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Brown v. Commonwealth6/16/2005
. that he may have run a red light."). There was no other evidence of improper driving or conduct on the defendant's part. Id. See also Commonwealth v. Mitchell, 41 S.W.3d 434, 435 (Ky. 2001) (mere failure to secure infant in child restraint system in violation of KRS 189.125(3) insufficient to support even a reckless homicide conviction). Appellant's conduct was substantially more than a mere traffic violation. In addition to driving at a rate exceeding the speed limit and violating a traffic signal, there was substantial evidence that Appellant was watching television rather than monitoring the traffic at the intersection and that he attempted to "time" the traffic light despite the fact that it remained red at all times during his approach. Moreover, from the testimony regarding the manner in which Appellant and Kaylor operated their vehicles and Kaylor's unusual conduct after the collision, the jury could reasonably have inferred that Appellant and Kaylor were racing during the period immediately preceding the collision and that Appellant ran the red light to "outrun" Kaylor, not realizing that Kaylor had slowed down to turn onto the Bypass. While the evidence was by no means overwhelming on these points, we cannot say as a matter of law that it was unreasonable for the jury to believe beyond a reasonable doubt that Appellant acted under circumstances manifesting extreme indifference to human life. Nichols, 657 S.W.2d at 935.
II. ALLEGED JUROR MISCONDUCT
Appellant claims the trial judge erred in overruling his motion for a new trial. The motion was premised upon allegations of juror misconduct supported by an affidavit sworn by Juror 25 and a newspaper article in the Louisville Courier-Journal quoting Jurors 4, 22, and 25. Appellant alleges that his rights to a fair trial and impartial jury were prejudiced when the jury improperly considered extra-judicial evidence during its deliberations, and when at least one juror withheld material information during voir dire. We review the trial court's denial of Appellant's new trial motion for abuse of discretion. Jillson v. Commonwealth, 461 S.W.2d 542, 545 (Ky. 1970).
A. Extraiudicial Evidence
In his affidavit, Juror 25 reported that another juror, whose name he did not recall, told the jury during deliberations that he had heard a rumor in the community that Appellant and Kaylor were racing as they approached the intersection of Pembroke Road and the Martin Luther King, Jr. Bypass. In the aforementioned newspaper article, Juror 22 questioned why Kaylor would have left the scene of the accident and later entered the Alford plea if he had been telling the truth about the racing allegations. The article also quoted Juror 4 as stating his belief that Kaylor and Appellant had been racing and Juror 25 reiterating his allegation that an unidentified juror had mentioned rumors of racing during deliberations. The trial judge held an evidentiary hearing at which Appellant was afforded the opportunity to present additional evidence of juror misconduct, but Appellant relied solely upon Juror 25's affidavit and the newspaper article.
"A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot." RCr 10.04. We have adhered to the longstanding rule that juror testimony is generally incompetent to impeach a verdict. See, e.g_, Gall v. Commonwealth, 702 S.W.2d 37, 44 (Ky. 1985) (juror's testimony that jury improperly considered defendant's mental illness and parole eligibility during deliberations was incompetent); Grace v. Commonwealth, 459 S.W.2d 143 (Ky. 1970) (juror's affidavit swearing that she did not agree to the verdict was incompetent); Jones v. Commonwealth,
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