Griffin v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Brent Westerfeld Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JAMES R. GRIFFIN, )
)
Appellant (Defendant Below), ) No. 49S02-0101-CR-43
) In the Supreme Court
v. )
)
STATE OF INDIANA, ) No. 49A02-9909-CR-647
) In the Court of Appeals
Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9703-CF-44527

September 7, 2001

SHEPARD, Chief Justice.

James Griffin asks for a new trial on his carjacking charges because
an alternate juror improperly expressed her belief in his guilt during his
jury’s deliberations. He also says his former attorney should have been
allowed to testify that another man confessed to the crime. We affirm.

Facts and Procedural History

Around 2:45 p.m. on March 5, 1997, Clifford Wright was driving to a
hair appointment when he saw Patricia Griffin standing at the corner of
Massachusetts and College Avenues in Indianapolis. Although the two had
never met, Ms. Griffin accepted a ride home and agreed to see Wright after
his appointment, around 5:30. When Wright returned to Ms. Griffin’s house,
he was invited in by a man who identified himself as James. A woman named
Twyanna was also there, but Ms. Griffin was not.

The three chatted for about twenty minutes and at one point James
left the room. When he returned, Twyanna asked him if he got his pistol.
James and Twyanna asked Wright for “a ride around the corner,” and he
agreed. (R. at 289.) Minutes after the three left in Wright’s car,
Twyanna asked Wright if he realized he was being “set up.” (R. at 290-91.)
Wright reached for his keys but Twyanna jerked his hand away. Wright was
forced out of the car after handing over his billfold and $33.

Wright viewed 500 police photographs but did not spot James. When
the police learned that Ms. Griffin had a brother named James, they showed
Wright another six photos, from which Wright positively identified Griffin.
A jury found Griffin guilty of carjacking, a class B felony,[1] and the
court sentenced him to six years with three suspended.

On appeal, Griffin raised four issues. Griffin v. State, 735 N.E.2d
258 (Ind. Ct. App. 2000). We address the two contentions noted above, and
summarily affirm the Court of Appeals on the remainder.[2] Ind. Appellate
Rule 58(A)(2).

I. The Alternate Juror’s Statement

After Griffin’s jurors deliberated for about two and a half hours,
they sent a note advising the judge that they could not agree on a verdict.
The judge replied, “Please continue.” (R. at 435.)

Griffin asserts, based on juror affidavits submitted with his motion
to correct error, that several jurors then sought to break the deadlock by
asking the alternate her opinion on Griffin’s guilt. This violated the
judge’s specific instruction prohibiting the alternate’s participation in
deliberations.[3] The alternate answered that she thought Griffin was
guilty because the victim’s identification was reliable based on his twenty-
minute conversation with the carjacker.

One juror stated in her affidavit that the alternate’s input “affected
my vote.” (R. at 164.)

Juror misconduct involving an out-of-court communication with an
unauthorized person creates a rebuttable presumption of prejudice. Currin
v. State, 497 N.E.2d 1045, 1046 (Ind. 1986). The trial court nonetheless
denied Griffin’s motion:[4]
The Court finds that based on the evidence presented, the comments
allegedly made by the alternate juror, did not rise to the level of
impermissible juror misconduct as there was no showing that if the
alternate, in fact, did improperly speak during deliberations, that
this affected the decision of any of the twelve regular jurors. In
fact, each of the jurors was individually polled after the verdict and
each orally said it was their individual and collective verdict.

(R. at 190.)

A threshold question is whether the juror affidavits may be
considered at all. Indiana Evidence Rule 606(b), adopted in 1994, says:
Inquiry into Validity of Verdict or Indictment. Upon an inquiry into
the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other
juror’s mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror’s
mental processes in connection therewith, except that a juror may
testify (1) to drug or alcohol use by any juror, (2) on the question
of whether extraneous prejudicial information was improperly brought
to the jury’s attention or (3) whether any outside influence was
improperly brought to bear upon any juror. A juror’s affidavit or
evidence of any statement by the juror concerning a matter about which
the juror would be precluded from testifying may not be received for
these purposes.

