jurors' affidavits
concerning juror intoxication and also barred the district court
from holding a hearing to examine any of the jurors regarding these
allegations. Tanner, 483 U.S. at 127, 107 S.Ct. at 2751. (EN3)
The Supreme Court conceded that, if post-verdict
investigation into juror misconduct were allowed, such investiga-
tions would undoubtedly uncover instances of "irresponsible and
improper jury behavior". Id. at 120, 107 S.Ct. at 2747. However,
the Court doubted whether "the jury system could survive such
efforts to perfect it". Id.
Allegations of juror misconduct, incompetency,
or inattentiveness, raised ... weeks[] or
months after the verdict, [would] seriously
disrupt the finality of the process. Moreover,
full and frank discussion in the jury room,
jurors' willingness to return an unpopular
verdict, and the community's trust in a system
that relies on the decisions of laypeople would
all be undermined by a barrage of
post[-]verdict scrutiny of juror conduct.
Id. at 120-21, 107 S.Ct. at 2747-48 (citations omitted).
Titus's case is governed by Alaska Evidence Rule 606(b)
rather than Federal Evidence Rule 606(b). Nevertheless, the
legislative history of Federal Rule 606(b) and the cases construing
that rule are pertinent to our decision of Titus's case. The
commentary to Alaska Evidence Rule 606(b) states that our rule was
modeled after Federal Evidence Rule 606(b). See Commentary, Alaska
Evidence Rule 606(b), first paragraph. Indeed, the portion of
Alaska's Rule 606(b) that governs Titus's appeal is worded
identically to its federal counterpart: a court has the authority
to take affidavits or testimony from jurors only if the jurors'
evidence concerns "the question whether extraneous prejudicial
information was improperly brought to the jury's attention".
Therefore, judicial interpretation of Federal Rule 606(b) and its
state-law progeny is an important guide to interpreting Alaska's
Rule 606(b) þ in particular, interpreting what our rule means when
it speaks of "extraneous ... information [being] improperly brought
to the jury's attention".
Cases interpreting Federal Rule 606(b) and the various
state versions of this rule are virtually unanimous in holding that
Rule 606(b) does not allow post-verdict inquiry into the private
thought processes of the jurors or the manner in which the jurors
conferred to reach their verdict þ even when it is clear that one
or more jurors violated their oath to decide the case based solely
on the evidence and the law as given by the trial judge. Thus, Rule
606(b) prohibits post-verdict examination of jurors to resolve
allegations that the jury reached a compromise or "quotient"
verdict, or that one or more jurors based their verdict on prejudice
or unfounded speculation, or based their verdict on a misunder-
standing of the facts or a blatant disregard of the law, or that a
juror's deliberations or vote was influenced by supernatural "signs"
or by physical or mental disability. Courts hold that such matters
are not "extraneous" to the jury's deliberative process.
For instance, in Scogin v. Century Fitness, Inc., 780 F.2d
1316, 1318-1320 (8th Cir. 1985), one juror confided to a bystander
following the return of the verdict that the jury had used the
forbidden quotient method to determine damages. The court held that
the juror's statement was not admissible under Evidence Rule 606(b).
The same rule holds true in criminal litigation. In United States
v. Straach, 987 F.2d 232, 241-42 (5th Cir. 1993), the court held
that Rule 606(b) prohibits the court from receiving juror evidence
that the jury reached a compromise verdict, or that the jurors
discussed the penalties that the defendant was likely to receive if
convicted of various counts (so long as the jurors did not resort
to any outside sources of information).
In United States v. Tines, 70 F.3d 891, 898 (6th Cir.
1995), cert. denied, 116 S.Ct. 1280, 134 L.Ed.2d 225 (1996), United
States v. Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995), and Robles
v. Exxon Corporation, 862 F.2d 1201, 1208-09 (5th Cir. 1989), cert.
denied, 490 U.S. 1051 (1989), the courts held that Rule 606(b)
prohibits a court from receiving a juror's testimony that the jurors
misinterpreted the trial judge's instructions. And in Mahoney v.
