Sammy L. Johnson v. State of Indiana

FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JERRY T. DROOK    JEFFREY A. MODISETT
Marion, Indiana    Attorney General of Indiana

             K. C. NORWALK
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

SAMMY L. JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-9711-CR-799 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Thomas R. Hunt, Judge
Cause No. 27C01-9605-DF-21

October 8, 1998

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge     Sammy L. Johnson appeals his convictions for Theft,See footnote 1 a class D felony, Resisting Law Enforcement-Fleeing,See footnote 2 a class A misdemeanor, Disorderly Conduct,See footnote 3 a class B misdemeanor, and the habitual offender finding. As restated, he presents a single issue for review:
    Did juror misconduct deny Johnson a fair trial?
 
    We affirm.
    After Johnson was convicted on the above charges and an habitual offender determination was made, a juror reported to Johnson's counsel that the other five jurors pressured her into the guilty finding on the theft charge. She executed an affidavit, which in pertinent part stated:
    3.    That during the course of deliberation, Affiant was not inclined to find the Defendant guilty on the charge of Theft, a Class D felony, for the reason that I had doubt that the Defendant had the necessary intent to commit the felony of Theft; however, Affiant was coerced by the five (5) other members of the jury into agreeing to return a guilty verdict upon said charge.
 
    4.    That no threats of any nature, either physical or financial were made against Affiant; however, the coercion exerted upon this Affiant was psychological in nature with the other jurors pressuring her to agree with their verdict of "Guilty."
 
    5.    That Affiant's assent to the verdict of "Guilty" on the charge of Theft was not [free] and voluntary upon her part, and was the result of undue influence applied to her by the other members of the jury.
 
Record at 128. Based upon the affidavit, Johnson filed a Motion to Correct Errors. Johnson claimed that the guilty verdict for theft was not based upon a unanimous verdict and should

be set aside. He requested that the habitual offender finding premised upon the erroneous theft verdict be set aside as well. The trial court denied the motion.
    Johnson contends that the verdict was the product of undue influence exerted by five of the jurors, thus it is unreliable. He acknowledges that at common law, a verdict was not subject to impeachment by evidence from the jurors who returned it. See Harrison v. State, 575 N.E.2d 642 (Ind. Ct. App. 1991). An exception existed for evidence that jurors were exposed to "improper, extrinsic materials during their deliberations." Id. at 646. Johnson, without analytical development, argues that the psychological coercion to which the juror was subjected is analogous to exposure to improper extrinsic material, and should permit a finding of juror misconduct.
    In 1994, the Indiana Rules of Evidence were adopted. Ind. Evidence Rule 606(b) provides:
    Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
 
The rule precludes consideration of the juror's affidavit which does not fit in one of the three exceptions.     No reported decision in Indiana addresses the specific exceptions within Evid. R. 606(b). It is noteworthy that similar rules are employed by many states, and the rule mimics that found in the federal rules. Thus, cases from other jurisdictions are instructive.
    The circumstances in Kailukiak v. State, 959 P.2d 771 (Alaska App. 1998) are similar to those present in the instant case. After the verdict, a juror told defense counsel that during deliberations, she felt the other jurors intimidated and pressured her into finding the defendant guilty. The court elaborated,
    The juror asserted that, although she was never physically attacked, the other jurors had told her to "shut up" when she attempted to voice her views of the evidence. As a result of this treatment, the juror said, her spirit was eventually broken to the point where she felt she had no choice but to accede to the views of the other jurors.
 
Id. at 779.
    The Kailukiak court found no error in the trial court's refusal to hear testimony from the jurors after the verdict. In fact, the court noted that the trial court was prohibited from inquiring into the intentions of the jurors during deliberations. Id. Examples of matters upon which jurors may be questioned concerning outside influences are: "fraud, bribery, threats or coercion by third parties, or other acts of third parties in obstruction of justice." Id. Specifically excluded by the rule is the reception of testimony regarding purported intimidation or harassment by other jurors. Id. (citing United States v. Stansfield, 101 F.3d 909 (3rd Cir. 1996)).
    Plainly, exception (3) within 606(b), regarding outside influences improperly brought to bear upon a juror, envisions sources outside of the jury. All of the jurors receive the same

instructions regarding their deliberations. Jurors are called upon to consciously weigh the decision. A balancing process is inherent. Jurors may not decide, in hindsight, that the weighing process overcame their spirit or will. The rule is in place to prohibit the type of attack Johnson seeks to mount.
    Judgment affirmed.
STATON and RUCKER, JJ., concur.

Footnote:     1 Ind. Code Ann. § 35-43-4-2(a) (West 1998).Footnote:     2 Ind. Code Ann. § 35-44-3-3(a)(3) (West 1998).Footnote:     3 Ind. Code Ann. § 35-45-1-3(1) West 1998).