PEOPLE v BUDZYN PEOPLE v NEVERS
Docket Nos. 102654, 102655
Supreme Court of Michigan
Decided July 31, 1997.
456 Mich 77
Argued November 12, 1996 (Calendar Nos. 1-2).
In an opinion by Justice RILEY, joined by Justices BRICKLEY, CAVANAGH, and WEAVER, the Supreme Court held:
The defendants have demonstrated that their juries were exposed to extrinsic influences that created a real and substantial possibility of prejudice depriving them of their constitutional rights under the Sixth Amendment. These errors, however, were harmless beyond a reasonable doubt with regard to defendant Larry Nevers. Therefore, the conviction of defendant Nevers is affirmed. With regard to defendant Walter Budzyn, the extrinsic influences were not harmless beyond a reasonable doubt. Accordingly, defendant Budzyn‘s conviction is vacated and the case is remanded for a new trial.
- During deliberations, jurors may consider only the evidence that is presented to them in open court. Consideration of extraneous facts not introduced in evidence deprives a defendant of the rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. In order to establish that extrinsic influence was error requiring reversal, the defendant must initially prove that the jury was exposed to extraneous influences, and that these extraneous influences created a real and substantial possibility that they could have affected the jury‘s verdict. Generally, in proving the second point, the defendant will demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict. If the defendant meets this initial burden, the burden shifts to the people to demon
strate that the error was harmless beyond a reasonable doubt. The people may do so by proving either that the extraneous influence was duplicative of evidence produced at trial or that the evidence of guilt was overwhelming. - Generally, jurors may not impeach their own verdict by subsequent affidavits showing misconduct in the jury room. Once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. Rather, oral testimony or affidavits only may be received with regard to extraneous or outside errors, such as undue influence by outside parties. The distinction between an external influence and inherent misconduct is not based on the location of the wrong. Rather, the nature of the allegation determines whether the allegation is intrinsic to the jury‘s deliberative process or whether it is an outside or extraneous influence. In examining these affidavits, a trial court should not investigate their subjective content, but should limit its factual inquiry to determining the extent to which the jurors saw or discussed the extrinsic evidence.
- In these cases, three influences culled from sworn affidavits were extraneous to the trial proceedings and did not result exclusively from juror misconduct inherent in the verdict. According to these sworn statements, the juries were exposed to, and considered during deliberations, extraneous factors regarding whether defendants Budzyn and Nevers were guilty of second-degree murder. Each defendant has met his initial burden. These extraneous influences were harmless with respect to defendant Nevers, however, in light of the overwhelming evidence of his guilt. But the errors require reversal of defendant Budzyn‘s conviction because the evidence against him was not overwhelming.
Justice BOYLE, concurring in part and dissenting in part, stated that with respect to Budzyn, it is a fundamental presumption of the judicial system that all Americans are equally capable of fairly discharging their public responsibilities. The judiciary has no competence to assess the cultural or psychological mind-set of a given jury and assess its reactions in light of its own assumptions. Further, the showing of the movie, Malcolm X, to the jurors was not an extraneous communication, and juror knowledge of contingency plans in the event the verdict was an acquittal, although discussed during deliberations, standing alone, would not require reversal.
However, the communication of incorrect information to the jurors during deliberations that defendant Budzyn was a member of STRESS was error requiring reversal. Evaluated in the context of the evidence as a whole, the prejudicial significance is that Budzyn‘s membership in STRESS indicated a propensity for abuse of young
People v Budzyn reversed and remanded for a new trial.
People v Nevers affirmed.
Chief Justice MALLETT, concurring in part and dissenting in part, stated that the defendants received a fair trial. While the potential for prejudice from the asserted influences is real, it does not rise to a real and substantial possibility that the verdicts were affected. Given the overwhelming evidence supporting the verdicts, it can be said beyond a reasonable doubt that the influences did not contribute to the verdicts.
Once a defendant comes forward with evidence establishing the existence of an extraneous prejudicial influence, the burden shifts to the government to rebut the presumption of prejudice by showing that the extraneous influence was harmless error. To determine whether the extraneous influences merit reversal, reviewing courts must first determine whether the defendant has made the required threshold showing that the extraneous materials were prejudicial and must then examine whether the prosecution has shown that the jury‘s exposure to the materials was harmless. Exposure to prejudicial extrinsic materials is harmless error if the reviewing court may conclude, beyond a reasonable doubt, that the other evidence adduced at trial is so overwhelming that there is no real and substantial possibility that the challenged evidence contributed to the conviction.
Given the unique facts of this case, the defendants failed to meet the threshold burden of establishing a real and substantial possibility that the viewing of the movie Malcolm X affected the verdicts. Even if the defendants had met their initial burden, a reversal is not required here because it can be said beyond a reasonable doubt that the other evidence adduced at trial is so overwhelming that there is no real and substantial possibility that viewing the movie might have contributed to the convictions.
The defendants did not produce sufficient evidence that either jury panel, in its entirety, was tainted by exposure to media reports concerning contingency plans of suburban law enforcement in case of postverdict rioting. While the exposure occurred during deliberations, the lack of proof regarding the degree of juror exposure weighs against a new trial. Even if extensive juror exposure had
No combination of factors, including other asserted extraneous influences, denied the defendants a fair trial by an impartial jury. Given the overwhelming evidence supporting the verdicts, those influences did not substantially sway the judgment of the jurors.
Justice KELLY took no part in the decision of this case.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.
Carole M. Stanyar for defendant Budzyn.
Neil H. Fink for defendant Nevers.
Amicus Curiae:
William J. Johnson, pro hac vice, and Frank A. Guido, General Counsel for Police Officers Association of Michigan, for National Association of Police Organizations, Inc.
OPINION OF THE COURT
RILEY, J. In this appeal, we are asked to review the fairness of the trial for two police officers who were convicted of second-degree murder for killing a suspected drug user while attempting to arrest him while the suspect was holding contraband. We conclude that defendants have demonstrated that their juries were exposed to extrinsic influences that created a real and substantial possibility of prejudice, depriving them of their constitutional rights under the Sixth Amendment. These errors, however, were harmless
FACTS AND PROCEEDINGS
Defendants Budzyn and Nevers were police officers with the Detroit Police Department. They were on duty when the incident occurred that resulted in Malice Green‘s death. Both were tried at a single criminal proceeding with two different juries.1
On November 5, 1992, at approximately 10:15 P.M., defendants were patrolling in the city of Detroit in plain clothes in an unmarked vehicle. They apparently observed a Tempo, driven by Malice Green, with bullet holes in its front passenger door. Defendant Nevers, who only gave testimony before his own jury, testified that he observed the car pull up in front of a house known for its drug activity. Budzyn and Nevers stopped behind the Tempo to investigate. The home, with a storefront attached to it, was occupied by Ralph Fletcher. Fletcher explained that others used his house for illegal drug activities. Robert Hollins and Theresa Pace, witnesses to the event, were present at Fletcher‘s house and had been smoking cocaine that evening.
Defendant Budzyn, who only testified before his own jury, said that he witnessed Robert Knox running
At this point, there is substantial disagreement in the testimony given by defendants Budzyn and Nevers and the witnesses to the incident, Brown, Fletcher, Hollins, Knox, and Pace regarding what happened.
The five civilian witnesses testified that after Green refused to open his hand, Budzyn began to hit him repeatedly on the hand with the police flashlight, telling him to open his hand. Budzyn then climbed onto Green, who did not resist but did not comply, straddling him. Brown testified that Budzyn struck Green about ten times on his head with the flashlight.
These five witnesses also said that, while Budzyn was struggling with Green in the Tempo, Nevers struck Green on his knee several times. Brown and Fletcher said that Nevers then went around to the other side of the car, the driver‘s side, opened the door, and struck Green, who was now lying on the front seat, on the head with his flashlight.4 Nevers instructed these people to leave the scene.
In contrast to this testimony, Budzyn explained to his jury that while Green was sitting in the passenger side of the vehicle, he suspected that Green was holding narcotics in his fist. He said that he grabbed Green‘s right arm and that Green kicked him with both his legs. He produced evidence of a small injury to his knee. Budzyn said that he turned and fell backward into the vehicle, dropping his flashlight. Budzyn denied that he ever hit Green at all. Budzyn also said that he only held Green‘s hands because he suspected that he was holding narcotics. Budzyn called for backup assistance. Budzyn explained that he heard
Like Budzyn, Nevers testified to his jury that he assisted Budzyn when Green resisted Budzyn‘s efforts to open his hand. Nevers explained that he only hit Green on his knees when Green brought his knees up to stop Nevers from prying open his hand. Nevers then went to the other side of the vehicle because Budzyn told him that Green was attempting to get out of the other side of the car. Nevers then told the people from Fletcher‘s place to leave. Nevers explained that he hit Green in the head with his flashlight because Green was grabbing for his gun. Nevers said that after he struck him, “[Green] finally let go of my gun and I did not hit him [again]” at that time. Nevers flagged down the EMS medical technicians who had been called to the scene. Green continued to struggle with the officers and Nevers said he saw something “shiny” in Green‘s right hand and he struck him again, the blow landing on Green‘s head, because Nevers feared he might be carrying a razor blade or knife. Nevers admitted that, during the course of the incident he hit Green five or six times on the head with his flashlight.
The EMS medical technicians arrived in two vehicles. The first to arrive were Albino Martinez and Mithyim Lewis. The other EMS vehicle soon arrived with two other medical technicians, Lee Hardy and Scott Walsh. Several marked police cars arrived soon after the EMS vehicles. Martinez, Lewis, Hardy, and Walsh all testified that Green was covered with blood and was hanging from the driver‘s side door when
Officer Robert Lessnau,5 who arrived on the scene in one of the marked police vehicles, pulled Green from the vehicle. The EMS medical technicians testified that Lessnau hit Green with his fists. Martinez and Walsh said that while Lessnau was striking Green, Nevers also hit Green twice in the ribs. Green finally released the car keys he held in one hand and a piece of white paper, apparently for rolling rock cocaine, he held in the other. The uniformed officers, including Sergeant Freddie Douglas,6 then cuffed Green‘s hands behind his back as Green struggled. The EMS medical technicians began rendering care to Green. Green suffered a seizure and, soon after, died.
The people presented Dr. Kalil Jiraki, an assistant Wayne County Medical Examiner, as a medical expert
Budzyn and Nevers were charged with second-degree murder. Beginning with the first reports of Green‘s death, the case produced a firestorm of media publicity in the Detroit metropolitan area. The incident occurred soon after the California state courts acquitted four white Los Angeles police officers who had been videotaped beating black motorist Rodney King. The acquittal in the King case resulted in a terrible riot in Los Angeles that drew the attention of the national media. The media reports in Detroit of Green‘s death included a comparison of the two incidents. Before the trial began, the Detroit Police Department fired defendants. The city of Detroit also agreed to a multimillion dollar settlement with Green‘s estate. In response to some criticisms of the settlement, a city attorney stated that a generous settlement might spare the city the riotous violence that racked Los Angeles after the acquittal of the police officers. These events occurred during the interval between Green‘s death in November 1992 and the start of defendants’ trial in June 1993, seven months later.
After approximately seven weeks of trial, the juries began deliberating on August 13, 1993. Budzyn and Nevers were convicted of second-degree murder. The jury in Budzyn‘s trial deliberated for eight days, and, in Nevers’ trial, the jury deliberated for nine days. Budzyn was sentenced to serve eight to eighteen years, and Nevers was sentenced to twelve to twenty-five years in prison. Defendants moved for a new trial, but the trial court denied this motion.
On appeal by right, the Court of Appeals consolidated defendants’ appeals and affirmed the convictions in an unpublished opinion per curiam, issued March 22, 1995 (Docket Nos. 170477, 170478). Defendants appealed to this Court, and this Court
ANALYSIS
I. THE STANDARD FOR CLAIM OF ERROR FOR EXTRINSIC INFLUENCES ON THE JURY
A defendant tried by jury has a right to a fair and impartial jury. People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994) (MALLETT, J., plurality opinion), citing Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). During their deliberations, jurors may only consider the evidence that is presented to them in open court. See United States v Navarro-Garcia, 926 F2d 818, 820 (CA 9, 1991). Where the jury considers extraneous facts not introduced in evidence, this deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. See Hughes v Borg, 898 F2d 695, 700 (CA 9, 1990).
In order to establish that the extrinsic influence was error requiring reversal, the defendant must initially prove two points. First, the defendant must prove that the jury was exposed to extraneous influ
II. APPLICATION OF THE STANDARD
A. EXPOSURE TO EXTRINSIC EVIDENCE
In examining the extraneous influences that defendants claim affected the juries’ verdicts, we shall focus on defendants’ claims from juror affidavits that the juries were exposed to (1) the film Malcolm X, (2) media reports during the trial of existing contingency plans in case of rioting, i.e., placing the National Guard on alert and closing the freeways in the event the juries acquitted, and (3) the claim that the jurors considered as a factor defendants’ supposed participation in the police unit known as STRESS (Stop the Robberies Enjoy Safe Streets)12 even though there was no evidence about this produced at trial. There is no dispute that the trial court provided the film Malcolm X to the juries, which they watched (at least in part) on August 5, 1993, and on August 6, 1993.13 This viewing occurred near the end of trial: the trial had begun on June 18, 1993, and the juries began deliberating on August 13, 1993. The affidavits confirmed that the jurors had watched, at least in part, Malcolm X. Defendants also rely on these juror affidavits to assert that the two other alleged extrane
Generally, jurors may not impeach their own verdict by subsequent affidavits showing misconduct in the jury room. People v Pizzino, 313 Mich 97, 108; 20 NW2d 824 (1945). See also Tanner v United States, 483 US 107; 107 S Ct 2739; 97 L Ed 2d 90 (1987). As the Court of Appeals has previously noted, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. Rather, oral testimony or affidavits may only be received on extraneous or outside errors, such as undue influence by outside parties. See Hoffman v Monroe Public Schools, 96 Mich App 256, 257-258; 292 NW2d 542 (1980), citing Mattox v United States, 146 US 140; 13 S Ct 50; 36 L Ed 917 (1892). See also People v Larry Smith, 106 Mich App 203, 211-212; 307 NW2d 441 (1981). As the United States Supreme Court has explained, the distinction between an external influence and inherent misconduct is not based on the location of the wrong, e.g., distinguished on the basis whether the “irregularity” occurred inside or outside the jury room. Rather, the nature of the allegation determines whether the allegation is intrinsic to the jury‘s deliberative process or whether it is an outside or extraneous influence. See Tanner, supra at 117-118. In examining these affidavits, a trial court should not investigate their subjective content, but limit its factual inquiry to determining the extent to which the jurors saw or discussed the extrinsic evidence. See Dickson v Sullivan, 849 F2d 403, 406 (CA 9, 1988).
B. REAL AND SUBSTANTIAL POSSIBILITY OF PREJUDICE
We must next determine whether defendants have established that there is a real and substantial possibility that these extrinsic influences could have affected the juries’ verdict. When considering that (1) the juries viewed the film Malcolm X as a group near the end of trial, (2) the juries, or a member, were exposed during deliberations to the fact the city of Detroit was bracing for a riot in the event of an acquittal, and (3) the juries were exposed to extrinsic
The first of these influences that we address is the Malcolm X film. The film is a work based on Malcolm X‘s autobiography. The juries viewed the film with the understanding that it had been provided, with three others, as entertainment by the trial court during a period late in trial where there were no trial proceedings. The film begins with the voice of Malcolm X‘s character giving a provocative speech charging “the white man with being the greatest murderer on earth” while the viewer is shown footage of Rodney King being beaten by Los Angeles police officers, interspersed with a picture of an American flag.15 The Rodney King videotape is shown in slow motion, in eight
Later, in a different scene of the film, the character portraying Malcolm X states:
No, I‘m telling you that devil has made dead souls out of you and I [sic]. ... Why, my brothers and sisters, he should get down on his knees. He should beg our mercy. Oh, my brothers and sisters, his kind has committed God‘s greatest crime against your and my kind every day of his life. He ought to get on his knees and say he‘s committed the crime. But does he do that? Does he do that? No. No, he scorns you. He splits your head with his night stick, he busts you upside of the head with that billy club, he calls you a nigger. I‘m telling you he calls you a coon. That‘s what he says to you—“Boy,” “Nigger.” Four hundred years
is long enough. You‘ve been sitting down, laying down, and bowing down for four hundred years. I think it‘s time to stand up. [Emphasis added.]