Vondergritt, 938 F.2d 1490, 1493-94 (1st Cir. 1991), cert. denied,
502 U.S. 1104 (1992), and United States v. Resko, 3 F.3d 684, 695
n.9 (3rd Cir. 1993), the courts held that Rule 606(b) prohibits
post-verdict inquiry into whether the jurors engaged in
deliberations before the close of the evidence.
In United States v. DiSalvo, 34 F.3d 1204 (3rd Cir. 1994),
one juror remarked during deliberations, "You can't get into this
situation without being guilty." The court held that Rule 606(b)
barred juror testimony concerning this remark. Id. at 1224-25. In
United States v. Martinez-Moncivais, 14 F.3d 1030 (5th Cir. 1994),
cert. denied, 115 S.Ct. 72, 130 L.Ed.2d 27 (1994), two jurors
suggested that, if the defendant was truly innocent, he would have
taken the stand. Here, too, the court held that Rule 606(b) barred
juror testimony concerning this matter. Id. at 1036-37. Accord
State v. DeGrat, 913 P.2d 568, 570-71 (Idaho 1996) (holding that
Idaho Evidence Rule 606(b) bars evidence that the jurors held the
defendant's failure to testify against him).
In United States v. Thomas, 946 F.2d 73 (8th Cir. 1991),
a juror remarked during deliberations that an attorney friend had
told her that criminal defendants rely on self-defense only when
there is no other defense available. Upon inquiry into this
incident, the trial court found no evidence that the juror's
conversation with the attorney occurred during the trial. Based on
this finding that the juror possessed her legal "knowledge" before
the trial began, the appeals court held that further inquiry into
this matter was barred by Evidence Rule 606(b). Id. at 75-76.
In United States v. Webster, 960 F.2d 1301, 1304-06 (5th
Cir.), cert. denied, Nelson v. State, 506 U.S. 927 (1992), the court
held that Rule 606(b) bars inquiry into whether a juror's hearing
problem was so acute as to effectively prevent the juror from
meaningfully participating in deliberations. In United States v.
Hernandez-Escarsega, 886 F.2d 1560, 1579 (9th Cir. 1989), cert.
denied, 497 U.S. 1003 (1990), one of the jurors apparently believed
that she had received a sign from God concerning the proper verdict
when another juror wore his blue blazer on a particular day. The
court held that inquiry into this juror's decision-making process
was barred by Evidence Rule 606(b). Similarly, in State v. DeMille,
756 P.2d 81 (Utah 1988), one of the jurors confided after the
verdict that God had given her a sign that the defendant was guilty.
(The sign was that the defendant's attorney failed to make eye-
contact with the juror during summation.) The court held that the
juror's belief that she had received divine revelation did not
constitute "extraneous" information, and thus Evidence Rule 606(b)
barred inquiry into the juror's statement. Id. at 83-84.
The rule is quite different when the court is called upon
to investigate the possibility of third-party influence on the jury.
Rule 606(b) authorizes a court to examine jurors regarding the
possibility that "any outside influence was improperly brought to
bear upon any juror". Thus, Rule 606(b) carries forward the common-
law rule that "[p]rivate communications ... between jurors and third
persons ... are absolutely forbidden, and invalidate the verdict,
at least until their harmlessness is [demonstrated]." Mattox v.
United States, 146 U.S. 140, 150; 13 S.Ct. 50, 53; 36 L.Ed. 917
(1892).
Alaska decisions are consistent with federal cases on this
issue. For example, this court has allowed post-verdict examination
of jurors to determine whether a juror had a conversation with the
crime victim during trial, Swain v. State, 817 P.2d 927 (Alaska App.
1991), and whether the jurors were exposed to a newspaper article
during trial that contained inadmissible evidence, Ciervo v. State,
756 P.2d 907 (Alaska App. 1988), overruled in part by Swain.
But Swain and Ciervo do not answer the question presented
in Titus's case. Titus claims that his trial was unfair, not
because the jurors obtained information from third parties, but
because the jurors relied on their own personal knowledge of Titus
or their knowledge of Titus's reputation þ knowledge that the jurors
possessed when the trial began.
