Government of the Virgin Islands v. Nicholas, Connie

759 F.2d 1073

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge:

In this appeal we are asked to determine whether the district court abused its discretion in denying without an evidentiary hearing defendant’s motion to vacate, set aside and correct a sentence under 28 U. S.C. § 2255.

Defendant Connie Nicholas (“Nicholas”) was convicted of first-degree murder, 14 V. I.C. §§ 921 and 922(a)(2), assault in the first degree, 14 V.I.C. § 295(1), robbery in the first degree, 14 V.I.C. § 1862(2), grand larceny, 14 V.I.C. § 1083(1), and possession of an unlicensed firearm during the commission of a violent crime, 14 V.I.C. §§ 2253(a) and 2254. On appeal, the first-degree murder conviction was vacated and the case remanded to the district court for resentencing on the lesser included offense of second-degree murder. Government of the Virgin Islands v. Nicholas, 707 F.2d 1391 (3d Cir.1982). Following resentencing, Nicholas filed a section 2255 motion seeking to vacate and set aside his sentence. As grounds for relief, he alleged, inter alia, that he was denied his constitutional right to a unanimous verdict because of juror incompetence and that he was denied his constitutional right to effective assistance of counsel because trial counsel failed to object to certain testimony. The district court denied the motion without an evidentiary hearing.

In this, his second appeal before this court, Nicholas argues that the district court’s denial of his claims without an evidentiary hearing was an abuse of discretion. We will affirm the district court’s ruling that the appellant failed to prove that he had a right to an evidentiary hearing on the issue of juror incompetence, but we will remand the case to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel.

I. JUROR INCOMPETENCE

A section 2255 petition is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982), nor may it be used to relitigate matters decided adversely on appeal, United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir.1981). The standard for review is clear:

A section 2255 motion is addressed to the discretion of the trial judge in the first instance, and where the record affirmatively indicates that the claim for relief is without merit, a refusal to hold a hearing will not be deemed an abuse of such discretion.

Page v. United States, 462 F.2d 932, 933 (3d Cir.1972). See also Diamond v. United States, 432 F.2d 35, 37, 39 (9th Cir.1970); Brisco v. United States, 368 F.2d 214, 215 (3d Cir.1966).

In the instant case, the primary issue is whether the record “affirmatively indicates that the claim for relief is without merit” and therefore whether the trial judge properly denied appellant an evidentiary hearing on the issue of a juror’s alleged inability to hear portions of the trial and on the issue of ineffective assistance of counsel. If the record, supplemented by the trial judge’s personal knowledge, conclusively negates the factual predicates asserted by Nicholas in support of his motion for post-conviction relief, and if Nicholas would not be entitled to post-conviction relief as a matter of law, even if those factual allegations were true, the district court did not abuse its discretion in electing not to conduct an evidentiary hearing. Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir.1979). See Smith v. United States, 635 F.2d 693 (8th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67 L.Ed.2d 368 (1981).

We find that (1) the record and the trial judge’s personal observations in this ease negate an allegation of juror Jeffrey Fleming’s inability to hear and that (2) even if the juror was unable to hear portions of the evidence, Nicholas would not be entitled to post-conviction relief as a matter of law because under Fed.R.Evid. 606(b), the juror would be incompetent to so testify.

A. The Factual Setting

To support the allegation of juror incompetence, Nicholas submitted juror Jeffrey Fleming’s sworn affidavit dated February 23, 1983 with his section 2255 motion. In the affidavit, Fleming stated that he is partially deaf because of an ear injury. Appendix (“App.”) at 12-13. Consequently, he must wear a hearing aid although he can read lips. During the two-day trial, Fleming stated that he removed his hearing aid due to discomfort and was often unable to understand the proceedings when he could not see the lips of the witnesses, attorneys, and judge. Fleming also stated that he had been excused from jury service on two previous occasions due to his hearing impairment and that this was the first time that he was permitted to serve as a juror. Fleming was selected as a juror in the Nicholas case in July of 1981 but did not contact the Federal Public Defender’s office and swear out this affidavit until February of 1983 — one year and eight months after the verdict was rendered.

Fleming later recanted the contents of his sworn affidavit in the presence of an Assistant U.S. Attorney and a local police officer. Fleming told them that he had understood completely what was said during the trial and stood by his guilty verdict. He further indicated that throughout the trial his hearing aid was in good operating condition and that he removed his hearing aid just briefly during the lawyers’ argument to change batteries.

An affidavit was drafted by an Assistant U.S. Attorney and a police officer for Fleming to sign attesting to his ability to hear the trial proceedings, but Fleming refused to sign, wanting first to contact the Federal Public Defenders’ Office. However, in a signed handwritten note, Fleming adopted the contents of the prepared draft. The handwritten note, the unsigned affidavit, and the affidavits of those enforcement officials present during the recantation were submitted by the government to the district court as rebuttal evidence.

The district court gave little credence to Fleming’s original assertion that he could not hear the trial proceedings because “of the glaring inconsistencies” presented by the affidavits, Fleming’s handwritten note, and based on its own observation. App. at 43. The district court noted that the prospective jurors were asked twice whether they had difficulty in hearing, first during the jury selection and then again prior to the taking of testimony. No juror indicated any such difficulties. The district court also noted that a loudspeaker was positioned over the jury box and that the jurors had an unobstructed view of the witness stand. App. at 43-44. Throughout the trial, Fleming did not disclose any failure to understand any of the proceedings. Furthermore, the district court pointed to court records demonstrating that Fleming had in fact served as a juror twice before. App. at 43.¹

From the above scenario it is evident that there were only four major sources of evidence for the trial court to review to determine whether there should be an evidentiary hearing: (1) Fleming’s affidavit for defense counsel and his separate contradictory statement to the U.S. Attorney, (2) the procedures of the judge during the trial including explicit inquiries made expressly to the jury as to their ability to hear, (3) the observations of the trial judge as. to the ability of jurors to hear and respond to his inquiries and the evidence, and (4) Fleming’s contradictory statements regarding his prior jury experience.²

The trial court judge understated the conflict when he said that Fleming’s two statements were “glaring inconsistencies”; he should have said the documents were totally contradictory. In his statement to the Assistant United States Attorney and Officer Vasquez, Fleming stated that he heard and understood all the evidence in the case except for two times during the lawyers’ argument when he took off his hearing aid to change the batteries. He stated that during the times when he changed the batteries, he was able to read the lips of the attorneys, and that he was able to follow all of the evidence. App. at 42. To the defense counsel he said that “[d]uring the two-day trial of this case, I often was unable to decipher what was being said because of removal of my hearing aid due to discomfort and my inability to directly see the lips of the witnesses and/or the attorneys and/or the judge and, of course, insufficient volume of voice.” Id. at 41. The transcript does not indicate that Fleming had any significant difficulty understanding what was being said.

B. The Burden of Proof

Because contested fact issues in section 2255 cases cannot be resolved on the basis of affidavits alone, Friedman v. United States, 588 F.2d at 1015, we believe that the trial judge properly gave little weight to the inconsistencies in the affidavits. The supposedly new information concerning Fleming’s inability to hear was substantially undermined by his later recantation. The affiant certainly repudiated his first sworn statement. See Ostrer v. United States, 577 F.2d 782, 788-89 (2d Cir.1978). Moreover, it was appropriate for the trial judge to draw upon his personal knowledge and recollection in considering the factual allegations in the Nicholas’ section 2255 petition that related to events that occurred in his presence. See Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 513-14, 7 L.Ed.2d 473 (1962). See also United States v. Sears, 663 F.2d 896, 900 (9th Cir.1981); Lyda v. United States, 321 F.2d 788, 790-91 (9th Cir.1968) (trial court had the opportunity to observe juror closely before deciding that his hearing difficulty would not deny defendants’ rights to due process or fair tri: al).

With an awareness of the contradictory statements by the same juror and the trial judge’s express finding based on his personal observation at trial, what is the burden of proof that the appellant must meet to establish his right to impeach the jury verdict through an evidentiary hearing where a juror would be questioned as to his ability to hear the testimony? At the outset we must note the extraordinary burden a party has who seeks to impeach a jury’s verdict. Courts have placed such a great burden on the movant because of their fears that efforts to impeach a jury’s verdict could destroy or damage the freedom of deliberations and the stability and finality of jury verdicts. They have been equally fearful that such inquiries could lead to annoyances, harassment and embarrassment of jurors.

Some of the most thoughtful statements about the potential dire consequences of such impeachment efforts have been written by federal trial judges. In United States v. Homer, 411 F.Supp. 972 (W.D.Pa. 1976) aff'd 545 F.2d 864 (3d Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2673, 53 L.Ed.2d 270 (1977), after a verdict of guilty which the jury had said was unanimous, two jurors, pursuant to subsequent inquiry by defense counsel, gave a statement that they “believed the defendant to be innocent but were told that the majority would prevail and that the majority believed the defendant guilty. For this reason, it is alleged that the jurors in question signed the verdict slip, that the verdict as signed by them and returned was not their verdict and that when they were polled these two jurors did not understand the questions being asked and thought they were only being asked whether they were present.” Id. at 976.

In exploring the implications of such post-verdict inquiries, Judge Knox wrote:

If jurors were permitted to impeach their own verdict by statements such as these no criminal case would ever be ended, and the inducement would be great for defendants to engage in private interviews of jurors in an endeavor to get them to say that they did not understand the court’s instructions which were clear and thus upset every verdict which was rendered. As a matter of fact, in the instant case the record indicates that the defendant personally went to interview two jurors and thereafter his counsel and a court reporter put these jurors, Zacur and Wolf, under oath and asked them questions which were later filed in court as exhibits. Such harassment of the jurors after their verdict should not be tolerated. Such procedures can very easily degenerate into a situation with all kinds of subtle pressures being exerted. The court certainly' would not tolerate the jurors being besieged by supporters of either side as they left the courtroom with harangues and threats. We recognize that jurors after completing their duties do have the right of free speech. We cannot muzzle them to prevent them from talking to whom they please. Here, however, the jurors were approached by persons who have lost the verdict in an endeavor to quiz them about their deliberations and whether or not they understood the court’s instructions and the questions asked of them in the poll. It is apparent that if this continues in other cases particularly after the publicity received in this case with respect to this matter, it will have a chilling effect upon persons called to serve on juries if they are to be subjected to harassment of this kind. In the instant case, the court has received concerned inquiries from jurors other than the two involved inquiring why the court permits such questioning.

Id. at 978-79.

In Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), we established guidelines for determining whether to allow the impeachment of a jury’s verdict. In Gereau, we stated:

Any attempt to impeach a jury verdict initially encounters two evidentiary obstacles: (1) producing evidence competent to attack the verdict, and (2) establishing the existence of grounds recognized as adequate to overturn the verdict. And even where both obstacles are cleared, there must be a finding that the party seeking to impeach the verdict has suffered prejudice from the misconduct of the jury.

Gereau, 523 F.2d at 148.

In discussing the question of competent evidence, the first evidentiary obstacle, we recognized the general rule prohibiting a juror from impeaching his own verdict once the jury has been discharged where the testimony was proffered “ ‘to show matters which essentially inhere in the verdict itself.’ ” Id. at 149 (citations omitted). Because jury verdicts are accorded a high degree of sanctity, jurors are prohibited from testifying for impeachment purposes as to their mental processes as jurors and as to matters concerning intrajury deliberations. Id. at 148-50. Such a rule fosters the public policies of:

(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body.

Id. at 148. This rule has withstood allegations of juror incompetence; questions concerning the competency of a jury ordinarily are not entertained once the jury has rendered its verdict. United States v. Allen, 588 F.2d 1100, 1106 n. 12 (5th Cir.1979).

The case of United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974), has been construed as recognizing an exception to this general rule by requiring a strong showing that a juror was incompetent in order to overcome the presumption of competency. Id. Although the ultimate factual question is whether Fleming was in fact incapable of rendering satisfactory jury service, the concise legal question before this court is whether enough evidence was presented to the trial judge to require holding a hearing to determine Fleming’s capacity to hear.

Dioguardi, exemplifies the extreme caution of federal courts to allow post-verdict inquiries of jurors. In Dioguardi, ten days after the verdict, a juror sent an unsolicited letter to the defendant. “The letter was written on stationery bearing the zodiac sign of Libra, and on one page the legend that it was the ‘heavenly house under which I was born in.’ ” Id. at 75. The juror stated that she had clairvoyant powers which enabled her to see that Dioguardi was basically a good person, and she urged him to “repent,” stating:

I have eyes and ears that I can see things before it happen. I can tell you about other and what they are thinking and doing____[my eyes] are only partly open ... Unfortunate, a curse was put upon them some years ago. I have some people working on them.

Id.

Defense counsel submitted her letter to seven psychiatrists, all of whom stated that her letter “indicated hallucinatory tendencies, symptoms of possible psychosis, paranoia, and grandiosity, and in general an inability to appreciate reality without fantasizing.” Id. at 76. On the basis of these uncontradicted affidavits and statements by psychiatrists, the defendant alleged that the juror was mentally incompetent. In upholding the verdict in favor of the government, the majority held that the record did not have “substantial if not wholly conclusive evidence of incompetence,” id. at 80, to warrant reversal of the trial judge’s denial of a post-verdict hearing as to the competence of the juror.³

Homer where the trial judge denied an evidentiary hearing, is similar to the instant case; the jurors had claimed that they “did not hear the instructions that the verdict had to be unanimous.” Homer, supra, 411 F.Supp. at 978.

Gereau also reveals the risk of post-verdict inquiries. In Gereau the trial judge found that two jurors had given affidavits impeaching their prior verdict because of certain peer “pressures ... to change [their] verdict” and that “the affidavits were involuntarily made out of fear ...” Gereau, supra, 523 F.2d at 146. He found that one of the jurors who had given an affidavit “also had fears about returning to the community and particularly to his friends in Fredericksted.” Id.

The exceptions which permit a federal court to inquire as to the competence of a juror must be predicated on either the Federal Rules of Evidence or the due process clause of the Fifth Amendment or the impartial trial clause of the Sixth Amendment. The Federal Rules of Evidence 606(b) provides:

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.

Fed.R.Evid. 606(b) (emphasis added). Because the district court believed that Fleming’s sworn statement did not concern an. extraneous influence, the district court concluded that the jury’s verdict could not be impeached on this basis.

While the dissent correctly notes that the plain language of Rule 606(b) does not exclude evidence dealing with juror incompetence, as manifested by physical or mental infirmities, it gives only cursory treatment to those federal authorities that have concluded that juror incompetence is not an “external influence.” See Sullivan v. Fogg, 613 F.2d 465 (2d Cir.1908); Dioguardi, supra, 492 F.2d at 79 n. 12; United States v. Pellegrini, 441 F.Supp. 1367 (E.D. Pa.), aff'd 586 F.2d 836 (3d Cir.), cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). It disregards the “specific reluctance to probe the minds of jurors once they have deliberated their verdict.” See e.g., Allen, supra, 588 F.2d at 1106 n. 12.⁴

In Pellegrini, Judge Luongo denied a motion for new trial based on the contention that one of the jurors did not sufficiently understand the English language. Acknowledging that investigation- may be conducted into “extraneous influences”, the court held that the juror’s understanding of the English language — or lack thereof — did not constitute “an extraneous influence”. The district court relied upon the following language in Dioguardi:

[Ajbsent ... substantial if not wholly conclusive evidence of incompetency, courts have been unwilling to subject a juror to a hearing on his mental condition merely on the allegations and opinions of a losing party.

492 F.2d at 80.

Furthermore, the Second Circuit in Sullivan, grappling with the question of how strong a preliminary showing must be made in order to trigger a hearing into juror incompetence, similarly characterized issues of juror competence as matters pertaining to the internal deliberation process, again relying on Dioguardi:

Once a preliminary showing of incompetence ... has been made there is a corresponding right to an inquiry into the relevant surrounding circumstances [citations omitted] ... Improper external influences ... are presumptively prejudicial ... Where the allegations involve considerations internal to the jury deliberation process, such as juror insanity, this court has required strong evidence that it is likely that the juror suffered from such incompetence before ordering a post-verdict inquiry. United States v. Dioguardi, 492 F.2d 70, 78 (2d Cir.1974).

613 F.2d 465, 467 (emphasis added).

In the instant case, the evidence Nicholas seeks to elicit does not come under either of the two exceptions in Rule 606(b). Fleming’s hearing problem is not “extraneous prejudicial information [that] was improperly brought to the jury’s attention” and it is not an “outside influence [that] was improperly brought to bear upon any juror.” It is obvious that the drafters of the rule were primarily concerned with jury tampering or improper communications to the jury, and they were not focusing on any physical disability such as a juror’s difficulty in hearing during the trial.⁵ Our reading of Rule 606 is that it does not sanction an inquiry of a juror on the issue of his partial deafness when the record is as ambiguous as the one that exists in the present case. As in Pellegrini, the record in this case is devoid of any indication that Fleming had any significant difficulty understanding the evidence. Fleming made no response to the trial judge’s repeated inquiries as to difficulty in hearing, he could read lips, and he had an unobstructed view of the witness stand in addition to the aid of a loudspeaker. Even accepting hearing difficulties, we find it difficult to understand Fleming’s extreme delay in disclosing this comprehension problem to the court. “If he was really in the dark as to what was happening, one would expect that he would have said so much sooner.” Pellegrini, 441 F.Supp. at 1371. The Dioguardi court indicated that “[t]he rule against any inquiry whatever recognizes exceptions only where there is clear and uncontrovertible evidence of incompetence shortly before or after jury service.” 492 F.2d at 79 (emphasis added.) It cannot be seriously contended that the present case satisfies the Dioguardi standard. Further, because of the contradictory statements of Fleming, the record does not have the “sufficiently strong evidence to warrant further inquiry,” Pellegrini, supra, 441 F.Supp. at 1371.

Similarly, as to the constitutional claim, we do not find that on this record the defendant has met his substantial burden in proving that Fleming’s alleged hearing problem was of such a magnitude that an evidentiary hearing was required as a matter of constitutional right. Somewhat like the 9th Circuit in Lyda v. U.S., 321 F.2d 788, 791 (9th Cir.1963):

We need not decide whether the Sixth [or the Fifth] Amendment would be violated by trial before eleven good men [and women] and true and one who is hard of hearing.

In this case it is sufficient to rule that defendant’s evidence does not have that “strong showing” and clarity which would require an evidentiary hearing on the ultimate issue of what Fleming did or did not hear during the trial.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Nicholas also maintains that the district court erred in rejecting his ineffective assistance of counsel claim without an evidentiary hearing. The standard under which we determine adequacy of trial counsel for Sixth Amendment purposes was established in Moore v. United States, 432 F.2d 730 (3d Cir.1970) (en banc). In Moore we held: “[T]he standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.” Id. at 736; See also Strickland v. Washington, — U.S. ——, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, reh’g denied — U.S. -, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

On the issue of adequacy of legal services, the defendant bears the burden of demonstrating that the representation provided him by counsel was constitutionally inadequate, United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976), and that he was prejudiced by his attorney’s inadequacies. United States v. Swinehart, 617 F.2d 336, 340 (3d Cir.1980); Government of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.1984) (appeal pending).

In this case, Nicholas contends that an evidentiary hearing is needed to determine whether he was prejudiced by trial counsel’s failure to object to testimony concerning incriminating statements presumed to have been made by the defendant in a taped conversation with a government informant. Prior to trial, defense counsel requested that a spectrograph or voiceprint be conducted of the tape recording to determine whether the voice was that of the defendant. However, because the government indicated that the tape recording would not be used at trial, the tests were never performed. Nonetheless, at trial, the contents of the taped conversation were revealed upon questioning of Detective Petersen by the Assistant U.S. Attorney. Detective Petersen testified that he did not know with whom the informant was speaking on the tape but assumed it to be the defendant. When asked about what was overheard, the detective gave the following account:

I heard [the informant] ask the person with whom he was speaking what it was that went down with the iron. The person replied, “Man went on a farm in LaGrange, and the woman come out the car. The man went, followed and blaze one in the man. The man came out and stagger back, grab the woman hand, and the woman was screaming, and they were running. The man blazed one more, but I don’t know if he get hit.”

He also mentioned something to the effect that he had a job, whoever that person was, in St. Thomas to tighten up, and, if he got through, things would be airy.

He mentioned that — the [informant], rather, asked him, “Did you and the man have any struggle?”

The person replied, “No, the man and I didn’t have no struggle at all. I blazed the man before he came out of the car.”

[The informant] asked him if anyone else knew about this. He said “No, no, no, don’t worry about that. Nobody ain’t know nothing that went down here; nobody ain’t know. They only guessing. Only I, man, know,” and basically this is vaguely what I recall of the conversation . on that specific date.

Trial Transcript (“Tr.”) at 284-85.

Defense counsel did not object to the testimony. Instead, on cross-examination, the defense counsel requested any notes or reports that the detective made regarding his conversations with the informant. Thereafter, the prosecutor requested a sidebar conference and informed the trial judge that the government had Detective Petersen’s transcript of the taped conversation but would not vouch for its accuracy because the tape was not “all that intelligible,” even after having listened to it several times. Tr. at 286. Detective Petersen had listened to the taped conversation about 25 times before making a transcription. Id.

Nicholas argues that to assess the merits of his claim, a voiceprint analysis of the tape is needed. If the voiceprint analysis identifies the voice on the tape as belonging to someone other than the defendant, then it is Nicholas’ contention that trial counsel’s failure to object to testimony on the contents of the tape constituted prejudicial error. Therefore, Nicholas maintains that an evidentiary hearing is required.

Without addressing the merits of Nicholas’ claim, we conclude that the factual record must be supplemented because the district court, on the basis of sheer speculation, determined that defense counsel’s failure to object was a tactical decision, and therefore concluded that counsel was competent. There is no evidence in the record supporting or contradicting the district court’s conclusion. Whether counsel acted with the requisite skill and whether the defendant suffered any prejudice as a result cannot be assessed without further fact-finding. Thus, we make no judgment as to whether trial counsel’s performance was deficient, or whether if deficient, the defendant was deprived of his right to a fair trial. If the trial judge determines that trial counsel’s performance was deficient, we still must evaluate the evidence in accordance with Strickland.

For the foregoing reasons, we will reverse the judgment of the district court and remand the case for an evidentiary hearing on the ineffective assistance of counsel claim, and we will affirm the district court in its denial of an evidentiary hearing as to the alleged incompetence of juror Fleming.

1

. According to the Clerk of the District Court of the Virgin Islands, Fleming was selected to serve twice as a juror prior to the Nicholas case.

2

. The trial judge in his opinion excerpted the following portions of the affidavits and statements relating to Jeffrey Fleming:

JEFFREY FLEMING, being duly sworn, deposes and says:

1. In 1967, during military service in Vietnam, I suffered an injury which resulted in partial deafness in both ears.

2. I, therefore, find it necessary to read lips, after having been formally educated to do the same, and wear an electronic hearing aid in order to improve my ability to communicate.

3. On or about 1981, I was selected to serve as a juror in this case.

4. During the two day trial of this case, I often was unable to decipher what was being said because of removal of my hearing aid due to discomfort and my inability to directly see the lips of the witnesses and/or the attorneys and/or the judge, and, of course, insufficient volume of voice.

5. That was the first and only time I had served on a jury.

6. Subsequently, I was excused twice from jury service because of my hearing impediment: once by the attorney calling attention to my hearing aid to the judge and, the other by Judge Raymond Finch after he was convinced that I had trouble hearing him.

App. at 41, n. 4.

The affidavits of officer Vasquez and Assistant U.S. Attorney Capdeville both read in relevant part:

2. On Tuesday, May 10, 1983, in my presence, Jeffrey Fleming stated the following:

(a) He stated that he had no problem hearing and understanding the judge's voir dire of the jury panel during jury selection for the Connie Nicholas case;

(b) He stated that to the best of his knowledge he heard and understood all the evidence in the case except for two times during the lawyer's arguments when he took off his hearing aid to change the batteries;

(c) He stated that during the times when he changed the batteries, he was able to read the lips of the attorneys;

(d) He stated that he took part in jury deliberations and was convinced that the defendant was guilty;

(e) He stated that he told the judge the same thing during the poll of the jury after the verdict was delivered;

(f) He stated that he continues to this day to stand by his verdict of guilty;

3. That during the lunch hour on Wednesday, May 11, 1983, Mr. Fleming appeared in the U.S. Attorney’s Office and was shown a written statement which he read very carefully and thoroughly, a copy of the statement is appended hereto;

4. That after reading the statement he stated in my presence the statement is true;

5. That Mr. Fleming consistently represented that the statement was true and accurate.

App. at 42-43, n. 5.

3

. Cf. Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir.1980) (where the evidence of "potentially prejudicial influence" was strong enough to distinguish that case from U.S. v. Dioguardi and “there was a sufficient showing of [juror] incompetence to justify, indeed to require, a further inquiry by the trial court.”)

4

. The dissent unpersuasively attempts to distinguish these decisions by resort to consideration of state authorities by which we are not bound. See e.g., Commonwealth v. Greiner, 309 Pa.Super. 291, 455 A.2d 164, 166 (1983); Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063, 1066 (1983). We believe, however, that the afore-cited federal cases lend ample support to the result reached in this case.

5

. Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process. Thus testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382, 32 S.Ct. 793, 807, 56 L.Ed. 1114 (1912); a quotient verdict, McDonald v. Pless, 238 U.S. 264, 269, 35 S.Ct. 783, 785, 59 L.Ed. 1300 (1915); speculation as to insurance coverage, Holden v. Porter, 405 F.2d 878 (10th Cir.1969), Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir.1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659; misinterpretations of instructions, Farmers Coop. Elev. Ass’n v. Strand, supra; mistake in returning verdict, United States v. Chereton, 309 F.2d 197 (6th Cir.1962); interpretation of guilty plea by one defendant as implicating others, United States v. Crosby, 294 F.2d 928, 949 (2d Cir.1961). The policy does not, however, foreclose testimony by jurors as to prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process. Thus a juror is recognized as competent to testify to statements by the bailiff or the introduction of a prejudicial newspaper account into the jury room, Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). See also Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). Fed.R.Evid. 606(b) advisory committee note.