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State v. Mann6/6/2000
ould have stated that, based on his experience, Defendant's theory was virtually impossible. That would not have been improper. What concerns me, however, was the in-depth, 30-minute dissertation concerning probability calculations that he injected into the case.
Juror No. 7 claimed he had "expertise or specialized knowledge of a matter at issue"- whether it was possible that the child impaled himself-and that he knew the answers to the right questions that were never asked. Juror No. 7 did not just use his "educational employment background to express an opinion on a technical subject," but presented himself as an expert to the other jurors. Again, I do not suggest that specialized training alone somehow rendered the juror's participation as extraneous. I instead conclude that his claim of "expertise", as well as his "expert" presentation, was juror misconduct. See id. (holding such claims as juror misconduct).
The trial court interviewed five of the twelve jurors. There were different versions among the jurors questioned by the court concerning whether Juror No. 7 had brought calculations on a piece of paper into the jury room, which he then transferred onto a board as he explained his own calculations to his fellow jurors. To be sure, questioning of the remaining jurors at an evidentiary hearing could have cleared up once and for all the extent of materials or figures previously calculated that were brought into the jury room. The question of whether Juror No. 7 brought any document into the jury room is inconsequential, however. What is significant to me is that the juror went through his own calculation process, whether transferred from a piece of paper or whether imprinted mentally in his own mind. Regardless, Juror No. 7 told the trial court that he used his "professional judgment," approaching the case much like he would any "engineering problem," and stated that "this whole scenario with screwdriver . . . there's a sequence that has to occur." He admitted to performing a "fairly simple five-step probability" calculation that he claimed, to use the majority's words, "grew out of Dr. Watts' testimony." See Shamalon Bird, 111 N.M. at 715, 809 P.2d at 629 (stating that such five-step probability calculations are methods used by expert witnesses).
The majority notes that Juror No. 7 was simply experimenting with the probability of events happening as Defendant claimed. Relying on State v. Chamberlain, 112 N.M. 723 (1991), the majority proposes that such experiments are not improper. Id. at 733, 819 P.2d at 683. Our Supreme Court in that case, however, did "not consider . . . experimentations based on facts [or expert opinion] not properly before the jury." Id. at 731, 819 P.2d at 684. The Court only determined that "the jury . . . did not consider evidence or statements that were not presented to the court." Id. In this appeal, we are addressing the issue of whether evidence in the form of expert testimony was presented to the jury without first being filtered through the judicial process. See Sacoman, 107 N.M. at 591, 762 P.2d at 253 (holding that all evidence must be "screened through the judicial process").
In Chamberlain, the jury conducted experiments with evidence that was presented at trial. Chamberlain, 112 N.M. at 731, 819 P.2d at 684. No juror in that case claimed to have "expertise or specialized knowledge of a matter at issue." In re Malone, 911 P.2d at 486. Nor did one juror give a thirty-minute presentation based on his or her own calculations. The Court in Chamberlain determined that experimenting with testimony and evidence from the trial were not improper; however, it acknowledged that "potential error may occur if an experime
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