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Larson v. State (10/24/2003) ap-1904
Larson v. State (10/24/2003) ap-1904
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LOREN J. LARSON, JR., )
) Court of Appeals No.
A-8208
Appellant, )
Trial Court No. 4FA-96-3495 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1904 October 24, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: James H. McComas, Anchorage,
for the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In early 2000, this Court affirmed Loren J. Larsons
convictions on two counts of first-degree murder and one count of
burglary.1 A little over one year later, Larson filed a petition
for post-conviction relief in which he alleged that several
members of his jury had engaged in misconduct during his trial.
Specifically, Larson asserted that several jurors
violated the trial judges instructions by (1) forming and
announcing opinions about Larsons guilt before the case was
submitted to the jury, (2) discussing the merits of the case with
other jurors before the case was submitted to the jury, and (3)
relying on their own personal knowledge (rather than evidence
presented at trial) concerning how loud a shot from a .22 caliber
rifle would be, and concerning the breakage characteristics of
glass used in construction vehicles. In addition, Larson
asserted that several jurors improperly declared or apparently
agreed (4) that Larsons decision not to testify was an indication
that Larson was guilty, and (5) that Larsons wifes absence from
the courtroom was an indication that she believed Larson was
guilty.
But Larson faced a legal problem: His assertions of
juror misconduct were supported solely by the affidavits of
jurors. (The affidavits were supplied by some of the jurors who
decided Larsons case, as well as the two alternates who sat
through the trial but were then excused as deliberations
commenced.) Alaska Evidence Rule 606(b) states that, generally,
a litigant can not rely on juror affidavits to attack a jury
verdict. Rule 606(b) contains only two exceptions: an attack on
a jury verdict can be supported by juror affidavits only when
those affidavits are offered to prove (1) that extraneous
prejudicial information was improperly brought to the jurys
attention or (2) that [some] outside influence was improperly
brought to bear upon any juror. The superior court concluded
that the alleged jury misconduct in this case did not fall within
either of these exceptions, and that Evidence Rule 606(b)
therefore prohibited Larson from relying on the juror affidavits.
Accordingly, the court dismissed Larsons petition for post-
conviction relief.
Larson now challenges the superior courts ruling. His
primary argument is that Evidence Rule 606(b) prohibits the use
of juror affidavits to attack a verdict only when those
affidavits describe misconduct that occurred during not before
the jurys formal deliberations. Larson contends that Rule 606(b)
does not apply to the juror affidavits he presented in his case,
because these affidavits describe misconduct that occurred before
his case was submitted to the jury.
Larson further argues that when jurors blatantly
violate their oaths and their duties as jurors, they lose their
status as jurors and instead become an outside influence thus
making evidence of their misconduct admissible under the
provision of Rule 606(b) that allows the use of juror affidavits
to prove (or disprove) that any outside influence was improperly
brought to bear upon any juror.
Finally, Larson contends that the alleged juror
misconduct in his case was so egregious that, if the allegations
are true, this misconduct constituted an obstruction of justice
and a denial of due process. Accordingly, Larson argues that he
has a right (either as a matter of state law or as a matter of
federal constitutional law) to use juror affidavits to prove his
allegations of juror misconduct, despite the general prohibition
contained in Evidence Rule 606(b).
For the reasons explained here, we reject Larsons
construction of Evidence Rule 606(b). We hold that the
admissibility of juror affidavits under Rule 606(b) turns on the
type of impropriety they describe, not the timing of that
impropriety. Because the juror affidavits in Larsons case
describe matters that inhere in the jurys decision-making process
(a concept that we explain in this opinion), Evidence Rule 606(b)
bars the use of these affidavits.
We further reject Larsons argument that jurors who
engage in misconduct cease being jurors. Finally, we hold that
the application of Evidence Rule 606(b) to Larsons case does not
deprive him of due process of law or any other constitutional
right. Accordingly, we conclude that the superior court was
correct when it dismissed Larsons petition for post-conviction
relief.
The rule at issue in this case: Alaska Evidence Rule
606(b)
The two subsections of Alaska Evidence Rule
606 define the situations in which litigants are barred
from offering the testimony or affidavits of jurors.
Evidence Rule 606(a) states that jurors are barred from
testifying as witnesses at the trial they are judging.
