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.)