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Lance Inc. v. Ramanauskas3/5/1999
er, attempts to stretch the exception in Rule 606(b) to those cases in which juror testimony is necessary to show juror attentiveness to "extraneous prejudicial information." Lance argues that the unobjected-to statements of the parents fall into the category of "extraneous prejudicial information," which would be admissible under Rule 606(b). We think that the trial Judge correctly disposed of this argument in his posttrial order:
"This argument strains credulity. The courts of this state have generally limited the scope of this exception to the visitation of a crime scene by a juror, the introduction of the definition of legal terms in the jury room, and [the reading of] concepts from general reference books. See Dawson v. State, [710 So. 2d 467](Ala. Crim. App. 1996); Jordan v. Brantley, 589 So. 2d 680 (Ala. 1991); Nichols v. Seaboard Coastline, 341 So. 2d 671 (Ala. 1976). These scenarios do not remotely approach the facts of this case."
In addition, we recognize that the courts of this State have interpreted the exception in the same manner. See McElroy's Alabama Evidence, ยง 94.06(4)(a), p. 458-59 (5th ed. 1996), and cases cited therein. Accordingly, the trial court did not err in refusing to grant a new trial on the basis of lack of a unanimous verdict.
III. Prejudicial Comments by the Parents' Attorneys
Lance next argues that the trial court erred in refusing to order a new trial because, it says, the parents' attorneys made improper references during the trial to Lance's financial condition, to the fact that Lance had liability insurance, to compensatory damages for the child's death when only punitive damages are recoverable in a wrongful- death action, and to the parents' mental anguish. It argues that these references were so highly prejudicial as to require a new trial or a remittitur.
We first address Lance's concerns about improper references to compensatory damages and to the parents' mental anguish. In their opening statement, the parents' counsel commented on the suffering of the parents and the family, specifically stating that a family reunion had ended in tragedy. Lance objected to this comment on the ground that the comment went to improper matters, i.e., damages. The trial court overruled the objection. The parents' counsel continued, referring to the day of the child's death as the day "his family's peace ended." Lance again objected on grounds that counsel was "injecting damages not a part of this lawsuit"; it moved for a mistrial. The trial court denied the motion. Lance then asked the trial court to instruct the jury "to ignore that kind of remark insofar as damages are concerned." The trial court did not instruct the jury to disregard the argument concerning the impact of the child's death on the family. Instead, the court reiterated its instruction that an opening statement is what a lawyer expects the evidence to reveal, and the court stated, "Should you find that any lawyer deviates from an expectation of what the evidence will be, then you are to disregard what you determine to be a deviation."
In closing argument, the parents' counsel began with the following emotional appeal: "A nice happy day of reunion suddenly turned into a nightmare that will never, ever end." The trial court overruled Lance's objection on the ground that counsel was merely trying to evoke sympathy and to prejudice the jury against Lance. Counsel for the parents continued, saying, "A completely satisfying day of joy and happiness for a family on a reunion is suddenly ripped with a life-size hole that will never be filled." Lance again objected. The trial court responded that the comment was proper argument and that it was for the jury to de
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