In the second half of the film that was only seen by the Budzyn jury,17 Malcolm X‘s character is forced to rescue a member of the Nation of Islam from the police station. A bystander explains that a police officer had “crack[ed]” him with (presumably) his night stick and the man began to bleed like a “stuck hog.”18 Soon after this episode, in scenes only viewed by the Budzyn jury, Malcolm X‘s character gives a speech before an audience in which he states (interspersed with actual footage from the 1960s of violence by white police officers against the black community):
A hundred years ago, they used to put on white sheets and sic bloodhounds on us. Well, nowadays they‘ve traded in the sheets—well, some of them traded in sheets—... they have traded in those white sheets for police uniforms. They‘ve traded in the bloodhounds for the police dogs.
*
*
*
You‘ve got these Uncle Tom negro leaders today that are telling us we ought to pray for our enemy. We ought to love our enemy. We ought to integrate with an enemy who bombs us, who kills and shoots us, who lynches us, who rapes our women and children. No! (interspersed with scene of Ku Klux Klan).
The greater context of the film did not dull these words because they are strikingly inflammatory. The power of these words might have triggered an emotional response by the jury, because defendants’ conduct, as alleged, could arguably fit the description given by Malcolm X‘s character. There is some indication that it did evoke such a response. A juror from the Budzyn trial swore that apparently this scene of the film excited a response from one of the other jurors while they watched the movie as a group:
I specifically recall that segment of the movie in which Malcolm X compares police officers to the Ku Klux Klan. I also specifically recall that there was a verbal reaction by at least one juror when that speech was made.
As an extraneous influence, this film did not, strictly speaking, introduce any outside information about this event, i.e., extrajudicial facts about defendants, Malice Green, or the incident itself. Nevertheless, the viewing of the film, with its forceful words and images, may have undermined the juries’ ability to examine impartially defendants’ credibility. Both defendants testified and gave accounts of the altercation that conflicted with that of the witnesses for the prosecution.19 The images of police brutality from
Moreover, the juries may have found it difficult to set aside, when they examined the testimony of these particular defendants, the accusations expressed by Malcolm X‘s character in the film, and suggested by the Rodney King videotape, that white police officers were brutal racists who could not be trusted. The jurors may have been less willing to believe that defendants, as white police officers, could be trusted.20 In focusing the jurors’ attention in a very emotional way on the racial element of the crime, the images from the film invited the juries to view the instant crime as a part of a pattern of police brutality, effectively asking them to redress this injustice. The juries were, however, bound to decide the case on only the facts as presented at trial and to weigh defendants’ credibility without consideration of these extraneous factors.
These themes from Malcolm X of racial bigotry by the police force tied into, and intensified, the significance of the jurors’ exposure to other facts extrinsic to the trial. The affidavits indicate that the Budzyn jury and one member of the Nevers jury were exposed to the fact, during deliberations, that the city of Detroit was bracing for a riot in the event of an acquittal. Such rioting, of course, occurred in Los Angeles after the acquittal of the white police officers who were charged with assaulting Rodney King. The juror from Budzyn‘s trial swore that this fact had
During the trial at one point the question was raised whether “they” would riot if we didn‘t convict. Towards the end of deliberations but before I signed the verdict form, someone mentioned reports that freeways and businesses might be closed. It was also discussed that the National Guard had been put on alert for the end of the trial.
A juror in the Nevers trial indicated that he had learned from news reports and other sources about the city‘s preparation for a possible riot.21 There is no indication that the Nevers jury ever discussed this point during deliberations. Yet, according to an affidavit, the Nevers jury did discuss, before deliberations, the “similarities between Rodney King and this case” because “it was cops beating a black man.” Like the exposure to the film, the fact that the city braced for a riot should be irrelevant to the juries’ deliberations because they are bound to issue their decisions in accordance with law. They should not consider whether there would be a riot if they acquitted. The reality is, however, that the jurors’ knowledge that the city was preparing for a possible riot may have caused them to fear an acquittal.
Furthermore, the jurors were also exposed to the supposed fact that each defendant had previously
The [extrinsic] comments [in this case] relate to factual questions that go to the heart of the jury‘s role: to weigh the relative credibility of witnesses in a case that turned almost entirely on whose version of events the jury found more credible. The jury‘s duty to resolve factual questions is severely impaired when it improperly receives information that besmirches the defendants’ character. [United States v Hall, 85 F3d 367, 371 (CA 8, 1996).]
Similarly, in hearing that defendants were members of an allegedly violent and racist unit, the juries’ ability to resolve the factual questions before them may have been severely impaired.
In relying on this extrinsic evidence regarding the STRESS unit, the juries would then have had an arguably good reason, but a legally impermissible one, to accept the emotionally charged account given by the film Malcolm X of the brutality of white police officers.24 Moreover, by convicting defendants, the juries may have believed they were avoiding a possible riot in the city of Detroit. Considering all these factors, we believe that there is a real and substantial possibility that these external influences together could have affected the juries’ verdicts.25
C. HARMLESS ERROR ANALYSIS
Because defendants have carried their initial burden, we must decide whether any error was harmless beyond a reasonable doubt. There is no dispute that the extrinsic evidence was not duplicative of other properly admitted evidence for either defendant. Hence, we must determine whether the evidence against defendants was overwhelming. See Hughes, supra at 701. We believe that these extraneous influences were harmless for defendant Nevers in light of the overwhelming evidence of his guilt, but that the errors do require reversal for defendant Budzyn because the evidence against him was not overwhelming.
In the Nevers trial, the four EMS witnesses, who had no apparent motive to lie, provided interlocking testimony that Nevers repeatedly bludgeoned Malice Green in the head with his heavy police flashlight while Green was dazed and not offering significant resistance.26 The medical testimony of the injuries to Green‘s head also substantiated this testimony. The people have proven that there was unimpeachable,
In Budzyn‘s trial, however, we believe that the evidence against defendant Budzyn, particularly considering he was convicted of second-degree murder, was not overwhelming. The evidence against him was fun
First, of the three civilian witnesses who testified that defendant Budzyn hit Green in the head with his flashlight (Manuel Brown, Robert Hollins, and Theresa Pace), none was able to see the flashlight actually make contact with Green‘s head.27 Unlike the EMS witnesses, they did not have a direct view of the blows. Instead, the three witnesses each inferred the fact that the flashlight hit Green in the head from the positions of the two men in the vehicle and from Budzyn‘s use of the flashlight to strike Green. Brown, who arguably gave the most damaging testimony of any witness, was the farthest witness away, standing fifteen feet from Fletcher, Hollins, Knox, and Pace.28
This testimony also contained some inconsistencies. The three key witnesses who testified that Bud
Second, the civilian witnesses admitted that the altercation occurred after Green refused Budzyn‘s request that he turn over the incriminating evidence he held in his hand. The civilian witnesses all agreed that Green never complied and that he struggled with Budzyn,30 although they said he never struck him or kicked him.31 In fact, Fletcher testified that during the entire episode, Budzyn held onto Green‘s closed fist,
Third, in this credibility contest between Budzyn and these witnesses, the civilian witnesses all had either consumed alcohol or cocaine sometime before witnessing the exchange,33 three of them were friends with Green (Fletcher, Hollins, and Pace),34 and there
Even if the jury reasonably believed the testimony of the civilian witnesses, they still might not have concluded that Budzyn was guilty of second-degree murder. The question whether Budzyn‘s unnecessary use of force as described by the civilian witnesses would be second-degree murder or manslaughter is an issue for the jury. We do not believe that the only possible reasonable conclusion to draw from this evidence is that it established beyond a reasonable doubt that he harbored an intent to kill, an intent to do great bodily harm, or to commit an act in wanton and wilful disregard that the likelihood that the natu
CONCLUSION
We affirm defendant Nevers’ conviction, but reverse defendant Budzyn‘s conviction and remand his case for a new trial. Thus, we affirm in part and reverse in part the decision of the Court of Appeals.
BRICKLEY, CAVANAGH, and WEAVER, JJ., concurred with RILEY, J.
BOYLE, J. (concurring in part and dissenting in part).