It might be argued that the term "extraneous information"
encompasses any and all information outside of the evidence properly
admitted at trial. However, both the Alaska Supreme Court and this
court have rejected such an interpretation of Alaska Evidence Rule
606(b).
In Tellier v. Ford Motor Company, 827 P.2d 1125 (Alaska
1992), the trial judge had issued a protective order barring Ford
Motor Company from introducing evidence of Tellier's prior
conviction for sexual abuse of a minor. However, through the
parties' inadvertence, the jury received a trial exhibit that
contained information about Tellier's prior conviction. Id. at
1126. After the jury returned a verdict in favor of Ford Motor
Company, the error was discovered and Tellier sought a new trial.
Tellier contended that the information about his prior conviction
unfairly prejudiced the jurors against him. Id. at 1126-27. Trying
to defend the verdict, Ford Motor Company submitted affidavits from
two jurors. According to these two affidavits, the jury had not
discovered the improper evidence until after their deliberations
were concluded. Id.
On appeal, Tellier argued that Ford Motor Company violated
Evidence Rule 606(b) when it obtained and presented the jurors'
affidavits. The Supreme Court agreed:
Because Ford questioned [the two jurors] as to
the effect on the jury of the references to
Tellier's prior conviction contained in Exhibit
B, and because those references were not
"extraneous" for purposes of [Evidence] Rule
606(b), we find that Ford violated Rule 606(b)
in taking the affidavits. We therefore do not
consider the affidavits in deciding this case.
Tellier, 827 P.2d at 1127 n.1 (emphasis added). Thus, the Supreme
Court apparently held that inadmissible evidence is not "extraneous"
if it comes to the jury's attention during the normal trial process,
even when the jury's knowledge of the information arises from a
procedural mistake.
This court reached a similar conclusion in Turpin v.
State, 890 P.2d 1128 (Alaska App. 1995). The defendant in Turpin
was convicted of sexual abuse of a minor. On appeal, he contended
that the prosecutor had made an improper comment to the jury during
opening statement þ a comment implying that Turpin had committed
other, uncharged acts of sexual abuse. Id. at 1130. Turpin did not
object to the prosecutor's remark at the time, but, after the jury
found him guilty, Turpin sought a new trial based on the
prosecutor's comment. Id. According to Turpin's motion, two jurors
who were interviewed after the trial indicated that, based on the
prosecutor's remark, they believed that Turpin probably had
committed other acts of sexual abuse. Id.
Turpin's attorney conceded that Evidence Rule 606(b)
restricts a court's ability to question jurors about their verdict,
but he contended that the prosecutor's comment was "extraneous"
because it was improper (that is, the jury never should have heard
it). Id. at 1131. This court rejected Turpin's contention:
"[E]xtraneous" information refers to
information that reaches the jury other than
through the normal trial process; it does not
refer to objectionable statements of counsel
made during trial or objectionable testimony
given at trial. See Stephen A. Saltzburg,
Michael M. Martin, & Daniel J. Capra, Federal
Rules of Evidence Manual (6th ed. 1994), Vol.
2, p. 777[.] ...
Turpin's interpretation of "extraneous"
information would essentially gut Rule 606(b),
since it would allow impeachment of a verdict
whenever the jurors heard improper arguments of
counsel, improperly admitted evidence, or any
questions or answers to which objections were
sustained. Because claims of such errors arise
at practically every trial, virtually any jury
verdict would be subject to inquiry under
Turpin's suggested reading of Rule 606(b). We
reject this reading of the rule.
Turpin, 827 P.2d at 1131.
Still, Tellier and Turpin do not resolve Titus's case.
The jurors in Titus's case did not obtain their challenged knowledge
of Titus through the trial process. Instead, that knowledge was
part of the life experience they brought with them when jury
selection began. Tellier and Turpin do not answer the question of
whether such knowledge is "extraneous" information (so that the
superior court might properly receive and consider the jurors'
testimony in resolving Titus's attack on the verdict).