Evidence Rule 606(b) addresses the question of whether
a litigant can offer juror testimony or juror
affidavits to attack a jurys decision (or defend the
decision from attack):
(b) Inquiry Into [the] Validity of [a]
Verdict or Indictment. Upon an inquiry into
the validity of a verdict or indictment, a
juror may not be questioned as to any matter
or statement occurring during the course of
the jurys deliberations or to the effect of
any matter or statement 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 on
the question whether extraneous prejudicial
information was improperly brought to the
jurys attention or whether any outside
influence was improperly brought to bear upon
any juror. Nor may a jurors affidavit or
evidence of any statement by the juror
concerning a matter about which the juror
would be precluded from testifying be
received for these purposes.
The first thing to note is that Evidence Rule 606(b)
does not apply when the issue of potential jury
misconduct is litigated before the jury returns its
verdict. The rule prohibits the use of juror testimony
and juror affidavits in an inquiry into the validity of
a verdict, but it does not restrict the use of this
evidence when the court investigates potential juror
misconduct before the jury renders its decision.
Turning to post-verdict inquiries, Evidence Rule 606(b)
declares that juror testimony and juror affidavits can
not be offered for any of these purposes: (1) to prove
any matter or statement occurring during the course of
the jurys deliberations, or (2) to prove the effect of
any matter or statement upon that [jurors] or any other
jurors mind or emotions as influencing the juror to
assent to or dissent from the verdict, or (3) to prove
the jurors mental processes in connection therewith
[i.e., in connection with the jurors decision to assent
to or dissent from the verdict].2
Rule 606(b) declares that there are two exceptions to
the prohibitions described in the preceding paragraph.
According to the rule, juror testimony and juror
affidavits can be offered on the issues of (A) whether
extraneous prejudicial information was improperly
brought to the jurys attention, or (B) whether any
outside influence was improperly brought to bear upon
any juror.
In practice, however, Rule 606(b) has been interpreted
so that these two exceptions apply only to the first prohibition
the prohibition on the use of juror testimony or juror affidavits
to prove any matter or statement occurring during the course of
the jurys deliberations. That is, juror testimony and juror
affidavits can be offered to prove or disprove the occurrence of
the improper events described in the two exceptions jurors
receipt of extraneous prejudicial information, or the subjection
of jurors to outside influence but Rule 606(b) still bars juror
testimony and affidavits when offered to prove the effect of
these events on the jurors mental processes. Swain v. State, 817
P.2d 927, 932-33 (Alaska App. 1991).
In his petition for post-conviction relief, Larson
offered juror affidavits to prove (1) that some jurors formed and
announced opinions about Larsons guilt during the trial, before
the case was submitted to the jury, (2) that some jurors
discussed the merits of the case before the case was submitted to
the jury, (3) that some jurors viewed Larsons decision not to
testify as an indication of his guilt, and (4) that some jurors
viewed Larsons wifes absence from the trial as an indication that
she believed Larson was guilty. None of these allegations appear
to fall within the two exceptions specified in Rule 606(b) the
exceptions for extraneous prejudicial information and [improper]
outside influence.
Larson also offered juror affidavits to prove (5) that
one or more jurors reached their decision by relying on
information beyond the evidence presented at trial specifically,
jurors personal knowledge of how loud a shot from a .22 caliber
rifle would be, and jurors personal knowledge concerning the
breakage characteristics of glass used in construction vehicles.
One could potentially argue that these jurors personal knowledge
constituted extraneous prejudicial information. However, the
Alaska Supreme Court rejected this interpretation of Rule 606(b)
in Titus v. State, 963 P.2d 258 (Alaska 1998).
In Titus, the supreme court held that a jurors pre-
existing ... knowledge of a general nature does not constitute
extraneous prejudicial information for purposes of Rule 606(b).
Id. at 262. The court declared that a juror who discusses his or
her general knowledge during deliberations, such as a familiarity
with x-ray technology, has not introduced extraneous prejudicial
information into the jury room. Id. Accordingly, even if
Larsons jurors discussed their personal knowledge of the
characteristics of .22 caliber firearms and construction-vehicle
glass, this would not fall within the exceptions listed in Rule
606(b).
Larson nevertheless offers two arguments why the juror
affidavits are admissible despite Evidence Rule 606(b)s apparent
bar.
First, Larson argues that Rule 606(b) applies only to
evidence concerning what was said and done during the jurys
formal deliberations i.e., what was said and done after the
trial judge instructed the jury and directed them to decide the
case. Larson contends that the alleged juror misconduct in his
case can be established through juror affidavits because that
misconduct occurred before the jurys formal deliberations.
Second, Larson argues that if any of the jurors engaged
in the types of misconduct he alleges forming opinions
concerning Larsons guilt or innocence before the trial was over,
discussing the merits of the case before the judge ordered the
jury to begin its formal deliberations, and holding Larsons
failure to testify against him then these jurors forfeited their
status as jurors and became, in effect, outside influences.
Thus, Larson argues, their misconduct falls within one of Rule
606(b)s listed exceptions so that the rule allows the misconduct
to be proved by juror testimony or juror affidavits.
(Because Larson relies in part on the affidavits of two
alternate jurors, one additional question is potentially raised
by Larsons case: whether Evidence Rule 606(b) applies to
evidence offered by alternate jurors as well as evidence offered
by the jurors who ultimately decide the case. Both Larson and
the State assume that Rule 606(b) applies to alternate jurors,
and our limited research on this issue supports the parties
position. See State v. Reiner, 731 N.E.2d 662, 670-73 (Ohio
2000). We therefore assume, for purposes of this case, that
Evidence Rule 606(b) governs testimony or affidavits supplied by
alternate jurors.)
Evidence Rule 606(b) applies to the allegations of
juror misconduct in Larsons case, even though that
misconduct occurred before the jury commenced its
formal deliberations
Larsons first argument that Rule 606(b) does
not cover juror misconduct that occurs before formal
deliberations finds some support in the wording of the
rule. The rule states that when the validity of a
verdict is at issue, a juror may not be questioned as
to any matter or statement occurring during the course
of the jurys deliberations. (Emphasis added.) This
same phrasing in the federal counterpart to our rule,
Federal Evidence Rule 606(b), led four members of the
United States Supreme Court the dissenters in Tanner
v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97
L.Ed.2d 90 (1987) to conclude that Federal Evidence
Rule 606(b) should be interpreted to permit juror
testimony or juror affidavits dealing with events that
occurred during the trial, before formal deliberations
began. See Tanner, 483 U.S. at 138-140, 107 S.Ct. at
2757-58 (Marshall, J., dissenting).
However, the dissenters view of the rule did
not carry the day. The Tanner majority decided that
Federal Evidence Rule 606(b) precluded the post-verdict
use of juror testimony or juror affidavits alleging
misconduct that occurred during the trial
specifically, the allegation that certain jurors drank
excessive amounts of alcoholic beverages during the
jurys lunch breaks and became so intoxicated as to be
unable to meaningfully follow the progress of the
trial.3 The Tanner court noted that Rule 606(b) does
not preclude jurors from report[ing] inappropriate
juror behavior to the court before they render a
verdict (emphasis in the original)4, nor does the rule
preclude litigants from later seek[ing] to impeach the
verdict by non[-]juror evidence of misconduct.5
But the Tanner majority held that this
misconduct could not be proved by juror testimony or
affidavit after the verdict.
The federal courts who have addressed this
issue after Tanner have been reluctant to construe
Federal Evidence Rule 606(b) in a way that would
completely preclude post-verdict inquiry into the jurys
internal decision-making, particularly if there were
strong evidence that the jurys decision was the direct
product of overt racial bias. See Shillcutt v. Gagnon,
827 F.2d 1155 (7th Cir. 1987), and Stephen A.
Saltzburg, Michael M. Martin, and Daniel J. Capra,
Federal Rules of Evidence Manual (8th ed. 2002), Vol.
3, pp. 606-5 606-6 and 606-13 606-14.
But the federal cases are virtually unanimous
in rejecting post-verdict attacks based on allegations
of the types presented in Larsons case i.e.,
allegations that jurors prematurely discussed the
merits of the case, or prematurely formed opinions
about the defendants guilt or innocence. As the
District of Columbia Circuit noted in United States v.
Williams-Davis, 90 F.3d 490 (D.C. Cir. 1996), the
precise legal basis of these federal decisions is
slightly obscure.6 However, it seems that all of the
federal courts agree that even if [Federal Evidence]
Rule 606(b) does not actually bar receipt of [juror]
evidence of pre-deliberation discussions, a trial court
is virtually automatically justified in declining to
pursue such an inquiry.7 See the cases discussed in
Williams-Davis, 90 F.3d at 504-05, and United States v.
Gigante, 53 F.Supp.2d 274, 276-77 (E.D. N.Y. 1999).
Larson urges us to construe Alaskas Rule
606(b) in a different way, by adopting the approach of
the Tanner dissenters and holding that Rule 606(b)
speaks solely to events that occur during a jurys
formal deliberations. One state court has interpreted
its rule in this fashion: see State v. Cherry, 20
S.W.3d 354 (Ark. 2000).
Although Larsons suggested interpretation of
Evidence Rule 606(b) is tenable, we conclude that it
must be rejected because it leads to results that are
incompatible with the policies underlying Rule 606(b).
As our supreme court acknowledged in Titus v.
State, Alaska Evidence Rule 606(b) represents a
compromise between competing values. On the one hand,
we must take steps to ensure that verdicts are accurate
and that they are reached through a fair process.8 On
the other hand, the health of the jury system requires
that we take steps to protect jurors from harassment,
to encourage free jury deliberation, and to promote the
finality of verdicts.9 The commentary to Evidence Rule
606(b) expands on these themes:
Allowing inquiry into the mental
operations and emotional reactions of jurors
in reaching a given verdict would invite
constant review ... . Moreover, even without
[post-verdict] pressure by [attorneys] or
litigants, many jurors are likely to have
second thoughts about their verdicts after
they are excused by the Court and the
influence of fellow jurors dissipates. Such
second thoughts might cause jurors to
question their verdicts if permitted to do
so. Yet these polic[ies] are not promoted by
a blanket prohibition against inquiry into
irregularities [resulting] from prejudicial
extraneous information or influences injected
into or brought to bear upon the deliberative
process.
The line between what is the proper
subject of subsequent inquiry and what is to
be insulated from review is a fine one. ...
Hard cases remain[,] and [these] must be
decided with [the] policies underlying the
rule in mind: to insulate the deliberative
process and to promote the finality of
verdicts while not foreclosing testimony as
to ... extrinsic forces erroneously injected
into the process.
Commentary, Evidence Rule 606(b), excerpted
from paragraphs two, three, and five.
The approach taken by the Tanner
dissenters allowing unrestricted inquiry
concerning any events or statements that
occurred before the jury commenced its formal
deliberations may have seemed harmless
enough under the facts of Tanner, where it
was alleged that several jurors became too
intoxicated to meaningfully follow the
progress of the trial. But the allegations
raised in Larsons case allegations that some
jurors discussed the evidence and formed
opinions about the case before the jury began
its formal deliberations demonstrate the
dangers of this approach.
Although we instruct jurors to
completely withhold judgement until they have
heard all the evidence, the summations, and
the jury instructions, a moments reflection
will show that this is all but impossible.
As the evidence is presented and the
attorneys litigation strategies become clear,
thinking jurors will inevitably form at least
tentative opinions concerning the credibility
of various witnesses and the relative
strength of the litigants positions. The
real point of our admonition is to make sure
that jurors keep an open mind to make sure
that their opinions remain tentative until
the entire case has been presented and the
jurors have heard the trial judges
instructions.
In the same vein, although jurors
are admonished to refrain from discussing the
case until their formal deliberations
commence, we have no doubt that there are
many trials in which one or more members of a
jury prematurely remark on the credibility of
the testimony they have heard or express some
opinion about the anticipated outcome of the
case.
These deviations from proper
procedure do not suggest that the ensuing
deliberations are tainted or that the
resulting verdict should be distrusted. Even
though improprieties of these types may have
occurred, they do not undermine the jurys
ability to ultimately render a fair decision
based on the evidence and the jury
instructions.
Indeed, in Hancock v. Northcutt,
808 P.2d 251 (Alaska 1991), the Alaska
Supreme Court rejected a litigants request
for a new trial based on similar jury
misconduct. Although the courts opinion does
not describe the details of the alleged juror
misconduct, an examination of Hancocks
brief10 shows that one of his claims of
misconduct was that a specified juror,
contrary to [the trial judges] repeated
instructions ... , made up his mind [about
the case] before the close of [the] evidence.