Griffin argues that the alternate’s opinion was an “outside
influence” under the third exception, and we agree. The affidavits are
therefore admissible, at least as evidence (which the State did not refute)
that the alternate improperly participated in jury deliberations. We
therefore proceed to consider the ramifications of this conduct.

A defendant seeking a new trial because of juror misconduct must show
that the misconduct (1) was gross and (2) probably harmed the defendant.
Lopez v. State, 527 N.E.2d 1119 (Ind. 1988). We review the trial judge’s
determination on these points only for abuse of discretion, with the burden
on the appellant to show that the misconduct meets the prerequisites for a
new trial. Mitchell v. State, 726 N.E.2d 1228 (Ind. 2000)(citations
omitted).

To meet his burden, Griffin relies in part on one juror’s assertion
that the alternate’s opinion affected her vote. (R. at 164; Appellant’s
Br. at 11.) We must therefore decide whether this statement impeaching the
jury’s verdict is admissible. In doing so we look to the history and
policy behind the general rule that jurors may not later seek to nullify
their verdicts via affidavit. See, e.g., Taylor v. Garnett, 110 Ind. 287,
11 N.E. 309 (1887).

This Court has long supported the rule prohibiting jurors from later
impeaching their verdicts. The policies underlying this rule are
important. Allowing such juror affidavits could defeat the jury’s solemn
acts under oath, open the door to post-trial jury tampering, and allow
dissatisfied jurors to destroy a verdict after assenting. Id.

Moreover, if impeachment were allowed, “[t]he sanctity of verdicts
would [] be diminished and no verdict could ever be final. Jurymen would
forever be harassed.” Turczi v. State, 261 Ind. 273, 275, 301 N.E.2d 752,
753 (1973)(citations omitted). For these reasons we have historically
been reluctant to open the door to a “contest of affidavits and counter-
affidavits and arguments and re-arguments as to why and how a certain
verdict was reached. Such an unsettled state of affairs would be a
disservice to the parties litigant and an unconscionable burden upon
citizens who serve on juries.” Stinson v. State, 262 Ind. 189, 198, 313
N.E.2d 699, 704 (1974).

The problem, of course, is how to protect such vital defendants’
rights as the right to confront witnesses (which may be violated if a jury
considers information that was not in evidence) or the right to an
impartial jury, if the best (and often only) witnesses to jury
improprieties cannot be heard. See Parker v. Gladden, 385 U.S. 363 (1966).
The U.S. Supreme Court considered that dilemma over a century ago and held
that a juror “may testify to any facts bearing upon the question of the
existence of any extraneous influence, although not as to how far that
influence operated upon his mind.” Mattox v. United States, 146 U.S. 140,
149 (1892) (quoting Woodward v. Leavitt, 107 Mass. 453 (1871)). This Court
adopted the Mattox approach in Fox v. State, 457 N.E.2d 1088, 1093 (Ind.
1984).

Ten years after Fox, we adopted Rule 606(b) as Indiana law on juror
impeachment of verdicts. This is our first occasion to decide whether the
common law prohibition against a juror testifying about how an outside
influence affected his decision still applies when a defendant invokes one
of the Rule 606(b) exceptions.

Federal practice may inform our analysis. Federal Rule of Evidence
606(b) is very similar to Indiana’s rule.[5] Federal courts generally
continue to follow the rule of Mattox, and will accept juror affidavits
stating that deliberations were tainted by improper information or
influence, but disregard any statements on the effect of that information
or influence on the juror’s decision. See 2 Stephen A. Saltzburg et al.,
Federal Rules of Evidence Manual 905 (7th ed. 1998).[6] As the Seventh
Circuit has explained:
In evaluating a claim that the jury was improperly influenced by
extraneous material, “a district court must ignore a juror’s comment
regarding how a particular piece of material disposed the juror toward
a particular verdict, and the district court must make an independent
determination of the likely effect of the prejudicial material.”

