MEMORANDUM AND ORDER

HANSON, Senior District Judge.

This matter is before the Court on the application for a writ of habeas corpus submitted by Walter Smith, Jr., pursuant to 28 U.S.C. § 2254. Smith, an inmate at the Iowa State Penitentiary, attacks his March 20, 1973 conviction for first degree murder in Polk County District Court on the grounds that jury misconduct deprived him of his Sixth Amendment rights as guaranteed by the Fourteenth Amendment to be tried by an impartial jury and to confront witnesses against him.

Subsequent to the return of the jury's guilty verdict, Smith's counsel entered a motion for a new trial on substantially the same grounds asserted in the present petition. The state trial court held a hearing on said motion on April 3, 1973. At the hearing, one of the jurors, Mrs. Ilda Elliott, testified as to the conduct of individual jurors during the approximately three days of deliberations which preceded the guilty verdict. Mrs. Elliott's testimony related almost entirely to activities which occurred within the confines of the jury room. At the conclusion of the hearing, the trial court ruled that the matters raised by Mrs. Elliott "inhere[d] in the verdict" and could not be considered as impeaching the jury's determination of guilt.

Petitioner appealed his conviction to the Supreme Court of Iowa on two grounds: (1) that the evidence was not sufficient to support a first degree murder conviction; and (2) that jury misconduct deprived him of a fair trial. The Supreme Court rejected both arguments and affirmed the conviction in an opinion filed April 14, 1976. State v. Smith, 240 N.W.2d 693 (Iowa 1976).

Petitioner has not sought any form of collateral relief prior to the submission of his petition for a writ of habeas corpus. However, in view of the fact that petitioner presents this Court with the same prior misconduct issue considered and rejected by the Supreme Court of Iowa on direct appeal, it is apparent that petitioner has exhausted his state court remedies within the meaning of 28 U.S.C. § 2254(b) and (c). Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Eaton v. Wyrick, 528 F.2d 477, 479-80 (8th Cir. 1975). Accordingly, this matter is properly before the Court for federal habeas review.

The parties have agreed to submit this cause for decision on the basis of the record developed in the state trial court. Since there is no substantial factual dispute involved and petitioner is willing to rely on the record developed in the state courts, this Court concludes that no evidentiary hearing is warranted. See Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962); Franklin v. Wyrick, 529 F.2d 79, 81 (8th Cir.), cert. denied, 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 208 (1976).

I. STATEMENT OF FACTS

The jury found petitioner guilty of murder in the first degree after extensive deliberation. The circumstances surrounding the commission of the crime and the conduct of the subsequent trial are relevant to the issue of jury misconduct asserted here.

Petitioner fatally shot and killed his wife, Judy Smith, on July 21, 1972. At the time the couple were separated, though they had apparently theretofore remained on cordial terms. On the evening of July 21, a recent acquaintance of Mrs. Smith, one Keith Jackson, called at the apartment Mrs. Smith shared with another woman, Linda Brown. Present were Judy Smith, Jackson, Linda Brown and Brown's boyfriend, Jimmy Western. After listening to records and drinking wine for a period of time, the couples retired to separate bedrooms.

Shortly before the murder, petitioner had arrived at the apartment and, from a position on the back porch, observed Jackson and petitioner's wife together, overheard them discuss going to bed, and witnessed them going into the bedroom. Angered by what he had seen, petitioner walked to his car located a block away, retrieved a gun, returned to the apartment, and shot both Jackson and his wife. Petitioner's wife was fatally wounded. Petitioner and Jackson are black as was petitioner's attorney at trial, Henry T. McKnight. Judy Smith was white.

Petitioner's case was submitted to the jury on March 15, 1973 after approximately two days of trial. Though the record is not completely clear, it appears that for the final two of the approximately three days of deliberations the jurors stood eleven to one in favor of a guilty verdict. The reluctant juror was Mrs. Ilda Elliott. On March 20, 1973, Mrs. Elliott finally relented and voted guilty immediately after the testimony of Keith Jackson was read to the jurors on Mrs. Elliott's insistence. Having reached a verdict, the jurors, including Mrs. Elliott, were marshalled into the courtroom. After the reading of the verdict, the trial judge addressed the jury generally and asked whether said verdict was the verdict of all the jurors. Mrs. Elliott remained silent, thereby assenting to the unanimous verdict.