I agree with the majority‘s result and rationale with regard to defendant Nevers,1 and its result in respect to defendant Budzyn. I write separately to explain my disagreement with certain aspects of the rationale in Budzyn.
First, despite differences of origin, history, class, education, race, ethnicity, sex, economic status, or educational level, it is a fundamental presumption of the judicial system that all Americans are equally capable of fairly discharging their public responsibilities. Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). Therefore, I disagree with the analysis of the opinions of both Chief Justice MALLETT and Justice RILEY regarding the showing of the movie, Malcolm X, to the extent that each employs assumptions about the predispositions of jurors. The system addresses the mind-set of jurors through voir dire, challenges for cause, and motions for change of venue, all of which require a demonstration of reasons why a prospective juror or a given community may be suspect. The approach is both aspirational and pragmatic. The judiciary has no competence to assess the cultural or psychological mind-set of a given jury and assess its reactions in light of its own assumptions. I also agree with the prosecution that the movie was not an extraneous communication, Tanner v United States, 483 US 107; 107 S Ct 2739; 97 L Ed 2d 90 (1987), and find no error in this regard.
Second, I have reservations regarding the majority‘s resolution of the issue regarding juror knowledge during deliberation of contingency plans in the event the verdict was an acquittal. Prospective jurors were questioned regarding whether they would find Budzyn guilty in order to avoid a riot, and the jury as seated was presumptively not vulnerable to such pressure. However, while this is not a situation in which community sentiment developed after the trial had begun, reports that freeways and businesses might be closed might have made real what during voir dire was purely hypothetical. While not free from doubt, I would conclude that, although discussed during delib
However, I agree with the majority that the communication of incorrect information to the jurors during deliberations that defendant Budzyn was a member of STRESS was error requiring reversal.
While I do not evaluate the evidence precisely as does the majority,3 I agree that the evidence in Budzyn was not as strong as that in Nevers. Evaluated in the context of the evidence as a whole, the prejudicial significance is that Budzyn‘s membership in STRESS indicated a propensity for abuse of young black males. By all accounts, Green had what turned out to be cocaine in his hands and refused to surrender it. Thus, Budzyn‘s initiation of force against Green was lawful, whichever version of the testimony is believed. The issue in Nevers’ trial turned on whether the jury believed Nevers’ testimony that the deceased was trying to take his gun, thus justifying the life-threatening response. The issue in Budzyn‘s trial, by contrast, was whether, and at what point, the lawful use of force became unreasonable.
In substance, the jurors were told that Budzyn was a bad actor with a propensity for violence against young black men. Coupled with other evidence admitted at trial, this information could have persuaded the
Our responsibility is not to decide what we would have done or what we think the jury should have done. It is to hypothesize what the jury would have done had it not been exposed to the extrinsic information. Because there was substantial and real prejudice, United States ex rel Owen v McMann, 435 F2d 813 (CA 2, 1970); United States v Bagnariol, 665 F2d 877 (CA 9, 1981), I cannot conclude that the error was harmless beyond a reasonable doubt. I join in the opinion for reversal of defendant Budzyn‘s conviction of second-degree murder. I would affirm the conviction of defendant Nevers.
MALLETT, C.J. (concurring in part and dissenting in part).
Malice Green died en route to the hospital, as a result of blunt force trauma to the head1 sustained while the defendant police officers attempted to arrest him. Following a joint trial before separate juries, defendants were found guilty of second-degree murder,
The difficulty of this Court‘s decision in this highly publicized and emotionally charged case was not caused by the emotional nature of the case, or by the publicity surrounding it. Nor was it caused by the infusion of race into some of the legal issues presented.2 This case demanded careful examination because the legal questions presented are difficult and close.
The issues of greatest concern to both the majority and to myself relate to whether defendants were denied their right to a fair trial as a result of exposure to certain extraneous influences. In particular, I am most concerned with the jurors’ exposure to the movie Malcolm X and to media accounts of contingency plans of suburban law enforcement in case of a riot. I will examine the issue of jury taint in detail. While I have also closely examined the other issues presented by the defendants, I will not discuss them in depth, finding them either lacking in merit or properly disposed of by the Court of Appeals.
I
FACTS
The Court of Appeals unpublished opinion per curiam sets forth the following factual account of the case:
Defendants’ convictions arise from events that occurred on the evening of November 5, 1992, in the city of Detroit, on the street outside of the storefront building apartment of Ralph Fletcher. Defendants were on duty as Detroit City Police Officers, in plain clothes, patrolling the area in an unmarked police car. They were keeping “loose surveillance” on a stolen Ford Tempo automobile in the area. Malice Green was driving Fletcher to his apartment in a similar model automobile, a red Topaz. Shortly after Green parked his vehicle in front of Fletcher‘s home, defendants drove by, stopped, backed up, and parked their police car behind Green‘s vehicle. At that time, Theresa Pace, Robert Hollins, and Robert Knox were leaving Fletcher‘s apartment from the back door. Defendants initially focused on Green‘s vehicle to determine whether it was the stolen Tempo. They then spotted Knox, who appeared to run toward the back of Fletcher‘s house. Budzyn then pursued Knox and escorted him back to the area in front of the house. Fletcher and Green were standing beside Green‘s vehicle while defendant Nevers was standing beside the parked police car.
When Green was asked for his driver‘s license, he reentered his vehicle through the passenger side door and reached for the glove box. As he was sitting in the car sideways with his legs extending outside, Budzyn saw Green drop something, which appeared to be rock cocaine, and hold something in his right hand. When Green failed to obey Budzyn‘s orders to open his hand, Budzyn reached in and grabbed Green‘s right forearm. A struggle ensued.
According to Fletcher, Pace, Hollins, Knox, and Manuel Brown (who had also been stopped by defendants while walking in the area), Budzyn climbed on top of Green, straddled him as he laid back across the front seat, and hit him repeatedly with his flashlight. These witnesses further testified that Green did not appear to fight back, but continued to clench his right hand, despite Budzyn‘s repeated orders and the urging of the bystanders. Budzyn testified before his jury that he never hit or straddled Green. Nevers also testified to his separate jury that he never saw Budzyn hit Green, and although he heard some sounds of impact,
he denied knowing or believing that those sounds were caused by Budzyn striking Green. Fletcher, Pace, Hollins, Knox, and Brown observed Budzyn strike Green with his flashlight on the hand or hands; however, not all of these witnesses could see whether Budzyn ever struck Green in the head or elsewhere. Fletcher, who was standing directly beside Green‘s car approximately three to five feet away at the time, testified that he only saw Budzyn strike Green on the hand. Fletcher explained, however, that he had stepped away when Budzyn climbed further into the car and therefore was unable to see whether Budzyn ever hit Green in the head or not. Pace and Hollins, who stood a few yards away from Fletcher beside the front of the parked police car, only saw Budzyn hit Green in the hand as well. However, once Budzyn was on top of Green inside the car, they saw Budzyn swing his flashlight up over his shoulder and back down toward Green several times. They also testified that it appeared as though the blows were landing on top of Green‘s head, possibly his forehead, from the sounds of impact and the positions of Green and Budzyn. Hollins estimated that Budzyn landed at least six or seven such blows. Brown, who was standing at a somewhat elevated position on the curb behind Green‘s car and approximately fifteen feet from the others, testified that he actually observed Budzyn hitting Green in the head with his flashlight approximately ten times.
