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Brown v. Commonwealth6/16/2005
450 S.W.2d 812, 814 (Ky. 1970) (juror's affidavit swearing that jurors considered matters not in evidence during deliberations was incompetent).
In Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001), abrogated on other grounds as recognized by Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003), the United States Court of Appeals for the Sixth Circuit held an interpretation of Ohio Rule of Evidence 606(B) that precluded consideration of an affidavit attesting to improper outside influence on the jury to be contrary to clearly established United States Supreme Court precedent. Id. at 731. Appellant contends that Juror 25's affidavit and statements to the Courier-Journal demonstrate that his jury was subjected to such an outside influence. We disagree. Kaylor testified at trial, "it got started somehow that I was racing, which I wasn't. I don't know where it came from." A reasonable interpretation of this testimony is that there were rumors that he and Appellant had been racing. According to Juror 25, the unidentified juror stated only that he had heard the rumors that the two had been racing as they approached the intersection. The unidentified juror did not vouch for the credibility of the rumors or supplement Kaylor's trial testimony in any way. This stands in sharp contrast with Doan, where the juror in question "conducted an out-of-court experiment and reported her findings to the jury in the manner of an expert witness." ld. at 733. See also Parker v. Gladden, 385 U.S. 363, 363-64, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (bailiff told the jury during deliberations that the defendant was a "wicked fellow," that he was guilty, and that any error in finding the defendant guilty would be corrected by the Supreme Court); Mattox v. United States, 146 U.S. 140, 142-43, 13 S.Ct. 50, 51-52, 36 L.Ed. 917 (1892) (bailiff made inappropriate remarks to the jurors regarding the defendant's guilt and informed them that this was the third man he had killed; also, newspaper article that commented on the strength of the evidence against the defendant was brought into the jury room and read aloud in the presence of the jury); Ne Camp v. Commonwealth, 311 Ky. 676, 225 S.W.2d 109, 111-12 (1949) (one juror told another during deliberations that she had sought the advice of a priest who advised her that it would not be a sin to impose the death penalty).
Juror 25's affidavit contains no evidence of outside influence, but only that a juror had heard elsewhere about a matter that was also mentioned during trial testimony. Nor are the other jurors' statements cited by Appellant evidence of outside influence. Each of these statements is merely a response to an inference of racing that could reasonably be drawn from the evidence presented at trial. Therefore, because these juror statements do not establish improper outside influence upon the jury, they cannot be considered for the purpose of impeaching the verdict. Jones, 450 S.W.2d at 814.
B. Withholding Information During Voir Dire
Appellant claims that his right to an impartial jury was violated when at least one juror withheld material information during voir dire. He argues that the affidavit and the newspaper article prove that a juror or jurors knew of the rumors about racing before trial and withheld that information when the trial court asked the following question during voir dire: "Does anyone have any knowledge as to the facts and circumstances of this case?"
It is well settled that " o obtain a new trial because of juror mendacity, 'a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a chall
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