Titus's case would be more easily resolvable had he
presented evidence suggesting that the jurors concealed their
knowledge of him during voir dire. If the superior court had been
presented with evidence suggesting that one or more of the jurors
had either intentionally or recklessly concealed their knowledge of
Titus during voir dire, then, notwithstanding Evidence Rule 606(b),
the superior court would have been authorized to examine the jurors
to determine (1) if the challenged jurors had in fact concealed
material knowledge during voir dire and, if so, (2) whether the
jurors relied on this previously concealed knowledge during jury
deliberations. Fickes v. Petrolane-Alaska Gas Service, Inc., 628
P.2d 908, 910-11 (Alaska 1981).
Fickes involved a claim for damages arising from an
explosion at a trailer court. The plaintiffs claimed that the
explosion had been caused by a gas leak, and that the gas had been
leaking because the defendant had negligently installed or had
negligently maintained the gas lines. The jury found for the gas
company. Id. at 909. After the verdict was returned, three of the
jurors filed affidavits attacking the verdict. These jurors claimed
that, during deliberations, a juror named Vandenberg had relied on
his personal knowledge of one of the witnesses, a mechanic named
Whaley. According to the affidavits, Vandenberg told the other
members of the jury that he knew Whaley to be a good mechanic, and
that if Whaley performed the repairs on the Petrolane system, those
repairs undoubtedly were done properly. Id. at 910.
Based upon these affidavits, the supreme court concluded
that Vandenberg "either intentionally or inadvertently failed to
disclose [during voir dire] that he knew ... Whaley", and that
Vandenberg's failure to disclose this pertinent fact was "tantamount
to an obstruction of justice".
We hold that [a juror's] failure ... to
acknowledge an acquaintance with a witness,
[followed by the juror's argument concerning]
the probability of a fact ... based on that
acquaintance, that is, based on evidence
outside the record, constitutes an obstruction
of justice.
Fickes, 628 P.2d at 911.
The Fickes decision was based on the common law. (EN4)
However, the holding in Fickes þ that a jury verdict can be attacked
by showing that jurors concealed material facts during voir dire þ
is consistent with the policy of Evidence Rule 606(b). In fact,
cases decided under Rule 606(b) unanimously agree that this
continues to be the correct result.
Rule 606(b) restricts a court's ability to examine jurors
when the purpose of the inquiry is to invalidate the jury's verdict
based on "any matter or statement occurring during the course of the
jury's deliberations". In Fickes, on the other hand, the juror's
statements were introduced to show that the juror failed to reveal
material information during voir dire þ information that would have
affected whether the juror became a member of the jury in the first
place. While the collateral consequence of voir dire fraud might
often be invalidation of the verdict, the Fickes opinion clearly
focused on the defect in voir dire. (EN5)
Current federal case law comes to the same conclusion
under Rule 606(b). As summarized in Stephen A. Saltzburg, Michael
M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual (6th
ed. 1994), Vol. 2, p. 776:
[Federal] Rule 606(b) would appear to
preclude testimony concerning the effect of a
juror's bias on deliberations. [See, e.g.,
Martinez v. Food City, Inc., 658 F.2d 369 (5th
Cir. 1981) (evidence of "improper motives of
individual jurors" is excluded under Rule
606(b); such biases should be uncovered when
the jury is being selected).] However,
assuming that voir dire is minimally adequate,
a juror who is unwavering in his bias is likely
to have lied during voir dire. Rule 606(b)
applies to jury deliberations, but it does not
apply to pretrial voir dire. Accordingly,
evidence could be presented about the juror's
lies on voir dire in an attempt to overturn a
verdict. [See, e.g., United States v. Colombo,
869 F.2d 149 (2nd Cir. 1989) ... ; State v.
Martinez, 566 P.2d 843 (N.M. App. 1977) (Court
held that [the] state version of Rule 606(b)
allowed an inquiry into ... whether a juror
lied on voir dire, because the issue did not
involve impeaching the verdict, but rather the
qualifications of one of the jury members to
serve as a juror).] The primary focus would be
on what one juror did and the way he felt
before the deliberations, rather than on
anything done during the deliberations.
