Opinion
Court of Appeals No. A-8766.
November 28, 2007.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney, III, Judge, Trial Court No. 4BE-02-988 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
After leading police on a car chase in Bethel, Robert A. Carleson was convicted of two counts of third-degree assault, and one count each of failure to stop at the direction of a peace officer, third-degree criminal mischief, driving while under the influence, refusal to submit to a chemical test, and driving without a valid license. The chase ended when Carleson crashed the truck he was driving in a ditch. Police apprehended Carleson after they arrived on the scene and observed Carleson crawling out the driver's side window of the truck. Carleson's defense at trial was that someone else had been driving the truck, but the driver had escaped in the moments before the police arrived. At trial, Carleson offered the testimony of a defense investigator who testified that he had reenacted the crash scene and was able to dive out of the window of the truck and escape in nine seconds. Carleson also offered the testimony of three witnesses who claimed to have seen another person exit the truck before the police arrived. Despite this testimony, the jury convicted Carleson on all counts.
Following the trial, Juror Alexandra Oscar filed an affidavit alleging that another juror, Eirma Peltola, had told the jury that she had conducted an independent test similar to the one the defense investigator had conducted, and had found it "next to impossible" to crawl out of the window of her truck. Oscar stated in her affidavit that she had relied on Peltola's statement in voting to convict Carleson. Superior Court Judge Leonard R. Devaney, III, held an evidentiary hearing on the issue, and heard testimony from all of the jurors and Peltola's husband. Following the hearing, Judge Devaney issued an order denying Carleson's motion for a new trial, finding that Carleson had not established that juror misconduct had taken place. Carleson appeals. We affirm.
Factual and procedural background
After drinking at a party in Bethel, Carleson agreed to give Wanda Hill a ride to where Hill was staying. Almost as soon as they left the party, Bethel Police Sergeant Terry A. Stonecipher saw the truck lose control as it entered the roadway. As the truck headed toward him, Sergeant Stonecipher activated his overhead lights. Carleson fled, leading the police on a high-speed chase during which Carleson sped through several stop signs and forced a pedestrian to jump out of the road in order to avoid being hit by the truck. When Sergeant Stonecipher attempted to stop Carleson, Carleson struck Sergeant Stonecipher's car. During the chase, Carleson drove through a roadblock set up by Sergeant Jessi A. Whittom, who had attempted to use her patrol car to block the road. Eventually, the truck went out of control and landed in a ditch.
When Sergeant Stonecipher and Sergeant Whittom arrived at the scene, they saw Carleson attempting to crawl out of the immobilized truck through the driver's side window. They also saw Hill exit out of the passenger's side of the truck.
Sergeant Stonecipher and Sergeant Whittom drew their weapons and ordered Carleson to the ground, but Carleson ignored their commands and insisted that Hill had been driving. Carleson then changed his story and claimed that another man had been driving the truck, but that the man had run away from the scene immediately after the truck crashed. The officers smelled alcohol on Carleson's breath, but Carleson refused to take a field sobriety test. The officers took Carleson into custody.
A grand jury indicted Carleson on two counts of assault in the third degree (for recklessly placing Sergeant Stonecipher and Wanda Hill in fear of imminent serious physical injury by means of a dangerous instrument, the truck), and one count of failure to stop at the direction of a peace officer in the first degree. The State also charged Carleson with criminal mischief in the third degree (for damaging Sergeant Stonecipher's patrol car), refusal to submit to a chemical test, driving without a license, reckless endangerment, and driving while under the influence.
AS 11.41.220(a)(1)(A).
AS 28.35.182(a)(1).
AS 11.46.482(a)(1).
AS 28.35.032.
AS 28.15.011(b).
AS 11.41.250(a).
AS 28.35.030(a)(1).
Judge Devaney presided over Carleson's jury trial. Sergeant Stonecipher and Sergeant Whittom both testified that they clearly saw Carleson driving the truck. Wanda Hill, the passenger in the truck, testified that Carleson was the driver. Carleson contended that he was not the person who was driving the truck. Carleson argued that the real driver fled the truck and ran behind the nearby Tundra Center before the police arrived at the scene. In support of this argument, Carleson offered the testimony of three witnesses who claimed to have seen another person leave the truck before the police arrived.
Carleson also offered the testimony of John Hastie, a former Bethel police officer who had investigated the case for Carleson. Hastie testified that he had conducted a test in which he measured the amount of time it would take for someone to crawl out of the window of a truck parked identically to Carleson's truck, and then run behind the Tundra Center. Hastie testified that it had taken him nine seconds to crawl over a passenger, dive out of the window, and run along a trail to a location behind the Tundra Center. During closing argument, Carleson's attorney argued that Hastie's testimony showed that another driver would have had the opportunity to escape from the truck before the police arrived on the scene. The jury convicted Carleson on all counts.
Two days after the trial concluded, Juror Alexandra Oscar submitted an affidavit claiming that Juror Eirma Peltola stated:
that she conducted an independent test with her husband in the truck. She said that she had her husband sit in the passenger seat, and had her kids sit in the back of her truck. She tried to get out of the passenger window over her husband. She said it was "difficult and next to impossible to jump out the window."
In her affidavit, Oscar stated this information caused her to change her vote from not guilty to guilty.
Based upon Oscar's affidavit, Carleson filed a motion for a new trial based upon juror misconduct. Judge Devaney conducted an evidentiary hearing during which he examined all of the jurors and Peltola's husband. (The parties and Carleson were present at the hearing, but Judge Devaney conducted the questioning.)
Oscar testified that Peltola had told the jury about an experiment that she had conducted in her truck. According to Oscar, Peltola described an experiment where Peltola's husband was sitting in the passenger seat and her two children were sitting in the back. Oscar claimed that Peltola stated that she had climbed over her husband and went out the window and that Peltola had told all of the jurors about this experiment and how difficult it was to get out of the car.
Peltola testified that she had never conducted an independent test. Peltola testified that she owned a truck and that during the jury deliberations she had stated that she did not believe that a person could get out of a truck and through a window in a short period of time:
I also mentioned that I drove my kids and at one time tried putting in a third person in the front seat but was unable to because it was too crowded and dangerous. I then concluded by saying that it gets pretty crowded and that — and thought that it was impossible for a person to get out of the truck through the window in nine seconds.
Peltola's husband, Eugene R. Peltola, testified that Peltola had "not conduct[ed] any such test."
During the voir dire of the rest of the jury, Judge Devaney asked each juror individually whether he or she recalled Peltola saying that she had conducted the independent test. Eight jurors testified that they did not recall Peltola saying anything about conducting an independent experiment. Two jurors (in addition to Oscar) testified that they did recall Peltola saying that she had conducted the independent experiment.
Following the hearing, in a written order, Judge Devaney denied Carleson's motion. Judge Devaney found the testimony of Eirma and Eugene Peltola to be the more credible. In making this decision, he noted that Peltola was a middle-aged woman and that he thought that it was unlikely she would attempt to re-enact the experiment that the investigator testified about at trial. Judge Devaney also considered the fact that none of the jurors who said they had heard Peltola talk about the experiment had reported this misconduct to the court, as the jury instructions directed them to do. He observed that these same jurors "were located further away from Mrs. Peltola during deliberations than many of the jurors who sat closest to Mrs. Peltola and heard nothing about [the] tests."
In his order, Judge Devaney then went on to discuss whether a court could order a new trial if some of the jurors misunderstood Peltola and mistakenly believed she had conducted the experiment. Judge Devaney concluded that inquiry into this kind of misunderstanding was prohibited by Alaska Evidence Rule 606(b), which generally prohibits attacking a verdict by questioning a juror about matters or statements that occurred during the course of the jury's deliberations. Carleson appeals Judge Devaney's decision denying the motion for a new trial.
Why we uphold Judge Devaney's order denying Carleson's motion for a new trial
"Because it is a factual determination, the superior court's conclusion that extraneous prejudicial information reached the jury is reviewed under the clearly erroneous standard." A finding is clearly erroneous if it leaves this Court with a "definite and firm conviction that a mistake has been made." In the present case, Judge Devaney conducted a thorough evidentiary hearing. At the conclusion of the evidentiary hearing Judge Devaney found that Peltola had not conducted the experiment. Substantial evidence supports Judge Devaney's finding. The finding is not clearly erroneous.
Titus v. State, 963 P.2d 258, 260 (Alaska 1998) (citing Cheely v. State, 861 P.2d 1168, 1178 (Alaska App. 1993)).
Henash v. Ipalook, 985 P.2d 442, 444 n. 2 (Alaska 1999) (citing State v. Phillips, 470 P.2d 266, 268 (Alaska 1970)).
