No. 01-878
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 235
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOHN W. LAWLOR,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill,
Honorable John Warner, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Fort Benton, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant
Attorney General, Helena, Montana
David Rice, County Attorney; Cyndee Faus, Deputy County Attorney,
Havre, Montana
Submitted on Briefs: May 9, 2002
Decided: October 22, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 The defendant, John W. Lawlor (Lawlor), was charged with “Operating a Motor
Vehicle While Under the Influence of Alcohol or Drugs, a Fourth or Subsequent Lifetime
Offense,” in violation of §§ 61-8-401(1)(a), and -731, MCA. The District Court granted
defendant’s motion in limine which precluded any reference to Lawlor’s three previous DUI
convictions during the trial. Nevertheless, the jury found him guilty. Lawlor subsequently
filed a consolidated motion for a hearing and a new trial in which he alleged that during
deliberations one of the jurors offered to other jury members an opinion relating to Lawlor’s
prior DUI convictions. After an evidentiary hearing on the matter, the District Court denied
Lawlor’s request for a new trial and later sentenced Lawlor to six months with the
Department of Corrections. This appeal follows. We affirm the District Court’s ruling.
Background
¶2 On April 13, 2001, Lawlor was charged by information with felony DUI, failure to
have proof of insurance, and driving with a suspended or revoked license. Lawlor pled
guilty to the misdemeanor charges and requested a jury trial for the DUI charge. Prior to the
jury trial, the District Court granted Lawlor’s motion in limine which precluded any
references to his criminal history, specifically his three prior DUI convictions. During his
trial neither prosecution nor defense referred to Lawlor’s criminal history. Notwithstanding,
a jury found Lawlor guilty of felony DUI.
¶3 Sometime thereafter Lawlor’s counsel contacted jury member Cathy Ann Kiemele
(Kiemele) to inquire about the guilty verdict. Kiemele volunteered that during jury
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deliberations one of the jury members mentioned this was Lawlor’s fourth DUI. Kiemele
also stated that she had planned on voting not guilty until she heard the other juror’s
comment and instead voted guilty. Based on this information, Lawlor filed a consolidated
motion for a hearing and a new trial in which he alleged that the jury had received extraneous
prejudicial information. Attached to his consolidated motion was Kiemele’s affidavit. The
State objected to Lawlor’s motion, noting that juror affidavits may not be used to impeach a
verdict for internal influences on the jury as provided by Rule 606(b), M.R.Evid. The State
also moved to have the affidavit stricken.
¶4 The District Court held an evidentiary hearing on September 17, 2001. Kiemele
testified that during jury deliberations, juror Janet Tretheway (Tretheway) told the other jury
members that this was Lawlor’s fourth DUI. When other jurors said they had not heard that,
Tretheway told them they must have been sleeping. Kiemele testified that Tretheway told
them that the prosecutor had mentioned Lawlor’s previous DUIs in her opening statement.
She also testified that other jurors disagreed with Tretheway and said they did not hear the
comment. Kiemele stated that she was going to vote not guilty but changed her vote to guilty
because of Tretheway’s comment.
¶5 Tretheway then testified that during jury deliberations she said that Lawlor obviously
had three prior DUIs. She stated that she knew this case had to be a felony or it would not be
in district court. Tretheway knew this information because she teaches health classes at a
college, and officers had spoken to her classroom about the consequences of DUI. Most
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importantly, Tretheway testified that she did not know or hear of Lawlor prior to trial, and
that she had no knowledge of the case before the trial.
¶6 Lawlor’s attorney argued that the opinion Tretheway provided to the other jurors was
extraneous and prejudicial evidence. The District Court found that no extraneous information
was brought into the jury room and denied Lawlor’s motion for a new trial and sentenced
Lawlor to six months with the Department of Corrections. Lawlor appeals the District
Court’s ruling. We affirm the ruling.
¶7 The sole issue presented on appeal is as follows:
Did the District Court abuse its discretion in denying Lawlor’s motion for a new trial?
Discussion
¶8 We review a district court’s denial of a motion for a new trial to determine whether
the district court abused its discretion. State v. Kelman (1996), 276 Mont. 253, 260, 915 P.2d
854, 859; State v. Brogan (1995), 272 Mont. 156, 160, 900 P.2d 284, 286. Absent an abuse
of discretion, this Court will affirm a district court’s decision to not grant a motion for a new
trial. Kelman, 276 Mont. at 260, 915 P.2d at 859; State v. Hatfield (1995), 269 Mont. 307,
310, 888 P.2d 899, 901.
¶9 Lawlor alleges that the District Court abused its discretion when it denied his motion
for a new trial. The only evidence supporting Lawlor’s motion is a juror affidavit; however,
Montana law generally forbids the admission of juror testimony for purposes of ordering a
new trial. Rule 606(b), M.R.Evid., provides that a juror may not testify as to what occurred
during jury deliberations except when the testimony pertains to: (1) whether extraneous
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prejudicial information was improperly brought to the jury’s attention; (2) whether any
outside influence was brought to bear on any juror; or (3) whether any juror was induced to
assent to any verdict or finding by resort to the determination of chance. If the information
contained in Kiemele’s affidavit does not pertain to any of the above three areas, the affidavit
will be excluded, leaving Lawlor with no evidence to support his motion for a new trial.
