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State v. Mann6/6/2000
nt creates a new evidentiary fact outside of the record for the jury." Chamberlain, 112 N.M. at 732.
Juror No. 7 did not merely use Dr. Watts' testimony and the evidence presented at trial but expounded on the evidence and "testified" with answers to questions he contended were never posed to Dr. Watts. Juror No. 7's "experiment creat a new evidentiary fact outside of the record for the jury." Id. In short, Chamberlain did not consider juror misconduct in terms of "a juror's own claim to expertise or specialized knowledge of a matter at issue." In re Malone, 911 P.2d at 486. It only discussed "evidence statements that were presented" at trial. It thus appears to me that Chamberlain is not relevant to the facts in this appeal.
Other cases cited by the majority, when viewed in their entirety, actually support the conclusion that the actions of Juror No. 7 went far beyond the use of his educational and professional background and resulted in juror misconduct. See e.g., United States v. McMann, 435 F.2d 813, 818 (1970) ("To the greatest extent possible all [evidence, including expert opinion] must pass through the judicial [process], where the fundamental guarantees of procedural law protect the rights of those accused of crimes."); Estsgaard v. Beard, 800 P.2d 759, 766 (Or. 1990) (holding new trial should be granted when a juror gives "specialized knowledge [to other jurors] concerning one of the disputed facts in the case under consideration"). The majority states that it would be improper to overturn a verdict "the moment a juror passes a fraction of an inch beyond the record evidence." McMann, 435 F.2d at 817. Juror No. 7's presentation, however, went far beyond "a fraction of an inch."
I share the majority's support of the case law protecting and insulating the privacy of our jury system. That protection disallows inquiries into intrinsic matters. As the majority concedes, however, it does not disallow inquiry into extrinsic matters that may have breached our jury deliberative process.
Stripped of its language concerning the sanctity of jury room deliberations, the majority's opinion, in my view, represents nothing more than a different "judgment call" or "take" on the material presented by Juror No. 7. Was it or was it not extraneous? The majority goes through great lengths to show that it was not. I respectfully disagree with that conclusion. When all is said and done, I view the material as opinion evidence supporting the State's theory, independent of the testimony of the only expert at trial. That independent opinion evidence, I submit, was extraneous material as discussed in the case law. See e.g., In re Malone, 911 P.2d at 486 (" juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct.").
Because I would conclude that extraneous information was considered by the jury, I next discuss whether that information prejudiced Defendant, a determination required by Sacoman. Once a determination is made that extraneous information is presented to the jury, there is a presumption of prejudice. See Sacoman, 107 N.M. at 591, 762 P.2d at 253. This presumption may be rebutted by a showing of no actual prejudice. Id. In State v. Pierce, 109 N.M. 596, 788 P.2d 352 (1990), Justice Ransom, specially concurring, recognized certain procedures to follow when it is determined that extraneous material has reached the jury:
If a defendant makes a preliminary showing of the existence of extraneous prejudicial information . . . that implicates a due process violation, the court must conduct a hearing to determine the existence of a taint on the jury deliberation process. The introduction of ex
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