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DOROTHY SALTER, D/B/A DOT'S FASHION FABRICS v. CATHERINE WATKINS AND HILTON BOSWELL

SEPTEMBER 23, 1987

DOROTHY SALTER, D/B/A DOT'S FASHION FABRICS
v.
CATHERINE WATKINS AND HILTON BOSWELL



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today's appeal requires that we consider the extent to which jurors in a civil action may be called on a motion for a new trial and questioned regarding their deliberations and verdict. This is the first time we have been called to consider this question in the context of the Mississippi Rules of Evidence, effective January 1, 1986.

 II.

 Dorothy Salter, d/b/a Dot's Fashion Fabrics, Plaintiff below and Appellant here, brought an action in the Circuit Court of Neshoba County, Mississippi, claiming property damage to merchandise in her fabric business. The damages were said to have been caused by Defendants, Catherine Watkins and Hilton Boswell, in the course of making repairs to the roof of Plaintiff's place of business. The jury returned an eleven to one verdict in favor of Defendants on May 6, 1986, and judgment was entered thereon.

 Thereafter, Plaintiff Salter timely filed a motion for a new trial alleging, inter alia, that one of the jurors, A.L. Burton, was a relative of the Defendant, Catherine Watkins, and that Burton had failed to divulge this relationship on voir dire examination. Second, Salter alleged that at one time the jurors had voted nine to three for her but that the jury foreman had refused to accept the vote and report it as the verdict of the jury and had insisted that the jurors continue to deliberate.

 In support of her motion, Plaintiff Salter sought to call

 as witnesses Arnold Deweese, foreman of the jury, and Bobby Russell, a member of the jury panel. The Circuit Court sustained the objection to the testimony of both witnesses on grounds that they were called to establish matters which occurred within the jury room and during the course of deliberations. Plaintiff was allowed to make a question and answer proffer of the testimony of the witnesses for the record. Thereafter, on July 8, 1986, the Circuit Court entered its order overruling the motion for a new trial. This appeal has followed.

 III.

 A.

 Our ground rules are afforded by Rule 606(b), Miss.R.Ev., which reads as follows:

 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.

 The rationale underlying Rule 606(b) and its common law predecessor is well known. *fn1 Jurors should be encouraged to discuss freely and candidly all issues in a case. The viability of the system depends upon their being able to vote without fear that later they will be cross-examined or called to justify their actions. The rule is designed to prevent harassment or intimidation of jurors, see United States v. Weiner, 578 F.2d 757, 764 (9th Cir.1978), and to prevent fraud through a juror remaining silent during deliberations and later asserting improper influence. See United State v. Eagle, 539 F.2d 1166, 1170 (8th Cir.1976).

 Rule 606(b) is a rule of competency. A juror is not competent as a witness when called to testify concerning events which allegedly occurred during jury deliberations. See Castleberry v. N.R.M. Corp., 470 F.2d 1113, 1116-17 (10th Cir.1972) (in which the court refused to consider testimony that a juror believed she would be kept in the jury room indefinitely), Gault v. Poor Sisters of St. Frances Seraph of Perpetual Adoration, Inc., 375 F.2d 539, 548-51 (6th Cir. 1967) (in which the court refused to consider testimony that the jury disregarded instructions), Walker v. United States, 298 F.2d 217, 226 (9th Cir.1962) (in which the court refused to consider testimony that the jury misunderstood instructions), United States v. Ross, 203 F. Supp. 100, 102-03 (E.D.Pa.1962) (in which the court refused to consider testimony that a juror wanted to get home quickly because her spouse had been in an accident), United States v. Grieco, 261 F.2d 414, 415-16 (2nd Cir.1958) (in which the court refused to consider testimony that a juror would have held out but was intimidated by another juror).

 On the other hand, a juror is competent to testify "on the question whether extraneous prejudicial information was improperly brought to the jury's attention." He may testify regarding specific, extra-record facts another juror disclosed in the jury room and urged his fellow jurors to consider. See United States v. McKinney, 429 F.2d 1019, 1030 (5th Cir.1970). Where such extra-record facts affect an issue of importance in the case and are qualitatively different from the evidence properly before the jury, a new trial may be ordered. See United States v. Perkins, 748 F.2d 1519, 1529-34 (11th Cir. 1984).

 B.

 Our first question concerns the charge that the jury foreman refused to accept a preliminary verdict and in effect told the jurors he would stay there "till hell freezes over." The Circuit Court held the jurors incompetent as witnesses on this issue. Plaintiff was allowed, however, to make a proffer in question and answer form. *fn2 See Rule 103(a)(2), Miss.R.Ev.

 Arnold Deweese, the jury foreman, described and testified as to the votes the jury took. Initially, several votes revealed a majority voted for Plaintiff Salter, but not enough for a verdict. After further deliberations, the jury voted and a nine to three vote in favor of Plaintiff was reached. *fn3 However, instead of accepting that vote, the foreman called for additional discussion and another vote. Foreman Deweese confirmed this in the following colloquy:

 Q. So, actually, Mr. Deweese, there was two nine to three votes. One for Mrs. Salter, is that correct?

 A. That's right.

 Q. And, then, one for Mrs. Watkins, is ...


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