State v. Shillcutt

350 N.W.2d 686, 119 Wis. 2d 788, 1984 Wisc. LEXIS 2616

• Court: Wisconsin Supreme Court
• Decided: June 29, 1984
• Docket: 83-528-CR
• Status: Published

Opinions

DAY, J.

This is a review of a decision of the court of appeals¹ affirming an order of the circuit court for Winnebago county, Honorable Robert A. Hawley, Circuit Judge, denying the defendant’s motion for a new trial. Three issues are presented on this review: (1) Is a juror’s statement during jury deliberations that the trial court found “could be characterized as a racial slur” competent evidence under sec. 906.06(2), Stats., 1981-1982 ;² (2) does the juror’s comment made in this case require reversal of the conviction as a matter of fundamental fairness; and (3) does a denial by this court of a court of appeals’ request for certification have any authoritative value on the merits of the case.

We conclude: (1) The juror’s statement during jury deliberations in this case is not competent evidence under sec. 906.06(2), Stats. 1981-1982; (2) the comment made in this case does not require reversal of the conviction as a matter of fundamental fairness; and (3) denial by this court of certification has no precedential value on the merits of the case.

This case involves allegations that racial prejudice so affected the jury’s guilty verdict that it must be overturned. Presumptions of criminal activity because of race have no place in our jurisprudence. Races do not commit crimes, individuals commit crimes and must be judged as individuals according to the evidence. The problem is how best to approach this ideal and at the same time preserve that great guarantor of our civil liberties and civil rights, the American jury system.

James B. Shillcutt (defendant) was convicted by a jury of soliciting prostitutes³ and keeping a place of prostitution.⁴ He was sentenced to two consecutive five year prison terms.

Subsequent to trial, the defense made a motion for a new trial. The motion was supported by an affidavit from one of the jurors stating that during the deliberation one of the jurors had commented: “Let’s be logical, he’s a black, and he sees a seventeen year old white girl— I know the type.” The affidavit also stated that after this comment was made, “one of the female members of the jury agreed with the statement.”

The juror’s comment apparently has reference to Melody Plante, the chief witness for the prosecution, who testified at trial that she first met the defendant in 1979 when she was seventeen years old. At that first meeting, the defendant asked Ms. Plante if she wished to become an “exotic” dancer . Ms. Plante agreed and began dancing at engagements in bars arranged by the defendant. Money paid to Ms. Plante for these dancing engagements was turned over to the defendant.

Shortly after she began dancing, the defendant told her: “I want you to talk to guys in the bar and see if any of them want to go to bed.” When Ms. Plante refused, the defendant “slapped [her] around a little bit.” Thereafter she began “dating.” She testified that during the time she was “working for the defendant,” she engaged in approximately ninety to one-hundred acts of prostitution. Money paid to her was turned over to the defendant. The defendant paid rent and utility bills for the Oshkosh apartment where Melody Plante lived and provided her with food, clothing and drugs.

Ms. Plante testified to a number of instances of physical abuse by the defendant. She testified that the defendant had burned her when he, in her words, “stuck my curling iron up inside of me,” that on one occasion she had to be hospitalized when she fell and hit her head on a desk after the defendant had hit her, and that the defendant once threatened her with a gun.

The testimony also showed that the defendant acted as booking agent for a number of other dancers, one of whom was black.

A hearing was held in which the trial court questioned the affiant juror about the contents of the affidavit. The juror testified that the comment was made in the presence of all the other jurors approximately fifteen to twenty minutes before the jury came back. She testified that after the quoted statement was made, a second juror responded: “A man like that isn’t capable of loving anybody.” This is the statement referred to in the affidavit as showing that “one of the female members of the jury agreed with the [first juror’s] statement.” Defense counsel conceded at oral argument that this statement does not evince racial prejudice. She also testified that she had no recollection of any other references to race made during the deliberation.

After taking the testimony of the juror and listening to the arguments of counsel, the trial court denied the motion for a new trial stating: “[A]lthough [the statement] could be categorized as a racial slur, the court does not find by clear, satisfying evidence convincing proof that this information would be prejudicial to a hypothetical jury. . .”

