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Conway v. Blackburn6/13/2005
6 P.2d 651 (1962); see also Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 204-05, 75 P.3d 944 (2003). Evidence inheres in the verdict to the extent that it discloses juror thought processes. Richards, 59 Wn. App. at 272. In Gardner, the court laid out two tests to help determine whether evidence in a juror affidavit inheres in the verdict:
One test is whether the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him; if so, the statements cannot be considered for they inhere in the verdict and impeach it. . . . Another test is whether that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes.
Gardner, 60 Wn.2d at 841. Testimony as to the fact of misconduct is properly considered; testimony as to the effect of misconduct is not. Gardner, 60 Wn.2d at 842-43.
A jury verdict will be set aside based on 'novel or extrinsic' evidence that affected the verdict. State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994); Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 137, 750 P.2d 1257 (1988); Richards, 59 Wn. App. at 271-72. Alleged misconduct inheres in the verdict if it 'involves merely a more critical examination' of evidence produced in court, but not if it puts the jury 'in possession of material facts which should have been supported by evidence . . . which was not offered.' Balisok, 123 Wn.2d at 119 (quoting State v. Everson, 166 Wn. 534, 536-37, 7 P.2d 603 (1932)). Evidence is novel or extrinsic if it is wholly outside the evidence received at trial, and as a result is not subject to objection, cross-examination, explanation, or rebuttal by either party. Balisok, 123 Wn.2d at 118; Adkins, 110 Wn.2d at 137; Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973); Richards, 59 Wn. App at 270-71.
This court reviews the trial court's order granting or denying a new trial for abuse of discretion. Breckenridge, 150 Wn.2d at 203. A trial court abuses its discretion when its decision is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' Breckenridge, 150 Wn.2d at 203-04 (internal citation omitted). 'Greater weight is owed the decision to grant a new trial than the decision to deny a new trial.' Breckenridge, 150 Wn.2d at 204.
A. Alleged Misconduct: Introducing Extrinsic Evidence
Two members of the jury testified to the introduction of evidence about custom-made bras by a fellow juror: The juror who sat directly in front of me, juror number 7, told all of us while we were deliberating that she knows places where a woman can buy a custom made bra. She told us Janice Conway could go to a place like this and have a bra made that would take care of her problems. She gave us this information up before the vote was taken.
Declaration of Gerrit C. Hoogenboezem
One juror, Rosemary Hostetler, who was juror number 7, told the jury during deliberations that she knew of a business that sold custom-made bras. She said that a woman can have a bra made with two different cup sizes. She told us that Ms. Conway could have gone there to have a bra made for her. This juror told us that if Ms. Conway had done this, she would have had a bra that fit her, and that she could have worn it after the surgery to prevent the bottoming out. I don't recall hearing anything about custom-made bras during the trial.
Declaration of James T. Phillips
The only way to determine whether the evidence about custom-made bras was 'wholly outside the evidence received at trial' and thus extrinsic is to review the trial transcript. There is no other way to determine whether the evidence is ex
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