Kirby v. Rosell

• Decision Date: 11 May 1982
• Docket Number: No. 1,CA-CIV,1
• Citation: 648 P.2d 1048,133 Ariz. 42
• Parties: Robert KIRBY, Plaintiff-Appellant, v. Joe X. ROSELL and Sharon Rosell, Defendants-Appellees. 5329.
• Court: Arizona Court of Appeals

Page 1048

648 P.2d 1048

133 Ariz. 42

Robert KIRBY, Plaintiff-Appellant, v. Joe X. ROSELL and Sharon Rosell, Defendants-Appellees.

No. 1 CA-CIV 5329.

Court of Appeals of Arizona, Division 1, Department A.

May 11, 1982.

Rehearing Denied June 17, 1982.

Review Denied July 13, 1982.

Machmer, Schlosser & Meitz, Ltd. by Gerald A. Machmer, Robert E. Siesco, Jr., Phoenix, for plaintiff-appellant.

Treon, Warnicke & Roush, P.A. by Douglas G. Martin, Gerrie Apker Kurtz, Phoenix, for defendants-appellees.

OPINION

OGG, Presiding Judge.

The issue raised in this appeal is whether the trial court abused its discretion by granting a motion for new trial on the basis of a juror's affidavit that the jury considered notes from a business law textbook which were not part of the evidence.

Appellant Robert Kirby brought a complaint against appellees Joe X. and Sharon Rosell alleging fraud in connection with business transactions between the parties. The Rosells denied the allegations and counterclaimed for breach of contract. Following a jury trial, a verdict was returned awarding Kirby $18,000 in damages. The Rosells moved for a new trial on five grounds including an allegation of jury misconduct.

The Rosells presented the trial court with a juror's affidavit which states that the juror had consulted a business law textbook and had read to the jury certain notes including definitions of legal terms which he had taken from the textbook. The trial court granted the Rosells' motion for new trial on the basis of this affidavit. We affirm. ¹

The trial court has authority pursuant to 16 A.R.S., Rules of Civil Procedure, Rule 59(a)(2) to grant a new trial on the basis of jury misconduct. While conceding that the trial court has such discretion, appellant argues that it was an abuse of discretion for the trial court to consider the affidavit of a juror to impeach the verdict.

Arizona has long followed the generally recognized rule that testimony or affidavits of jurors will not be admitted to impeach a verdict. See, e.g., Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977); Moorer v. Clayton Manufacturing Corporation, 128 Ariz. 565, 627 P.2d 716 (App.1981). Our supreme court has stated that such evidence will not be received to impeach a verdict "where the facts sought to be shown are such as inhere in the verdict ...." State v. Pearson, 98 Ariz. 133, 136, 402 P.2d 557, 559 (1965). Numerous exceptions to the general rule have evolved. See generally 3 Weinstein's Evidence, PP 606(03)-606(08) (1981). Affidavits of jurors have been considered in Arizona to show an error or mistake in the judgment entered as not conforming to the findings of the jury, Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (1956), improper acts or communication by third parties with a juror, State v. Pearson, supra, and failure by the juror submitting the affidavit to disclose upon inquiry on voir dire his bias and prejudice, Board of Trustees Eloy Elementary School District v. McEwen, 6 Ariz.App. 148, 430 P.2d 727 (1967). These exceptions to the general rule extended to matters which were not "inherent in the verdict". See Valley National Bank of Arizona v. Haney, 27 Ariz.App. 692, 558 P.2d 720 (1976); see generally Impeachment of Jury Verdicts in Arizona, 21 Ariz.L.Rev. 821 (1979).

In 1973, the Arizona Supreme Court adopted Rule of Criminal Procedure 24.1(d), which represented a new policy in Arizona, permitting the receipt of juror testimony or affidavits in limited circumstances for the purpose of impeaching the jury's verdict. ² See State v. Callahan, 119 Ariz. 217, 580 P.2d 355 (App.1978); State v. Landrum, 25 Ariz.App. 446, 544 P.2d 270 (1976).

Following Arizona's adoption of a modified version of the Federal Rules of Evidence in 1977, the competency of a juror to testify about jury misconduct in civil cases has been governed by Rule 606(b), Rules of Evidence, 17A A.R.S. The Arizona rule was adopted almost verbatim from the Federal rule except that Arizona restricted its application to civil trials. ³ Arizona's Evidence Rule 606(b) provides:

Inquiry into validity of verdict in civil action. Upon an inquiry into the validity of a verdict in a civil action, 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 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)

The emphasized portion of Rule 606(b) is the exception which is the basis of this appeal. Arizona courts have not had occasion to apply Rule 606(b) to a fact situation akin to the instant case. However, since the Arizona rule is almost identical to the federal rule, we find federal case law and case law from other jurisdictions which have likewise adopted the federal rule to be instructive.

It is undisputed that the affidavit in question asserts that extraneous information was brought into the jury room. However, Rule 606(b) refers to the introduction of "prejudicial extraneous information". Once the court finds that matters not of record were improperly brought to the jury's attention, it must then determine whether a party was prejudiced thereby, thus requiring a new trial. See, e.g., 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); 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); United States v. Pinto, 486 F.Supp. 578 (E.D.Pa.1980); Smith v. Brewer, 444 F.Supp. 482 (S.D. Iowa 1978), aff'd 577 F.2d 466 (1978), cert. denied 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978). See also Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).

It is appellant's position that the trial court abused its discretion in granting a new trial because the record is devoid of any showing that the effect of reading the notes to the jury was prejudicial to appellees. It is appellees' position that there is a presumption of prejudice where extraneous information is presented. We are of the opinion that neither of these positions accurately reflects the proper interpretation of Rule 606(b).

Federal courts have held on numerous occasions that a finding that extraneous material has reached the jury does not by itself require the granting of a new trial. The circuit courts have phrased the test for determining prejudice in a variety of ways. See, e.g., United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979); United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); Osborne v. United States, 351 F.2d 111 (8th Cir. 1965).

The Arizona Supreme Court recently faced this issue when prejudicial extraneous information was considered by a jury in a criminal homicide case. State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982). In Poland, the court said:

Not all extraneous information is so prejudicial as to require reversal. The standard enunciated by the Ninth Circuit is that the defendant is entitled to a new trial if it cannot be concluded beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict (citations omitted). We adopt the reasonable possibility standard applied by the Ninth Circuit as an appropriate balancing test and in harmony with the standards applied in other circuits. ⁴

While the Poland case and the federal criminal cases relied upon are concerned primarily with the due process rights of criminal defendants, it is our opinion that these cases do reflect the intent of Rule 606(b) and that only prejudicial extraneous matter will suffice to impeach a verdict and that proof of actual prejudice is not required. See also, Smith v. Brewer, supra; United States v. Pinto, supra. In a factual situation analogous to the instant case, the Illinois Court of Appeals discussed the showing that is required to demonstrate "prejudice" from the introduction of extraneous material in a civil case. ⁵

In Heaver v. Ward, 68 Ill.App.3d 236, 24 Ill.Dec. 930, 386 N.E.2d 134 (1979), the court discussed the affidavits of two jurors that a fellow juror had diagrammed an intersection which was at issue in the case and had brought that diagram and a copy of "Rules of the Road", an official booklet designed to instruct applicants for drivers' licenses, into the jury room. After stating that not every instance of bringing unauthorized information to the jury would result in an error so prejudicial as to require reversal, the court stated:

Defendant also contends that the examined passages in Rules of the Road were in fact consistent with both the trial court's instructions and Illinois state law.

Neither the trial court nor this court need attempt to delve into the exact effect of unauthorized evidence on a particular juror.... It is enough that the unauthorized evidence directly relates to issues in the case and may have improperly influenced the verdict.

68 Ill.App.3d at 241, 24 Ill.Dec. at 935, 386 N.E.2d at 139. See also, Brown v. Johnson, 92 Ill.App.3d 1095, 48 Ill.Dec. 526, 416 N.E.2d 799 (1981). Other jurisdictions have also rejected a requirement of proof of actual prejudice to obtain a new trial in a civil case where extraneous materials relating to the issues of the case have been brought before the jury. See Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954); Nichols v. Seaboard Coastline Railway Co., 341 So.2d 671 (Ala.1976); Simmons v....