United States v. Paneras, 222 F.3d 406, 412 n.1 (7th Cir. 2000)(quoting
United States v. Berry, 92 F.3d 597, 601 (7th Cir. 1996)).

This approach would seem to restrain the potential for a losing party
to provoke virtual re-enactments of the deliberation through competing
affidavits purporting to describe the thought processes of individual
jurors. As Judge Alan Sharp observed, one risk in allowing juror
impeachment of verdicts is that “[i]t is all too easy for ingenious counsel
to prepare carefully worded affidavits to cast doubt on a jury verdict.”
Lindsey v. State, 282 N.E.2d 854, 861 (Ind. App. 1972).

Thus, the fact that one juror says the alternate’s input “affected”
her decision is not part of the analysis governing the request for a new
trial. Rather, the trial court must consider the alternate’s conduct in
the overall trial context. The alternate did not add any fresh perspective
to the discussion; the other jurors were well aware that the State’s case
relied on a strong eyewitness identification.[7] It is difficult to
believe that if eleven other jurors favored conviction, the twelfth only
acceded because the alternate also favored conviction when the majority
solicited one more view.

Our skepticism takes into account the fact that an alternate is like
a regular juror in two important respects: the alternate has been through
the same voir dire to safeguard against bias or knowledge of information
not in evidence, and has heard exactly the same evidence. Intrajury
influence is not sufficient to overturn a verdict. See, e.g., Johnson v.
State, 700 N.E.2d 480, 481 (Ind. Ct. App. 1998) (“Jurors may not decide, in
hindsight, that the weighing process overcame their spirit or will.”). See
also Ferguson v. State, 489 N.E.2d 508, 510 (Ind. 1986)(citations
omitted)(“[T]he legal bar to the impeachment of a verdict by a juror who
participated in its return is greatest where the interchange between jurors
is the source of the problem, and not a communication from some
nonjuror.”).

An alternate is not, of course a member of the jury, and he or she
qualifies as an outside influence under Rule 606(b). Here, however, the
alternate’s only influence was adding one more “me, too” to the collective
voice of the jury majority. Under the facts presented, Griffin has not
shown either gross misconduct or probable harm. The trial judge therefore
acted within the bounds of his discretion in denying relief based on juror
misconduct.

II. Hearsay Cloaked as Impeachment

In pretrial proceedings, the court granted use immunity to William
Dulin, Patricia Griffin’s former boyfriend. It also granted a defense
request to treat Dulin as a hostile witness “if he is called.” (R. at
198.) Dulin took the stand and in response to defense questioning denied
having confessed to Griffin’s former attorney, Lorinda Youngcourt, that he
committed the carjacking.

Griffin then called Youngcourt and sought to elicit her testimony that
Dulin had confessed to the crime.[8] The prosecutor objected on grounds of
hearsay and the court sustained the objection.

Griffin argues that the court should have permitted the question under
Ind. Evidence Rule 607,[9] which allows a party to attack his or her own
witness’s credibility, and Rule 613(b),[10] which allows evidence of a
prior inconsistent statement made by a witness (with certain
restrictions).[11] Because the purpose of his question was to impeach
Dulin with his prior inconsistent statement, Griffin says, the trial court
erred in sustaining the prosecutor’s objection.

We recently held, however, that under Rule 607 “a party is forbidden
from placing a witness on the stand when the party’s sole purpose in doing
so is to present otherwise inadmissible evidence cloaked as impeachment.”
Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001)(citations
omitted)(“Because [the witness] owned the home where the events began and
observed the three assailants attack the victims, it is reasonable that the
State wanted him to testify for purposes other than impeachment.”). The
Court of Appeals had earlier recited a similar proposition:
We agree . . . that “[T]he rule allowing a party to impeach his own
witness may not be used as an artifice by which inadmissible matter
may be revealed to the jury through the device of offering a witness
whose testimony is or should be known to be adverse in order, under
the name of impeachment, to get before the jury a favorable
extrajudicial statement previously made by the prior witness.”

