Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Marvin E. Aspen, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Cook County, defendant, Norvel Holmes, was convicted of the offense of attempted armed robbery and sentenced to the penitentiary for not less than three nor more than nine years. The appellate court affirmed (41 Ill. App.3d 956), and we allowed defendant's petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.
Defendant contends first that the circuit court erred in refusing to consider defendant's allegation in his motion for a new trial that members of the jury had improperly conducted their own investigation concerning certain evidence. The testimony showed that at the time of the attempted robbery the ground was snow covered and that the complainant had pointed out to the police shoe prints which her assailant had left in the snow. One of the arresting officers, who had caused defendant to make shoe prints in the snow for comparison, testified that the prints left by the heel of the defendant's left shoe matched the print left by the assailant, that a crack extended from the brand name "logo" toward the corner of the heel, and that in the heel of each shoe print was the insignia "Florsheim." The motion for new trial was supported by the affidavit of one of defendant's attorneys, who stated that, in a conversation "with the members of the jury" in which an assistant State's Attorney had participated, a named juror told them that during the trial "we [apparently several members of the jury] went to a Florsheim shoe store and inspected various heels of shoes for the purpose of ascertaining the trade design thereon." The juror stated "that two kinds of designs were observed, one containing a crack or line, and that the results of this investigation were discussed during deliberations."
Colloquy between court and counsel during argument of the motion for new trial shows that counsel were in agreement that the jurors stated that several of them went to the Florsheim store, picked up some of the shoes, and looked at the heels. There appears to be some difference of opinion as to precisely what was said concerning the kinds of designs observed or the presence of a crack or line.
It is defendant's position that the circuit and appellate courts> misconstrued the rule that the verdict may not be impeached by the testimony or affidavit of a juror. He argues that although inquiry may not be made into the motives or methods for the jury's verdict, inquiry into jury misconduct is not precluded. It is the People's contention that the circuit and appellate courts> correctly held that a jury cannot impeach its own verdict and that in any event defendant has made no showing of prejudice as the result of the jury's alleged misconduct.
Although not articulated in precisely that manner, it appears that the circuit court concluded that under the decisions of this court it was precluded from considering the allegations contained in the motion for new trial and supporting affidavit on the ground that to do so would permit defendant to improperly attempt to impeach the jury's verdict. The appellate court, relying on People v. Stacey, 25 Ill.2d 258, said, "Without the affidavit or testimony of the jury, the alleged misconduct could not be established as having any prejudicial effect upon the verdict. In Illinois it has long been the rule that a jury cannot impeach its verdict by either affidavit or testimony." 41 Ill. App.3d 956, 969.
Professor Wigmore traces the origin of the rule that the verdict of a jury may not be impeached by the testimony of the jurors to the decision of Lord Mansfield in Vaise v. Delaval (K.B. 1785), 1 Term R. 11, 99 Eng. Rep. 944 (8 Wigmore, Evidence 696 (McNaughton rev. ed. 1961)). Although the rule appears to have been generally followed in this country, it has now, in most jurisdictions, been substantially modified. An examination of the authorities shows that the situations in which the testimony or affidavit of a juror is offered in an attempt to impeach a jury verdict fall into two broad categories. In the first category are those instances in which it is attempted to prove by a juror's testimony or affidavit the motive, method or process by which the jury reached its verdict. These, almost without exception, have been held inadmissible. (See, e.g., People v. Tobe, 49 Ill.2d 538, involving an attempt to show that "One juror said that because she had been told the jury had to reach a verdict she signed a verdict in which she didn't believe"; another juror stated that although the statement involved "didn't affect his decision" the affiant said "he knew it influenced others to reach the verdict" (49 Ill.2d 538, 542); People v. Pulaski, 15 Ill.2d 291, involving an attempt to interrogate jurors "as to whether they knew of the court's decision in regard to Vassallo," a co-defendant who had waived jury trial and been tried by the court (15 Ill.2d 291, 300).) The second category involves those situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors' deliberations or mental processes. In most jurisdictions such proof is admissible. (See Annot., 32 A.L.R.3d 1356 (1970).) The distinction and the rationale for the exclusion of jurors' affidavits and testimony in the first instance and their admission in the second was well stated by Mr. Justice Brennan, then serving on the Supreme Court of New Jersey, who in State v. Kociolek (1955), 20 N.J. 92, 99-100, 118 A.2d 812, 816, 58 A.L.R.2d 545, 552, said:
"The better reasoned decisions support the exclusion of jurors' testimony as to their mental processes, not upon the discredited basis of the policies against self-stultification and avoidance of jury tampering, perjury or other fraudulent practices, but upon the sounder ground that, being personal to each juror, the working of the mind of any of them cannot be subjected to the test of other testimony, and therefore that such testimony should not be received to overthrow the verdict to which all assented. * * *
Where, however, jurors' testimony goes, not to the motives or methods or processes by which they reached the verdict, but merely to the existence of conditions or the occurrence of events bearing on the verdict, that basis of policy does not exist, and this whether the condition happens or the event occurs in or outside of the jury room. Evidence of the actual effect of the extraneous matter upon jurors' minds can and should be excluded, as such evidence implicates their mental processes, but receiving their evidence as to the existence of the condition or the happening of the event, particularly when the consequences are governed according to whether capacity for adverse prejudice inheres in the condition or event itself supplies evidence which can be put to the test of other testimony (and thus sound policy is satisfied) and at the same time the evidence can serve to avert, as here, a grave miscarriage of justice, which it is certainly the first duty of a court of conscience to prevent if at all possible. As stated by Justice Brewer in Perry v. Bailey, 12 Kan. 539, 544 (Sup. Ct. 1874):
`As to all those matters lying outside the personal consciousness of the individual juror, those things which are matters of sight and hearing, and therefore accessible to the testimony of others, and subject to contradiction "overt acts," as the Massachusetts court expresses it, it seems to us that the interests of justice will be promoted, and no sound public policy disturbed, if the secret of the jury-box is not permitted to be the safe cover for the perpetration of wrongs upon parties litigant. * * * as to overt acts, they are accessible to the knowledge of all the jurors. If one affirms misconduct, the remaining eleven can deny.'"
Although both this court and the appellate court have applied the rule as did the appellate court here, an examination of our earlier cases casts doubt on the correctness of so construing the rule. When first confronted with the question in the case of Sawyer v. Stephenson, 1 Ill. (1 Breese) 24, the court held that the affidavit of a juror may be received to prove improper conduct on the part of the jury. In the later cases which hold to the contrary (see Martin v. Ehrenfels, 24 Ill. 187, 189, and Reins v. People, 30 Ill. 256, 274) no mention is made of Sawyer, and the statements that the affidavits of the jurors may not be used to impeach the conduct of the jury are supported by neither reasoning nor authority. The rule of Martin and Reins appears to have been followed through Wyckoff v. Chicago City Ry. Co., 234 Ill. 613, in which the question was considered by this court. (See, e.g., Sanitary District v. Cullerton, 147 Ill. 385; Heldmaier v. Rehor, 188 Ill. 458.) We note that in United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 237, the Court of Appeals for the Seventh Circuit perceived the rule to be that "In Illinois, a jury verdict will not be set aside upon the occurrence of a communication between the jury and the court or some third person outside the presence of the defendant where it is apparent that no prejudice has resulted. People v. Mills, 40 Ill.2d 4, 14-15, 237 N.E.2d 697, 702-703 (1968); People v. Tilley, 411 Ill. 473, 477-478, 104 N.E.2d 499, 501-502 (1952); People v. Brothers, 347 Ill. 530, 548, 180 N.E. 442, 447-448 (1932). In an attempt to make a showing of prejudice based on the affidavits of jury members, actual evidence of the nature of outside influences exerted on the jury during deliberations will be considered, but evidence relating to the effect of such influences on the mental processes of jury members is inadmissible. People v. Pulaski, 15 Ill.2d 291, 300, 155 N.E.2d 29, 34 (1958). Because the actual effect of the conduct on the minds of the jury cannot be proved, the Illinois Supreme Court has held that the standard to be applied is whether the `conduct involved "such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process." Estes v. State of Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543.' People v. Tobe, 49 Ill.2d at 544, 276 N.E.2d at 298."
Rule 606(b) of the Federal Rules of Evidence provides:
"(b) Inquiry into validity of verdict or indictment. 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 ...