(The bracketed text indicates footnotes in the original.) Accord,
Rios v. Danuser Machine Co., Inc., 792 P.2d 419, 423 (N.M. App.
1990).
However, Titus has never claimed that the jurors in his
case concealed their knowledge of him during voir dire. As noted
above, it appears that the Fort Yukon jurors were more than willing
to admit their acquaintance with Titus during voir dire. The record
shows that all but one of the jurors selected to try this case
either knew Titus personally or knew of Titus and had heard about
the case prior to trial. (Titus chose to leave these people on his
jury; he did not exercise all of his peremptory challenges.)
The question then becomes: in the absence of an
allegation of voir dire misconduct, does Evidence Rule 606(b) allow
a court to question jurors after they have returned their verdict
to determine whether one or more jurors used their pre-existing
personal knowledge to decide the case, or whether any jurors
communicated their pre-existing knowledge during deliberations?
Cases decided under Federal Evidence Rule 606(b), as well as cases
decided under state evidence rules based on Federal Rule 606(b), are
essentially unanimous in concluding that a court is barred from
conducting this type of post-verdict inquiry þ because a juror's
pre-existing knowledge is not "extraneous" information.
In Hard v. Burlington Northern Railroad Co., 870 F.2d 1454
(9th Cir. 1989), the parties were litigating a personal injury
action brought by a railroad employee. One of the jurors happened
to have personal experience working for a railroad. Id. at 1459.
This same juror also had acquired some familiarity with x-rays while
serving in the military. Id. at 1460. During deliberations, the
juror commented on his experience in the railroad industry, and he
offered his own interpretation of the x-ray evidence. The court
held that the juror's reliance on his personal knowledge did not
constitute "extraneous information" for purposes of Federal Evidence
Rule 606(b), and thus the trial court was prohibited from examining
the jurors about these matters. Id. at 1462.
In State v. Kelman, 915 P.2d 854 (Mont. 1996), one of the
jurors remarked during deliberations that "she believed that Dave
Kelman owned the Playground Bar in Great Falls". The Playground Bar
was apparently a strip club of bad repute. Id. at 859. The court
held that the juror's prior knowledge of Kelman's association with
the Playground Bar was not "extraneous" information, and thus
Montana Evidence Rule 606(b) barred further inquiry. Id. at 860.
In State v. Hage, 853 P.2d 1251 (Mont. 1993), the jury
apparently relied on one juror's assertion that, from personal
knowledge, he knew that a log was kept of all telephone calls made
from the jail. Id. at 1256. The court held that Montana Evidence
Rule 606(b) barred the court from examining the jurors about this
aspect of their deliberations because such pre-existing knowledge
is not "extraneous". Id. at 1257-58.
In People v. Szymanski, 589 N.E.2d 148 (Ill. App. 1992),
one of the jurors lived in the area where the crime occurred. Being
familiar with the area, she drew a map for the other jurors' use
during deliberations. Id. at 151. The court held that the juror's
pre-existing knowledge of the area was not "extraneous" information.
Id. at 152.
In Garcia v. State, 777 P.2d 603 (Wyo. 1989), one or more
jurors commented during deliberations on the fact that they had seen
the defendant in handcuffs. Another juror responded that he knew
that the defendant had been in trouble with the law before. Id. at
608. The court held that these statements did not reflect
"extraneous" information, and thus Wyoming Evidence Rule 606(b)
barred further inquiry. The court declared that "[n]ormal jury
deliberations [will not be overturned] merely because the jurors'
generalized knowledge about the parties or some other aspect of the
case is an ingredient of the [jury's] decision." Id.
In Brooks v. Zahn, 826 P.2d 1171, 1176-78 (Ariz. App.
