May 16, 2006

Copies to:

Roger C. Renteria, Esquire

Christopher A. Hackman, Esquire

LAW REVIEW

Law Library

File

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

v.

MICAH J. STEWART

No. 2271-2005

MEMORADUM OPINION

BY:  MADENSPACHER, J.

    Micah J. Stewart (hereinafter “Defendant”) was found guilty on March 7, 2006 of the following charges:  one count of criminal attempt at homicide (felony 1), and three counts of aggravated assault (felony 1).  Defendant was found not guilty on two counts of criminal attempt at homicide (felony 1).

    Defendant is also charged in an unrelated incident with the murder of another individual.  During Voir Dire, any prospective juror with any knowledge of Defendant’s pending homicide charges was struck for cause.

    The day after the verdict was reached, this Court received a faxed letter from Ms. Deborah Kamacho, a juror in the instant case.  As a result of this letter, Defendant’s attorney, Mr. Roger Renteria (hereinafter “Defense Counsel”), filed a Motion for Extraordinary Relief and a hearing was held on April 11, 2006.  At this hearing, Ms. Kamacho was called to testify.  Ms. Kamacho testified that during the trial she and three other jurors (Helena Russo, Darlene Greenly, and John Zubeck) went to lunch at the Red Rose Diner.  (Notes of Testimony, Post-Conviction Hearing. page 6, lines 9-10).  (Hereinafter “N.T.P.C.H.”)  Ms. Kamacho alleged that during this lunch, Ms. Greenly told her that Defendant was the “one who killed his girlfriend [Courtney Fry].”  (N.T.P.C.H., page 7, lines 4-5).  Ms. Kamacho also alleged that on the day after the jury was picked, an alternate juror (Courtney Fikkert) told the entire jury paned that she now knows all about Defendant’s other charges.  (N.T.P.C.H., page 8, lines 1-5).  However, Ms.Fikkert did not go into any detail regarding the nature of those charges.  (Id.  at lines 5-6.)

    Ms. Helena Russo was also called to testify at the Post-Conviction Hearing.  Her testimony basically corroborated Ms. Kamacho’s testimony.  However, she noted that when Ms. Fikkert told the jury panel that she knew all about Defendant’s other charges, she said “there’s a lot more to it and it’s really bad.”  (N.T.P.C.H., page 14, lines 24-25.)

    Finally, Ms. Darlene Greenly testified at the Post-Conviction Hearing.  Ms. Greenly testified that although she did not remember what she said during the lunch, she may have said that Defendant had a pending murder trial against his girlfriend.  (N.T.P.C.H., page 18, lines 3-4).  Furthermore, while both Ms. Kamacho and Ms. Russo testified that Defendant’s pending charges were never mentioned during deliberations (N.T.P.C.H., pages 9, lines 7-8; page 14, line 17), Ms. Greenly testified that she mentioned Defendant’s pending charges after the verdict slip was filled out but before the jury officially announced their verdict.  (N.T.P.C.H., page 19, lines 10-22.)

DISCUSSION

    Generally, 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 that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith.  Pa.R.E. 606(b).  Furthermore, a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received.  Id.  However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. 1  Id.  Furthermore, the Pennsylvania Supreme Court noted that testimony is permissible regarding extraneous influences which might have prejudiced the jury during their deliberations.  Pittsburgh Nat’l Bank v. Mut. Life Ins. Co., 493 Pa. 96, 101, 425 A.2d 383, 386 (1981).

________________________________________________________________

1        This exception is directed at evidence brought before the jury which was not presented during the trial, and which was not tested by the processes of the adversary system and subjected to judicial screening for a determination of admissibility.  Pa. R.E. 606 Comment.

________________________________________________________________

    Extraneous information is any information that was not provided in open court or vocalized by the trial court via instructions.  Commonwealth v. Neff, 860 A.2d 1063, 1069, citing Boring v. LaMarca, 435 Pa. Super. 487, 493, 646 2.Ad 1199, 1202 (1994).  However, a juror who testifies to the existence of the extraneous information may not testify as to the effect this information had on deliberations.  Id.  Under no circumstances may jurors testify about their subjective reasoning processes.  Id

    After potentially prejudicial extraneous information has been established by competent testimony, the trial judge must assess the prejudicial effect of the information.  Id.  In making this determination, the trial judge should focus on three factors:  (1) whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue; (2) whether the extraneous influence provided the jury with information they did not have before then at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.  Id.  Furthermore, the test for determining the prejudicial effect of an extraneous influence is an objective one.  Id.  A trial judge must determine how an objective, typical juror would be affected by such an influence.  Id.