¶ 10 The disallowance of juror testimony regarding deliberations is to ensure that jurors are
able to deliberate and make decisions free from frivolous and recurrent invasions of their
privacy by disappointed litigants. State v. Maxwell (1982), 198 Mont. 498, 505, 647 P.2d
348, 353. As this Court stated in State v. Marker, 2000 MT 303, ¶ 15, 302 Mont. 380, ¶ 15,
15 P.3d 373, ¶ 15, “[t]estimony of the jurors to impeach their own verdict is excluded not
because it is irrelevant to the matter in issue, but because experience has shown that it is
more likely to prevent than to promote the discovery of the truth.” (quoting Boyd v. State
Medical Oxygen & Supply, Inc. (1990), 246 Mont. 247, 252, 805 P.2d 1282, 1286). “If
jurors were permitted to impeach their own verdicts the door would be thrown wide open to
corrupt practices. After their discharge the jurors would be subjected to all sorts of tampering
influences to induce them to repent of their decision and endeavor to change or revoke it by
making affidavit to real or trumped-up irregularities. Thus there would be no assurance that
any verdict, however just, would be final.” Rasmussen v. Sibert (1969), 153 Mont. 286, 293,
456 P.2d 835, 839; State v. Gies (1926), 77 Mont. 62, 64, 249 P. 573, 574.
¶ 11 One exception to the rule against juror testimony hinges on “whether extraneous
prejudicial information was improperly brought to the jury’s attention.” Rule 606(b)(1),
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M.R.Evid. Where external influence is exerted or external prejudicial information is brought
to the jury’s attention, juror affidavits can be the basis of overturning the judgment, State v.
Brogan (1995), 272 Mont. 156, 161, 900 P.2d 284, 287; however, juror affidavits may not be
used to impeach a verdict based upon internal influences on the jury such as a mistake of
evidence or misapprehension of the law. Id. (citing Harry v. Elderkin (1981), 196 Mont. 1, 8,
637 P.2d 809, 813). Naturally, Lawlor argues that Tretheway’s comments were extraneous
prejudicial information and that Kiemele’s affidavit should not be excluded. The State
counters that the comments constitute an internal influence and therefore do not fall within
any exception set forth in Rule 606(b), M.R.Evid. We must therefore determine whether
Tretheway’s statements were an external or internal influence on the jury.
¶ 12 Examples of impermissible external influence or extraneous information reaching the
jury include a juror doing any of the following: telephoning a relative with regard to previous
litigation by the plaintiff; visiting the scene of an accident; conducting experiments and
telling the jury of his or her findings; receiving evidence outside of court; and bringing a
newspaper article into the jury room and showing it to the jury. See State v. Kelman (1996),
276 Mont. 253, 262, 915 P.2d 854, 860. Examples of internal influences on the jury include:
the jury’s use of demonstrative evidence and experimentation with the evidence; pressure by
other jurors; and knowledge and information shared from one juror to another or others. See
id.
¶ 13 Tretheway testified that her comments regarding Lawlor’s previous DUI charges
derived from her own general knowledge of the criminal justice system. On several
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occasions this Court has recognized that “knowledge and information shared from one juror
to another or others is not extraneous influence” and that “[j]urors are expected to bring to
the courtroom their own knowledge and experience to aid in the resolution of a case.” State
v. Hage (1993), 258 Mont. 498, 509, 853 P.2d 1251, 1257. Lawlor has failed to demonstrate
that Tretheway’s comment derived from any source other than from her own general
knowledge and experience. Therefore, her comment was internal. The fact that Tretheway
mistakenly told the other jury members that the prosecution had mentioned Lawlor’s DUIs
during the trial does not make her comment less internal; a mistake of evidence is an internal
influence and may not be used to impeach a verdict. Brogan, 272 Mont. at 161, 900 P.2d at
287 (citing Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809, 813). The other jury
members were free to, and indeed did, disagree with her statement.
¶ 14 Lawlor alternatively asks this Court to adopt a more expansive view of the Rule
606(b) exceptions, citing this author’s concurrence in State v. Kelman (1996), 276 Mont. 253,
915 P.2d 854, as rationale for his argument. Even if this Court were to adopt the concur-
rence’s position in Kelman, Lawlor’s argument that Tretheway’s comment was external
would still fail. In Kelman a juror provided the rest of the jury with information about the
defendant, in particular that he owned a “strip bar.” The majority held that the juror’s
statement did not qualify as external influence subject to the exceptions of Rule 606(b),
M.R.Evid. Kelman, 276 Mont. at 262-63, 915 P.2d at 860. The concurrence disagreed
stating that “when facts about a party, other than those deemed relevant and admissible at
trial, are brought to the jury’s attention, those facts are extraneous.” Kelman, 276 Mont. at
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263, 915 P.2d at 861. In this case, Tretheway’s deduction that Lawlor had previous DUI
convictions was not based on any facts or information about Lawlor himself. As the
concurrence in Kelman noted, “[i]t is one thing for jurors to apply their common sense or
knowledge to the facts of the case, as developed by trial. That is the very sort of internal
deliberation envisioned by our system of justice.” Id. The juror in the case at bar did just
that: rather than bringing facts about a party to the jury’s attention, she applied her
knowledge that felony DUIs are tried in district court. Knowledgeable jury members such as
Tretheway must not be excluded from being on a jury nor should they be subjected to
scrutiny for sharing their knowledge with fellow jury members.
¶ 15 Even though we hold that the District Court erred in considering the juror affidavit in
ruling on Lawlor’s motion for a new trial, we conclude that the District Court did not abuse
its discretion in denying Lawlor’s motion for a new trial. In affirming the District Court on
this issue, we rely, as we did in Kelman, on our determination that the juror statement was
not an external influence subject to the exceptions of Rule 606(b), M.R.Evid.
/S/ W. WILLIAM LEAPHART
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
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