The defendant appealed to the court of appeals which certified the case to this court under sec. (Rule) 809.61, Stats. 1981-1982. The request for certification was denied. The court of appeals then affirmed the trial court’s denial of the motion for a new trial basing its decision in part on the fact that this court had earlier denied certification. This court accepted defendant’s petition for review.

In two prior cases involving impeachment of jury verdicts by testimony from jurors, this court has prescribed a three step procedure for determining when a verdict should be overturned. The first two steps involve eviden-tiary questions: (1) Is the proffered evidence competent under sec. 906.06(2), Stats. 1981-1982; and (2) does the evidence show error, that is, substantial grounds sufficient to overturn the verdict. (3) The third question is whether the party seeking to impeach the verdict was prejudiced requiring that the verdict be upset. State v. Poh, 116 Wis. 2d 510, 515-516, 343 N.W.2d 108 (1984); After Hour Welding v. Laneil Management Co., 108 Wis. 2d 734, 738, 324 N.W.2d 686 (1982). Because we conclude that the proffered evidence is not competent under sec. 906.06(2), we do not reach the second and third steps of the analysis under the statute of whether there was error or the defendant was prejudiced.

When the affidavit of a juror as to the misconduct of himself or other members of the jury is used as the basis of a motion for a new trial, “the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what happened in the jury room.” McDonald v. Pless, 238 U.S. 265, 267 (1915). Section 906.06(2), Stats., seeks to reach an accommodation between these sometimes competing policies. The statute lays down as a general rule that “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.” This general rule of juror secrecy fosters a number of valued public policies including: (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; and (5) maintaining the viability of the jury as a judicial decision-making body. Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3rd Cir. 1975), cert. denied, 424 U.S. 917 (1976).

Important as the policies underlying jury secrecy are, there are situations where these interests must give way to the competing interest in ensuring a fair trial and a just resolution of the issues in the individual case. The statute accommodates the two opposing policies by making an exception to the general rule of incompetence for juror testimony “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.” The question in this case is whether the statement made by one of the jurors during jury deliberations falls under the rule or the exception. The two matters as to which a juror is competent to testify under the statute are “extraneous prejudicial information” and “outside influence.” In order for the juror’s remark in this case to be competent it must fall under one of those two categories.

The meaning of the word “extraneous” as defined in Webster’s Third New International Dictionary is “existing or originating outside or beyond: external in origin: coming from the outside.” The dictionary defines “information” as “knowledge communicated by others or obtained from investigation, study, or instruction” or “knowledge of a particular event or situation.” Thus, “extraneous prejudicial information” is knowledge coming from the outside which is prejudicial. The juror in this case stated: “Let’s be logical, he’s a black, and he sees a seventeen year old white girl — I know the type.” The juror did not explain what “type” he had in mind. Whatever factual content the other jurors gave to this statement had to be supplied from their own catalogue of “types” rather than from the statement itself. The juror’s statement here does not fall under the category of extraneous prejudicial information.⁵

Likewise this statement does not fall under the category of “outside influence.” Whatever influence there might have been in the statement was not imposed on the jury from outside by a third party either to or through a juror or jurors.

This court has twice within the past two years addressed the question of the competency of a juror’s testimony to impeach his own verdict. In After Hour Welding v. Laneil Management Co., the losing party in a civil lawsuit attempted to impeach the jury’s verdict with an affidavit from a juror stating that during jury deliberations comments were made by jurors which (1) referred to the officer of the defendant corporation and sole defense witness as a “cheap Jew”; (2) stated that his son, an attorney, had defended the “Outlaws,” a motorcycle gang; and (3) stated that the father and son had been involved in the suicide of a local judge. On the issue of the competency of the proffered evidence, this court affirmed the court of appeals’ decision holding all three allegations were competent. The court, while not specifically addressing the question of whether the reference to religion was “extraneous prejudicial information” under the statute, stated: “Whenever it comes to a trial court’s attention that a jury verdict may have been the result of any form of prejudice based on race, religion, gender or national origin, judges should be especially sensitive to such allegations and conduct an investigation to ‘ferret out the truth.’ ” 108 Wis. 2d at 739-740 (quoting Morgan v. United States, 399 F.2d 93, 97 (5th Cir. 1968); cert. denied 393 U.S. 1025 (1969). The court further stated: “For even if only one member of a jury harbors a material prejudice, the right to a trial by an impartial jury is impaired.” 108 Wis. 2d at 740. The court also held that the juror statements constituted substantial grounds sufficient to set aside the verdict. The court remanded the case to the trial court to conduct a hearing to determine the circumstances under which the statements were made and determine as a matter of law the probable effect of the statements on a hypothetical average jury.

This court also addressed the competency of juror testimony under sec. 906.06 (2), Stats., to impeach a verdict in State v. Poh. That case involved statements about the defendant’s alleged prior record of drinking and driving made by jurors during deliberations in a criminal trial for homicide by negligent operation of a vehicle while under the influence of an intoxicant. In discussing the competency issue, the court stated:

“Jurors are expected to bring commonly known facts and their experiences to bear in arriving at their verdict. 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, 1022-28 (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 (1907).” 116 Wis. 2d at 519. (Footnotes omitted.)

In a footnote, the court quoted with approval language from United States v. McKinney, 429 F.2d 1019, 1023 (5th Cir. 1970), cert. denied, 401 U.S. 922 (1970) where it was stated:

“[W]hile the jury may leaven its deliberation with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room . . . specific facts about the specific defendant then on trial. ... To the greatest extent possible all factual [material] must pass through the judicial sieve, where the fundamental guarantees of procedural law protect the rights of those accused of crime, (emphasis in original.) ”

The court concluded that “[t]he information which the jurors received was not the ‘general knowledge’ or ‘the jury wisdom’ we expect jurors to bring to their task” but rather “extraneous information within the meaning of sec. 906.06 (2).” 116 Wis. 2d at 521.

The federal courts have generally interpreted the comparable federal rule contained in Federal Rule of Evidence 606(b)⁶ to prohibit impeachment of jury verdicts by juror testimony of statements made during jury deliberations evincing subjective prejudice or bias. In United States v. Duzac, 622 F.2d 911 (5th Cir.), cert. denied, 449 U.S. 1012 (1980) the defendant who had been convicted of lying to a grand jury and willfully depriving another of his civil rights challenged his conviction on the grounds of juror prejudice. Evidence of the prejudice came from a message sent during deliberations by the jury to the trial judge stating: “There are certain prejudices among this jury due to prior personal experiences that prevent us from arriving at a unanimous decision on Count I.” The trial court responded to the note by reminding the j u-rors of their obligation to decide the case on the evidence and without regard to prejudice or sympathy. The trial court later interviewed the jury foreman about the note but denied the defendant’s motion for a mistrial and did not hold an evidentiary hearing. The court of appeals refused to permit an inquiry into the verdict stating:

“The prejudice complained of is alleged to be the product of personal experiences unrelated to this litigation. The proper time to discover such prejudices is when the jury is being selected and preemptory challenges are available to the attorneys. Although the jury is obligated to decide the case solely on the evidence, its verdict may not be disturbed if it is later learned that personal prejudices were not put aside during deliberations.” 622 F.2d at 913.

The Court of Appeals for the Fifth Circuit followed the holding in United States v. Duzac in Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir. 1981). That case involved an attempt to impeach a jury verdict in a civil suit with juror testimony as to an alleged juror statement that the losing party should be “ ‘taught a lesson’ for hiring Mexican nationals holding green cards.” The court concluded that the proffered testimony was not competent under Rule 606(b). “[J]uror testimony regarding the possible subjective prejudices or improper motives of individual jurors has been held to be within the rule, rather than within the exception for ‘extraneous influences.’ ” 658 F.2d at 373 (citations omitted).

The Federal District Court for the Southern District of Iowa has likewise interpreted. Federal Rule 606(b) as prohibiting evidence relating to subjective juror prejudices or motivations. In Smith v. Brewer, 444 F. Supp. 482 (S.D. Iowa), aff’d., 577 F.2d 466 (8th Cir.) cert. denied, 439 U.S. 967 (1978), a juror alleged that one of the jurors had injected race into the deliberations by mimicking a black minstrel and using the “black dialect.” The court held the proffered evidence incompetent stating:

“A general rule favoring the inadmissibility of juror testimony to impeach a verdict on the basis of alleged biased conduct occurring within the jury room is supported both by the language of Rule 606 (b) and its legislative history. The Rule prohibits testimony as to ‘any matter or statement,’ occurring in the jury room, a prohibition qualified only to the extent such a matter or statement relates to extraneous information or outside influence. Conduct such as juror Burns engaged in cannot, in the usual sense, be deemed either to impart information or reflect outside influence.” 444 F. Supp. at 489.

The United States District Court for the Western District of New York held the Federal Rule did permit a juror’s statement evincing racial bias in Tobias v. Smith, 468 F. Supp. 1287 (W.D. N.Y. 1979). The challenge to the verdict in that case was based on a juror affidavit stating that the jury foreman had remarked that one of the witness’ failure to identify a photo of the black defendant “didn’t matter because ‘you can’t tell one black from another. They all look alike.’ ” The affidavit also stated that another juror had said that the jury “should take the word of two white victims as opposed to this black defendant.” 468 F. Supp. at 1289. The court held that the evidence was competent under the federal rule:

“Under Rule 606(b) of the Federal Rules of Evidence, and under the cases which the rule codifies, a court may receive evidence of the fact that extraneous prejudicial influences were improperly brought to the jury’s attention. My conclusion is that the statements in the juror’s affidavit are sufficient to raise a question as to whether the jury’s verdict was discolored by improper influences and that they are not merely matters of jury deliberations.” 468 F. Supp. at 1290.

The juror statement in Tobias is sufficiently different from the juror statement made here that the holding in Tobias is not useful precedent for this case.

We conclude based on our reading of sec. 906.06 (2) and the cases interpreting this and the comparable federal rule that juror statements made here during jury deliberations are not competent evidence to impeach the jury’s verdict. The statute prohibits a juror from testifying “to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the verdict. . .” This statement can only be understood as forbidding an inquiry by the court into a juror’s subjective motives for voting the way he did. The rule against a juror’s impeaching his own verdict has been applied to prohibit inquiry into an allegation that jurors misunderstood or intentionally misapplied the law,⁷ that the jurors misunderstood the charge for which the defend was on trial,⁸ that a juror was coerced or pressured by other jurors,⁹ that jurors were upset or otherwise distracted, ¹⁰ and that the verdict was arrived at by means of compromise¹¹ or averaging of juror estimates of damages. ¹² One prominent commentator has noted that the problem that arises when there are allegations of prejudicial comments during deliberations is whether proof of the statements can be separated from proof of the j dry’s subjective motives or the effects of the statements on the jury’s minds. Given this difficulty “ [g]enerally, it seems better to draw [the line] in favor of juror privacy; in the heat of juror debate all kinds of statements may be made which have little effect on outcome, though taken out of context they seem damning and absurd.” 3 J. Weinstein & M. Berger, Weinstein’s Evidence, sec. 606 (04) (1976).

The sixth amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to a trial by an impartial jury. This case does not present the question of whether the right to jury impartiality is to be honored. It is. The question posed by this case has to do only with the best means for achieving that unquestionably desirable end.

The right to trial by an impartial jury includes at least two separate rights: the right to be tried by a jury and the right to be tried by a jury which is impartial. The task presented by this case is to find the means of guaranteeing the latter, impartiality, without so crippling or altering the institution of the jury as to deny the former, the right to be tried by a jury.

Secrecy of jury deliberations is fundamental to the type of free debate and conflict of views that is the very essence of jury decision making. As one commentator has put it: “The precise value of throwing together in a jury room a representative cross-section of the community is that a just consensus is reached through a thoroughgoing exchange of ideas and impressions.”¹³ It has been frequently noted that if the process is to work according to theory, the participants must feel completely free to dissect the credibility and motivations of other people. This requires that there be some assurance that what is said in the jury room will not reach a larger audience. As Justice Cardozo stated in Clark v. United States, 289 U.S. 1, 13 (1922) : “Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.” Similarly in McDonald v. Pless, 238 U.S. at 267-268, Justice Lamar stated:

“[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.”

Ordinarily, the means for ensuring the impartiality of the jury is through peremptory challenges at voir dire. United States v. Duzac, 622 F.2d at 913. In Wisconsin the impartiality of jurors is further ensured by the oath which all jurors must take that they will give “a true verdict . . . according to law and the evidence given in court . . .” Section 895.39(1), Stats. 1981-1982. These means do not provide a foolproof mechanism for ensuring a jury completely free of bias or prejudice. However, to take further measures in an effort to perfect the jury could very well kill it. As Judge Learned Hand said in Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2nd Cir.) cert. denied, 332 U.S. 764 (1947):

“[I]t would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts would stand such a test; and although absolute justice may require as much, the impossibility of achieving it has induced judges to take a middle course, for they have recognized that the institution could not otherwise survive; they would become Penelopes, forever engaged in unrav-elling the webs they wove. Like much else in human affairs, its defects are so deeply enmeshed in the system that wholly to disentangle them would quite kill it.”

Similarly, in United States v. D’Angelo, 598 F.2d 1002, 1005 (5th Cir. 1979), the Fifth Circuit Court of Appeals said:

“If courts were permitted to retry such verdicts, the result would be that every jury verdict would either become the court’s verdict or would be permitted to stand only by the court’s leave. This would destroy the effectiveness of the jury process which substantial justice demands and the constitution guarantees.”

We conclude that the evidence of the juror’s statement made during the jury’s deliberations here is not competent under sec. 906.06 (2), Stats.

Although we construe sec. 906.06 (2), Stats., to prohibit juror testimony to impeach a verdict except testimony as to “extraneous prejudicial information” or “outside influence,” we also recognize “that there might be instances in which . . . testimony of [a] juror could not be excluded without ‘violating the plainest principles of justice.’ ” McDonald v. Pless, 238 U.S. at 268-269. In Smith v. Brewer discussed above at slip opinion page 799, the court, after concluding that Federal Rule of Evidence 606 (b) was intended to preclude evidence of juror prejudice in the jury room, went on to state that the Rule should not “be applied dogmatically and in complete disregard of what is alleged to have occurred in the jury room.” 444 F. Supp. at 490. The court stated that “ [w] here ... an offer of proof showed that there was a substantial likelihood that a criminal defendant was prejudiced by the influence of racial bias in the jury room, to ignore the evidence might very well offend fundamental fairness.” 444 F.2d at 490.

In Carson v. Polley, 689 F.2d 562, 581-582 (5th Cir. 1982) the Fifth Circuit Court of Appeals interpreted Rule 606(b) as shielding from inquiry “[t]he subjective thoughts and emotions that may have influenced a juror’s deliberations” but stated: “In an appropriate case, a letter from a juror to the court may reveal such a magnitude of prejudice as to move the court to grant a new trial rather than suffer an obvious default of justice.” Similarly in Wright v. United States, 559 F. Supp. 1139 (E.D. N.Y. 1983) the United States District Court for the Eastern District of New York pointed out that there are “potential constitutional difficulties in applying Rule 606(b) to all allegations of racial prejudice” and concluded that “the better rule ... is to analyze each such claim on a case-by-case basis.” 559 F. Supp. at 1151.

We agree with the reasoning and the holdings of the McDonald, Smith, Carson and Wright cases supra. We conclude that the record here does not “reveal such a magnitude of prejudice” as to constitute “an obvious default of justice,” or show such a “substantial likelihood” that the defendant was prejudiced by the influence of racial bias in the jury room as to “offend fundamental fairness” or “violat[e] the plainest principles of justice.” The trial court after a hearing and the Court of Appeals both found that no such violation occurred here. We agree.

It is apparent that the racially referenced statement concerned only a very small part of the jury’s deliberation. The statement was made fifteen to twenty minutes before the end of a six hour deliberation. The juror who supplied the affidavit testified that she did not recall that any other references to race were made during the deliberation. We conclude that the evidence does not warrant a conclusion that the conviction must be reversed as a matter of fundamental fairness guaranteed by the due process clause.

