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Brooks v. Zahn8/20/1991
rabowicz's statements based upon her medical knowledge did not constitute extraneous information, the trial court did not abuse its discretion in preventing further inquiry into the statements.
Hustons also argue that the trial court erred in asking the jurors how Grabowicz's statements about her husband's condition affected their decision. We agree. Although Rule 606(b) permits jurors to testify as to whether the jury considered extraneous information during deliberations, the rule specifically prohibits a juror from testifying as to "the effect of anything upon [the testifying juror's] or any other juror's mind . . . ." Thus, " urors may not testify as to how they or other jurors were affected by the extraneous prejudicial information or outside influence; they may only testify as to its existence." Hard II, 870 F.2d at 1461 (citing Abatino v. United States, 750 F.2d 1442, 1446 (9th Cir.1985)). Accordingly, the trial court inappropriately questioned the jurors about the effect of Grabowicz's statements on their decision.
The trial court's error does not affect our conclusion. Prior to the evidentiary hearing, the trial court told the parties that it intended to question the jurors about the effect of the statements. Hustons did not object to such questions either prior to or during the hearing. In fact, Hustons' counsel suggested that the court ask the jurors whether Grabowicz's statements affected their decision. Hustons, therefore, have waived this issue on appeal. See Miller v. Schafer, 102 Ariz. 457, 461, 432 P.2d 585, 589 (1967) (party who permits improper evidence to be admitted at trial cannot claim reversible error on appeal). Moreover, because none of the challenged statements involved extraneous information, the trial court's inquiry should not have extended beyond determining what statements Grabowicz made. The court's questions about the effect of the statements upon the verdict therefore were simply superfluous and did not cause Hustons any prejudice.
V.
For the foregoing reasons, we affirm the trial court's order denying Hustons' motion for a new trial.
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