OPINION
Sammy L. Johnson appeals his convictions for Theft, 1 a class D felony, Resisting Law EnforcementAFleeing, 2 a class A misdemean- or, Disorderly Conduct, 3 а class B misdemeanor, and the habitual offender finding. As restated, he presents a single issue for review:
Did juror misconduct deny Johnson a fair trial?
We affirm.
Aftеr Johnson was convicted on the above charges and an habitual offender determination was made, a juror reported to Johnson’s counsel that the other five jurors pressured her into the guilty finding on the theft charge. She executed an affidavit, which in pertinent part stated:
3. That during the course of deliberation, Affiant was not inclined to find the Defendant guilty on the charge of Theft, a Class D felony, for thе reason that I had doubt that the Defendant had the necessary intent to commit the felony of Theft; however, Affiant was coerced by the five (5) other members of the jury into agreeing to return a guilty verdict upon said charge.
4. That no threats of any nature, either physical or financial were made against Affiant; however, the coercion exerted upon this Affiant was psychological in nature with thе other jurors pressuring her to agree with their verdict of “Guilty.”
5. That Affiant’s assent to the verdict of “Guilty” on the charge of Theft was not [free] and voluntary upon her part, and was the result of undue influence applied to her by the other members of the jury.
Record at 128. Based upon the affidavit, Johnson filed a Motion to Correct Errors. Johnson claimed that the guilty verdict for theft was not based upon a unanimous verdict and should bе set aside. He requested that the habitual offender finding premised upon the erroneous theft verdict be set aside as well. The trial court denied the motion.
Johnson contends that the verdict was the product of undue influence exerted by five of the jurors, thus it is unreliable. He acknowledges that at cоmmon law, a verdict was not subject to impeachment by evidence from the jurors who returned it.
See Harrison v. State,
In 1994, the Indiana Rules of Evidence were adopted. Ind. Evidence Rule 606(b) provides:
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 оr to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assеnt 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) whethеr 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.
The rule precludes consideration of the juror’s affidavit which does not fit in one of the three exceptions.
No reported decision in Indiana addresses the specific exceptions within Evid.R. 606(b). It is noteworthy that similar rules are employed by many states, and the rule mimics that found in the federal rules. Thus, eases from other jurisdictions are instructive.
The circumstances in
Kailukiak v. State,
The juror asserted that, although she was never physically attacked, the оther jurors had told her to “shut up” when she attempted to voice her views of the evidence. As a result of this treatment, the juror said, her spirit was eventually broken to the point where she felt she had no сhoice but to accede to the views of the other jurors.
Id. at 779.
The
Kailukiak
court found no error in the trial cоurt’s refusal to hear testimony from the jurors after the verdict. In fact, the court noted that the trial cоurt was prohibited from inquiring into the intentions of the jurors during deliberations.
Id.
Examples of matters upon which jurors mаy be questioned concerning outside influences are: “fraud, bribery, threats or coercion by third pаrties, or other acts of third parties in obstruction of justice.”
Id.
Specifically excluded by the rule is thе reception of testimony regarding purported intimidation or harassment by other jurors.
Id.
(citing
United States v. Stansfield,
Plainly, excеption (3) within 606(b), regarding outside influences improperly brought to bear upon a juror, envisions sources оutside of the jury. All of the jurors receive the same instructions regarding their deliberations. Jurors are called upon to consciously weigh the decision. A balancing process is inherent. Jurors may not decide, in hindsight, that the weighing process overcame their spirit or will. The rule is in place to prohibit the type of attack Johnson seeks to mount.
Judgment affirmed.