The Pelican, Inc. v. Downey, 567 N.E.2d 847, 850 (Ind. Ct. App. 1991)
(quoting State v. Keithly, 227 Neb. 402, 406-07, 418 N.W.2d 212, 215
(1988)).

Dulin did not witness any of the relevant events here.[12] The
defense attorney’s requests that Dulin be immunized and to question him as
a hostile witness, with Youngcourt waiting in the wings, make it clear that
he expected Dulin to deny having confessed to the carjacking and that the
purpose of the exercise was to generate testimony pointing the finger at
Dulin.[13]

The question in Appleton was whether the State called a witness solely
to create the opportunity to impeach him with his pretrial statement.
Appleton, 740 N.E.2d at 125. Here, the defense called Dulin solely to
create an opportunity to impeach him with Youngcourt’s otherwise
inadmissible hearsay testimony. The trial court properly declined to
permit it.

Conclusion

We affirm the judgment of the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Indiana Code Ann. § 35-42-5-2 (West 1997) defines carjacking as
“knowingly or intentionally tak[ing] a motor vehicle from another person .
. . (1) by using or threatening the use of force on any person; or (2) by
putting any person in fear . . . .”
[2] Griffin’s remaining arguments were that newly-discovered evidence
justified retrial and that the evidence supporting his conviction was
insufficient.
[3] The judge gave the following final instruction:
You are instructed that the alternate juror who has been selected in
this case and who has been present during the entire course of this
trial will be allowed back into the jury room with the regular 12
jurors under strict instruction that the alternate juror is not to
participate in any way in the deliberations of the regular jury in
this case. In the event that the alternate juror is needed to replace
a regular member of the jury, the alternate will be called back into
the courtroom and specifically advised that the alternate may then
participate in the deliberations. Until such time, the alternate may
not in any way take part in the deliberations of the jury in this
case.
(R. at 431-32.)
[4] Judge Pro Tem W. T. Robinette presided over the trial and sentencing.
(R. at 135, 442.) Judge Gary L. Miller ruled on the motion to correct
errors. (R. at 191, 463.)
[5] The only substantive difference is that the federal rule does not
contain Indiana’s explicit exception allowing jurors to submit affidavits
regarding juror drug or alcohol use. Ind. Evid. R. 606(b); Fed. R. Evid.
606(b).
[6] This says, in relevant part:
While Rule 606(b) permits postverdict inquiry into extraneous
information and outside influences, it does not permit juror testimony
as to the actual effect of these matters on the testifying juror or on
any other juror. . . . So, in assessing whether a new trial is
required as a result of extraneous information and outside influences,
the Trial Judge must reason by inference as to the effect of these
matters on jury deliberations.

[7] The prosecutor emphasized this point in her closing argument. (R. at
407-08.)
[8] The defense later made an offer to prove documenting this testimony for
the record.
[9] Rule 607 says: “Who May Impeach. The credibility of a witness may be
attacked by any party, including the party calling the witness.”
[10] Rule 613(b) says:
Extrinsic Evidence of Prior Inconsistent Statement of Witness.
Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon, or the interests of
justice otherwise require . . . .
[11] Griffin also argues that the court should have allowed Youngcourt’s
testimony as a hearsay exception because it was a statement against
interest of an unavailable witness. Evid. R. 804(b)(3). As the Court of
Appeals correctly noted, however, Griffin has not shown that Dulin was
unavailable as defined in Evid. R. 804(a).
[12] The only other substantive testimony the defense elicited from Dulin
related to an Indianapolis Police Department booking sheet that listed him
as James Albert Dulin, Jr. (R. at 351-57.) Dulin explained that the
police had confused him and his brother, and that he only went by the name
William, not James. (R. at 358.)
[13] Dulin’s only other connection to the case came later, when Patricia
Griffin testified that Dulin showed her the stolen car some day after the
crime occurred, and that Dulin confessed to her that he committed the
carjacking. (R. at 381-82.) The prosecutor vigorously questioned Ms.
Griffin as to whether she had told him only minutes before she took the
stand that Dulin denied committing any crime. (R. at 383.)