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State v. Mann6/6/2000
traneous prejudicial information . . . creates a presumption of prejudice. If, at the hearing, the trial court finds a reasonable possibility of prejudice, a new trial should be granted. Id. at 605-06, 788 P.2d at 361-62 (Ransom, J., specially concurring) (footnotes omitted).
In determining prejudice, the trial court must consider "how the material was received [by the jury], how long it was available to the jury, the extent to which the jury discussed the material, whether [the jurors] considered [the material] before they reached a verdict or after, and, if before, at what point in the deliberations they received the material." Doe, 101 N.M. at 366-67, 683 P.2d at 48-49. Additionally, " he strength of the State's case has a bearing on the issue of prejudice." (citation omitted).
The jury received the material when Juror No. 7 stood up before the jury, advising his fellow jurors of his expertise as an engineer and telling them that, in his professional judgment, they needed to consider other information not presented by Defendant's expert or presented by the State. At an easel, the juror gave a discourse to the other jurors in physics and probabilities. As previously noted, it took approximately thirty minutes for the material to be presented. It was not simply a passing reference made by one juror to another. The presentation was given before the jury took a vote on the intentional child abuse resulting in death charge or the second-degree murder charge. The material was presented after the first full day of deliberations but only three or four hours into the jury's verdict consideration.
From Juror No. 7's own words ("I don't think they answered the right question."), I believe the extraneous information provided by him was apparently intended to contradict Defendant's case, for he then gave a thirty-minute discourse of his own five-step probability process. This is a factor the trial court must consider as well. See Sacoman, 107 N.M. at 591-92, 762 P.2d at 253-54. (stating that extraneous information contradicting an asserted defense "was identified in [People v. Martinez, 147 Cal. Rptr. 208, 220 (Ct. App. 1978)] as a factor constituting prejudice [requiring] that the conviction be reversed"). The information presented was not "screened through the judicial process." Sacoman, 107 N.M. at 591, 762 P.2d at 253 (quoting Huntley, 452 N.Y.S.2d at 955 (internal quotation marks omitted)). This presents not only possible problems implicating due process, but it also may implicate a defendant's right to confront the evidence against him pursuant to the U.S. Const. Amend. VI. See Parker v. Gladden, 385 U.S. 363, 364 (1966). The information was not subjected to scrutiny by Defendant's trial counsel. Any doubt there may be on what effect or prejudice the information provided had on the jury, I submit, should be resolved in favor of Defendant, in light of the existing presumption of prejudice.
In Martinez, a case cited with approval by our Supreme Court in Sacoman, the California Court of Appeal set forth three factors that must be considered in deciding whether a defendant was prejudiced by juror misconduct in receiving evidence not presented in court-" hether the jury's impartiality has been adversely affected, whether the prosecution's burden of proof has been lightened[, or] whether any asserted defense has been contradicted." Martinez, 147 Cal. Rptr. at 220. "If the answer to [any one] of these questions is in the affirmative, the defendant has been prejudiced . . . ." People v. Castro, 229 Cal. Rptr. 280, 288 (Ct. App. 1986); see also Smoketree-Lake Murray, Ltd. v. Mills Concrete Constr. Co., 286 Cal. Rptr. 435, 449 (Ct. App. 1991). The California cou
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