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State v. Coburn2/11/1999
on in State v. Royal, 590 A.2d at 525. There, the evidence against the defendant suggested that he had bound his victim with duct tape, and there was testimony during the trial about the presence of "residue" from the tape on the victim's skin. See id. The jury was reported to have "smuggled duct tape into the jury room and performed an experiment with it by wrapping it around [a juror's] wrists and leaving it there for 15 minutes before removing it to see if it left a residue." Id. We let stand the trial court's Conclusion that the experiment did not have a prejudicial impact on the verdict. In contrast to the facts before us today, the experiment in Royal took place in the jury room, during deliberations, when all jurors were present and were apparently "testing" the State's Conclusions. With the exception of the presence of the duct tape, such conversations and efforts to test the Conclusions urged on the jurors by the parties are a natural part of the deliberation process.
Here, in contrast, a single juror went to an intersection and gathered additional facts about the scene of the events. She did so outside of the fact-gathering process of the trial, without other jurors, and under circumstances that could not be addressed by the parties or challenged by other jurors. She then gave the information she had gathered to the other jurors under circumstances where no advocacy could be brought to bear on the jurors' receipt of that information and the trial court could not give a curative instruction. We conclude that the State did not meet its burden of rebutting the presumption of prejudice.
(2) The Purpose of the Intoxilyzer
A second juror questioned her husband at some time during the trial about the purposes of an intoxilyzer test. Her husband, a former law enforcement officer, was then employed as a financial screener for the Superior Court. He told her that the test could confirm the officer's suspicion of Coburn's intoxication and could provide the defendant with the opportunity to "show" her "innocence."
The only argument offered by the State to rebut the presumption of prejudice from this information was the assertion that this was not a "test" case--it was a "refusal" case. Therefore, according to the State, the information was only tangentially relevant and could cause no prejudice. The trial court agreed. Again, we look for competent evidence to support the court's Conclusion and will overturn the denial of the motion for new trial only if there is clear error.
We find error for two reasons. First, the very fact that a juror in a criminal proceeding has discussed the evidence at trial with a former member of law enforcement gives rise to concerns about the juror's ability to remain impartial. Second, the husband's response indicated that the defendant had the opportunity and, by implication, the burden of proving that she was not guilty of the crime with which she had been charged. We regard the risk that this implication was accepted by the juror as significant. Having scrutinized the record for any evidence offered by the State that would show that the jury's verdict was not, in fact, tainted by this prejudice, we find none. Again, the court did not learn of the juror's conversation with her husband in time to provide a curative instruction regarding the State's burden or addressing the acceptable use to which evidence of the refusal could be put.
Because the court may not inquire into the substance of the jury's deliberations, we recognize that direct evidence that the jury's verdict was not tainted by the extraneous information is almost impossible to produce. Therefore, in making its case that the jury's verdict was
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