Richtmyre v. State

858 P.2d 322, 175 Ariz. 489, 146 Ariz. Adv. Rep. 49, 1993 Ariz. App. LEXIS 175
CourtCourt of Appeals of Arizona
DecidedAugust 26, 1993
DocketNo. 1 CA-CV 91-0224
StatusPublished
Cited by1 cases

This text of 858 P.2d 322 (Richtmyre v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richtmyre v. State, 858 P.2d 322, 175 Ariz. 489, 146 Ariz. Adv. Rep. 49, 1993 Ariz. App. LEXIS 175 (Ark. Ct. App. 1993).

Opinion

OPINION

SCHNEIDER, Judge.

The issue raised in this appeal is whether the trial court abused its discretion in granting appellees’ motion for new trial. The basis of the motion was the allegation that a juror concealed his bias and prejudice during voir dire. We reverse the trial court’s order granting a new trial because the evidence relied on by the court in making its determination of voir dire misconduct was inadmissible. Rule 606(b), Arizona Rules of Evidence.1

DISCUSSION

The trial court has authority pursuant to Rule 59(a)(2), Arizona Rules of Civil Procedure, to grant a new trial on the basis of juror misconduct. To obtain a new trial based on a juror’s lack of candor duringvoir dire, a party must show that misconduct occurred and that the misconduct resulted in probable prejudice. Catchings v. City of Glendale, 154 Ariz. 420, 422, 743 P.2d 400, 402 (App.1987). This court will not set aside the trial court’s granting of a motion for new trial absent a clear abuse of discretion. Adroit Supply Co. v. Electric Mut. Liab. Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975).

[491]*491Appellees Arthur and Martha Richtmyre (“the Richtmyres”) filed their motion for new trial following a unanimous defense verdict in their negligence lawsuit against the State of Arizona (“the State”). The Richtmyres argued that one of the jurors, Maynard Talley (“Talley”), had failed to reveal his bias towards the State when the trial judge specifically asked the prospective panel during voir dire whether, as taxpayers, they would have any difficulty awarding a judgment against the State. All of the prospective jurors, by their silence, indicated that no problem existed.

The only evidence presented by the Richtmyres in support of their argument that Talley was untruthful during voir dire was an affidavit by another juror, Lisa Valenti (“Valenti”), describing Talley’s demeanor and statements during the jury deliberations. Valenti’s affidavit stated that when she made a point favorable to the Richtmyres during deliberations, Talley said, “What do you want to do? Give them our tax dollars?” The Richtmyres neither requested an evidentiary hearing on the issue of Talley’s alleged voir dire misconduct nor attempted to question Talley himself.

The general rule is that affidavits of jurors will not be admitted to impeach a verdict. There are exceptions. One such exception allows the testimony or affidavit of a juror to show that upon inquiry on voir dire the juror failed to disclose his bias and prejudice. Kirby v. Rosell, 133 Ariz. 42, 43, 648 P.2d 1048, 1049 (App.1982). The exception is allowed only through the affidavit or testimony of the juror who failed to disclose the bias and prejudice. Affidavits or testimony from other jurors based on knowledge gained during the deliberations are not admissible. Brooks v. Zahn, 170 Ariz. 545, 550, 826 P.2d 1171, 1176 (App.1991).

The affidavit of juror Valenti that was relied on by the trial court in granting the Richtmyres’ motion for new trial was based solely on statements allegedly made by Talley in the jury room. The Richt-myres presented no other evidence tending to prove that Talley was untruthful during voir dire.2 Because the Richtmyres must bear the burden of demonstrating that they were denied a fair trial because of juror bias, Brofford v. Marshall, 751 F.2d 845, 853 (6th Cir.1985), and the only evidence of juror misconduct they presented to the trial court was inadmissible, the trial court erred in granting the Richtmyres’ motion for new trial.

Notwithstanding the Arizona cases holding that a juror’s affidavit based on information gained during deliberations may not be used to prove that a fellow juror lied during voir dire, the Richtmyres argue that Rule 606(b), Arizona Rules of Evidence, authorizes the admission of evidence tending to show deceit during voir dire. Rule 606(b) governs the competency of a juror to give testimony which would impeach a verdict in civil cases.

We reject this argument for two reasons. The first is that Brooks v. Zahn, 170 Ariz. 545, 826 P.2d 1171 (App.1991), was decided after the adoption of Rule 606(b). Brooks makes it clear that the rule in Arizona regarding the admissibility of juror affidavits as proof of voir dire deceit has not been changed by the adoption of Rule 606(b). The law remains that only an affidavit or testimony from the juror who engaged in the deceit may be used to impeach the verdict.

The second reason involves an analysis of the federal authorities that have addressed Rule 606(b) in this context. The conclusion is that, even if we assume that Rule 606(b) represents a departure from the rule in Arizona, the result would nevertheless be the same. The federal courts that have considered this issue permit impeachment based on evidence of voir dire deceit only where the testimony or affida[492]*492vit refers to the fellow juror's failure to disclose historical facts, as opposed to a claim of lack of candor regarding the ability to put personal prejudices aside during deliberations. See Brofford v. Marshall, 751 F.2d at 853.

The reason to distinguish between alleged failure to disclose historical facts from alleged lack of candor regarding the ability to put aside prejudices is that investigation of the latter necessarily involves inquiry into the juror’s thought processes during deliberations and whether that juror’s decision was indeed affected by prejudices. Rule 606(b) operates to preclude testimony regarding any statement occurring during deliberations or to “the effect of anything upon [his] or any other juror’s mind or emotions.” The rule only permits testimony or affidavits “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.”

In Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.1981), in affirming the trial judge’s refusal to consider alleged statements by a juror that the appellant should be “taught a lesson,” the court noted that the trial judge properly held this statement inadmissible as it was part of the “subjective deliberation process of the jury” and thus incompetent. Id. at 373. In Martinez, the appellate court apparently did approve taking evidence from another juror who was accused of misrepresenting or intentionally concealing information during voir dire. Although not discussed in terms of historical facts versus subjective deliberations, it is apparent from the opinion that this juror was examined as to specific experiences in that juror’s life that were inconsistent with what was revealed during voir dire.

In United States v. Kimberlin, 527 F.Supp.

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Bluebook (online)
858 P.2d 322, 175 Ariz. 489, 146 Ariz. Adv. Rep. 49, 1993 Ariz. App. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richtmyre-v-state-arizctapp-1993.