State v. Poh

Decision Date31 January 1984
Docket NumberNo. 82-1187-CR,82-1187-CR
Citation343 N.W.2d 108,116 Wis.2d 510
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert J. POH, Defendant-Appellant.
CourtWisconsin Supreme Court

Michael R. Klos, Asst. Atty. Gen., for plaintiff-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Michael Yovovich, First Asst. State Public Defender, for defendant-appellant.


This is a review of an unpublished decision of the court of appeals, 113 Wis.2d 723, 334 N.W.2d 589, filed on April 5, 1983, reversing an order of the circuit court for Door county, S. Dean Pies, Circuit Judge, which denied defendant Robert Poh's motion for a new trial.

There are two issues on review. In its order granting the petition for review this court directed the parties to address the following issue: "Did the comments among the jurors that are the subject of this case constitute extraneous prejudicial information ... improperly brought to the jury's attention within the meaning of sec. 906.06(2), Stats.?" The parties also addressed the following issue: "What standard should a court use to assess whether reversal of a conviction is warranted when extraneous prejudicial information was improperly brought to the jury's attention?"

We hold that extraneous prejudicial information had been improperly brought to the jury's attention by one of the jurors and that the conviction must be reversed since there is a reasonable possibility that the error might have contributed to the conviction. Accordingly we affirm the decision of the court of appeals and remand the case to the circuit court for a new trial.

The facts relevant to the issues before this court are not in dispute. The defendant was convicted of three counts of homicide by negligent operation of a vehicle while under the influence of an intoxicant in violation of sec. 940.09, Stats. 1979-80. 1 Approximately one month after the trial, defendant moved for postconviction relief alleging that the jury had considered extraneous prejudicial information. Defendant's motion was accompanied by an affidavit signed by juror McCain stating that during the course of jury deliberations two jurors commented about the defendant's prior driving accidents and traffic violations. Also attached to the motion were the written statements of seven jurors concerning the alleged comments. 2

The circuit court held an evidentiary hearing during which eleven of the twelve jurors were questioned individually to determine whether information outside the record had been brought to the jurors' attention, the nature of this information, and the circumstances under which the information had come to the jurors' attention. The circuit court avoided inquiry into the effects of this information on the jurors' mental processes or their deliberations. The procedure used by the circuit court in this case complied with sec. 906.06, Stats. 1981-82, and After Hour Welding v. Laneil Management Co., 108 Wis.2d 734, 742, 324 N.W.2d 686 (1982).

The circuit court found that extraneous prejudicial information had not been improperly brought to the jury's attention and that, if it had, the standard to apply to determine reversal was whether this error was "not prejudicial beyond a reasonable doubt." On appeal the court of appeals concluded that extraneous prejudicial information had been improperly brought to the jury's attention but did not decide what standard to use to assess whether this constituted prejudicial error. The court of appeals concluded, however, that the error was prejudicial no matter what standard was used and that the conviction had to be reversed.

When considering the impeachment of a verdict the trial court must consider (1) whether the evidence proffered is competent under sec. 906.06(2), Stats.1981-82; (2) whether there was error, that is, whether the evidence shows substantial grounds sufficient to overturn the verdict; and (3) whether the conviction should be overturned because the error was prejudicial. After Hour, supra, 108 Wis.2d at 738, 324 N.W.2d 686. Although the first two issues relating to the evidence, namely, competency and sufficiency, and the third issue relating to harmless error overlap to some extent, we shall treat them separately as we did in After Hour. 3


The first issue is an evidentiary one: the juror's competency to testify. May a juror testify as to the comments allegedly made by the jurors in this case? In other words, the issue is whether the alleged comments to the jurors in this case constitute extraneous prejudicial information improperly brought to the jury's attention within the meaning of sec. 906.06(2), Stats. 1981-82.

Sec. 906.06(2), which is virtually identical to Rule 606(b) of the Federal Rules of Evidence, governs the competency of jurors to testify in an inquiry into the validity of the verdict. It provides as follows:

"Sec. 906.06(2) INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. 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."