1991), one of the jurors was a registered nurse who relied upon her
medical knowledge and experience during the deliberations. The
court held that the juror's prior knowledge was not "extraneous",
and therefore the court was prohibited by Arizona Evidence Rule
606(b) from examining the jurors about this matter. Similarly, in
State v. Aguilar, 818 P.2d 165 (Ariz. App. 1991), one of the jurors
was a medical doctor. He "shared with the other jurors [his] fund
of knowledge ... regarding alcohol and cocaine ... blackouts." Id.
at 166. He also told the other jurors that he disagreed with the
defendant's expert witness who had testified that the defendant
lacked criminal intent because of his alcohol and cocaine
consumption. Id. at 166-67. The court held that the doctor's
knowledge was not "extraneous" information, and thus Arizona
Evidence Rule 606(b) prohibited the court from receiving the jurors'
testimony on this matter. Id. at 167.
See also State v. DeMille, 756 P.2d 81 (Utah 1988), in
which the defendant was convicted of second-degree murder after a
three-year-old child left in his care died from a massive skull
fracture. During deliberations, some of the jurors referred to
their personal experiences of child abuse and spoke openly of their
personal bias against child abusers. Id. at 83. The court held
that, because the jurors had not been voir dired about these matters
(that is, they had not deceived the court or the parties about their
past experiences or their potential biases), the defendant was
foreclosed from arguing that the jurors were biased in their
deliberations. (EN6)
Based on the foregoing authorities, we conclude that the
jurors' prior knowledge of Titus (his character, his activities
before trial, and/or his reputation) did not constitute "extraneous"
information for purposes of Alaska Evidence Rule 606(b). The
superior court was therefore prohibited from receiving the jurors'
evidence upon these subjects when the court decided Titus's attack
on the verdict.
Although our decision is adequately supported by the case
law discussed above (defining the meaning of "extraneous"), we
believe that our interpretation of Evidence Rule 606(b) is the
correct result for another reason. Both the Federal Constitution
and the Alaska Constitution contain guarantees that favor holding
criminal trials in the locality of the alleged crime. See United
States Constitution, Article III, Section 2, and Sixth Amendment;
Alaska Constitution, Article I, Section 11, as interpreted in
Alvarado v. State, 486 P.2d 891 (Alaska 1971). These guarantees are
premised on the idea that the jury functions as a representative
body, that it should express the knowledge and sentiments of the
community affected by its decisions, and that jurors should
therefore be chosen from among the people who live in that locality.
In other words, the drafters of the two constitutions believed that,
generally speaking, there is a better chance that justice will be
done if jurors are selected from people familiar with the
community's culture and general conditions of life.
The necessity for selection of juries from
a source which truly represents a fair cross
section of the community cannot be over-
emphasized. The jury is an essential institu-
tion in our democracy, and [it] serves
multifaceted purposes. It is, of course,
primarily charged with the task of finding the
truth of the facts asserted. Yet beyond its
[role] as a finder of fact, the jury fulfills
other equally vital political and psychological
purposes. ... As an institution, the jury
offers our citizens the opportunity to
participate in the workings of our government,
and [it] serves to legitimize our system of
justice in the eyes of both the public and the
accused.
Alvarado, 486 P.2d at 903.
Because of the constitutional preference for holding
trials in the locality where the crime occurred, prospective jurors
will often possess more particularized knowledge of the case than
simply an understanding of the physical and cultural milieu in which
it arose. This is especially true in Alaska, a state containing
many towns and villages with populations of less than a thousand.
In such localities, essentially all eligible jurors will know the
defendant, the victim, and any other major witnesses, either
personally or by reputation.
Community knowledge of the defendant does not necessarily
mean that the defendant has secured a "home court advantage".
Sometimes, the community's knowledge of the defendant will work
against him rather than in his favor. The law recognizes the
defendant's right to seek a change of venue because of local
prejudice against him. See Alvarado, 486 P.2d at 904 n.38.
However, given the law's preference for holding trials in the
neighborhood of the crime, and given the law's recognition that
jurors should bring their life experience with them to the jury
room, it would be essentially self-defeating for courts to
invalidate jury verdicts whenever it was shown that the jurors'
personal knowledge of the surrounding facts or their personal
knowledge of the participants was broader than the evidence admitted
at trial.
