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State v. Mann6/6/2000
ideration. See McMann, 435 F.2d at 818 ("The touchstone of decision in a case such as we have here is thus not the mere fact of infiltration of some molecules of extra-record matter, with the supposed consequences that the infiltrator becomes a `witness' and the confrontation clause automatically applies, but the nature of what has been infiltrated and the probability of prejudice."). Instead, the record supports a conclusion that Juror No. 7 offered no new facts, see Thacker, 596 P.2d at 509; that he relied only upon his subjective view of the evidence and no outside authority, see In re Malone, 911 P.2d at 476, 486; and that he introduced no subject to the deliberations that had not already been fully argued at trial, see Thacker, 596 P.2d at 509; McDonald, 83 Cal. Rptr. 2d at 738.
Similarly, the record supports a conclusion Juror No. 7 committed no misconduct in sharing his opinion and observation by means of a "formal presentation" complete with "calculations" drawn upon a court- provided dry-erase board. Cf. McMann, 435 F.2d at 817 ("To resort to the metaphor that the moment a juror passes a fraction of an inch beyond the record evidence he becomes `an unsworn witness' is to ignore centuries of history and assume an answer rather than to provide the basis for one."). Simply, it is not the medium of his argument that matters; it is its substance.
Juror No. 7's presentation of calculations based upon the evidence at trial was, at most, akin to juror experimentation. As a general matter, while juror experimentation is improper, juror experimentation with evidence is not, per se, misconduct. See Chamberlain, 112 N.M. at 732, 819 P.2d at 682 (holding jury experimentation with admitted evidence not to be misconduct despite experimentation expanding upon issues raised at trial); see generally Carroll J. Miller, Annotation, Propriety Of Juror's Tests Or Experiments In Jury Room, 31 A.L.R.4th 566 (1984). "The salient question is whether the experiment or investigation made by the jury . . . can be said to be within the scope or purview of the evidence introduced at the trial, or whether it amounts to the taking of evidence outside the presence of the parties." Taylor v. REO Motors, Inc., 275 F.2d 699, 705 (10th Cir. 1960). Defendant has adduced no evidence corroborating his claim that Juror No. 7 strayed beyond "the scope or purview of the evidence." Id.
In short, Juror No. 7 engaged in rigorous scrutiny of trial testimony and articulate juror argument-argument informed by his particular and known professional training and life experience. Juror argument, no matter how persuasive or weighty, is not, in and of itself, misconduct. See, e.g., Ertsgaard v. Beard, 800 P.2d 759, 766 (Or. 1990) ("In the relatively few cases in which this court has either permitted or required a new trial for juror misconduct that occurred during the deliberating process, we have found none in which the misconduct consisted solely of juror argument."); cf. Jay M. Zitter, Annotation, Impeachment Of Verdict By Juror's Evidence That He Was Coerced Or Intimidated By Fellow Juror, 39 A.L.R.4th 800, ยงยง 4, 6(b), 7 (1985) (noting cases where intrajuror intimidation and coercion have been deemed intrinsic to the deliberative process). We therefore conclude, based on all of these considerations, that the allegations of juror misconduct in the present case do not rise to the level of reversible error, as that threshold is suggested by decisions of our Supreme Court. Compare Chamberlain, 112 N.M. at 732, 819 P.2d at 682 (determining no misconduct had occurred despite juror experiments that arguably went beyond issues raised at trial) with Duran, 99 N.M. at 248, 656 P.2d at 911 (concluding independ
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