    As noted supra, the first factor to be considered when determining the prejudicial effect of an extraneous influence is whether the extraneous influence relates to a central issue in the case or merely a collateral issue.  While the Commonwealth categorically dismisses this possibility and Defendant fails to mention any of the three (3) factors, the Court finds that information regarding Defendant’s possible involvement in a gruesome murder relates to whether or not Defendant formed the necessary intent to kill in the instant case.  Defendant’s intent to kill is undoubtedly a central issue and consequently the extraneous information received in this case meets the first factor’s requirements.

    The next factor to be considered is whether the extraneous influence provided the jury with information they did not have before them a trial.  While at first glance this factor would seem to be undeniably met, the Commonwealth skillfully argues that Defendant opened the door for the admission of the pending murder charge when Defense Counsel argued that Defendant was acting in self-defense.  While the Commonwealth’s argument is appealing, it is inaccurate.  Under no circumstance would Defendant’s involvement in a pending homicide investigation be admissible to prove that Defendant was not acting in self-defense in the instant case. 

    In Commonwealth v. Santiago, the Pennsylvania Supreme Court found that a defendant was entitled to a mistrial in a murder prosecution when a prosecution witness, during a recess, commented to two (2) jurors and an alternate juror that the defendant “has killed an innocent boy and it isn’t the first one he has killed.”  456 Pa. 265, 268, 318 A.2d 737, 739 (1974).  In its reasoning, the Court noted that the theory of our justice system is that conclusions to be reached in a case would be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.  Id., 318 A.2d at 739; citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907).  The court also reverberated that the minimal standards of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and indifferent jurors.  Id., 318 A.2d at 739, citing Commonwealth v. Stewart, 449 Pa. 50, 52, 295 A.2d 303, 304 (1972).

    Analogous to the Santiago jurors, the jurors in the instant case became aware of violent acts in Defendant’s past which were not exposed at trial.  In conclusion, the Santiago Court made the following remarks:

                        In this case the remarks heard by the three jurors would not have

                        been admissible during the trial, and their admission, over

                        objection, would have constituted reversible error.  The prejudice

                        to the appellant is no less when the remarks are made outside the

                        courtroom.  The appellant was entitled to an impartial and

                        indifferent jury.

456 Pa. 265, 269, 318 A.2d 737, 740.  The same language would be appropriate in the instant case.

    Nevertheless, the Commonwealth argues that the Santago case is not controlling because Defendant opened the door and Defendant’s involvement in the homicide case was therefore admissible.  However, Defendant’s involvement would only be admissible if its probative value outweighed the potential prejudice.  Pa.R.E. 404(b)(3).  The facts in the instant case do not support such a conclusion.

    Furthermore, assuming arguendo that Defendant opened the door for the evidence to come in, this Court would have limited the extent to which such evidence would have been admitted and would have instructed the jury on how the information should be considered.  There was no opportunity to do so in this case because the Court was unaware that the jurors were privy to this information.

    The third and final factor to be considered is whether the extraneous influence was emotional or inflammatory in nature.  There can be no doubt that Defendant’s possible involvement in the murder and burning of a young woman’s body is highly emotional and inflammatory.  It is not relevant whether knowledge of Defendant’s involvement actually did inflame the jury, only that it is the type of information that could do so.  The Court finds that this possibility exists and as a result, the third factor is met.

CONCLUSION

    As the Commonwealth correctly noted in its brief, it is Defendant’s burden to establish a reasonable likelihood of prejudice.  See Commonwealth v. Bradley, 501 Pa. 25, 32, 459 A.2d 733, 737 (1983).  The Court has already found that the jury’s knowledge of Defendant’s involvement in the separate homicide case (1) relates to a central issue, namely Defendant’s intent to kill; (2) the information provided the jury was not before them at trial; and (3) the information was emotional and inflammatory in nature.  Consequently, the Court finds that Defendant has met its burden and the extraneous information was prejudicial.

    In light of these findings, the Court must determine how an objective, typical juror would be affected by such an influence.  See Commonwealth v. Neff, 860 A.2d at 1069.  The Court finds that the jury’s possession of this information would have made them more likely to convict Defendant in the instant case than had they not possessed this information.

    Consequently the Court finds Defendant is entitled to extraordinary relief pursuant to Pa.R.Crim.P. 704(b), and issues the following:

ORDER

    AND NOW this 30th day of May 2006, upon consideration of the Defendant’s Motion for Extraordinary Relief, it is hereby ORDERED that the jury’s verdicts of guilty on Counts I, IV, V, and VI of the information are vacated and a new trial is granted.  The jury’s verdicts of not guilty on Counts II and III of the information shall stand.

                                                        BY THE COURT:

                                                        JOSEPH C. MADENSPACHER

                                                        JUDGE