Barker v. State

• Decision Date: 09 May 1979
• Docket Number: No. 9879,9879
• Citation: 95 Nev. 309,594 P.2d 719
• Parties: Anthony "Tony" BARKER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 719

594 P.2d 719

95 Nev. 309

Anthony "Tony" BARKER, Appellant, v.The STATE of Nevada, Respondent.

No. 9879.

Supreme Court of Nevada.

May 9, 1979.

Mills, Galliher, Lukens, Gibson & Schwartzer, Las Vegas, for appellant.

Richard Bryan, Atty. Gen., Carson City, George E. Holt, Clark County Dist. Atty., and Alan R. Johns, Sp. Prosecutor, Las Vegas, for respondent.

OPINION

MOWBRAY, Chief Justice:

A jury found the appellant, Anthony "Tony" Barker, guilty of murder in the first degree.He seeks a new trial on the grounds that the court below erred: in denying his motion for a new trial grounded on juror misconduct; in ruling on the admissibility of the prior testimony of an unavailable witness; in permitting the state to endorse an additional witness named in the deposition; and in admitting the out-of-court statements of a co-conspirator, Jerry Bishop, in violation of Barker's Sixth Amendment right of confrontation.

Barker has not challenged the sufficiency of the evidence.Therefore, a detailed presentation of the evidence is not set forth.In brief, the state sought to prove a conspiracy, involving Barker and a Jerry Bishop, to murder Barker's wife and share the proceeds of her insurance policies.¹

THE MOTION FOR A NEW TRIAL

Appellant's motion for a new trial was predicated upon the affidavits of seven jurors.They averred that the jury foreman had told them of certain research, conducted by him during the course of the trial, regarding the effect of heroin upon the human mind.The court struck those portions of the affidavits dealing with the effect of the statements upon the deliberations.The court took the testimony of the foreman, who admitted reading such material during the trial, and reporting to the jury:

that opiates in and of themselves are non-toxic to the human body.That there is no long-lasting physiological or psychological effect resulting from their use in and of themselves.That oftentimes there are other factors associated with it that result from other things or that precipitate the use in the first place, but in and of themselves they are non-toxic.

In a carefully reasoned decision, the court concluded that the statement was made as reported by the foreman, that there had been juror misconduct, but that the error was harmless beyond a reasonable doubt.We agree.

1.Competence of Jurors' Evidence.

The state first contends that the order of the trial court should be upheld on the ground that there was no competent evidence of juror misconduct, relying on the proposition"firmly established in Nevada law . . . prohibiting jurors from impeaching their verdict."This contention is meritless.

All of the Nevada authority cited by the state precedes the adoption by the legislature, in 1971, of NRS 50.065, subd. 2, which provides:

Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning 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.

Read together with NRS 48.025, adopted at the same time, which provides that all relevant evidence is admissible unless excluded by statute or by the Constitution, the statute does allow juror testimony regarding objective facts, or overt conduct, which constitutes juror misconduct.

The rule is substantially the same as that proposed by the Federal Advisory Committee in 1969. 46 F.R.D. 161, at 289-90.In its published notes, the Committee observed: "The familiar rubric that a juror may not impeach his verdict, dating from Lord Mansfield's time, is a gross oversimplification.Id. at 290.(SeeMcNally v. Walkowski, 85 Nev. 696, 462 P.2d 1016(1969)).The Committee continued, "The jurors are the persons who know what really happened.Allowing them to testify as to matters other than their own inner reactions involves no particular hazard to the values sought to be protected (by the prohibition of juror testimony).The rule is based upon this conclusion."46 F.R.D. at 291.(Emphasis added.)

In this case, the court excluded from its consideration those portions of the affidavits which did deal with "mental processes" or the "effect" upon jurors of the alleged misconduct.The court did rely upon those portions of the affidavits and the testimony dealing with the conduct, and the statements to the jury, of the foreman.These were objective facts, overt and capable of ascertainment by any observer, without regard to the state of mind of any juror.The court, therefore, proceeded properly under the rule.SeeGardner v. Malone, 60 Wash.2d 836, 376 P.2d 651(1962).See generally, Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 36 L.Ed. 917(1892).