Several days after the trial, Mrs. Elliott was contacted by Mr. McKnight, trial counsel for petitioner. On Mr. McKnight's inquiry, Mrs. Elliott indicated that the other jurors had given her a "bad time" during deliberations. Petitioner subsequently filed a motion for a new trial accompanied by an affidavit of Mrs. Elliott in which she detailed the circumstances surrounding her decision to vote for a guilty verdict.

In her affidavit and testimony at the hearing on the motion for new trial, Mrs. Elliott stated that she had been subjected to intense pressure from the other eleven jurors to change her mind. After observing petitioner in a parking lot one morning, a juror later opined during deliberations that petitioner "would kill again before convicted." Another stated his belief that such a man should not be "running around among our wives and children." Mrs. Elliott was in effect told that she would be responsible if such a killing occurred. She was asked how she would feel if the victim had been her daughter. In Mrs. Elliott's words:

[R]epeatedly they screamed and they yelled, "What's wrong with you? Are you blind that you can't see the evidence on the table? And is there anything wrong in your personal love? Do you love your Bible? If you do, you know there are some things in there, some facts that you have to accept."

At one point, a juror named Burns observed, without factual elaboration, that the evidence in a prior murder trial on which he sat as a juror was not as strong as that in petitioner's case, "but we got a conviction."

Mrs. Elliott also testified to three incidents in which two jurors, Adair and Burns, made comments or engaged in conduct which Mrs. Elliott interpreted as relating to the race of petitioner and his attorney. These incidents are best retold in Mrs. Elliott's words:

First, when we were first there, the first day, Dorothy Adair had stated a couple years ago Mr. McKnight had had a case and that he had gotten down on the floor and so forth. She said antics, and she said it was — it really was quite funny. And then Mr. Burns at one point, the first point he got up and walked about the room in kind of a — well, a strutting way such as a minstrel used to do and mimics, used the black dialect to repeat some things you [Mr. McKnight] said. Then later on he laid down on the table, took off his coat. While he was doing this he was bouncing around the room, and then he again, when he laid down on the table, he used the black mimic like "you all" and that and this and, you know, —

Elliott's testimony as it related to racial overtones in the jury's deliberations was limited to that quoted above, and no claim is made that the matter of petitioner's race was brought up in connection with the facts surrounding the shooting of Judy Smith.

Mrs. Elliott had wanted to have the testimony of Keith Jackson read to the jury after the first day of deliberations, but the other jurors would not agree to her request. Eventually, Mrs. Elliott promised that if the testimony were read and if it was not as she had supposed, she would then change her vote. The testimony apparently differed in some respects from what Mrs. Elliott had recalled and, true to her word, immediately upon the return of the jurors to the jury room, Mrs. Elliott voted with the others in finding that petitioner was guilty of first degree murder.

Mrs. Elliott's affidavit and testimony before the state trial court on the motion for new trial constitute the only evidence presented to this Court with respect to the present habeas corpus petition.

II. CONCLUSIONS OF LAW

At the conclusion of Mrs. Elliott's testimony on the motion for new trial, the trial judge ruled that he could not consider Mrs. Elliott's version of the jury proceedings because the matter testified to "inhere[d] in the verdict." The Iowa Supreme Court affirmed this reasoning. State v. Smith, supra at 696. The state courts thus applied an evidentiary rule common to both federal and state jurisprudence that "a juror may not impeach his own verdict once the jury has been discharged." Government of the Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). See, e.g., McDonald v. Pless, 238 U.S. 264, 267-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977); Pruitt v. Hutto, 542 F.2d 458, 460 (8th Cir. 1976); United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971); State v. Berch, 222 N.W.2d 741, 747-48 (Iowa 1974). Congress has codified the common law concept of juror incompetency in Rule 606(b) of the Federal Rules of Evidence. Eagle, supra at 1170. These principles are, of course, as applicable to a federal court on consideration of a petition for a writ of habeas corpus as in any other type of proceeding. See Pruitt, supra at 458, 460; Gafford v. Warden, 434 F.2d 318, 320 (10th Cir. 1970).