The final question is what if any conclusion is to be drawn concerning the merits of a case from this court’s denial of a request for certification. The court of appeals appears to have based its decision in this case partly on the fact that this court had earlier denied a request to hear the case on certification. State v. Shillcutt, 116 Wis. 2d at 233, n. 2. This is improper. A denial by this court of a request for certification carries no implication of approval or agreement. State v. Nye, 105 Wis. 2d 63, 65, 312 N.W.2d 826 (1981). A denial of a request for certification means nothing more than “unusual circumstances” are not present to require this court to review the case. In Interest of J.S.R., 111 Wis. 2d 261, 263, 330 N.W.2d 217 (1983). Therefore, it is improper to infer from a denial of a request for certification anything insofar as the merits of a particular case are concerned.

By the Court. — The decision of the court of appeals is affirmed.

1 State v. Shillcutt, 116 Wis. 2d 227, 341 N.W.2d 716 (Ct. App. 1983).

2 “906.06. Competency of juror as witness. ... (2) Inquiry into validity op vbrdict 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.”

3 “944.32. Soliciting prostitutes. Whoever intentionally solicits or causes any person to practice prostitution or establishes any person in a place of prostitution is guilty of a Class D felony. If the person is under the age of 18, the defendant is guilty of a Class C felony.”

4 “944.34. Keeping place of prostitution. Whoever intentionally does any of the following is guilty of a Class D felony:

“(1) Keeps a place of prostitution; or

“(2) Grants the use or allows the continued use of a place as a place of prostitution.”

5 The dissenting opinion of Justice Bablitch argues that the juror statement is admissible under sec. 906.06(2), Stats, as evidence of the introduction of an extra-record fact. (Infra, pp. 831-32.) The “fact” which is said to be contained in the statement is that “the way black pimps work is to get young white girls working for them and that’s what happened in this case.” (Pp. 831-32.) Even if we were to accept this characterization of the remark, there is no logical force in the statement tending to show that the defendant is guilty. The purported extra-record “fact” is that “black pimps . . . get young white girls working for them. . . .” The dissent seems to imply that it logically follows from this statement that if X is black then X is a pimp. It does not. It no more follows as a logical conclusion from this statement that a black man is pimp than it follows that a young white girl is a prostitute.

6 “Rule 606. Competency of Juror as Witness. ... (b) 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 what he would be precluded from testifying be received for these purposes.”

7 United States v. Stacey, 475 F.2d 1119 (9th Cir. 1973); United States v. D’Angelo, 598 F.2d 1002, 1003 (5th Cir. 1979): “The possibility that the jury misunderstood or even intentionally misapplied the law . . . does not warrant reversal of the conviction.”

8 United States v. Chereton, 309 F.2d 197, 201 (6th Cir.) cert. denied, 366 U.S. 924 (1962):

“It is one thing for jurors to make a unanimous mistake in respect to a matter actually submitted to them. It is something entirely different for individual jurors to claim that they found defendant guilty of an offense which was never submitted to them for their determination. The alleged mistake in this case was not made by all the jurors.”

9 Johnson v. Hunter, 144 F.2d 565 (10th Cir. 1944); United States v. Kohne, 358 F. Supp. 1046, 1050 (W.D. Pa. 1973) : “It is generally held that jurors may not impeach their verdict by testimony that it resulted from coercion or a majority vote.”

10 United States v. Dioguardia, 492 F.2d 70 (2nd Cir.) cert. denied. 419 U.S. 873 (1974); United States v. Kohne, 358 F. Supp. at 1051: “Thus it would seem that if Tisak agreed to verdicts because he was concerned about his erratic oil heater, or his dogs and cat, or the conduct or statements of other jurors, and was anxious to get home, such would be insufficient to impeach the verdicts.”

11 United States v. Marques, 600 F.2d 742 (9th Cir.) cert. denied, 444 U.S. 858 and 444 U.S. 1019 (1979); United States v. Green, 523 F.2d 229, 235-236 (2nd Cir. 1975) cert. denied, 423 U.S. 1074 (1976) : “Evidence that the jurors on their own agreed to a compromise verdict does not warrant a new trial.”

12 McDonald v. Pless, 238 U.S. 264 (1915).

13 Note “Public Disclosure of Jury Deliberations,” 96 Harvard L. Rev. 886, 890 (1983).