Salter v. Watkins, 57600

• Decision Date: 23 September 1987
• Docket Number: No. 57600,57600
• Citation: 513 So.2d 569
• Parties: Dorothy SALTER, d/b/a Dot's Fashion Fabrics v. Catherine WATKINS and Hilton Boswell.
• Court: Mississippi Supreme Court

Page 569

513 So.2d 569

Dorothy SALTER, d/b/a Dot's Fashion Fabrics v. Catherine WATKINS and Hilton Boswell.

No. 57600.

Supreme Court of Mississippi.

Sept. 23, 1987.

J. Max Kilpatrick, Mark S. Duncan, Philadelphia, for appellant.

David Williams, P. Scott Phillips, Williams, Glover, Walton & McAlilly, Meridian, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Today's appeal requires that we consider the extent to which jurors in a civil action may be called on a motion for a new trial and questioned regarding their deliberations and verdict. This is the first time we have been called to consider this question in the context of the Mississippi Rules of Evidence, effective January 1, 1986.

II.

Dorothy Salter, d/b/a Dot's Fashion Fabrics, Plaintiff below and Appellant here, brought an action in the Circuit Court of Neshoba County, Mississippi, claiming property damage to merchandise in her fabric business. The damages were said to have been caused by Defendants, Catherine Watkins and Hilton Boswell, in the course of making repairs to the roof of Plaintiff's place of business. The jury returned an eleven to one verdict in favor of Defendants on May 6, 1986, and judgment was entered thereon.

Thereafter, Plaintiff Salter timely filed a motion for a new trial alleging, inter alia, that one of the jurors, A.L. Burton, was a relative of the Defendant, Catherine Watkins, and that Burton had failed to divulge this relationship on voir dire examination. Second, Salter alleged that at one time the jurors had voted nine to three for her but that the jury foreman had refused to accept the vote and report it as the verdict of the jury and had insisted that the jurors continue to deliberate.

In support of her motion, Plaintiff Salter sought to call as witnesses Arnold Deweese, foreman of the jury, and Bobby Russell, a member of the jury panel. The Circuit Court sustained the objection to the testimony of both witnesses on grounds that they were called to establish matters which occurred within the jury room and during the course of deliberations. Plaintiff was allowed to make a question and answer proffer of the testimony of the witnesses for the record. Thereafter, on July 8, 1986, the Circuit Court entered its order overruling the motion for a new trial. This appeal has followed.

III.

A.

Our ground rules are afforded by Rule 606(b), Miss.R.Ev., which reads as follows:

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.

The rationale underlying Rule 606(b) and its common law predecessor is well known. ¹ Jurors should be encouraged to discuss freely and candidly all issues in a case. The viability of the system depends upon their being able to vote without fear that later they will be cross-examined or called to justify their actions. The rule is designed to prevent harassment or intimidation of jurors, see United States v. Weiner, 578 F.2d 757, 764 (9th Cir.1978), and to prevent fraud through a juror remaining silent during deliberations and later asserting improper influence. See United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir.1976).

Rule 606(b) is a rule of competency. A juror is not competent as a witness when called to testify concerning events which allegedly occurred during jury deliberations. See Castleberry v. N.R.M. Corp., 470 F.2d 1113, 1116-17 (10th Cir.1972) (in which the court refused to consider testimony that a juror believed she would be kept in the jury room indefinitely), Gault v. Poor Sisters of St. Frances Seraph of Perpetual Adoration, Inc., 375 F.2d 539, 548-51 (6th Cir.1967) (in which the court refused to consider testimony that the jury disregarded instructions), Walker v. United States, 298 F.2d 217, 226 (9th Cir.1962) (in which the court refused to consider testimony that the jury misunderstood instructions), United States v. Ross, 203 F.Supp. 100, 102-03 (E.D.Pa.1962) (in which the court refused to consider testimony that a juror wanted to get home quickly because her spouse had been in an accident), United States v. Grieco, 261 F.2d 414, 415-16 (2nd Cir.1958) (in which the court refused to consider testimony that a juror would have held out but was intimidated by another juror).

On the other hand, a juror is competent to testify "on the question whether extraneous prejudicial information was improperly brought to the jury's attention." He may testify regarding specific, extra-record facts another juror disclosed in the jury room and urged his fellow jurors to consider. See United States v. McKinney, 429 F.2d 1019, 1030 (5th Cir.1970). Where such extra-record facts affect an issue of importance in the case and are qualitatively different from the evidence properly before the jury, a new trial may be ordered. See United States v. Perkins, 748 F.2d 1519, 1529-34 (11th Cir.1984).

B.

Our first question concerns the charge that the jury foreman refused to accept a preliminary verdict and in effect told the jurors he would stay there "till hell freezes over." The Circuit Court held the jurors incompetent as witnesses on this issue. Plaintiff was allowed, however, to make a proffer in question and answer form. ² See Rule 103(a)(2), Miss.R.Ev.

Arnold Deweese, the jury foreman, described and testified as to the votes the jury took. Initially, several votes revealed a majority voted for Plaintiff Salter, but not enough for a verdict. After further deliberations, the jury voted and a nine to three vote in favor of Plaintiff was reached. ³ However, instead of accepting that vote, the foreman called for additional discussion and another vote. Foreman Deweese confirmed this in the following colloquy:

Q. So, actually, Mr. Deweese, there was two nine to three votes. One for Mrs. Salter, is that correct?

A. That's right.

Q. And, then, one for Mrs. Watkins, is that correct?

A. That's right.

Plaintiff Salter next called another juror, Bobby Russell, who testified as follows:

Q. Was there ever, at any time, that the Foreman of the jury, Mr. Deweese, failed or refused to report a verdict of nine to three for Mrs. Salter?

A. It was the fourth time we voted. The first three times, it was eight to four for the Plaintiff. The fourth time, it was nine to three for the Plaintiff, Mrs. Salter.

Q. Okay. What happened then?

A. Mr. Deweese said, "I can't accept this." Said, "We're gonna' have to talk about this for a while." He said, "I can't accept this 'til Hell freezes over." He said, "I'll stay in here 'til Hell freezes over."

Q. Now, was there--how was that nine to three vote taken?

A. Just like the other three was. Had little slips of paper and each one voted and dropped it in a little cup. The cup was passed around to everybody.

Q. Who counted those votes?

A. A Mrs. Ricks, first, and then Mr. Deweese counted them.

Q. So, Mrs. Ricks counted them?

A. First.

Q. Did Mrs. Ricks count the vote that was nine to three for Mrs. Salter?

A. She did.

Q. Okay. Did you, or any other members of the jury, try to get the Foreman to report that verdict?

A. We did.

Q. What did you do?

A. We told him that the Judge told us that any time it was a verdict of nine to three, either way, that was supposed to be it, but he said he wasn't ready to vote the first time.

It was then stipulated by the parties that another member of the jury would testify that there was a nine to three vote for the Appellant Salter that was not reported by the foreman, and that the foreman stated that he would not accept that verdict.

Mr. Deweese, the foreman, offered an explanation for his action in not accepting the alleged "vote" for Plaintiff.

"We we got in as deep a discussion on the instructions of the court as I knew how to do. So, we had a colored girl on there, and she was rearing to go home. She began to, while we was discussing this as well as we knew how, she began to pass out ballots, and she took about three, at least, polls of them. After a little bit, she says, 'We got a majority. We got nine,' I believe. That's what it took. So, all the ballots was on the table. You couldn't tell heads from tails on what she was doing there. I set down and I said, 'Listen, we got to have a better ballot than this. Let's take another ballot and everybody settle down and behave.' "

All of this becomes legally irrelevant in view of the fact that upon return of the verdict the court polled the jury. Each juror was asked in open court to state his vote and eleven jurors, when polled by the court, affirmed that their verdict was in favor of the Defendants, Catherine Watkins and Hilton Boswell. Rule 606(b) declares these jurors incompetent regarding the manner in which that eleven to one vote for Defendants was reached, less and except circumstances where extraneous prejudicial information was improperly brought to the jury's attention or where any outside influence was improperly brought to bear upon any juror.

We hold that the foreman's refusal to accept a nine to three verdict and his insistence that a new vote be taken is neither "extraneous prejudicial information" nor "any outside influence" within the meaning and contemplation of Rule 606(b). Even assuming the essential truth of Plaintiff Salter's claim, there is no rule which requires that, the first time nine jurors vote one way or the other in a civil action, the verdict is finally...