State v. McKeen

State v. McKeen  (94-260); 165 Vt 469; 685 A.2d 1090

[Opinion Filed 30-Aug-1996]

[Motion for Reargument Denied 25-Sep-1996]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-260


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 2, Chittenden Circuit

David P. McKeen                                   April Term, 1996


Alden T. Bryan, J.

       Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Robert Appel, Defender General, Henry Hinton, Appellate Attorney,
  Montpelier, and David P. McKeen, pro se, Swanton, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       DOOLEY, J.   Defendant David McKeen appeals his convictions for sexual
  assault, 13 V.S.A. § 3252, and kidnapping, 13 V.S.A. § 2405, following a
  jury trial.  He argues that a new trial should have been ordered because of
  the misconduct of a juror.  We conclude that the decision to deny a new
  trial was within the discretion of the trial court and affirm.

       On the night of July 11, 1992, defendant met the complainant at Eddy's
  Pub in Burlington.  The two left the pub together and entered defendant's
  automobile.  The complainant testified that defendant then hit her on the
  head and drove her to his home in Starksboro, where he tied her and forced
  her to engage in multiple sexual acts.  Afterwards, he drove her, naked and
  bound, to an isolated dirt road and pushed her out, along with her clothes.

       Defendant testified during trial and provided a different version of
  the events.  He testified that he had agreed, prior to the trip to his
  home, to purchase an "eight ball" of cocaine for the complainant in
  exchange for sex.  He claimed the sexual contact had been consensual and

 

  that when he refused to buy the cocaine as promised, the complainant became
  violent, requiring him to restrain her with ropes.

       Defendant's jury trial began on October 26, 1993.  Throughout the
  proceedings, the trial court cautioned the jurors not to discuss the case
  with anyone and not to read newspaper accounts or watch television
  newscasts about the trial.  At the end of the trial, before dismissing the
  alternates, the court asked the jurors whether any of them had discussed
  the case with third parties or had received any outside information about
  the trial.  No juror answered affirmatively. On November 2, 1993, after a
  day of deliberations, the jury returned its verdict, finding defendant
  guilty of sexual assault and kidnapping.

       The next day an anonymous caller reported to defendant's attorney that
  a juror, later identified as Jeffrey Prior, had discussed the case with a
  friend at the Daily Planet, a Burlington restaurant.  After the defense
  filed a motion for a new trial on grounds of juror misconduct, the trial
  court held a hearing on November 5 and December 1, 1993 to investigate the
  possible juror taint.

       During the hearing, the friend testified that on Friday evening,
  October 29, 1993, he saw Prior at the restaurant and struck up a
  conversation, out of the hearing of others.  When it was disclosed that
  Prior was serving as a juror in defendant's trial, the friend exclaimed,
  "Guilty, guilty, guilty."  Prior replied that defendant was not necessarily
  guilty.  He said he was impressed with defendant's testimony as well as
  with his defense lawyer, was not convinced of defendant's guilt, and was
  uncertain how he would vote.

       Prior then discussed some of the testimony he had heard that day. 
  Specifically, he said he heard that defendant, a construction worker, had
  gone out on the town to a bar he had never visited before with a lot of
  money; that defendant testified he was repelled by the smell of the
  complainant when she was undressed at his Starksboro home; and that
  defendant and complainant were driving around, looking to buy drugs.

       Lastly, Prior and his friend talked about the reasonable-doubt
  standard.  The friend said

 

  that the standard is met only when a jury is convinced without a reasonable
  doubt that the defendant is completely guilty.  During the conversation,
  the friend also related information about Eddy's Pub -- he lived in the
  neighborhood; the pub was a site of drug dealing; two female prostitutes
  who used to live on his street used the pub to pick up customers and take
  them to a nearby apartment.

