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State v. Van11/12/2004
made in the jury room," there was no evidence that the jury received any extraneous information from an external source during its deliberations. Van argues that the exclusion of the affidavit was reversible error and that the affidavit reflects juror misconduct which warrants a new trial.
[25,26] In order for jury misconduct to become the basis for a new trial, it must be prejudicial. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986). Where the jury misconduct in a criminal case involves juror behavior only, the burden to establish prejudice rests on the party claiming the misconduct. State v. Thomas, supra; State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988).
In support of his argument that the excluded affidavit reflects juror misconduct, Van relies on In re Stankewitz, 40 Cal. 3d 391, 220 Cal. Rptr. 382, 708 P.2d 1260 (1985). In that case, a juror advised other jurors during guilt phase deliberations in a felony murder trial that he had been a police officer for 20 years and that robbery occurs as soon as a person forcibly takes personal property from another, regardless of intent to keep the property. This statement of the law was contrary to a jury instruction given by the court. The applicable California statute provided: "'Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.'" (Emphasis omitted.) 40 Cal. 3d at 397, 220 Cal. Rptr. at 384, 708 P.2d at 1262. The court reasoned that when a statement of law not given to the jury in the instructions entered the jury room, the defendant was denied his constitutional right to a fair trial unless the State could prove no actual prejudice occurred. It thus reversed the conviction and remanded the cause for a new trial.
In the instant case, the district court relied upon the controlling statute in Nebraska, Neb. Evid. R. 606(2), Neb. Rev. Stat. ยง 27-606(2) (Reissue 1995), which provides:
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 jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror 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. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.
(Emphasis supplied.) In concluding that the statements which the juror claims to have made to other jurors during deliberations did not constitute "extraneous prejudicial information" within the meaning of this statute, the district court also relied upon our holding in State v. Thomas, 262 Neb. at 999, 637 N.W.2d at 650, that the word "extraneous" as used in this statute means "'"existing or originating outside or beyond: external in origin: coming from the outside . . . brought in, introduced, or added from an external source or point of origin."'" Applying this definition, we determined in Thomas that a juror's statement made during deliberations concerning his knowledge of another case was not extraneous because it was "provided by a member of the jury, not by an external source." 262 Neb. at 999, 637 N.W.2d at 650. We noted that "
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