WILLIAM L. WALLER, JR., CHIEF JUSTICE.
the en banc Court is Hyundai's Motion to Clarify this
Court's October 18, 2017 Remand Order, Appellees'
Corrected Response to Hyundai's Motion to Clarify this
Court's October 18, 2017 Remand Order, and Hyundai's
Reply. We grant Hyundai's motion in part and further
instruct the parties and trial court as follows. See
been informed that the discovery ordered by this Court has
been concluded. The parties are now ordered to proffer to the
trial court all evidence they believe to be probative to all
Supplemental Motions for New Trial or for Relief from
Judgment under Rule 60(b), for a Post-Trial Hearing to
Investigate Possible Outside Influences on the Jury, and for
Other Relief and the responses thereto, in order to fully
supplement the record before this Court. The trial court is
ordered to receive all evidence submitted by the parties,
both testimony and documents, along with any objections to
that evidence by the parties, and to certify same to this
a juror's competency as a witness is not unlimited as
pointed out in Appellees' Corrected Response to
Hyundai's Motion to Clarify this Court's October 18,
2017 Remand Order. See M.R.E. 606. Accordingly, the
trial court is ordered to complete its hearings pursuant to
Rule 606(b). Once the 606(b) hearings have been completed,
the trial court shall make findings of fact related thereto
and shall certify to this Court and supplement the record on
appeal with the transcript of the hearing and any evidence
proffered. See M.R.A.P. 14(b).
THEREFORE ORDERED that the parties are to present and the
trial court is instructed to receive all evidence, along with
objections, probative to the Supplemental Motion for New
Trial or for Relief from Judgment under Rule 60(b), for a
Post-Trial Hearing to Investigate Possible Outside Influences
on the Jury, and for Other Relief and responses thereto.
FURTHER ORDERED that the trial court is to complete its Rule
606(b) hearings, ensuring jurors receive the protections
specially afforded to them by Rule 606(b) and make findings
of fact as provided by Rule 14(b) of the Mississippi Rules of
FURTHER ORDERED that the trial court shall promptly certify
to this Court a supplemental record to this appeal to be
filed with the Clerk of this Court. The supplemental record
shall include all evidence presented by the parties,
objections, and transcripts of all proceedings, including
transcripts of the 606(b) hearings, and all exhibits. Upon
the filing of the supplemental record with the Clerk of this
Court, the parties shall file supplemental briefs on the
Appellants' supplemental brief to be filed within forty
days of the filing of the supplemental record; Appellees'
supplemental brief to be filed within thirty days of service
of the Appellants' supplemental brief; and
Appellants' supplemental reply brief to be filed within
fourteen days of service of Appellees' supplemental
brief. The length of the briefs are governed by Mississippi
Rule of Appellate Procedure 28(h).
WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM AND ISHEE, JJ.
PARTICIPATING: MAXWELL AND CHAMBERLIN, JJ.
KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH
SEPARATE WRITTEN STATEMENT:
I find the procedure that this Court has contrived in
response to Hyundai's motion to clarify our October 18,
2017, remand order to be highly irregular. Hyundai asks this
Court to interpret its October 18, 2017, order in a manner
that requires the trial court to complete the hearing
pursuant to Rule 606(b) of the Mississippi Rules of Evidence
and certify a supplemental appeal record without conducting
any fact-finding or issuing any ruling on the ultimate issue
of whether a reasonable possibility exists that the
jury's verdict was altered by extraneous influences. In
other words, Hyundai wants the trial court to hold a Rule
606(b) hearing, but for this Court, rather than the trial
court, to rule on the evidence adduced at that hearing.
Hyundai makes this request for clarification despite this
Court's clear language in its October 18, 2017, order
staying the appeal and remanding the case to the trial court
"for discovery and investigation, and a full and
complete hearing to determine if 'extraneous
prejudicial information was improperly brought to the
jury's attention' or if 'an outside influence was
improperly brought to bear on any juror.' M.R.E.
606(b)(2)." (Emphasis added.) Because this Court ordered
a hearing to determine the ultimate issues under
Rule 606(b), it is abundantly clear that we ordered the trial
court to make a judicial determination concerning those
issues and no clarification of the October 18, 2017, order is
Contrary to our perfectly clear remand order, the Court
grants Hyundai's motion for clarification in part and
orders the trial court to receive evidence and objections,
complete its Rule 606(b) hearing, and make findings of fact
related thereto. We require the trial court to refrain from
making a ruling on the merits, but to certify a supplemental
appeal record to this Court so that we can make the ultimate
determination of whether a new trial is required because of
extraneous influences on the jury, if any. In crafting this
scheme, this Court sidesteps the procedure it adopted for
addressing allegations of extraneous influences on juries in
Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d
407 (Miss. 1993), that has been applied in numerous cases.
According to that procedure, when an allegation of juror
misconduct arises, an investigation must occur if the party
alleging misconduct makes a threshold showing that is
adequate to overcome the presumption of jury impartiality.
Id. at 418. That party must show "that there is
sufficient evidence to conclude that good cause exists to
believe that there was in fact an improper outside influence
or extraneous prejudicial information." Id. at
419. If the trial court finds that a threshold showing has
been made, then a post-trial hearing must occur. Id.
"The trial court has the inherent power and duty to
supervise these post-trial investigations to ensure that
jurors are protected from harassment and to guard against
inquiry into subjects beyond which a juror is competent to
testify under M.R.E. 606(b)." Id. At the
hearing, the trial court shall limit the questioning of
jurors "to determine whether the communication was made
and what it contained." Id. If the trial ...