Opinion
No. 58281-0-I.
September 10, 2007.
Appeal from a judgment of the Superior Court for Island County, No. 05-1-00157-8, Vickie I. Churchill, J., entered May 26, 2006.
Affirmed by unpublished per curiam opinion.
Appellant Michael Hickok was convicted of one count of possession of methamphetamine. He claims that his motion for new trial should have been granted because one juror committed misconduct when he discussed a document that he observed in the courtroom that he believed to be Hickok's criminal history. Hickok argues that this was consideration of extrinsic evidence and violated his right to trial by a fair and impartial jury. Because the juror's discussion was based on his own speculation and inference and not a statement of fact, we conclude that the jury did not consider extrinsic evidence and did not commit misconduct. We affirm.
FACTS
Michael Hickok was stopped by a police officer for an outstanding warrant. After informing Hickok of the warrant, the officer arrested him. Another officer searched him incident to the arrest. During the search the officer found a paper "bindle" containing a powdery substance and coffee filters on Hickok. He testified that these objects were indicative of methamphetamine use. The substance was later confirmed to be methamphetamine. At the time of the arrest Hickok claimed that he did not know what the package contained. He stated that he had only been unfortunate enough to stop his car next to the package and had picked it up to investigate as the officer approached. He testified that he was distracted by the information that a warrant was out for his arrest, and placed the bindle in his pocket for later investigation. Later, during testimony confirming that the substance in the bindle was methamphetamine, Hickok stipulated as much.
A jury trial was held on May 2 and 3, 2006. Prior to trial, the judge had determined that the probative value of Hickok's criminal history was outweighed by unfair prejudice, and granted his motion in limine to exclude almost all evidence of his criminal history of other bad acts. At trial, the lead detective on the case, sitting at counsel table, paged through a thick packet of documents that included a "mug shot" style photograph of Hickok. This photograph appeared on the front Page of the set of documents. These documents were marked as defense exhibit 3, and described as the detective's report to be used for identification purposes. It was also referred to during cross examination of the police detective by Hickok's attorney, but only as a way to refresh the detective's memory as to the vehicle he was driving when he stopped Hickok and the subsequent events. Exhibit 3 was never described as Hickok's criminal history, his "rap sheet" or as anything other than a police report used "[t]o remember the important facts and document those."
During jury deliberations, the jury submitted a note to the court which read:
We request to have the two sheriff's reports that were used as evidence during questioning. That of Detective Warwick [and] Sheriff Deputy Caulk.
The court replied that:
Only exhibits admitted into evidence go to the jury room during deliberations. The reports you mention were not admitted into evidence. You need to rely on your notes and memory as to the testimony presented in this case.
At some point later that day, the head juror submitted a note to the trial judge, which read:
Judge Churchill,
During deliberations yesterday, 5/1/06 [sic: 5/2/06] one of the jurors stated to the jury that he saw Detective Warwick viewing the defendants [sic] "rap sheet" during one of the testimonies. He described the detective going through Page after page, and seeing pictures of the defendant in which he looked like a "Wolfman".
This led to speculation that the defendant might be facing the "Three Strikes" rule. Why else would he contest an obvious charge?
I can't say if the act of viewing the defendant's record within the sight of the jurors was intentional or not; the consequence however was to introduce information the [sic] the jury which wasn't presented during the trial.
I make this statement to insure [sic] that the defendant receives a fair trial.
/s/
Scott Hubbard.
In light of this letter, Hickok moved to dismiss the case on the basis that the jury's discussion of the "rap sheet" was a prejudicial consideration of extrinsic information. However, before the parties could assemble to discuss the motion, the jury reached a verdict. Before receiving the verdict, the judge questioned each juror individually to assess whether the jury considered the juror's observations of the "rap sheet." While several jurors acknowledged discussion of the document, each juror claimed that he or she did not rely on it in reaching a verdict. The trial court concluded that there was no prejudice to Hickok, and denied the motion to dismiss. The jury delivered a guilty verdict.
