State v. Lawlor

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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