Gee v. Smith , 1975 Utah LEXIS 769 ( 1975 )

MAUGHAN, Justice:

Plaintiff petitioned for a writ of ha-beas corpus on the ground that he was denied a fair and impartial trial by jury, as guaranteed by Art. I, Section 12, Constitution of Utah, and Sec. 77-1-8, Utah Code Annotated 1953. The petition was denied on the ground that no evidence was adduced that would indicate that the jury would have reached any other verdict. Plaintiff appeals therefrom.¹

The evidence adduced at the hearing indicated that during the trial of plaintiff for the crime of first degree murder, while a juror was in the restroom, an unidentified woman displayed a photograph, which purportedly was a picture of the victim in his coffin. The picture was displayed generally to those present in the room and was not specifically shown to the juror. The juror immediately left the room. The juror testified that the incident in no way affected her deliberation, and her conclusion as to defendant’s guilt was based upon the evidence at trial.

The woman displaying the picture was not a witness in the case. During the course of the trial, several photographs of the victim, a 22-month-old baby, were introduced into evidence to refute the claim of accidental injury.² Thus, there was no potential for the prejudicial effect which might occur if a juror inadvertently observed a photograph of a victim, when there had been no evidence of this type presented to the jury.

In Skeen v. Skeen³ a person, not connected with the case, made a derogatory remark about one of the parties while in the hall of the courthouse during a recess of the court; a juror overheard it but paid no attention and was not influenced by it. There was no evidence that the party to the action participated in or was connected with this incident. Furthermore, there was no evidence that the stranger, who made the remark, had any knowledge or intention that the juror would hear it. The appellant, nevertheless, urged that the trial court should have found misconduct on the part of the juror and have granted a new trial.

Where remarks about the matter on trial are made, by strangers to the litigation, and are overheard by jurors, where neither the successful party nor the jurors are at fault; this court has held a new trial is' not merited; unless, of course, such remarks probably had an influence in producing the verdict rendered.⁴

There is no evidentiary basis to sustain the alleged prejudicial effect of this incident on the juror, or on the production of the verdict. The trial court properly denied the petition. The order of the trial court is affirmed.

ELLETT and TUCKETT, JJ., concur.

1 . This matter is entertained on appeal only because the facts upon which the petition is grounded were discovered after trial. It is thus removed from the prohibition against the use of habeas corpus as a substitute for appeal. See Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968.

2 . See State v. Gee, 28 Utah 2d 96, 498 P.2d 662 (1972).

3 . 76 Utah 32, 287 P. 320 (1930).

4 . At page 42 of 76 Utah, at page 324 of 287 P.; also see Burton v. Zion’s Cooperative Mercantile Institution, 122 Utah 360, 249 P.2d 514 (1952).