Hickok moved for new trial under CrR 7.5 on the basis of juror misconduct. During the hearing on this motion, the trial court noted that there was nothing unusual in the police having a photograph of a person who had an outstanding warrant for his arrest, and that any error in allowing the jury to see such a photo was harmless. The trial court also found that any discussion of the "three strikes" rule was cured by the instruction that the jury was not to consider punishment. Finally, the trial court found that because the only thing that the jury may have seen on the "rap sheet" was the photograph on the front, there was no prejudice resulting from the juror's speculation of what it contained. The trial court denied Hickok's motion for new trial. Hickok timely appeals.
ANALYSIS
I. Extrinsic Evidence
Hickok first argues that the juror's speculation regarding the length of his "rap sheet" constituted consideration of extrinsic evidence. "Novel or extrinsic evidence is defined as information that is outside all the evidence admitted at trial, either orally or by document." State v. Pete, 152 Wn.2d 546, 552-53, 98 P.3d 803 (2004) (holding that two unadmitted documents that inadvertently went to the jury room were improper extrinsic evidence); See also Lockwood v. AC § S, Inc., 44 Wn. App. 330, 357-58, 722 P.2d 826, (1986) aff'd, 109 Wn.2d 235, 744 P.2d 605 (1987) (holding that jurors researching corporate defendants on the stock exchange was improper consideration of extrinsic evidence). Improper extrinsic evidence involves stating facts which do not appear in the evidence and asserting beliefs of guilt or innocence based on these facts. State v. Figlenski, 169 Wash. 38, 13 P.2d 5 (1932) (holding that statements regarding the defendant's family's reputation, prior criminal history and previous implications in crimes did not rise to the level of stating facts which did not appear in the evidence) (cf. State v. Parker, 25 Wash. 405, 65 Pac. 776 (1901) (statements from a juror, who denied knowing the defendant during voir dire, that he recognized the defendant as a member of a gang that had murdered a man in a shack near the juror's house, were improper statements of facts not appearing in the evidence)). When a juror brings highly specialized knowledge outside of general life experiences into deliberations on the central issue being tried, and does not disclose this knowledge during voir dire, we have concluded that the jury considered improper extrinsic evidence. State v. Briggs, 55 Wn. App. 44, 58-59, 776 P.2d 1347 (1989).
In contrast, a jury is expected to bring its opinions, insights, common sense, and everyday life experiences into deliberations. United States v. Howard, 506 F.2d 865, 867 (5th Cir. 1975). Additionally, "[t]he individual or collective thought processes leading to a verdict `inhere in the verdict' and cannot be used to impeach a jury verdict." Richards v. Overlake Hosp. Medical Ctr., 59 Wn. App. 266, 272, 275, 796 P.2d 737 (1990) (concluding that a juror's introduction of her own theory of the cause of birth defects, based on her medical background, did not constitute extrinsic evidence); see also Cox v. Charles Wright Acad. Inc., 70 Wn.2d 173, 179-180, 422 P.2d 515 (1967).
Here, the juror's comments were simply inferences based on speculation from one jury member. He did not read the contents of the report. He did not state facts that did not appear in the evidence and assert his belief that Hickok was guilty or innocent based on these facts. He did not claim to possess highly specialized knowledge relevant to the central issue being debated, or even special knowledge of "rap sheets" or the "three strikes rule." He simply expressed his opinions, based on his general experience, to support an inference that Hickok was denying such an obvious charge because he may be facing a long sentence. Such an inference, based merely on speculation, is not extrinsic evidence, but instead inheres in the jury deliberations, which cannot be used to impeach the verdict. Because we conclude that the juror's observations were not extrinsic evidence we conclude that there was no jury misconduct. This conclusion is dispositive of any remaining arguments.
We affirm.
FOR THE COURT: