Rios v. Danuser Mach. Co., Inc.

• Decision Date: 13 March 1990
• Docket Number: No. 11640,11640
• Citation: 792 P.2d 419,1990 NMCA 31,110 N.M. 87
• Parties: Pedro RIOS, Plaintiff-Appellee, v. DANUSER MACHINE CO., INC., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 419

792 P.2d 419

110 N.M. 87

Pedro RIOS, Plaintiff-Appellee, v. DANUSER MACHINE CO., INC., Defendant-Appellant.

No. 11640.

Court of Appeals of New Mexico.

March 13, 1990.

Certiorari Quashed May 15, 1990.

[110 N.M. 89] Victor F. Poulos, Mayfield & Perrenot, Mark D. Pierce, El Paso, Tex., for plaintiff-appellee.

William A. Walker, Jr., Frank N. Chavez, Campbell, Reeves, Chavez & Acosta, P.A., Las Cruces, for defendant-appellant.

OPINION

DONNELLY, Judge.

Defendant, Danuser Machine Co., Inc. (Danuser), appeals from an order setting aside a jury verdict in favor of defendant and granting plaintiff's motion pursuant to SCRA 1986, 1-060(B)(6). The central issue presented in this interlocutory appeal is whether the trial court erred in granting plaintiff's Rule 1-060(B)(6) motion authorizing a new trial. We reverse and remand.

Plaintiff was injured when he caught his glove in the auger of a post hole digger on a tractor owned by Uvas Farms. Plaintiff filed suit against Danuser and four other defendants. Danuser was the only remaining defendant at the time of trial. Following a jury trial, the jury returned a special verdict for Danuser on May 10, 1989. The jury found Danuser was negligent, that the auger was not defective, and that neither Danuser nor the auger was the proximate cause of plaintiff's injuries. Judgment was entered on May 23, 1989.

Shortly after the trial, the jury foreperson, Mary Schultz, contacted the trial judge and reported that certain statements allegedly made by juror Jean Young indicated that she was biased or prejudiced against plaintiff. Schultz further informed the judge of other alleged juror conduct and statements which occurred during the trial. The judge instructed Schultz to place her remarks in a letter and send copies to counsel for each of the parties.

Stating that the motion was made pursuant to SCRA 1986, 1-059 and -060, on May 23, 1989, plaintiff filed a motion for new trial together with Schultz's letter and her signed affidavit. Plaintiff alleged juror bias and prejudice and juror incompetency based on Schultz's letter and affidavit. The letter and affidavit recited, among other things, that Jean Young had made statements demonstrating bias toward plaintiff because he could not speak English and was Hispanic; that another juror had represented himself to the other jurors as an expert concerning machinery; and that a third juror was incompetent because she did not appear to understand the evidence or the jury instructions. Plaintiff's motion also alleged that the verdict should be set aside because Danuser's counsel had introduced evidence of negligence concerning a former defendant who had been dismissed from the case, and that defense counsel had made improper remarks to the jury.

On June 19, 1989, the trial court heard plaintiff's motion for new trial; however, after listening to argument and considering Schultz's affidavit, the court directed that the hearing on the motion be continued until July 3, 1989, in order to hear Young's response to Schultz's allegations. The court also ordered that counsel refrain from talking to any of the jurors. Contrary to the court's instruction, Danuser's counsel obtained affidavits from seven of the jurors and subpoenaed four other jurors to appear and testify at the continuation of the hearing on the motion for new trial.

At the July 3, 1989 hearing, Danuser's counsel presented the affidavits obtained by them and invoked the rule excluding witnesses from the courtroom. While the witnesses were waiting to testify, one of the jurors whom Danuser had subpoenaed showed Young a copy of Schultz's affidavit and letter. Prior to the hearing, Young had been unaware of the allegations against her. Young was called as a witness and denied that she had failed to truthfully respond to questions on voir dire or that she was biased or prejudiced against plaintiff. She further testified that she had five grandchildren with Hispanic blood. Following Young's testimony, the trial court refused to permit other jurors to testify at the hearing. At the conclusion of the hearing the court denied plaintiff's motion for a new trial.

On July 11, 1989, plaintiff filed a second Rule 1-060(B) motion, seeking to vacate the judgment. This motion was premised on four separate allegations: (1) alleged misconduct of defendant's counsel; (2) alleged ex parte communications by a juror with the trial court; (3) trial court error in denying plaintiff's initial motion for new trial without permitting him to present impeachment or rebuttal evidence to Young's testimony; and (4) allegations that certain jurors had failed to truthfully disclose bias or prejudice during jury selection.