This is especially true in cases like Titus's, where a
defendant actively seeks trial in a locality where he or she is
well-known. As Titus candidly admits in his brief to this court,
he "erroneously assumed that his reputation [in the community] would
assure a not guilty verdict". Under such circumstances, courts
quite properly should be cautious when they are asked to overturn
a jury verdict based on allegations that the jurors relied to some
extent on their knowledge of the defendant or his reputation in the
community. Otherwise, defendants like Titus would be able to "take
a gambler's risk and complain only if the cards fell the wrong way".
Turpin v. State, 890 P.2d 1128, 1130 (Alaska App. 1995) (quoting
Owens v. State, 613 P.2d 259, 261 (Alaska 1980)).
Conclusion
Alaska Evidence Rule 606(b) barred Judge Green from
examining the jurors concerning the matters raised in Titus's motion
for new trial. We therefore REVERSE the superior court's order
granting Titus a new trial, and we reinstate the jury's verdict.
ENDNOTES:
1. Under AS 12.30.040(b)(1), a defendant convicted of first-
degree sexual assault "may not be released on bail either before
sentencing or pending appeal". Judge Greene allowed Titus to
remain at large by the expedient of refusing to accept the jury's
verdict for two weeks. The judge took this action solely to avoid
the effect of the bail statute; no one suggested at that time that
there was any potential infirmity in the jury's verdict.
2. We intend no disrespect by the use of Ms. James's first name.
As explained later in this opinion, the second of the three jurors
called to testify at the hearing also had the last name "James".
We therefore are using the jurors' first names to distinguish them.
3. But see Lowery v. State, 762 P.2d 457, 464 (Alaska App. 1988),
in which this court upheld a trial court's authority to examine
jurors concerning their consumption of alcohol. This court
recognized Tanner but found it distinguishable because the jurors
in Lowery's case had gone out to drink in violation of a
sequestration order. Thus, the aim of the trial court's inquiry
was not to impeach the validity of the jury's deliberative process,
but rather to determine whether the break in sequestration had been
harmless. Compare our discussion of Fickes v. Petrolane-Alaska,
628 P.2d 908 (Alaska 1981) at pages 22-24 of this opinion.
4. Although the supreme court issued Fickes in May 1981 (about a
year and a half after the enactment of the current Alaska Rules of
Evidence), the court did not mention Rule 606(b) in its opinion and
instead relied on cases construing the common law of evidence.
(The explanation may be that the trial court proceedings litigated
in Fickes occurred before the effective date of the new rules of
evidence.) Despite the common-law foundation of Fickes, this
court's decisions in Swain and Ciervo assumed that Fickes continued
to be good law even after the enactment of Evidence Rule 606(b).
As explained in the main text, this assumption is borne out by
judicial decisions under Rule 606(b).
5. When the court assessed whether Vandenberg's failure to reveal
his knowledge of the mechanic required a new trial, the supreme
court's first question was, "[I]f the party asserting prejudice had
known the true facts, is it probable that [the party] would have
challenged the juror?" Fickes, 628 P.2d at 911. The court
indicated that the answer to this question was just as important as
determining whether the juror's comment had prejudiced the jury's
consideration of a crucial claim or defense. Id.
6. But see Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987), a
case in which a certain juror evinced racial prejudice during
deliberations. The court recognized the all-but-unanimous author-
ity that Evidence Rule 606(b) bars inquiry into jurors' statements
of racial prejudice, and the court ultimately denied Shillcutt's
habeas corpus petition. However, the court cautioned that its
decision was based partly on its conclusion that the remarks in
question were not egregious. Id. at 1159-60. The court declared
that, even though Evidence Rule 606(b) barred inquiry, the court
would not allow Rule 606(b) to "be applied in such an unfair manner
as to deny due process". Id. at 1159. The court indicated its
willingness to authorize juror examination, even in the face of
Rule 606(b)'s prohibition, "in order to discover the extremely rare
[case in which racial] prejudice pervaded the jury room". Id.
