dissenting.
Assume, for the moment, that the jury arrived at its verdict by relying on the personal knowledge of one of its members about petitioner’s “reputation for doing that sort of thing with a gun.” 122 Or App at 102. Assume also, that the jury would have acquitted petitioner, but for its reliance on personal knowledge as a substitute for evidence.1 In safeguarding the sacrosanctity of the jury’s deliberations, the majority prevents petitioner from discovering information that would establish that a substantial denial of his constitutional rights resulted in his conviction. I believe that petitioner’s interest in being tried solely on the evidence that was presented at his trial outweighs the jurors’ interest in freedom from “annoyance and embarrassment.” 122 Or App at 103.
The majority relies on Ertsgaard v. Beard, 310 Or 486, 800 P2d 759 (1990), but that reliance is misplaced. In Ertsgaard, the court considered the factors that weighed against granting a new trial in the face of jury misconduct. 310 Or at 497. The majority suggests that the Ertsgaard court found that an inquiry into the jury’s deliberative process was inappropriate. To the contrary, the court recognized that juror misconduct may comprise
“things only another juror could know. It follows that only another juror, by affidavit or live testimony, could bring such misconduct to the judge’s attention. The trial judge properly considered these affidavits.” 310 Or at 496.
It was only after weighing the evidence of jury misconduct that the Supreme Court concluded that the trial court had abused its discretion by ordering a new trial.
There are two critical differences between this case and Ertsgaard. First, Ertsgaard was a direct appeal from a civil case in which the trial court granted a plaintiffs motion for a new trial. A trial court’s decision on a motion for a new trial involves the exercise of its discretion. 310 Or at 496. In *106contrast, this is a post-conviction proceeding in which petitioner alleges that he was substantially denied his constitutional right to a trial by the jury on the evidence. If petitioner were to prove his allegations, then the post-conviction court would be required to grant relief.2 Second, the trial court in Ertsgaard considered the evidence of juror misconduct before making its decision to grant a new trial. The Supreme Court held that it was proper for the court to consider that evidence, although it erred by granting a new trial. In contrast, the post-conviction court and the majority will not even allow petitioner to discover the only evidence that could possibly support his claim.
The state has successfully misdirected the majority’s attention by asserting, “even if the facts were as petitioner alleged, the alleged juror’s ‘misconduct’ would not support a grant of a new trial.” 122 Or App at 103. I agree that the juror’s purported statement would not, by itself, establish that petitioner is entitled to relief. However, the majority asserts that “it is not apparent how the information that allegedly was furnished to the jury might have affected the verdict. ’ ’ 122 Or App at 103. Whether petitioner has a reputation for “doing that sort of thing with a gun” goes directly to his defense that he was justified in firing the gun. Whether or not the juror made the remarks that the co-worker attributed to the juror is not the dispositive factual issue. The dispositive factual issues are whether the jury considered evidence outside the record and, if it did, whether that extra-record evidence affected its verdict. If so, then the juror’s misconduct was a “material factor” that impermissibly “result[ed] in” petitioner’s conviction. ORS 138.530(l)(a); Barnes v. Cupp, 44 Or App 533, 538, 606 P2d 664, rev den 289 Or 587 (1980), cert den 499 US 1088 (1981).
*107In my view, the juror’s purported statement seriously raises the possibility that it caused a substantial denial of petitioner’s constitutional rights. Petitioner is entitled to find out. The post-conviction court erred by denying his motion for an order allowing his attorney to interview, obtain affidavits from and possibly subpoena the jurors who convicted him.
I dissent.
Rossman, Durham and Leeson, JJ., join in this dissent.Article I, section 11, prohibits a jury from using the personal knowledge of its members as a substitute for evidence. State v. Cervantes, 118 Or App 429, 434, 848 P2d 118 (1993).
ORS 138.530(1) provides, in part:
“Post-conviction relief pursuant to ORS 138.510to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting in petitioner’s conviction * * * of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.” (Emphasis supplied.)
The word “shall” creates a mandatory duty to grant relief when a petitioner establishes grounds therefor. Dika v. Dept. of Ins. and Finance, 312 Or 106, 109, 817 P2d 287 (1991).