The supporting affidavit supplied by the
errant juror himself disclosed that at a
particular point in [the] trial this juror
had already decided that the Northcutts
should be awarded damages.11
The supreme court ruled that this
jurors evidence (as well as other jurors
evidence) was barred by Evidence Rule 606(b):
The [juror] affidavits ... detail the jurors
mental processes and do not demonstrate that
there was any outside influence improperly
brought to bear on any juror or that
extraneous prejudicial information was
improperly brought to the jurys attention.
Thus the [superior] court did not err in
refusing to grant a new trial on this basis.
See West v. State, 409 P.2d 847, 852 (Alaska
1966); Evidence Rule 606.
Hancock v. Northcutt, 808 P.2d at 259.
Similarly, in Poulin v. Zartman,
542 P.2d 251, 264-65 (Alaska 1975), the
supreme court rejected the notion that a
litigant could obtain a new trial by showing
that one or more jurors develop[ed] a like or
dislike for one side during [the] trial
[that] may [have] affect[ed] the way that
juror vote[d] in the jury room.12 The court
ruled that these types of juror emotions
inhere[] in the verdict that is, they are
part of the jurors internal decision-making
process, and they do not constitute a serious
violation of the jurors duty.13 The supreme
court decided that allowing verdicts to be
impeached on such grounds would lead to
folly and chaos.14
We conclude that we would achieve
these same unfortunate results if we
construed Evidence Rule 606(b) as Larson
suggests. If litigants were permitted to
mount the kinds of post-trial attacks on a
jury verdict that Larson raises here, few
verdicts would be safe from challenge.
Alternate jurors who disagreed with the jurys
decision, or regular jury members who later
regretted their decision, could attack the
verdict based on passing comments made in
hallways, restrooms, and lunch rooms during
the trial comments that might well have been
rebutted or forcefully criticized by fellow
jurors if repeated during formal
deliberations. Another danger pointed out by
the District of Columbia Circuit in Williams-
Davis is that, if evidence of premature
deliberations were permitted under Rule
606(b), this would place a powerful weapon in
the hands of a juror who senses that his
viewpoint is not shared by his fellows
deliberate promotion of pre-deliberation
conversations.15
With regard to the other types of
improprieties alleged by Larson jurors
holding Larsons failure to testify against
him, or holding Larsons wifes failure to
attend the trial against him, or urging the
other jurors to speed up their deliberations
so that jury service would not interfere with
a particular jurors personal plans the law
is settled that Evidence Rule 606(b) bars
jurors from giving evidence on these matters
if the alleged improprieties occurred during
the jurys formal deliberations. Thus, for
example, Federal Evidence Rule 606(b) bars
the receipt of juror affidavits alleging
that, during deliberations, some jurors
declared that the defendants failure to take
the stand was evidence of the defendants
guilt.16
Likewise, Federal Evidence Rule
606(b) bars juror assertions that the jury
reached its decision through compromise17 or
hastened its verdict to avoid interfering
with a jurors vacation plans.18 The Alaska
Supreme Court reached a similar decision in
Van Huff v. Sohio Alaska Petroleum Co., 835
P.2d 1181 (Alaska 1992).
Van Huff sued Sohio Alaska
Petroleum Company for unlawful termination of
his employment, but the jury found in Sohios
favor. 835 P.2d at 1182-83. In a motion for
a new trial, Van Huff presented a juror
affidavit tending to prove that one juror,
Randall Butts, expressed frustration that
jury deliberations were taking so long.
According to Van Huffs offer of proof, Butts
told the other jurors that he was about to
begin a new job and that he wanted the jury
to reach a decision by Monday. At least one
juror believed that Butts switched his vote
simply to facilitate the jurys reaching a
quick decision. Id. at 1184.
The superior court denied Van Huffs
motion for a new trial, and the supreme court
upheld the superior courts decision on
appeal. The supreme court ruled that even if
the allegations were true, Buttss alleged
bias and potential misconduct did not
invalidate the jurys verdict because these
actions did not constitute severe jury
misconduct which the supreme court defined
as fraud, bribery, forcible coercion[,] or
obstruction of justice. Id. at 1188.
Larson argues that even though
Evidence Rule 606(b) prohibits a party from
relying on juror testimony or juror
affidavits to prove that such matters
occurred during the jurys deliberations, Rule
606(b) should nevertheless be construed to
permit juror evidence on these issues if the
challenged conduct occurred before the jury
commenced its deliberations. But Larsons
interpretation of Rule 606(b) would undermine
the values of the rule.
As explained above, Rule 606(b) is
designed to insulate jury verdicts from post-
trial challenges based on matters that inhere
in the jurys decision-making process by
generally prohibiting jurors from giving post-
verdict evidence except on the subjects of
whether the jury received extraneous
prejudicial information or was subjected to
improper outside influence. If the types of
misconduct that Larson alleges had occurred
during the jurys formal deliberations, it is
clear that Rule 606(b) would bar any juror
testimony or affidavits on these subjects.
This is not because we condone the misconduct
of jurors who openly proclaim that a
defendants failure to testify indicates the
defendants guilt, or who care more about
their personal schedule than their duty to do
justice. Rather, Rule 606(b) represents the
value judgement that subjecting jury verdicts
to these types of post-trial attacks would
work more harm than good.
When jurors make these same types
of improper statements before the jury begins
its formal deliberations, their misconduct is
less likely to cause injustice than if the
statements had been uttered during
deliberations. And yet Larson argues that
Rule 606(b) should allow jurors to impeach
their verdicts under these circumstances of
lesser danger, even though circumstances of
greater danger are insulated from attack.
Moreover, Larsons interpretation of the rule
would open many verdicts to attack based on
jurors spontaneous exclamations or passing
comments.
We also note that, even though the
first clause of Rule 606(b) speaks of
matter[s] or statement[s] occurring during
the course of the jurys deliberations, the
next two clauses of the rule have no apparent
temporal limitation. Rule 606(b) declares
that jurors may not be questioned concerning
the effect of any matter or statement upon
... any ... jurors mind or emotions as
influencing the juror to assent to or dissent
from the verdict, nor may jurors be
questioned concerning [a] jurors mental
processes in connection [with the jurors
decision to assent to or dissent from the
verdict].
In the end, we are guided by the
concluding sentence of the commentary to
Alaska Evidence Rule 606(b), which states
that Rule 606(b) should be interpreted so as
to preserve and advance the policies
underlying the rule: insulating the jurys
deliberative process and promoting the
finality of jury verdicts, while not
foreclosing post-verdict attacks if external
forces have erroneously been injected into
the deliberative process.
In view of these policies, and in
view of the case law discussed here, we
conclude that Evidence Rule 606(b) precludes
Larson from offering juror testimony or juror
affidavits to support the assertions of juror
misconduct described in his petition for post-
conviction relief.
For these same reasons, we reject
Larsons argument that jurors who engage in
such misconduct forfeit their status as
jurors and should be viewed as external
influences on the jury.
Evidence Rule 606(b) does not deny Larson his
constitutional right to due process of law
Larson argues that if we construe Evidence
Rule 606(b) to preclude juror testimony and juror
affidavits on the allegations of misconduct he
raised in his petition for post-conviction relief,
then Rule 606(b) infringes his right to due
process of law by barring him from presenting
evidence that the jury unjustly convicted him.
As we noted earlier, some federal courts have
shown reluctance to enforce Rule 606(b) strictly
when there is strong evidence that the jurys
verdict was the direct product of racial
prejudice. However, to our knowledge, no court
has ever held that Rule 606(b) is unconstitutional
to the extent that it bars juror evidence of the
types of misconduct at issue in Larsons case.
Larson cites no cases that have accepted his
constitutional attack on Evidence Rule 606(b).
Indeed, several courts have recently upheld their
versions of Rule 606(b) against constitutional
challenge:
Williams v. Price, 343 F.3d 223, 230 (3rd
Cir. 2003) (Tanner strongly suggests that the exclusion
of evidence of juror misconduct pursuant to the
traditional no impeachment rule is constitutional
because of the important purposes that the rule has
long been recognized as serving.); United States v.
Griek, 920 F.2d 840, 843 (11th Cir. 1991); Maldonado v.
Missouri Pacific Railway Co., 798 F.2d 764, 770 (5th
Cir. 1986); Miles v. State, 85 S.W.3d 907, 913 (Ark.
2002); People v. Steele, 47 P.3d 225, 245-47 (Cal.
2002); State v. DeGrat, 913 P.2d 568, 570 (Idaho 1996);
State v. Workman, 111 S.W.3d 10, 20-21 (Tenn. Crim.
App. 2002); Glover v. State, 110 S.W.3d 549, 551-52
(Tex. App. 2003); Golden Eagle Archery, Inc. v.
Jackson, 24 S.W.3d 362, 374-75 (Tex. 2000).
We therefore reject Larsons assertion that
Evidence Rule 606(b) violates his constitutional rights
to the extent that it precludes the kind of juror
evidence he offered in his petition for post-conviction
relief.
Larsons claim that he should have been allowed to
proceed on his assertions of juror bias
Larson argues that even if the juror
affidavits supporting his petition for post-conviction
relief are precluded by Evidence Rule 606(b), so that
he had no admissible evidence of juror misconduct, he
still should have been allowed to pursue his claim that
some of the jurors were biased against him and
willfully concealed that bias when they answered
questions during jury selection.
Under the supreme courts holding in Poulin v.
Zartman, 542 P.2d at 264-65, the fact that some jurors
became biased against Larson during the trial is not a
ground for attacking the verdict. The rule is
different, however, with regard to a jurors deceit
during jury selection. Juror testimony or affidavits
are admissible to prove that jurors falsely denied pre-
existing bias during jury selection. See Poulin v.
Zartman, 542 P.2d at 264.
But Larsons claim of pre-existing bias is
based solely on his allegations of juror misconduct
during the trial. Larsons theory is that if the jurors
improperly expressed a belief in his guilt during the
trial, or if they expressed a wish for a quick verdict,
they must have been biased against him from the time
they were first called as potential jurors, and they
therefore must have hidden this bias during jury
selection.
For example, in Larsons brief, he argues that
a prima facie case of Juror Hayess pre-existing bias
was shown by the fact that even though Hayes stated
during jury selection that he could be fair, that he
would assume Larsons innocence, and that he would
follow the trial judges instructions, Hayes later
violated the judges instructions by announcing (during
trial, before the jury began its formal deliberations)
that he believed Larson was guilty. Thus, Larsons
claim of pre-existing juror bias is based on the
speculation that any adverse opinion expressed by
jurors during his trial must have been rooted, not in
the events of the trial, but rather in those same
jurors pre-existing bias against him before the trial
began.
But Larson presented no evidence to suggest
that this was true. We therefore conclude that the
superior court correctly dismissed this portion of
Larsons petition for post-conviction relief for failure
to state a prima facie case.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 See Larson v. State, Alaska App. Memorandum Opinion No.
4171 (January 12, 2000); 2000 WL 19199.
2 See Tanner v. United States, 483 U.S. 107, 107 S.Ct.
2739, 97 L.Ed.2d 90 (1987), in which the Court gave
this same construction to the word therewith in Federal
Evidence Rule 606(b), the counterpart to our rule. In
particular, see Justice Marshalls dissenting opinion,
483 U.S. at 140, 107 S.Ct. at 2757.
3 Id., 483 U.S. at 125-27, 107 S.Ct. at 2750-51.
4 Id., 483 U.S. at 127, 107 S.Ct. at 2751.
5 Id.
6 90 F.3d at 504.
7 Id.
8 Titus v. State, 963 P.2d at 261.
9 Id.
10File No. S-3470, Appellants Brief filed April 26, 1990.
11Appellants Brief at page 48.
12542 P.2d at 264.
13Id. at 264-65.
14Id. at 265.
15Williams-Davis, 90 F.3d at 505.
16See United States v. Tran, 122 F.3d 670, 673 (8th Cir.
1997); United States v. Rodriquez, 116 F.3d 1225, 1227
(8th Cir. 1997); United States v. Mart¡nez-Moncivais,
14 F.3d 1030, 1036-37 (5th Cir. 1994); United States v.
Voigt, 877 F.2d 1465, 1469 (10th Cir. 1989). Accord,
State v. DeGrat, 913 P.2d 568, 570-71 (Idaho 1996)
(construing the corresponding state evidence rule).
17See United States v. Straach, 987 F.2d 232, 241 (5th Cir.
1993) (two jurors asserted that they wished to declare
the defendants innocent of all charges, but they were
pressured into a compromise vote of guilty on two of
the counts); United States v. Campbell, 684 F.2d 141,
150-51 (D.C. Cir. 1982) (one juror allegedly told the
group that she would go along with any unanimous
decision reached by the other eleven).
18See United States v. Murphy, 836 F.2d 248, 256 (6th Cir.
1988).