Following a hearing on plaintiff's second motion, the court granted plaintiff's request for a new trial and entered an order on July 20, 1989, setting aside the verdict and judgment.

PROPRIETY OF ORDER GRANTING NEW TRIAL

Danuser contends that the trial court erred in granting plaintiff's second Rule 1-060(B) motion because there was no competent evidence to support plaintiff's allegations of bias or prejudice or that Young had responded untruthfully to questions on voir dire. Danuser argues that SCRA 1986, 11-606 specifically precludes impeachment of a verdict by the testimony or affidavit of a juror concerning statements made by a juror during jury deliberations.

The rule against admission of juror testimony to impeach a verdict is rooted in common law. Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). An exception to the rule exists where an "extraneous influence" has been shown to have affected the jury. Id. at 117, 107 S.Ct. at 2746. See also Duran v. Lovato, 99 N.M. 242, 656 P.2d 905 (Ct.App.1982). Our Rule 11-606(B) is identical to Rule 606(b) adopted by Congress. Tanner notes that Congress intended to preclude juror testimony concerning matters or statements of jurors during jury deliberations. Id. See also III ABA Standards for Criminal Justice 15-4.7 (1980); Comment, Impeachment of Jury Verdicts, 25 U.Chi.L.Rev. 360 (1958).

Rule 11-606(B) specifies in part:

Upon an inquiry into the validity of a verdict * * * 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 [concerning extraneous prejudicial information or improper outside influence]. Nor may [a juror's] affidavit or evidence of any statement by him concerning [matters] about what he would be precluded from testifying be received for these purposes. [Emphasis added.]

Under federal rule 606(b), juror testimony is not admissible to impeach a verdict on the basis of alleged statements of jurors occurring within the jury room. See Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir.1987); Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.1981); see also Holden v. Porter, 405 F.2d 878 (10th Cir.1969); State v. Shillcutt, 119 Wis.2d 788, 350 N.W.2d 686 (1984). Similarly, under the rule a court may not consider a juror's affidavit concerning a juror's statements made during the course of jury deliberations. United States v. Voigt, 877 F.2d 1465 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989); see 3 J. Wein stein & M. Berger, Weinstein's Evidence p 606 (1988).

Although Rule 11-606 precludes impeachment of verdicts by inquiry into the mental processes of jurors or as to statements made by jurors during deliberations, the rule does not prevent the questioning of a juror or the consideration of an affidavit concerning the truthfulness of a juror's answers to questions propounded on voir dire. See Skeet v. Wilson, 76 N.M. 697, 417 P.2d 889 (1966); State v. Martinez, 90 N.M. 595, 566 P.2d 843 (Ct.App.1977). Inquiry into the truthfulness of a juror's response to questioning on voir dire is not precluded by Rule 11-606, although the truthfulness cannot be proved by the use of evidence barred by Rule 11-606. See State v. Martinez.

A trial court may, in its discretion, set aside a jury verdict where there is evidence that a juror failed to truthfully respond to sufficient and well-directed questioning on voir dire concerning bias or prejudice of the juror and that prejudice resulted. State v. Pierce, 109 N.M. 596, 788 P.2d 352 (1990); State v. Martinez; Lamphere v. Agnew, 94 N.M. 146, 607 P.2d 1164 (Ct.App.1979); see also Pekelder v. Edgewater Automotive Co., 68 Ill.2d 136, 11 Ill.Dec. 292, 368 N.E.2d 900 (1977); see generally Annotation, Admissibility, in Civil Case, of Juror's Affidavit or Testimony to Show Bias, Prejudice, or Disqualification of a Juror Not Disclosed on Voir Dire Examination, 48 A.L.R.2d 971 (1956).

Danuser points out that the trial court denied plaintiff's first Rule 1-060(B) motion. It asserts that no competent evidence was presented to substantiate the contention that Young failed to truthfully respond during voir dire and that other jurors acted improperly, because the allegations contained in Schultz's letter and affidavit were objected to as hearsay and as violating Rule 11-606.

Where an opposing party does not deny or controvert facts stated in a movant's affidavit, the facts may be deemed to be admitted for the purpose of the court's ruling upon such matter. See Carvey v. Indiana Nat'l Bank, 176 Ind.App. 152, 153 n. 1, 374 N.E.2d 1173, 1174 n. 1 (1978). However, affidavits of jurors obtained after the jury has been discharged are generally inadmissible to support a motion for new trial. See Skeet v. Wilson. Moreover, in the present case, defendant challenged Schultz's affidavit and letter on the grounds of hearsay and as inadmissible under Rule 11-606. Plaintiff failed to present admissible evidence in support of his motions under Rule 1-060(B), or to come...