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DAWSON v. STATE11/1/1996
The appellant, Homer Gene Dawson, was convicted of four counts of distributing a controlled substance, a violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to concurrent terms of 35 years in the state penitentiary.
The state's evidence tended to show that on February 16 and 18, 1993, the appellant sold controlled substances to Wanda Gray, an undercover police officer, at an apartment complex in Florence. Two officers with the Florence Police Department "staked out" the scene and listened to the transaction inside the apartment by way of a microphone. The appellant's direct appeal and appeal from his petition for post-conviction relief have been combined for purposes of appeal to this court.
I
The appellant first contends that the trial court erred in denying his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he contended that he was denied a fair and impartial jury because of juror misconduct.
The appellant filed a post-conviction petition after he discovered that a member of the jury, J.C., visited the scene of the crime after the trial court had admonished the jury to consider only the evidence presented from the witness stand. This juror testified at the hearing on the petition that after deliberations
had begun he went to the scene of the crime to decide for himself if the officer's testimony was accurate regarding the lighting conditions in the area. The officer had testified that, while he was watching the house, he saw the appellant at the front door. J.C. testified that he visited the scene to determine whether the officer could actually identify the appellant from his location.
Another juror, J. B., testified that during deliberations, J.C. explained to the other members of the jury that, in his opinion, the officer could not have identified the appellant because of the poor lighting in the area. J.B. then stated that the information furnished by J.C. did not affect his verdict.
The test to be applied in determining whether juror misconduct mandates a new trial is "not that [the misconduct] did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered."
This case is governed by the Alabama Supreme Court's decision in Ex parte Lasley, 505 So.2d 1263 (Ala. 1987). In Lasley, the Alabama Supreme Court discussed, in depth, the standard used to evaluate this type of juror misconduct. The court stated:
"There is no doubt that the home experiments constituted juror misconduct. The only question is whether the misconduct requires a new trial. The standard for determining whether juror misconduct requires a new trial is set forth in Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932).
" 'The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered.' (Emphasis added in Lasley.)
"The Roan test mandates reversal when juror misconduct might have influenced the verdict. This test casts a 'light burden' on the defendant. Ex parte Troha, 462 So.2d 953 (Ala. 1984).
"Application of the rule cannot in all cases depend entirely upon the jurors' statements that the extraneous information did not affect their verdict.
"The integrity of the factfinding process is the heart and soul of our judicial system. Judicial control of the jury's knowledge o
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