State v. Finney , 1983 S.D. LEXIS 377 ( 1983 )

DUNN, Justice.

This is an appeal from a judgment of conviction on four counts of grand theft, in violation of SDCL 22-30A-1 and SDCL 22-30A-17(2). We affirm.

Mern N. Finney (appellant) was charged with the theft of four horses in Shannon County, South Dakota. Appellant pleaded not guilty and a jury trial was held on July 28, 1982.

During voir dire, Elvina Hunter (Hunter), a prospective juror, stated that some horses had been stolen from her some ten years before. She believed this incident would cloud her judgment in the case. She also stated “I sure don’t like them stealing horses at all. They’re the Indians pride and joy.” Although Hunter did not serve on the jury panel, the prosecutor did repeat Hunter’s statement to the jury during closing arguments. Appellant’s objection to the statement was sustained and the jury was admonished to disregard the comment. Appellant did not make a motion for mistrial as a result of the prosecutor’s statement and did not request additional curative instructions.

An hour and ten minutes after retiring to deliberate, the jury submitted a note to the trial court informing it that they could not reach a decision. With consent of both counsel, the trial court informed the jury that they could continue to deliberate, declare themselves hopelessly deadlocked or quit for the evening and begin again in the morning. The jury chose to stay and fifty minutes later, at 10:15 p.m., the jury reported a unanimous jury verdict. On polling, however, one of the jurors was confused on two of the counts. The trial court sent the jury back to continue their work. Then, the trial court dismissed appellant’s motion for mistrial based on the grounds of “problems with jury deliberations.” At 10:45 p.m., approximately two and one-half hours after beginning deliberations, the jury returned with a unanimous guilty verdict on all counts. This time, the polling confirmed the verdict.

The day after the trial, the jury foreperson signed an affidavit alleging fellow jurors pressured her with racial comments to vote for a guilty verdict. Appellant’s motion for a new trial based on this affidavit alleging jury misconduct was denied by the trial court.

Appellant’s primary grounds for appeal stems from the affidavit submitted by the jury foreman. Appellant alleges the trial court erred in refusing to grant a new trial on the grounds of jury prejudice. We cannot agree.

SDCL 19-14-7 allows a juror to testify as to matters occurring during the course of jury deliberations “on the question whether extraneous prejudicial infor-matibn was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” While we have said affidavits of jurors are admissible to support a verdict, State v. Holt, 79 S.D. 50, 107 N.W.2d 732 (1961); State v. McCoil, 63 S.D. 649, 263 N.W. 157 (1935), we have consistently said that affidavits of jury members may not be used to impeach a jury verdict except to show the verdict was decided by lot or was affected by extraneous matters. State v. Gallegos, 316 N.W.2d 634 (S.D.1982); State v. Larkin, 87 S.D. 61, 202 N.W.2d 862 (1972); State v. Corner, 58 S.D. 579, 237 N.W. 912 (1931).

Appellant contends that racial prejudice allegedly demonstrated by Native American jurors constitutes an “outside influence.” D. Lousiell & C. Mueller, Federal Evidence, § 289 at 143, in discussing Federal Rule of Evidence 606(b) from which SDCL 19-14-7 derives, state the outside influence exception to the basic exclusionary rule “paves the way for impeachment of verdicts by proof of serious and blatant efforts to interfere with the jury’s deliberations, such as attempts to bribe jurors or to threaten them or their families.” The authors point out, however, that the “exception does not reach cases of coercion of one juror by others, which by definition does not constitute ‘outside’ influence.” D. Lousiell & C. Mueller, § 289 at 149. Although appellant does cite us to one case from the United States District Court for the Western District of New York, Tobias v. Smith, 468 F.Supp. 1287 (W.D.N.Y.1979), we do not find it persuasive. We believe, as stated in Government of Virgin Islands v. Gereau, 523 F.2d 140, 150 (3rd Cir.1975) cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), that “evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict is within the rule, rather than the exception, and is not competent evidence to impeach a verdict.” Accordingly, the trial court properly denied appellant’s motion for a new trial.

Appellant next contends the prosecutor’s use of Hunter’s voir dire statement, “I sure don’t like them stealing horses at all. They’re the Indians pride and joy” rises to the level of reversible error. In State v. McNamara, 325 N.W.2d 288 (S.D.1982), this court cited with approval the position taken by Justice Henderson in his special concurrence in State v. Kidd, 286 N.W.2d 120 (S.D.1979). As Justice Henderson noted in Kidd:

It is incumbent upon defendant to challenge by a proper objection a statement made in court and obtain a ruling upon the objection thereto. “[T]he defendant should then request the trial court to give a proper instruction thereon; and, failing to do so, he cannot now be heard to complain.” State v. Christiansen, 46 S.D. 61, 67, 190 N.W. 777, 779 (1922).

286 N.W.2d at 123. Appellant’s failure to request instructions after the trial court had already admonished the jury leads us to conclude the prosecutor’s comments do not constitute reversible error.

Finally, appellant contends the trial court erred in not granting his motion for mistrial on grounds of “problems with jury deliberation” when one of the jurors was confused as to two of the counts. Appellant, without providing any substantiation, asserts the verdict in this case was the result of “fatigue, exhaustion, weariness and physical and mental inability of the disagreeing minority jurors to withstand the arguments and importunities of the majority.” We find this assertion to be without foundation in the record.

Here, the jury had been out only two hours when it reported its verdict. Pursuant to SDCL 23A-26-10,^* the jury was directed to retire for further deliberations to resolve the confusion of one of the jurors. Less than one-half hour later, the jury returned with its verdict and it was confirmed by all of the jurors. We must agree with the State’s conclusion that the trial court’s conduct did not amount to coercion, see State v. McNamara, supra, nor did it deny appellant a fair trial as guaranteed by the United States and South Dakota Constitutions.

The judgment of conviction is affirmed.

FOSHEIM, C.J., and MORGAN, J., concur. WOLLMAN, J., concurs specially. HENDERSON, J., dissents.

* SDCL 23A-26-10 provides:

After a verdict is returned but before it is recorded, the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.