At some point, Nevers walked over to the passenger side of Green‘s car and struck Green‘s clenched hand and knees with his flashlight. Nevers retrieved some rock cocaine from the car and told Fletcher and the other citizens nearby to leave, or that they were free to leave. As Nevers walked around to the driver‘s side door, Pace and Hollins walked to a parked truck and drove off. Fletcher testified that as he was walking toward his home, he turned and saw Nevers strike Green twice on the head with his flashlight from the open driver‘s side door, using a sweeping “golf swing.” Brown saw Nevers strike Green several times from a position where it appeared to Brown as though the blows would have been landing on Green‘s head, although he was
unable to see whether there was actual contact. He estimated that Nevers hit Green approximately 15 times, including the initial hits on Green‘s hand and knuckles. Nevers admitted hitting Green in the head with his flashlight a total of five or six times. He explained that he hit Green two or three times when Green grabbed the handle of his sidearm and then struck Green another two or three times when it appeared as though Green was holding a razor blade or knife in his hand. Two EMS ambulance units from the Detroit Fire Department, designated as units “Impact 5” and “Medic 7,” arrived on the scene. Each unit had two medical technicians who testified that Nevers repeatedly struck Green in the head with his flashlight as he lay across the front seat of the car with his head outside the driver‘s side door while ordering Green to open his hands and/or to be still. Technicians Albino Martinez and Mithyim Lewis of the Impact 5 unit saw Nevers strike Green in the head a total of four times. Technician Scott Walsh of the Medic 7 unit saw Nevers strike Green with the flashlight once on the head, and later on the chest and abdomen. Technician Lee Hardy of the Medic 7 unit saw Nevers strike Green on the head about ten times and on the left hand four or five times. According to each technician, Green was bleeding heavily and covered with blood. He also was dazed or in a stupor, neither resisting nor responding to Nevers’ commands, but only moaning or muttering incomplete words. Ultimately, Green was pulled from the car by Robert Lessnau, a uniformed police officer who had arrived on the scene. Green was handcuffed while he lay face down in the street in a pool of his own blood. Later, Green suffered a seizure while the medical technicians were rendering treatment and died during the transport to a hospital.
An autopsy was performed by Assistant Wayne County Medical Examiner Kalil Jiraki. There were nine cuts and a bruise on Green‘s scalp, and other bruises and cuts on the face and behind the ears. Jiraki opined that these wounds were caused by at least fourteen separate blows to the head. Most of the wounds were consistent with having been made with a cylindrical instrument such as a flashlight.
Jiraki found no fracturing of the skull, and only minimal swelling of the brain. Although Jiraki found levels of cocaine in Green‘s blood consistent with being under the influence of cocaine at the time of death, he opined that those levels were too small to have any significance and had no bearing on Green‘s death at all. Additional expert medical testimony was rendered from defense experts Dr. L. J. Dragovic, Chief Medical Examiner for Oakland County, Dr. Haresh Mirchandani, Chief Medical Examiner of Philadelphia, Dr. Lucy Rorke, as well as the prosecution‘s rebuttal witness, Dr. Michael Baden. All of the defense experts disagreed with Dr. Jiraki‘s opinion that the cause of death was blunt force trauma alone, without any effect from cocaine, and disagreed with his description of the mechanism or mechanisms of death as well. For example, Dr. Dragovic opined that the mechanism of death was seizure activity triggered as a result of the trauma upon the surface of Green‘s head while his brain was “wired up” on cocaine. Dr. Mirchandani opined that Green died of a cardiac arrhythmia caused by a combination of cocaine use, physical exhaustion and trauma from the beating. Although there was some disagreement whether the head trauma alone might have caused death, all of the defense experts agreed that the beating at least played a role in Green‘s death. All of the experts, except Dr. Rorke, opined that Green would not have died at that time without the beating. Only Dr. Rorke suggested that Green might have died even without the beating.3
Defendants were tried together but before separate juries. Robert Lessnau, who was also charged in this case, was granted a bench trial. Following selection of defendant Nevers jury, Nevers’ motion for change of venue based upon pretrial publicity was denied. Ultimately, defendants’ respective jurors found them guilty of second-degree mur-
From the outset, the case engendered a flurry of media reports. This was due in part to the similarities between the case, involving white police officers and a detained black motorist, and the California acquittals of white Los Angeles police officers charged in the beating of black motorist Rodney King. Extensive media coverage continued through the trial, including reports speculating on contingency plans in place in the event of postverdict rioting. Jurors on both Budzyn’s and Nevers’ panels were exposed to portions of these reports.
Near the end of the trial, during a two-day recess in the proceedings, the court provided videotape movies for the jurors’ entertainment. One of the movies provided was Malcolm X, which depicts, in its opening credits, footage of the Rodney King beating with accompanying dialogue from a speech by Malcolm X. Both juries viewed at least part of the film. Defendants moved for a mistrial, arguing that this opening footage caused special prejudice and that the film was inappropriate for viewing in the context of this case. This motion was denied.
After the juries rendered their verdicts, the defendants filed motions for new trials, in part on the basis of the potential prejudicial effect on the jury of exposure to the movie Malcolm X and to media reports. This motion was also denied.
The defendants appealed their convictions, raising numerous issues including those relating to improper jury instructions, juror taint and bias, various improprieties on the part of the trial judge and the prosecution, and insufficiency of evidence. Finding no errors requiring reversal, the Court of Appeals affirmed the defendants’ convictions. Unpublished opinion per curiam, issued March 22, 1995 (Docket Nos. 170477, 170478). This Court granted leave to appeal.4
II
EXTRANEOUS INFLUENCES; JURY TAINT
Defendants who choose a jury trial have an absolute right to a fair and impartial jury. Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968); People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994). The defendants argue that they were denied this right by a combination of prejudicial publicity surrounding the case and instances of extraneous influences on the jury during the trial. I will focus on what I believe to be the two most troubling of these claims: jury exposure to the movie Malcolm X and to media reports during the trial of existing contingency plans in case of rioting after the verdict.
Before examining these claims of jury taint, I shall review the general principles and analysis applicable to determining claims of extraneous influences on jury verdicts.
A
GENERAL PRINCIPLES
Implicit in our jury system is an initial presumption of jury impartiality. See United States v Ruggiero, 56 F3d 647, 652 (CA 5, 1995). Evidence that extrinsic factual matters tainted the jury’s deliberations can defeat this initial presumption. Sheppard v Maxwell, 384 US 333, 351; 86 S Ct 1507; 16 L Ed 2d 600 (1966); Ruggiero, supra at 652, quoting United States v O‘Keefe, 722 F2d 1175, 1179 (CA 5, 1983). While the use of postverdict juror affidavits or testimony to impeach a jury verdict is generally prohibited, an exception applies where the jury is exposed to “extraneous influences” that may have improperly influenced its deliberations. Tanner v United States, 483 US 107, 117; 107 S Ct 2739; 97 L Ed 2d 90 (1987), and People v Larry Smith, 106 Mich App 203, 211-212; 307 NW2d 441 (1981).
Thus, postverdict inquiries into extraneous influences on the jury must balance the defendant’s right to a fair trial by an impartial jury with the long-established common-law rule prohibiting the admission of juror testimony to impeach a jury verdict. See Tanner, supra at 117-127. The purposes underlying the general rule against impeachment of jury verdicts include promoting finality of jury verdicts, discouraging harassment of jurors, reducing incentives for jury tampering, and encouraging free and open discussion among jurors. See Tanner at 119-120. The common-law rule and the exception for extraneous influences has been codified in federal law.5 Michigan follows
Extraneous influences include publicity received and discussed in the jury room, consideration of evidence not admitted in court, and communications or other contact between jurors and third persons. In contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences do not come within the exception and may not be used to impeach a verdict. United States v Williams-Davis, 821 F Supp 727, 733 (D DC, 1993). In other words, while the exception allows the use of juror testimony or affidavits, the general rule still prohibits probing into the actual deliberative process. Thus, the jurors may testify regarding their exposure to these influences, but they may not relate how such exposure affected the deliberative process.
B
BURDEN-SHIFTING ANALYSIS
Several state and federal cases are instructive regarding how prejudice resulting from extraneous influence may be proved and when such influences require reversal. A review of these cases reveals that
1
THRESHOLD SHOWING OF PREJUDICE
Regarding the initial threshold showing required of the defendant, the United States Court of Appeals for the Second Circuit, in a seminal opinion by Judge Henry Friendly, stated that
[t]he touchstone of decision . . . is thus not the mere fact of infiltration of some molecules of extra-record matter, with the supposed consequences that the infiltrator becomes a “witness” and the confrontation clause automatically applies, but the nature of what has been infiltrated and the probability of prejudice. [United States ex rel Owen v McMann, 435 F2d 813, 818 (CA 2, 1970).]
Thus, generally, to impeach a verdict, the defendant must first establish the existence of the extraneous influence. Even with this burden met, however, the defendant will not be entitled to a new trial unless
The extraneous matters will not meet the initial threshold unless “there is a ‘reasonable possibility’ that such material could have affected the verdict.” Williams-Davis, supra at 734, quoting United States v Ortiz, 942 F2d 903, 913 (CA 5, 1991). Courts have articulated guidance, but have not created “bright line” rules for determining when the real and substantial possibility of prejudice standard is met.
There is no magic formula for deciding whether extrinsic material disclosed in the jury room was reasonably prejudicial. The determination in each case in which such an issue is presented must be evaluated in light of its own unique circumstances. [United States v Gaffney, 676 F Supp 1544, 1553 (MD Fla, 1987).]
The Ninth Circuit and other courts have set forth several factors relevant to determining whether extrinsic materials could reasonably have been prejudicial. For example, in State v Watkins, 526 NW2d 638, 641 (Minn App, 1995), the court considered the following factors, among others, in estimating the probable prejudicial effect of racial slurs on the jury: “(1) the nature and source of the prejudicial matter, (2) the number of jurors exposed to its influence . . . and ([3]) the likelihood that curative measures were effective in reducing the prejudice.”
2
HARMLESSNESS OF THE EXTRINSIC MATERIALS
Once the defendant has met the burden of coming forward with competent evidence regarding prejudicial extraneous matters, the burden shifts to the state to prove that exposure to the extraneous influences was harmless error. Cases provide guidance regarding how the government may establish harmless error in this context. Exposure to extraneous prejudicial mat-
III
MALCOLM X
I will first examine the movie Malcolm X. The first inquiry is whether the defendants have met their threshold burden by bringing forward competent evidence of a prejudicial extraneous influence. Defendants rely, in part, on sealed affidavits of four jurors10 to establish that the jurors had watched the movie Malcolm X during a recess. I do not question the limited use of the signed affidavits to show exposure to this extraneous influence. I also note that existence of this influence was established on the record in the motion for mistrial.
As noted earlier, beyond showing exposure to an extraneous influence, the defendants, absent an unauthorized ex parte communication,11 must make a showing of prejudice reverberating from the extraneous information. The test for determining whether the threshold level of prejudice is met is whether defendants have established a real and substantial possibility that the extraneous matter could have affected the verdict.
Virtually every person in America had been exposed to the footage detailing the brutal beating given Mr. King by members of the Los Angeles Police Department. While it was unfortunate that the jurors were perhaps once again confronted with this footage, is it the defendants’ position that the jurors became inflamed and were engulfed by emotion and thus rendered incapable of rendering a fair verdict? The possibility that a few police officers will absolutely violate department rules and procedures is never far from the minds of African-Americans, no matter their station in life. The presence of racism in any community can, and sometimes does, cause American citizens to react emotionally and render less than clear judgment. But there is no reasonable probability that the Rodney King footage affected the jurors in this case.
Racism has not and will not quell the desire of African-Americans to fully exercise all the rights and responsibilities associated with democracy. If this were not true, then the four-hundred-year-old struggle for freedom and economic opportunity would have been abandoned long ago. The defendants have not
The words of Malcolm X in the opening sequence are indeed provocative.12 But when these words are taken in the context of the effect of the overall message of the movie, their effect is greatly lessened.13 Please be clear, I do not dismiss the power of words. I do dismiss the conclusion that there is a real and substantial possibility that conscientious jurors watching this movie, shown during a recess purely for entertainment purposes, would have allowed it to affect their verdict.14
Another important factor relevant to the threshold inquiry is the timing of the jurors’ exposure to the movie. The jurors were not exposed to this extraneous influence during deliberations, but during a two-day recess near the end of the trial. Extraneous influences during the deliberative process are deemed more prejudicial than those finding their way to the jury earlier in the trial. This fact distinguishes this case from others finding that juror exposure to a movie of a potentially prejudicial nature during deliberations required reversal. See Seekers v State, 35 Ala App 40; 44 So 2d 628 (1949); Gonzales v State, 593 SW2d 288 (Tenn, 1980).16
Given the unique facts of this case, defendants have failed to meet the threshold burden of establishing a real and substantial possibility that the viewing of the movie Malcolm X affected the verdicts. Virtually every factor courts have identified as relevant weighs against a finding that the movie could reasonably have affected the verdicts.
I would further find that, even if the defendants had met their initial burden, a reversal is not required here because it can be said, beyond a reasonable doubt, that the other evidence adduced at trial was so overwhelming that there is no real and substantial possibility that viewing the movie might have contributed to the convictions. Anderson, supra. In this regard, I agree with the Court of Appeals conclusion that reversal, on the basis of the showing of Malcolm X, was not required. The Court of Appeals explained that reversal was not required
given the overwhelming evidence against defendants in favor of the convictions. By all eyewitnesses’ accounts, both defendants struck Malice Green repeatedly with their flashlights while he offered little, if no, resistance. Fletcher, Pace, Hollins, Knox and Brown testified that Budzyn initiated the beating by repeatedly striking Green with his flash-
light on the hands. Despite their inability to directly observe Budzyn striking Green in the head, these witnesses testified that Budzyn was on top of Green inside the car and was swinging his flashlight over his shoulder down toward Green. Based on this position and the sounds, it appeared to them that Budzyn‘s blows impacted Green‘s head. Furthermore, Brown actually saw Budzyn strike Green in the head several times. In addition to some of these witnesses, the testimony from the four medical technicians established that Nevers struck several blows while Green was covered in blood. Moreover, the number of cuts and bruises that Green sustained exceeded the number of blows to which defendants admitted rendering. Budzyn denied hitting Green at all, whereas Nevers admitted hitting Green five or six times. However, the medical examiner found nine cuts on Green‘s scalp and other cuts and bruises on his face and behind the ears. In all, the medical examiner opined that Green sustained at least fourteen separate blows to his head. Along with the testimony from civilian and medical eyewitnesses, the obvious implication is that either or both defendants were minimizing the amount of force utilized in arresting Green in order to justify the murder. Thus, in light of this evidence, we cannot say that the jury convicted defendants on the basis of emotions that could have arisen from watching the videotape. The evidence clearly supports the verdicts of second-degree murder. [Slip op at 6.]
I respectfully disagree with the majority‘s conclusion that the evidence supporting second-degree murder against defendant Budzyn was not overwhelming. As noted by the Court of Appeals, and supported in the record, all five of the eyewitnesses, Fletcher, Pace, Hollins, Brown, and Knox, testified that Budzyn initiated the beating by repeatedly striking Green on the hands. Witnesses Pace and Hollins, who observed the scene from essentially the same vantage point, saw Budzyn swinging his flashlight over his shoulder down toward Green in the direction of Green‘s head.
The majority attempts to discount the evidence against Budzyn by questioning the credibility of the eyewitnesses. It may or may not be true that because each of these witnesses had been implicated in criminal activity, or because they may have smoked cocaine or consumed alcohol before witnessing the events leading up to Green‘s death, they were less credible than the EMS witnesses who testified against defendant Nevers. This Court, however, is not in a position to judge the relative credibility of the witnesses against the two officers. The jurors heard the testimony from eyewitnesses Pace, Hollins, Brown, and Fletcher, all of whom were subjected to thorough cross-examination, and evidently found it to be credible.21
IV
MEDIA REPORTS
I will next turn my attention to the jurors’ exposure to media reports concerning contingency plans in case of postverdict rioting. Defendants argue that exposure to these reports tainted their juries. Only
Initially, we note that, unlike the viewing of Malcolm X, exposure to these reports occurred during the deliberation period. Consequently, the timing of this exposure is more troubling because the sanctity of jury deliberations is more directly implicated. However, virtually every other aspect of this particular extraneous influence is less troublesome than the viewing of Malcolm X.
In contrast to the affidavit statements regarding the movie, which arguably support a finding of exposure by virtually every juror on both panels, affidavit statements regarding media reports do not indicate this degree of exposure. The Budzyn affidavit is equivocal regarding how many on that panel were exposed. It relates that someone mentioned media reports, but does not indicate how many on the panel heard the comment, or whether only the writer of the affidavit heard it. The affidavit from the Nevers juror attests to that juror‘s own exposure, but says nothing about whether the juror discussed the reports with other jurors or whether other members of the panel had also heard the reports. From the affidavits, one can only be certain of exposure by one Budzyn juror and
Even if defendants had shown extensive juror exposure, I would not conclude that there was a real and substantial possibility that it affected the verdict. Unlike other cases finding taint from exposure to media reports,22 the information conveyed in these reports did not relate directly to a material aspect of the case. Caro-Quintero at 1574. “Reviewing courts will not disturb jury verdicts on appeal when extraneous information relates only to issues not material to the guilt or innocence of the defendant.” United States v Bagnariol, 665 F2d 877, 887 (CA 9, 1981).
