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Pendleton v. State3/31/1987
juror had visited the accident scene and rejected Pendleton's causal argument. The juror related her findings to the other jurors and essentially became a witness for the prosecution"a witness who was not subject to cross-examination regarding the weather and road conditions. In Russell v. State, 99 Nev. 265, 661 P.2d 1293 (1983), this court reversed a conviction where a juror investigated the driving time between Reno and Carson City. The facts investigated by the juror were crucial to the defense theory of the case and the juror was not subject to cross-examination about traffic conditions, road conditions, weather and other variables. We find the instant case remarkably similar to Russell. There was sufficient misconduct to mandate a new trial. We note that the procedure for alleging juror misconduct usually involves submission of affidavits of jurors, detailing the misconduct of other jurors. Under such circumstances, the district judge then may call a hearing to question the affiant about the matter. DCR 13. In the instant case, however, defense counsel submitted his own affidavit. Questioning of the affiant would not adduce firsthand information that would warrant a new trial. However, under the circumstances of this case we see no infirmity in the procedure employed by defense counsel. The prosecutor opposed the motion for the new trial and in the opposition related the results of his own investigation. The prosecutor's investigation revealed that juror misconduct was even more egregious than that presented by the defense counsel. We think that where the prosecutor admits all the pertinent facts, he ought not to be heard to complain that the form of the evidence of misconduct was not reliable. Since all the facts establishing juror misconduct were admitted by the prosecutor, we hold that the district court erred in denying the motion for a new trial. We therefore reverse and remand for a new trial.
Opinion Footnotes}
1 NRS 484.3795 provides in pertinent part: 1. Any person who, while under the influence of intoxicating liquor or with 0.10 percent or more by weight of alcohol in his blood, or while under the influence of a controlled substance, or under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle, does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this state, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, any person other than himself, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 20 years and must be further punished by a fine of not less than $2,000 nor more than $5,000.
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