There is, however, a major exception to the rule of juror incompetency, one which is also reflected in Rule 606(b). "[A] juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892), quoting Woodward v. Leavitt, 107 Mass. 453. See Gereau, supra at 149; Eagle, supra at 1170. Though the scope of the exception is not precise, it is clear that a juror may testify as to extra-record facts introduced into the jury room, United States, ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971), quoting United States v. McKinney, 429 F.2d 1019, 1023 (5th Cir. 1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971), or the presence of an improper outside influence on the deliberations of the jury. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The ambit of extraneous information or improper influence regarding which a juror may testify has accordingly been held to include such diverse matters as the intrusion of publicity into the jury's deliberations, McKinney, supra, at 1025, 1030, comments by court officers on the merits of a case, Parker, supra at 365, 87 S.Ct. 468, and impromptu field trips by individual jurors to ascertain independently facts not in the record, Gafford, supra at 319-20.

On the other hand, "evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict." Gereau, supra at 150. See Eagle, supra at 1170. Nor is evidence competent which relates to the "thought processes and undisclosed subjective prejudices of individual jurors." Poches v. J.J. Newberry Co., 549 F.2d 1166, 1169 (8th Cir. 1977).

In a case such as this, petitioner has a twofold burden to overcome. He must first overcome the evidentiary obstacle posed by the rule of juror incompetency and present competent evidence on grounds sufficient to overturn the verdict. If he succeeds in presenting such evidence, he must then show that any juror misconduct was prejudicial to his Sixth Amendment rights. See Eagle, supra at 1169-70; Gereau, supra at 148, 153-54. For the reasons discussed below, the Court concludes that petitioner has failed to overcome these burdens, principally because of the operation of the rule of juror incompetency. The Court will examine the evidentiary problem first, and the question of prejudice second.

A. The Evidentiary Obstacle. The only evidence offered by petitioner is the testimony of Mrs. Elliott before the state trial court in support of petitioner's motion for a new trial. Petitioner argues that this testimony establishes that the jurors "considered matters not introduced into evidence" and that the jury reached a verdict in an "impermissible manner by browbeating another juror." The evidence in support of these claims may be grouped into four categories: (1) various jurors' statements which serve to illustrate the belief held by some jurors that petitioner was likely to commit future violent crime unless convicted; (2) Mrs. Elliott's recitation of the pressures brought to bear on her by other jurors; (3) evidence concerning the possible intrusion of racial considerations into the jury's deliberations; and (4) an indication that one juror compared petitioner's case with an earlier trial in which the same juror had served.

In the Court's judgment, Mrs. Elliott's testimony is clearly barred by the rule of juror incompetency insofar as it relates to the first and second categories noted above. Statements made by jurors in the jury room which reflect a poor opinion of a defendant's character and a belief that the defendant may be likely to commit other criminal acts are undoubtedly frequent occurrences in jury deliberations. Indeed, the opinions they reflect are part of the human element implicit in the jury system. See e.g., McMann, supra at 817-18; McKinney, supra at 1022-23. So long as jurors form their opinions about a defendant free from exposure to prejudicial extraneous information or improper outside influence of a type absent here, jurors are at liberty to express their views free from the threat of post-verdict scrutiny by a federal court. See McKinney, supra at 1022-23.