Further, I cannot reasonably conclude that the jurors would allow fear of potential rioting to sway them to convict. While this is, of course, a possibility, it is not a necessary, or even a reasonable, conclusion. It must be assumed that most, if not all, of the jurors were aware of the Los Angeles rioting occurring after the Rodney King acquittals. Given this reality, exposure to reports that officials were prepared and had contingency plans in place may have had the opposite effect and lessened any pressure to convict. Again, on the basis of the juror affidavits, I am not convinced that fear of rioting had a real and substantial possibility of shaking the jurors’ resolve to abide by the judge‘s instructions that they should decide the case only on the evidence and not let sympathy or prejudice influence their decisions.
Finally, even if the defendants had met their burden of showing that exposure to the media reports reasonably affected the verdict, a new trial would not be warranted because of the overwhelming evidence against the defendants, as explained earlier in this opinion.
V
JUROR DELIBERATIONS INVOLVING STRESS
I disagree with the majority‘s conclusions regarding the jurors’ discussion of the Stop the Robberies Enjoy Safe Streets unit, and of their apparent belief that defendants had been members of that unit. Clearly, as indicated in voir dire questioning of potential jurors, the defendants were aware that STRESS was a potentially inflammatory topic and that the nature and exis-
The jurors’ personal knowledge and life experiences as urban-dwelling Americans probably made inevitable a discussion of the wider problem of police brutality and specifically of the notorious STRESS unit. That their deliberations would include a discussion of STRESS was, perhaps, to be expected. That they might speculate and discuss their own knowledge or beliefs that one or both of the defendants had once been members of STRESS is also not surprising.
Can it be seriously argued that defendants are compromised because the acts of which they stand convicted invoked a discussion of the official lawlessness epitomized by the jurors’ apparent understanding of STRESS? Police brutality was what this trial was about. Juror discussions about the history of police brutality, in their own home town, was a natural part of their deliberative process and should not be relied on by this Court in support of defendants’ claims of error.23
VI
OTHER ISSUES
While the defendants raise other extraneous influences that they believe, in combination with the
VII
CONCLUSION
All citizens must fiercely guard the processes and institutions that ensure our liberty. The chosen occupation of these defendants is one that plays a crucial role in protecting the life and liberty of all citizens. I appreciate the difficulty faced by those who seek to keep the peace on our city streets. I recognize that the great majority of police officers conscientiously perform their duties with the utmost regard for the rights of those they seek to protect. However, when police officers cross over the line from keepers of the peace and protectors of lives to aggressors, exerting force far beyond that required in the given situation, the law must treat them no differently than other defendants.
The right to a fair trial by an impartial jury is of paramount importance in securing our liberty. Consequently, this Court has properly taken very seriously the defendants’ claims that their juries’ exposure to extraneous influences denied them this right. After careful review however, I am left with the distinct and firm impression that the defendants received a fair trial.25 The potential prejudice from the asserted influences is real. However, it does not rise to a level
For all the above reasons, I would affirm the Court of Appeals decision.
Notes
[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 . . . except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention . . . . Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. [Emphasis supplied.]
- whether the material was actually received, and if so how;
- the length of time it was available to the jury;
- the extent to which the juror discussed and considered it;
- whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and
- any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict. [Marino, supra at 506.]
Brothers and Sisters, I am here to tell you that I charge the white man, I charge the white man with being the greatest murderer on earth. . . . I charge him with being the greatest kidnapper on earth, I charge him with being the greatest murderer on earth . . . . We didn‘t see any democracy on the streets of Harlem . . . on the streets of Detroit . . . . We‘ve experienced only the American nightmare.
One of the affidavits that defendant Nevers relies on was not signed by the juror. We have not considered this affidavit. Defendant Nevers attempted to remedy the deficiency by producing an affidavit from an attorney who swore that the particular juror had verbally adopted all of the statements, but only refused to sign the affidavit because she feared that it would bring “renewed pressure to her from the media and from the public.” However, the attorney cannot testify with respect to these juror‘s statements because that testimony would be hearsay. Hence, the attorney‘s affidavit has not cured this fundamental defect. Consequently, for this appeal, there are only three sworn juror affidavits that we may consider.
In evaluating the nature of this extraneous influence and its likely effect on these jurors, I cannot ignore the fact that most of the jurors were African-Americans. These jurors were undoubtedly intimately and personally aware of the problems in this country brought to the forefront by the Rodney King incident. If they could set aside their personal knowledge of police brutality, they could surely set aside any potential emotional effect of the movie.Brothers and sisters, I am here to tell you that I charge the white man, I charge the white man with being the greatest murderer on earth. I charge the white man with being the greatest kidnapper on earth.
There is no place in this world that man can go and say he created peace and harmony. Everywhere he‘s gone he‘s created havoc. Everywhere he‘s gone he‘s created destruction. So I charge him, I charge him with being the greatest kidnapper on this earth. I charge him with being the greatest murderer on this earth. I charge him with being the greatest robber and enslaver on this earth. I charge the white man with being the greatest swine eater on this earth, the greatest drunkard on this earth. He can‘t deny the charges. You can‘t deny the charges. We‘re the living proof of those charges. You and I are the proof. You‘re not an American. You are a victim of America.
You didn‘t have a choice coming over here. He didn‘t say “black man, black woman, come on over and help me build America.” He said “nigger get down in the bottom of that boat and I‘m taking you over there to help me build America.” Being born here does not make you an American. I‘m not an American. You‘re not an Ameri-
Other choices included Body Guard, Leap of Faith, and Scent of a Woman.can. You‘re one of the twenty-two million black people who are the victims of America.
*
*
*
... We didn‘t see any democracy on the streets of Harlem, ... on the streets of Detroit. ... No, we‘ve never seen democracy. All we‘ve seen is hypocrisy. We don‘t see any American dream. We‘ve experienced only the American nightmare. [Emphasis added.]
In State v Blanks, 479 NW2d 601 (Iowa App, 1991), the court focused on parallels between the plot of the movie Gorillas in the Mist with the facts of the case before it. The prosecutor referred to the movie in closing argument. Because of these parallels, and the potential that reference to the movie could be interpreted as having racial overtones by the jury, the court held that a new trial was required.
A juror from the Nevers trial stated that “we watched the first, but not the second video cassette of that movie.” These excerpts from the second half of the film are taken only from the second cassette. It is also noteworthy that the trial court, throughout the trial, repeatedly admonished the jury to view only the evidence admitted at trial and took scrupulous care to remind them to avoid outside influences.It appeared that all jurors, including our one alternate, watched Malcolm X, including the opening segment which showed the Rodney King footage. We began the movie on Thursday [August 5, 1993] and completed it on Friday [August 6, 1993].
Q. All right. When you say that Defendant Budzyn goes over, grabs his hand, starts beating it, he then, you said, straddled him, or words to that effect; is that right?
A. Yes.
*
Q. And when he actually straddles him, is he in a face to face position with Malice Green?
A. Yes, he is.
Q. Where do you see him striking him at this point with the flashlight?
A. I couldn‘t see that much into the car. There wasn‘t much space left on his body he could have been hitting him but his head because of the way he was straddled on him.
*
Q. When he began to hit him, hit Malice Green in the knuckles, can you show us what motion he used to do that as best you can?
A. Like this.
Q. And you are indicating an up and down motion?
A. Yes.
Q. Over the hand; is that right?
A. Yes.
Q. He straddles him; is that right?
A. Yes, he does.
Q. Describe what you see then.
A. The flashlight is still in his hand, he‘s like this (indicating) hitting Malice.
Q. And you are indicating an overcoming up and down motion?
A. Yes, sir.
Q. Over your shoulder; is that right?
A. Yes.
*
Q. Can you tell us what part, based on where you were at and what you saw, what part of Malice Green‘s person would have been underneath this light . . .