From Judge Devaney's order, it seems apparent that he also found that Peltola never said that she conducted the experiment. This seems clear from Judge Devaney's finding that "the testimony of Gene and E[i] rma Peltola [was] the more believable." Furthermore, Judge Devaney found that the jurors who testified that Peltola said she conducted the experiment "were located further away from Mrs. Peltola during deliberation than many of the jurors who sat closest to Mrs. Peltola and had heard nothing about [the] tests." From these findings, it appears that Judge Devaney attempted to reconcile the testimony that he heard at the evidentiary hearing by concluding that (1) Peltola had expressed the belief, based upon her personal experience with a similar truck, that it would be impossible to exit a truck quickly through the window as Carleson had claimed in presenting his defense, and (2) three of the jurors had misunderstood Peltola and thought she was describing an actual experiment rather than talking about her general knowledge derived from owning a truck. Judge Devaney concluded that Alaska Evidence Rule 606(b) prohibited an attack on a verdict based on this kind of juror mistake or miscommunication.
Alaska Rule of Evidence 606(b) generally prohibits a juror from testifying about the jury's deliberations. There are two exceptions to the rule: A court may inquire "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."
A.R.E. 606(b) states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's 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 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.
Titus, 963 P.2d at 260.
A.R.E. 606(b).
The commentary to Evidence Rule 606(b) states that the rule "limits impeachment of jury verdicts to inquiries about extraneous prejudicial information and outside influences which may have been improperly brought to bear upon any juror." The commentary sets out the policy reasons for the rule:
Commentary to A.R.E. 606(b), first paragraph.
The policy reasons underlying the exclusion of jurors' affidavits or testimony impeaching verdicts include protection of jurors against annoyance or embarrassment, freedom of deliberation, and finality of verdicts. Allowing inquiry into the mental operations and emotional reactions of jurors in reaching a given verdict would invite constant review as a result of tampering and harassment. Moreover, even without pressure by counsel or litigants, many jurors are likely to have second thoughts about their verdicts after they are excused by the Court and the influence of fellow jurors dissipates. Such second thoughts might cause jurors to question their verdicts if permitted to do so. Yet these policy reasons are not promoted by a blanket prohibition against inquiry into irregularities which occur in the jury process when such irregularities result from prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process.
Commentary to A.R.E. 606(b), second paragraph.
The commentary to Evidence Rule 606(b) quotes from West v. State in describing the exceptions to the general rule that jurors cannot impeach their verdict:
409 P.2d 847 (Alaska 1966).
Exceptions to the general rule have been made and it has been held that the type of misconduct which may impeach a verdict is fraud, bribery, forcible coercion or any other obstruction of justice. Whether the verdict should be set aside and a new trial ordered rests in the sound discretion of the trial judge, but generally the verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty and deprives a party of a fair trial.
Commentary to A.R.E. 606(b), third paragraph (quoting West, 409 P.2d at 852).
The Alaska Supreme Court has stated that "[c]ourts agree that a juror who discusses his or her general knowledge during deliberations, such as a familiarity with x-ray technology, has not introduced extraneous prejudicial information into the jury room." It is therefore clear that Peltola could properly rely on and discuss her past experience with her truck and her conclusion that it would be difficult for a person to rapidly get out of a similar truck through the window. In his finding, Judge Devaney considered the possibility that the three jurors who testified that Peltola said she had conducted an experiment misunderstood her. Those jurors might have concluded that, when Peltola discussed her general knowledge about her truck, she was actually discussing an experiment. Judge Devaney concluded that allowing the jurors to impeach their verdict by testifying about this misunderstanding was the kind of testimony prohibited by Rule 606(b). We agree.
Titus, 963 P.2d at 262.
We have previously set out the kinds of serious misconduct that provide exceptions to the general rule that jurors cannot impeach their verdict: "fraud, bribery, forcible coercion or any other obstruction of justice" and that "extraneous prejudicial information was improperly brought to the jury's attention or . . . any outside influence was improperly brought to bear upon any juror." We agree with Judge Devaney that, if the three jurors misunderstood Peltola, this misunderstanding does not constitute juror misconduct. If this misunderstanding occurred, it was not "extraneous prejudicial information" or an "outside influence." The misunderstanding did not constitute "fraud, bribery, forcible coercion or any other obstruction of justice."
West, 409 P.2d at 852.
A.R.E. 606(b).
West, 409 P.2d at 852.
We accordingly conclude that Judge Devaney did not err in denying Carleson's motion for a new trial.
The judgment of the superior court is AFFIRMED.