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State v. Mann6/6/2000
f the young boy occurring in the manner testified to by Defendant. To me, the real issue is whether Juror No. 7's presentation was equivalent to that of an expert witness. Shamalon Bird held that expert testimony is testimony explaining "steps followed [by the expert witness] in reaching conclusion." Shamalon Bird, 111 N.M. at 715, 809 P.2d at 629. That is precisely the role played by Juror No. 7 during jury deliberations.
The majority proposes that "it was not improper for Juror No. 7 to have expressed what he felt were the questions Dr. Watt's testimony did not answer." In so doing, the majority claims, the juror was only "recognizing and showing his views" concerning the weakness of Defendant's defense. The record reflects, however, that in making his presentation to his fellow jurors, Juror No. 7 did not argue that Dr. Watts had not provided certain answers, thus weakening the defense's theory, but instead claimed that the "right questions" had not been asked. Apparently, in his thirty-minute presentation, Juror No. 7 not only provided the so-called right questions but then proceeded to answer them. Consequently, to catagorize the juror's statements to his fellow jurors as merely a "common sense" opinion, as the majority terms it, is not a correct characterization of what occurred.
The majority also emphasizes that Defendant accepted the possibility that Juror No. 7 would use his expertise during deliberations because Defendant did not challenge Juror No. 7 during voir dire. Acceptance of Juror No. 7 at voir dire, however, did not give that juror carte blanc permission to inject into jury deliberations evidence (his own opinion, his own calculations, his own five-step process, and his own responses to questions he insisted were not asked at trial) that I maintain constituted impermissible and extraneous material. See Steinkraus, 76 N.M. at 620, 417 P.2d at 432 (" bservations and conclusions [by an expert witness] are facts [that] . . . constitute evidence . . . .").
Juror No. 7, having disclosed his technical and professional background, assured the trial court and the parties during voir dire that, despite that background, he would be able to reach a verdict based solely on the evidence adduced at trial. He later took an oath to that effect. I submit he violated that oath. To be sure, as the majority observes, Defendant took a calculated risk by not objecting to or challenging Juror No. 7's selection as a juror, either for cause or by using one of his peremptory challenges. But that risk did not include consenting to a violation of the juror's duty to reach a verdict based solely on the evidence presented at trial. In my view, Juror No. 7 took much more into the jury room then his own life and technical experiences.
The majority relies on a California Supreme Court case, In re Malone, 911 P.2d 468 (Cal. 1996), for the proposition that " t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial." Id. at 486. Although that quote is a correct statement of the law, the majority fails to recognize the discussion immediately following the quoted passage on what does constitute juror misconduct. " juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct." Id.
I do not claim, as the majority implies, that "specialized training alone . . . render a juror's active participation in deliberations improper." I am not concerned that Juror No 7's general technical background rendered his participation in the jury deliberation as extraneous. During deliberations, Juror No. 7 c
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