A. His forehead.
Q. . . . as it came down? Can you actually see the contact being made?
A. I couldn‘t actually see it but there was nothing left of him elsewhere to hit.
Q. Could you hear the blows being struck?
A. Yes, you could hear ‘em.
*
Q. Did you see him, when Defendant Budzyn came over and grabbed his hand and started to straddle him, did you see him fighting Defendant Budzyn in the sense of punching him or kicking him or biting him or scratching him or whatever?
A. No.
Similarly, Mr. Hollins testified:
Q. All right. Now, you initially saw the flashlight hitting him in the hand; is that correct?
A. Yes.
Q. Could you see where it was hitting him at this point?
A. I couldn‘t see actually where contact was made, no. I just could see that it was—had to be above the shoulders.
*
Q. . . . given the position that Officer Budzyn was at over Malice Green, what part of him would he have been striking?
Mr. Goldpaugh: The question has been asked and answered, your Honor.
The Court: I‘ll take it again.
By Mr. Baker:
Q. What part of him would he have been striking given the way they were positioned from what you saw?
A. From what I saw it would have to be the head area.
Q. Could you hear it?
A. Could I hear it?
Q. Yes.
A. Yes, I could hear it making contact.
Q. Now, what did you see Officer Budzyn do with this flashlight?
A. Began to strike Malice Green in the head.
Q. Now, explain, please, were you on a curb?
A. Yes, I was.
Q. And were you elevated looking down into the car?
A. Yes, I was.
Q. And from where you were standing, how was it that you could see into the car? What part of the car could you see into?
A. Through the rear window.
Q. And could you also see into the side passenger door?
A. Yes, I could.
Q. Was it open at that time?
A. Yes, it was.
Q. How was it that you saw Officer Budzyn striking Malice Green in the head?
A. Because the interior dome light was on, plus the lighting on the car, on the unmarked car behind it.
Q. Where was Malice Green‘s head when you saw him being struck?
A. In between the seats.
Q. When you say, in between the seat, you mean between the front passenger‘s seat and the front driver seat?
A. From where I was looking, they had like split, the seats, with a gap in between ‘em, and that‘s where his head was.
Q. . . . He only hits Mr. Green in the hand?
A. That‘s all.
Q. He never hit him anywhere else, did he?
A. I didn‘t see him hit him anywhere else.
*
Q. Now, you also, in response and I don‘t remember which attorney it was, to one of the—I think it was Mr. Batchelor, I think, and he was talking about when you could no longer see the hands of Malice Green and see Officer Budzyn was because he had his back to you in the car?
A. Yes, ma‘am.
Q. And when this happened you could not see what was going on inside of the car; is that right?
A. Yes, ma‘am.
Q. So you didn‘t actually see the strikes hitting his hands at that point, did you?
A. No, ma‘am.
Q. Did you see the flashlight going up at that time?
A. No, ma‘am. I had backed away then.
Q. When your view—I understand that you testified that most of the time you could see his hands, I mean his flashlight actually striking the hands of Malice Green?
A. Yeah.
Q. When your view was obstructed when you backed up, could you see the exact portion of the body that the flashlight was landing?
A. No, ma‘am.
Q. Could you hear that it was landing on some part of his body?
A. Yes, I could.
Q. And, again, just so we are all clear that is during the time when your view was obstructed because he was directly in front of you?
A. Yes, ma‘am.
This juror stated:
During our deliberations, we were allowed to go home one night. While I was home, I saw a news report that in the event of a riot, they were going to close the freeways. In addition to this information, I learned various other pieces of information at different times, both before and during trial. I had learned that the National Guard was being put on alert for our verdict.
I further note that whether the evidence may also have supported a lesser verdict is not the question before us.The juror from the Budzyn trial swore that the assertion was raised during deliberations:
During the first few days of deliberations, [a] [j]uror . . . advised another juror in the presence of and within earshot of all the jurors that “they were part of STRESS,” referring at the time to both Nevers and Budzyn. This statement appeared to be accepted and believed by my fellow jurors.
The juror in the Nevers trial stated as follows:
During deliberations, Mr. Nevers’ participation in STRESS was discussed, and it kind of set the tone from the beginning of our deliberations. [Emphasis added.]
An example of such a case is United States v Bruscino, 662 F2d 450, 461 (CA 7, 1981), in which a juror read, and cut out, an article reporting a codefendant‘s guilty plea to a charge of conspiracy. The juror stated that she cut the article out of the paper and took it to court so the other jurors could read it. Because the information contained in the article supported the government‘s theory concerning the defendant‘s guilt, exposure to the article mandated a new trial.Typical news accounts deemed prejudicial are those with “massively inflammatory revelations of prior felony convictions, past criminal conduct[, or] admitted and alleged improprieties . . . .” United States v Solomon, 422 F2d 1110, 1118 (CA 7, 1970).
No, I don‘t read the newspaper, very seldom, and like I say, a person is innocent until proven guilty. That‘s my strong belief and I [would] fight for his right to have it so.
*
I cannot believe any of it right now because I have not heard—it‘s like trying to find out the truth to a mathematical equation, okay? I have to actually work through the process in order to get to a conclusion. I cannot just draw an opinion based on someone else‘s, whatever they, their opinions are. Follow me?
*
Well, I read that police brutality killed this man. I don‘t know if it‘s true or not because the papers write anything, the news say anything, so it‘s hard to believe . . . I didn‘t pay . . . any attention.
*
I was upset, I mean, by a death, I mean sure, but the opinion was more or less neutral, because I didn‘t know all the elements of the case, so—and if I was in any of those people‘s position, all I know, I would want a fair trial.
Martinez and Lewis arrived at the scene at the same time. Martinez testified that Nevers hit Green while Green was dangling out of the vehicle:
Q. Could you see any injury on Malice Green?
A. Just all the blood flow coming from his head.
Q. Could you describe that for us?
A. Just that he was pointed towards more of a downward position towards the street and all the blood was just coming off of his head in a big puddle outside of his car.
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Q. What is the next thing that happens?
Q. And then what happened?
A. Then Mr. Nevers just reached over and had him like this telling him to hold still and he didn‘t hold still and he just, crack, crack.
Q. Now you‘ve indicated that he, after that he starts to hit him in the head with the flashlight; is that correct?
A. Correct.
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A. At that point [Sergeant Douglas] told Officer Nevers to take it easy. Said, take it easy, Larry.
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Q. After that remark was made, what did Defendant Nevers do?
A. As I say, still holding on to him, was still hitting him. Then he gave two more quick flicks with the flashlight.
Q. Where did he hit Malice Green with those next two?
A. In the head again.
Similarly, Lewis noted that “[Green] was covered with blood . . . [h]is entire face, his hair appeared to be soaked with it, and on the ground,” and that Nevers hit him anyway:
Q. Now, when you walk up and you are confronted with this sight, do you say anything?
A. I asked him what happened
*
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. . . and he said, I hit him. And if he doesn‘t quit it, I‘m gonna hit him again.
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Q. What‘s the very next thing you recall happening?
A. The officer told him to be still, don‘t move, and he hit him twice on the head with the flashlight.
*
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Q. Were these two blows like one right after the other?
A. Yes, sir. Two, you know, rapping motions.
Q. Where in the head did he strike him, if you can tell us?
A. In the forehead around the scalp area.
Brown clarified his earlier testimony that Budzyn hit Green in the head by explaining that he did not see any actual contact:
Q. You didn‘t see the contact but you saw the head go back, so you assumed there was contact there?
A. That‘s correct.
Q. So yesterday when you said you saw the contact you didn‘t really see it, you saw [Green‘s] head bouncing back?
A. That‘s correct.
Similarly, Hollins explained that he “couldn‘t see” where the blows actually hit from his vantage point (“I didn‘t see contact“), but, rather, he determined it from their positions.
Pace also testified that she believed that Budzyn hit Green on the head, but she was only inferring this point from their positions in the vehicle:
I couldn‘t see that much into the car. There wasn‘t much space left on his body he could have been hitting him but his head because of the way he was straddled on him.
Later, she admitted that she did not “see actual contact.”
Fletcher testified as follows:
Q. Mr. Fletcher, . . . [Budzyn] only hits Mr. Green in the hand?
A. That‘s all.
Q. He never hit him anywhere else, did he?
A. I didn‘t see him hit him anywhere else.