2. Misconduct.

The state next contends that the juror's conduct in this case was not improper.We do not agree.The unsworn testimony of a juror as to a fact which is relevant to the determination of an issue before the jury constitutes misconduct in itself.Halverson v. Anderson, 82 Wash.2d 746, 513 P.2d 827(1973).Even more is there misconduct when the juror has "researched" such facts, even though not directly related to the specific circumstances which are the subject matter of the trial.SeeThomas v. Kansas Power and Light Company, 185 Kan. 6, 340 P.2d 379(1959)(reading general information on electricity);Walter v. Ayvazian, 134 Cal.App. 360, 25 P.2d 526(1933)(asking general questions of a physician).

The reasons for such a rule are clear."(F)or a jury to consider independent facts, unsifted as to their accuracy by cross-examination, and unsupported by the solemnity attending their presentation on oath before a judge, jury, parties and bystanders, and without an opportunity to contradict or explain them can never be countenanced."Thomas v. Kansas Power and Light Company, supra, 185 Kan. 6, 340 P.2d at 385.Moreover, presentation of facts by a juror must always raise the constitutional issue of the right of a defendant to be present and confront the witnesses against him.SeeState v. Arney, 218 Kan. 369, 544 P.2d 334(1975).

3. Prejudice.

The court's decision to deny appellant's motion for a new trial turned upon the court's determination, after careful consideration of the evidence regarding the misconduct, in light of the whole of the evidence produced at trial, that there was, beyond a reasonable doubt, no prejudice to the appellant as a result of the misconduct.

Not every incidence of juror misconduct requires the granting of a motion for new trial.Courts which have considered the issue in light of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967), have held that the proper standard to be applied in light of the confrontation clause and due process implications of juror misconduct is that a new trial must be granted unless it appears, beyond a reasonable doubt, that no prejudice has resulted.E. g., United States v. Welch, 496 F.2d 861(4th Cir.), Cert. denied, 419 U.S. 857, 95 S.Ct. 104, 42 L.Ed.2d 90(1974);State v. Arney, supra;People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906(N.Y.Sup.Ct.1975).

In the case at hand, the court below applied the Chapman standard, and concluded that no prejudice had resulted.Such a determination is ultimately a question of fact."It is for the trial court to determine in the first instance whether misconduct on the part of the jury has resulted in prejudice to a litigant, and its judgment thereon will not be overturned unless abuse of discretion is manifest."Geo. C. Christopher & Sons, Inc. v. Kansas P. & C. Co., Inc., 215 Kan. 185, 523 P.2d 709, 720(1974).SeeRyan v. Westgard, 12 Wash.App. 500, 530 P.2d 687(1975).

Here the conduct related to the issue of the credibility of a prosecution witness.The defense had developed, during cross-examination, that the witness had been addicted to heroin, "on and off" for some twenty years.Further defense questions, however, went to the economic or physical effect of such addition upon the Motives of the witness for lying, rather than to any direct psychological or physiological effect upon the mind of an addict.The statement made (which the trial court found to be that contained in the foreman's testimony) had little direct bearing on the issue of general credibility of a narcotics user.In considering the potential effect of the statement, in relation to the mass of evidence produced at trial, the court was justified in concluding that it could not have affected the juror's verdict.The court did not err in denying the motion for a new trial.

THE ADMISSIBILITY OF THE UNAVAILABLE WITNESS' TESTIMONY

1.Preliminary Hearing Testimony.

After a hearing the trial court determined to admit the testimony of prosecution witness Keeler, given at the preliminary examination.The court concluded that (a)the defendant had been present and represented by counsel, (b) the witness had been cross-examined by defendant's counsel, and (c) the witness was actually unavailable, despite the state's pre-trial efforts to locate her.Appellant does not challenge the court's determination in this regard.SeeNRS 171.198, subd. 7(b);Drummond v. State, 86 Nev. 4, 462 P.2d 1012(1970).Instead, appellant contends that the testimony should have been excluded on the ground that its prejudicial effect outweighed its relevance.Appellant has not demonstrated any abuse of discretion in this regard (SeeBishop v. State, 92 Nev. 510, 521, 554 P.2d 266(1976)), and we therefore refuse to entertain this challenge, unsupported by any relevant authority.Leaders v. State, 92 Nev. 250, 548 P.2d 1374(1976);Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334(1971).

2.Prior Trial Testimony.

Upon the court's ruling that it would admit Keeler's preliminary hearing testimony, defense counsel indicated their intent to move for the admission of the witness' testimony from The prior trial of Bishop regarding her...