Mrs. Elliott's statements relative to the pressures put upon her to change her vote are similarly barred from consideration. Though Mrs. Elliott claims to have been subjected to strong pressure from other jurors, that fact constitutes neither extraneous information nor improper influence to which she could testify. See Gereau, supra at 149-50; United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969). Furthermore, it is too late in the day to assert that Mrs. Elliott was intimidated into joining in the guilty verdict against her will. After the jury returned its verdict, Mrs. Elliott and the other jurors were asked by the trial judge whether the verdict was the decision of each member of the jury. Mrs. Elliott remained silent and thereby assented to the verdict. Under these circumstances, the opportunity for Mrs. Elliott to renounce the verdict has passed. See Schroeder, supra at 851.

Petitioner claims that Mrs. Elliott's testimony shows that the jurors considered the race of petitioner and his counsel "as evidence" in reaching a verdict. The issue in this regard focuses on the conduct of juror Burns. At one point, Burns "got up and walked about the room in kind of a . . . strutting away such as a minstrel used to do and mimics, used the black dialect to repeat some of the things you [Mr. McKnight — petitioner's black trial attorney] said." Later, "he laid down on the table, took off his coat. While he was doing this he was bouncing around the room . . . he used the black mimic like `you all' and that and this. . . ." Petitioner's theory appears to be that the testimony is admissible as evidence that extraneous information relating to petitioner's race was introduced into the jury room. The Court cannot agree. After careful review of the proffered evidence in light of the scope of the rule of juror incompetency and its supporting rationale, the Court has concluded that the evidence in question should be excluded.

In concluding that Mrs. Elliott's description of juror Burns' antics is not admissible, the Court is guided in part by its interpretation of Rule 606(b) of the Federal Rules of Evidence which 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 or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. (Emphasis added.)

Preliminarily, the Court would note that Rule 606(b) is fully applicable to the present action. See generally Rogers v. Meeks, 385 F. Supp. 593, 597 (W.D.Ark. 1974). Federal evidentiary rules generally govern in habeas proceedings. See Walker v. Johnston, 312 U.S. 275, 287, 61 S.Ct. 574, 85 L.Ed. 830 (1941); Rule 1101(e), F.R.Evid. The Court discerns nothing in the statutory provisions pertaining to habeas corpus or the Supreme Court Rules Governing Section 2254 Cases which would preclude the applicability of Rule 606(b) to the present petition. Moreover, the admissibility of Mrs. Elliott's testimony is not affected by the fact that she testified in state court and her statements are currently before this Court only on the record developed in the state courts. Rule 606(b) specifically provides: "Nor may [the juror's] affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes." (Emphasis added.) See Poches, supra at 1169.

The question of juror conduct arising within the jury room which injects a note of bias into the deliberations does not fit neatly on one side or the other of the dichotomy drawn in Rule 606(b). See 3 J. Weinstein M. Berger, Weinstein's Evidence, ¶ 606[04] (1976). The problem is whether such wholly intra-jury statements can be viewed as extraneous . . . information" or an "outside influence" and, if so, whether the proof of such statements can be separated from proof of the effect of the statements on the mental processes of the jurors. See id. at 606-35 to 606-36. One prominent commentator has concluded that "[g]enerally, it seems better to draw [the line] in favor of juror privacy; in the heat of juror debate all kinds of statements may be made which have little effect on outcome, though taken out of context they seem damning and absurd." Id. at 606-36. See also 8 Wigmore, Evidence, § 2354, at 712 (McNaughton ed. 1961).

A general rule favoring the inadmissibility of juror testimony to impeach a verdict on the basis of alleged biased conduct occurring within the jury room is supported both by the language of Rule 606(b) and its legislative history. The Rule prohibits testimony as to "any matter or statement," occurring in the jury room, a prohibition qualified only to the extent such a matter or statement relates to extraneous information or outside influence. Conduct such as juror Burns engaged in cannot, in the usual sense, be deemed either to impart information or reflect outside influence. This conclusion is supported by Congressional action on Rule 606(b). The rule was the subject of some controversy in the form in which it was transmitted to Congress by the Supreme Court. The House favored a less prohibitive rule that would "permit the impeachment of verdicts by inquiry into, not the mental process of the jurors, but