       On the second day of the hearing, Prior assured the trial court he had
  not brought any of the conversation with his friend into the jury room. 
  The jury foreperson also testified and supported Prior's claim, but
  revealed in addition that Prior had mentioned to other jurors the price of
  an eight ball of cocaine, which he had learned from someone.  Recalled to
  the stand, Prior admitted he had had a second conversation with a person
  named Nelson, probably at the same bar, and learned from it that the
  current market price of an eight ball of cocaine was $300. He told other
  jurors this price.  Prior denied having any other conversations and again
  denied that he imparted any other information to the other jurors.

       At the end of the hearing, the trial court determined that Prior's
  misconduct had not influenced the jury deliberations or tainted the
  verdict.  The court applied a two-part analysis: (1) whether defendant
  showed an irregularity capable of influencing the jurors; and (2) if so,
  whether the State showed that the irregularity did not in fact prejudice
  the jurors against defendant.  See State v. Corey, 151 Vt. 325, 328, 561 A.2d 87, 88 (1989); see also State v. Woodard, 134 Vt. 154, 157, 353 A.2d 321, 323 (1976) ("In the absence of proof to the effect that the jury was
  not influenced by the circumstances here, the danger remained that the
  capacity to do so did exist.").  The court found that defendant failed to
  make the threshold showing that the conversation with Prior's friend had
  the capacity to influence the jury, but did make such a showing as to
  Prior.  It concluded, however, that Prior was not actually influenced by
  the conversation.  As to the information about the price of an eight ball
  of cocaine, the court found that it was not capable of influencing Prior or
  the eleven other jurors.  This appeal followed the denial of defendant's
  motion for a new trial.

 

       The issue on appeal is whether the trial court properly held that
  neither incident of juror misconduct by Prior amounted to prejudicial
  extraneous contact sufficient to invalidate the jury verdict.  The decision
  on a motion for a new trial under V.R.Cr.P. 33 is normally entrusted to the
  discretion of the trial court.  State v. Jewell, 150 Vt. 281, 284, 552 A.2d 790, 792 (1988). Absent a showing of abuse or withholding of discretion,
  the trial court's decision will be upheld. State v. Briggs, 152 Vt. 531,
  542, 568 A.2d 779, 785 (1989).  "Determining whether a verdict was affected
  is a fact-driven exercise that will depend upon the circumstances of the
  case." United States v. Sanders, 962 F.2d 660, 668 (7th Cir.), cert.
  denied, 506 U.S. 892 (1992). Because the trial judge develops a
  relationship with the jury during the course of trial, he or she is in the
  best position to make that determination.  See Government of Virgin Islands
  v. Dowling, 814 F.2d 134, 137 (3rd Cir. 1987), aff'd, 493 U.S. 342 (1990). 
  Consequently, every reasonable presumption in its favor is accorded to the
  ruling below.  See State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12, 13
  (1977).  Under these principles, we do not find a new trial was warranted.

       At the outset, we agree with the two-part inquiry adopted by the trial
  court.  A defendant is entitled to a fair trial free of the suspicious
  taint of extraneous influences.  See State v. Wool, 162 Vt. 342, 353, 648 A.2d 655, 662 (1994).  A defendant alleging either extraneous influences or
  juror misconduct must first demonstrate that an irregularity occurred and
  it had the capacity to affect the jury's result.  See State v. Griffin, 152
  Vt. 41, 45, 563 A.2d 642, 645 (1989) (defendant claiming taint of
  extraneous influences required only to show capacity to affect result);
  Isabelle v. Proctor Hospital, 131 Vt. 1, 3, 298 A.2d 818, 819 (1972) (one
  claiming juror misconduct not required to prove actual prejudice, only
  circumstances having that potential).

       The trial court disposed of two claims of misconduct by concluding
  that defendant failed to meet this standard.  It held that the information
  conveyed in the conversation between Prior and his friend had no capacity
  to influence the jurors, other than Prior, and that the information about
  the price of an eight ball of cocaine had no capacity to influence any
  juror, including

 

  Prior.  We agree with both determinations.

       Based on the testimony of Prior and the jury foreman, the trial court
  found that no part of the conversation between Prior and his friend was
  conveyed to the rest of the jurors.  Since the jurors were unaware of the
  conversation, or its contents, they could not be influenced by it. See
  State v. Martel, ___ Vt. ___, ___, 670 A.2d 845, 850 (1995).

       Defendant urges us to overturn the trial court's determination on this
  issue because Prior was an unbelievable witness in light of his failure to
  disclose that he talked about the price of cocaine and his hope, expressed
  in a letter to the trial judge, that his actions would not cause a
  mistrial.  Defendant also attacks the objectivity of the trial judge who,
  he asserts, wanted to protect the verdict at all costs.  Despite these
  considerations, we leave credibility determinations to the trial court and
  affirm its findings, if there is evidence to support them.

       The trial court also found that the price of an eight ball of cocaine
  had no capacity to bias the jury.(FN1)  In examining this finding, we note
  that the crucial factor in deciding when jury exposure to extraneous
  information requires a new trial is "`the degree and pervasiveness of the
  prejudicial influence possibly resulting'" from that exposure.  United
  States v. Weisman, 736 F.2d 421, 424 (7th Cir. 1984) (quoting United States
  v. Solomon, 422 F.2d 1110, 1118 (7th Cir. 1970)).  We find the degree and
  prejudice possibly resulting from Prior's information to be minimal.

       Defendant contends that the price is relevant to whether a jury might
  believe someone would pay as much as $300 for drugs in exchange for sex, as
  proposed by the defense theory

 

  of the case.  Defendant testified at trial, however, that (1) he did not
  know the price of an eight ball, and (2) he was willing to buy it for the
  victim, apparently regardless of price.  He also testified that he reneged
  on this promise.  If defendant did not know the price of an eight ball of
  cocaine, it makes little difference what that price was.  When considered
  in the context of the entire trial, the price of an eight ball constitutes
  only a minor detail, not at issue, with negligible relevance to defendant's
  guilt or innocence.

       In Corey, by way of contrast, a deliberating jury asked the court
  officer to pace off ninety-two feet, which was the distance from which the
  defendant allegedly shot the victim.  In affirming the mistrial order, we
  determined that because the sheriff's conduct bore directly on the
  defense's theory of self-defense, it had the capacity to prejudice the
  defendant's rights.  151 Vt. at 328, 561 A.2d  at 89.  No evidence was
  offered to overcome the presumption of prejudice and show the officer's
  actions had no effect on the outcome of the case.

       The trial court, in the exercise of its broad discretion, could
  evaluate the possible prejudice from the extraneous information about the
  cocaine price in light of all the evidence, the demeanor of the witnesses
  and the issues presented before coming to a common-sense conclusion on the
  impact of the information.  See State v. Christianson, 337 N.W.2d 502, 506
  (Iowa 1983).  Unlike the situation in Corey, the possibility of improper
  influence was remote. We believe the court acted within its discretion in
  concluding that the cocaine price information did not have the capacity to
  affect the jury's result.

       Although the above analysis answers the claims that a new trial was
  warranted because of the effect of Prior's conversation with his friend on
  the rest of the jury or the effect of the cocaine price information, we
  still must consider the impact of the barroom conversation on Prior.  The
  trial court recognized that the conversation had the capacity to influence
  Prior but held that the State discharged its burden to show he was not, in
  fact, influenced.  We agree with this analysis.

       The burden placed on the opposing party to rebut presumptive prejudice
  is a heavy one.

 

  Remmer v. United States, 347 U.S. 227, 229 (1954).  A trial court should
  base its evaluation of juror prejudice upon a consideration of the totality
  of the circumstances, see Sher v. Stoughton, 516 F. Supp. 534, 545
  (N.D.N.Y.), judgment rev'd on other grounds, 666 F.2d 791 (2d Cir. 1981),
  and consider the content of any improper communication and the context in
  which it was given, see Boykin v. Leapley, 28 F.3d 788, 791 (8th Cir.
  1994).  Among the factors to be considered are whether an improper
  communication was directly related to a material issue in the case; whether
  it was inflammatory in nature; whether there was any attempt to exert
  influence upon the juror; how the juror reacted to the improper
  communication; whether the juror testified that he or she was influenced by
  the communication; whether other jurors were aware of the improper
  communication; and whether the evidence to support the verdict was strong. 
  See, e.g., Dickson v. Sullivan, 849 F.2d 403, 407 (9th Cir. 1988) (comment
  of deputy sheriff who escorted jurors that defendant had "done something
  like this before" both directly related to material issue and highly
  inflammatory); Towler v. State, 372 S.E.2d 242, 243-44 (Ga. Ct. App. 1988)
  (mother's remark to daughter-juror that daughter was "holding out" against
  guilty verdict and "was going to let a child-molester go free," although
  not clear attempt to influence juror, was sufficient to invalidate
  verdict); State v. McLemore, 640 So. 2d 847, 859 (La. Ct. App. 1994) (where
  juror did not react to statement by third person about guilt of defendant
  and refused to discuss merits of case, verdict not overturned based on
  juror's testimony that extrajudicial contact did not affect his
  impartiality and that of other jurors); United States v. Williams-Davis,
  821 F. Supp. 727, 738 (D.D.C. 1993), aff'd in part, vacated in part on
  other grounds, ___ F.3d ___, 1996 WL 415776 (D.C. Cir. 1996) (government
  established harmlessness of media coverage based upon noninflammatory
  content of coverage and overwhelming weight of evidence against defendant).

       Applying these principles, we believe four main factors support the
  trial court's determination.  First, the factual information conveyed in
  the conversation was entirely consistent with the evidence and, if
  anything, was helpful to defendant.  It established that the

 

  neighborhood where defendant met complainant in a bar was seedy, which was
  entirely consistent with defendant's claim that there was an agreement to
  trade sex for drugs.  See Allen v. State, 597 A.2d 489, 501 (Md. Ct. Spec.
  App. 1991) (where extraneous information is consistent with defendant's
  theory of case, there is no prejudice).

       Second, Prior expressed no opinion on the guilt of defendant.  See
  Isabelle v. Proctor Hospital, 129 Vt. 500, 505, 282 A.2d 837, 840 (1971)
  (expression of opinion by juror on merits of case or its probable outcome
  disqualifies juror); Norcross v. Willard, 82 Vt. 185, 187, 72 A. 820, 821
  (1909) (same; new trial ordered).  Instead, he clearly stated his
  obligation to hear all the evidence before forming an opinion.  See State
  v. Thomas, 636 P.2d 807, 811-12 (Kan. Ct. App. 1981) (juror's conversation
  with other bar customers about case, during which juror stated her thoughts
  about some trial evidence but added that she had not reached opinion about
  guilt or innocence of defendant, was by itself probably not prejudicial);
  State v. Tenney, 913 P.2d 750, 757-58 (Utah Ct. App. 1996) (in discussing
  case with outsider, juror stated he would have to hear all evidence before
  deciding defendant's guilt; awareness of this responsibility is factor in
  determining misconduct had no effect on deliberations).

       Third, Prior testified that the conversation had no effect on his
  deliberations, and the trial court accepted this testimony.  See Smith v.
  Phillips, 455 U.S. 209, 217 n.7 (1982) (juror is qualified to say whether
  he has unbiased state of mind).

       Finally, the expression of an opinion by Prior's friend was an
  isolated instance.  In fact, the friend appeared to convey support for
  open-minded deliberation and application of the standard of proof for
  criminal cases.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice




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                                  Footnotes


FN1.  The trial court noted that the information conveyed by Prior to
  the other jurors had already been admitted into evidence during trial. 
  Defendant attacks this reasoning because the only reference to the price of
  cocaine was in a question by the prosecutor to defendant. Defendant
  answered that he did not know the price of an eight ball of cocaine.  Thus,
  defendant argues that there was no testimonial evidence of the price.

       We agree that a prosecutor's question is not itself evidence.  As we
  suggest in the text, however, defendant's answer made the price information
  largely irrelevant.