As we explained in After Hour, sec. 906.06(2) seeks to reach an accommodation between two policies: protecting trial by jury and the finality of verdicts, and ensuring a just result in each case. The statute accomplishes this accommodation by prohibiting a juror's testimony as to statements made during deliberations and as to the deliberative processes of the jurors but allowing a juror's testimony on occurrences and events outside the record which may indicate improper extraneous influences on the jury. 4 The cases illustrate the difficulties involved in distinguishing between "inherent" matters relating to the jurors' mental processes and deliberations as to which testimony is precluded and "extraneous" matters improperly brought to the jury's attention as to which testimony is permitted. 5

Jurors are expected to bring commonly known facts and their experiences to bear in arriving at their verdict. 6 We cannot "expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system." United States v. McKinney, 429 F.2d 1019, 1022-23 (5th Cir.1970).

Nevertheless, a fundamental principle of our justice system is that the government has the burden of establishing guilt beyond a reasonable doubt on the basis of evidence offered in the courtroom under the rules of evidence and under the supervision of the court. While the thirteenth century jury may have been selected because of its familiarity with background facts, the modern jury determines the merits of a case solely on the basis of the evidence developed before it in the adversary arena. "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). See also Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). 7

By allowing a juror to testify as to whether extraneous, prejudicial information was improperly brought to the jury's attention, sec. 906.06(2) ensures that juries will reach verdicts on the basis of information known to the parties and affords the party whose case is negatively affected by the information a chance to probe and rebut. 8

To demonstrate that a juror is competent to testify under sec. 906.06(2), the party seeking to impeach the verdict has the burden to prove that the juror's testimony concerns extraneous information (rather than the deliberative processes of the jurors), that the extraneous information was improperly brought to the jury's attention, and that the extraneous information was potentially prejudicial.

To determine whether these requirements were satisfied, we look first at the nature of the information about which the defendant seeks the juror's testimony. At the circuit court hearing juror McCain testified that during a bus ride back from dinner, approximately one or two hours before the jury's verdict, a juror she believed to be juror Koskubar informed her that the defendant "didn't have a driver's license at the time of the accident and that he had been involved in other accidents previously in which someone else had been killed." McCain said she told the juror she did not want to hear any more. McCain also testified that a person she believed to be juror Turk had stated, forty-five minutes to an hour before the jury reached its verdict, "Oh come on, this guy has a history of drunk driving. Everyone knows that." McCain testified that several of the jurors "jumped at" Turk for making the remark.

Juror Koskubar denied making the statement, and juror Turk was apparently ill and unable to testify.

Juror Thiesen testified that after dinner and resumption of deliberations, when all jurors were present, a woman mentioned that the defendant "had prior records related to alcohol." Five other members of the jury acknowledged having heard a comment or comments relating to defendant's alleged record of drinking and driving. All these jurors stated that the jury thoroughly discussed the evidence before...

To continue reading

Request your trial
89 cases
  • State ex rel. Trump v. Hott
    • United States
    • West Virginia Supreme Court
    • July 20, 1992
    ...625 (1960); Chew v. State, 804 S.W.2d 633 (Tex.App.1991); State v. Cummings,, , 31 Wash.App. 427, 642 P.2d 415 (1982); State v. Poh, 116 Wis.2d 510, 343 N.W.2d 108 (1984). Cf. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (murder conviction set aside where bailiff sai......
  • State v. Flynn
    • United States
    • Wisconsin Court of Appeals
    • March 20, 1995
    ...brought to the jury's attention," and (3) "that the extraneous information was potentially prejudicial." State v. Poh, 116 Wis.2d 510, 520, 343 N.W.2d 108, 114 (1984). If a party satisfies this burden, the juror's testimony is deemed admissible; however, to overturn the verdict, the party m......
  • People v. Hedgecock
    • United States
    • California Court of Appeals Court of Appeals
    • April 25, 1988
    ...State v. Blackwell (Tenn.1984) 664 S.W.2d 686, 688; State v. Murphy (1986) 44 Wash.App. 290, 721 P.2d 30, 33, 34; State v. Poh (1984) 116 Wis.2d 510, 343 N.W.2d 108, 114; see also People v. Porter (1986) 111 Ill.2d 386, 95 Ill.Dec. 465, 472, 489 N.E.2d 1329, 1336; State v. Jenkins (1984) 15......
  • State v. Grant
    • United States
    • Wisconsin Supreme Court
    • June 11, 1987
    ...noted that the Kotteakos test had been adopted by this court in prior cases involving constitutional error, citing State v. Poh, 116 Wis.2d 510, 529, 343 N.W.2d 108 (1984), State v. Burton, 112 Wis.2d 560, 571, 334 N.W.2d 263 (1983), and State v. Billings, 110 Wis.2d 661, 667, 329 N.W.2d 19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT