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Titus v. State (8/14/98), 963 P 2d 258

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

JOHN TITUS,                   )    Supreme Court No. S-8059
                              )
             Petitioner,      )    Court of Appeals No. A-5639
                              )
     v.                       )    Superior Court No.
                              )    4FA-S93-2713 CR
STATE OF ALASKA,              )
                              )    O P I N I O N
             Respondent.      )
______________________________)    [No. 5021 - August 14, 1998]




          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Fourth
Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances: Arthur L. Robson, Robson Law
Office, Fairbanks, for Petitioner.  Nancy R. Simel, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, and Fabe, Justices.  [Bryner, Justice, not
participating.]


          FABE, Justice.


I.   INTRODUCTION
          After a Fort Yukon jury convicted John Titus of first
degree sexual assault, he moved for an evidentiary hearing to
investigate potential jury misconduct.  At the hearing, members of
his jury testified that they had discussed matters not presented at
trial, including the fact that Titus may have been drinking the
night of the alleged rape.  The superior court granted Titus a new
trial because of this jury misconduct, but the court of appeals
reversed.  It ruled that Alaska Rule of Evidence 606(b) barred the
superior court from accepting the jurors' testimony about their
deliberations because pre-existing juror knowledge does not qualify
for the rule's extraneous prejudicial information exception.  We
conclude that pre-existing juror knowledge about the facts of the
alleged crime does constitute extraneous prejudicial information
within the meaning of Rule 606(b) and therefore reverse.  However,
because it is unclear if the comments made in the jury room were
based on actual knowledge about the facts and circumstances of the
alleged crime, we remand to the superior court for further
findings.
II.  FACTS AND PROCEEDINGS
          After a Fairbanks grand jury indicted him for first
degree sexual assault allegedly occurring in the village of
Venetie, John Titus requested that his trial be held in Fort Yukon.
He made this request pursuant to Alaska Rule of Criminal Procedure
18, which entitled him to be tried in the locality nearest to
Venetie with adequate trial facilities.  Over the State's
objection, Superior Court Judge Mary E. Greene granted his request.
          At the time of trial, Titus was well-known in Fort Yukon,
a community of approximately 750 people.  His visibility in the
community stemmed from his position as village chief of Venetie,
his membership in the Yukon Flats Regional Board of Education, and
his role in the Native sobriety movement.  Because of Titus's
stature in the community and the resulting difficulty in finding
jurors who were unfamiliar with him, the State moved for a change
of venue to Fairbanks after the first day of voir dire and again at
the completion of juror selection.  Titus opposed the motion, and
Judge Greene denied it.
          Of the twelve jurors eventually selected for his trial,
all but one either knew Titus or knew of him.  Similarly, half of
the jurors had heard of the case prior to trial.  All of the jurors
selected, however, denied having knowledge about the details of the
alleged crime.
          The trial lasted slightly longer than one day.  As his
defense, Titus claimed consent.  Because the State presented little
corroborating evidence, the trial was largely a credibility battle
between Titus and P.F., the alleged victim.  No evidence was
presented at trial suggesting that Titus had been drinking on the
night of the alleged rape.  On March 9, 1994, the jury found Titus
guilty of first degree sexual assault.
          After the trial concluded, Titus approached several
members of the jury to ask why they had convicted him and to
proclaim his innocence.  Based on what he and an investigator from
the Alaska Public Defender Agency learned from discussions with
jury members, Titus moved for a new trial, alleging jury
misconduct.
          Judge Greene granted an evidentiary hearing to determine
whether the jury had acted improperly.  Three of the jurors
testified at this hearing, and four others later submitted
affidavits describing the jury deliberations.  The testimony of the
seven jurors, although inconsistent in some respects, showed that
various comments had been made about Titus's drinking habit.  Most
importantly, Vera James testified that several jurors had suggested
that Titus had been drinking at the time of the alleged rape.   
          After considering the testimony, Judge Greene concluded
in part that "[d]uring the jury's deliberations, there was general
discussion of Titus'[s] drinking at the time of the alleged rape in
Venetie and before the trial."  Relying on the test established in
Swain v. State, 817 P.2d 927, 930-33 (Alaska App. 1991), she also
found that there was a substantial likelihood that the vote of one
or more jurors was influenced by this exposure to prejudicial
matter outside the trial record.  She therefore granted Titus's
motion for a new trial.
          The court of appeals reversed, ruling that Judge Greene
was precluded from considering the jurors' testimony under Rule
606(b).  See State v. Titus, 933 P.2d 1165, 1178 (Alaska App.
1997).  The court's holding was based on the conclusion that pre-
existing juror knowledge does not qualify for the rule's extraneous
prejudicial information exception.  See id. at 1177.  Titus
appeals.
III. DISCUSSION
     A.   Standard of Review  
          We review de novo the court of appeals' conclusion that
pre-existing juror knowledge cannot be extraneous prejudicial
information within the meaning of Rule 606(b).  See M.R.S v. State,
897 P.2d 63, 66 (Alaska 1995).  In interpreting Rule 606(b), we
adopt the rule of law that "is most persuasive in light of
precedent, reason and policy."  Id. (internal quotations and
citations omitted).  Because it is a factual determination, the
superior court's conclusion that extraneous prejudicial information
reached the jury is reviewed under the clearly erroneous standard. 
See Cheely v. State, 861 P.2d 1168, 1178 (Alaska App. 1993)
(stating that whether or not a juror engaged in alleged misconduct
is a question of fact and reviewing judge's determination under
clearly erroneous standard). 
     B.   The Scope of Rule 606(b)'s "Extraneous Prejudicial
Information"Exception

          Alaska Rule of Evidence 606(b) provides generally that,
when the validity of a verdict or indictment is at issue, a juror
cannot testify about what occurred during jury deliberations.  See
Alaska R. Evid. 606(b). [Fn. 1]  The rule, however, contains two
exceptions.  It permits a juror to testify about "whether
extraneous prejudicial information was improperly brought to the
jury's attention or whether any outside influence was improperly
brought to bear upon any juror."  Id.  In this case, we must
construe the first exception.
          The court of appeals correctly observed that prior Alaska
cases have not decided the question of whether a juror's pre-
existing knowledge constitutes extraneous prejudicial information
within the meaning of Rule 606(b).  The past decisions of this
court and the court of appeals establish only that information
coming to the jury through the trial process cannot be considered
extraneous.  See Tellier v. Ford Motor Co., 827 P.2d 1125, 1127 n.1
(Alaska 1992) (stating that information contained in an exhibit,
even if it should have been redacted, is not extraneous); Turpin v.
State, 890 P.2d 1128, 1131 (Alaska App. 1995) (stating that the
jury's use of the prosecutor's remarks in the opening statement for
improper purposes does not satisfy the extraneous prejudicial
information exception because the information reached the jury
through the normal trial process).  As the court of appeals
acknowledged, the information discussed by the jury in this case
was not presented to the jurors during the trial itself.  Because
our prior decisions do not resolve the issue posed by this appeal,
we consider the legislative history of the federal counterpart to
Rule 606(b), the policy considerations underlying the rule, and
case law from other jurisdictions in deciding what qualifies as
extraneous prejudicial information.
          1.   Legislative history of Federal Rule 606(b) [Fn. 2]
                          
          Congress enacted Federal Rule 606(b) after significant
debate.  See generally Tanner v. United States, 483 U.S. 107, 122-
24 (1987); Charles A. Wright & Victor J. Gold, 27 Federal Practice
and Procedure sec. 6071 (1990).  The House and the Senate favored
different versions of the rule.  The House's version excluded only
jurors' testimony about their mental processes in reaching a
verdict.  See Preliminary Draft of Proposed Rules of Evidence
(1969), 46 F.R.D. 161, 289-90; Susan Crump, Jury Misconduct, Jury
Interviews, and the Federal Rules of Evidence: Is the Broad
Exclusionary Principle of Rule 606(b) Justified?, 66 N.C. L. Rev.
509, 521 (1988).  The Senate version, modeled on the approach taken
by the federal courts, prevented jurors from testifying not only
about their mental processes, but also about all events affecting
their deliberation unless those events could be considered an
extraneous influence.  See S. Rep. No. 93-1277, at 13 (1974),
reprinted in 1974 U.S.C.C.A.N. 7051, 7060; Tanner, 483 U.S. at 124;
Mattox v. United States, 146 U.S. 140, 149 (1892) (holding that a
juror "may testify to any facts bearing upon the question of the
existence of any extraneous influence").  Congress enacted the
Senate version.  See H.R. Conf. Rep. No. 93-1597, at 8 (1974),
reprinted in 1974 U.S.C.C.A.N. 7098, 7102.  Although members of
Congress used the "extraneous influence"language of cases like
Mattox during debate on the rule, the rule itself creates two
exceptions: extraneous prejudicial information and outside
influence.  See Fed. R. Evid. 606(b).
          Statements made by members of Congress during debate of
the two versions reveal their views on the meaning of the
exceptions eventually enacted.  Citing previous case law, one
legislator stated that the Senate version permitted juror testimony
about whether a bailiff expressed opinions about a defendant's
guilt to jurors, whether jurors conversed with a police witness
against the defendant, and whether the jury was exposed to a
newspaper article unfavorable to the defendant. [Fn. 3]  See 120
Cong. Rec. 2374-2375 (1974).  That representative believed that the
extraneous influence exception did not permit jurors to testify
regarding allegations that the jury reached a compromise verdict or
a quotient verdict, that the jury refused to follow the judge's
instructions, or that a juror refused to participate.  See id.; S.
Rep. No. 93-1277, at 13.  These latter events/issues were viewed as
internal, rather than external, influences on the verdict.  See S.
Rep. No. 93-1277, at 13.  The Advisory Committee Note to Rule
606(b) recognizes the internal/external distinction drawn by
members of Congress and confirms that testimony regarding internal
influences is not permitted under the rule.
          It is unclear from the legislative history whether
Congress would have considered pre-existing juror knowledge to be
an internal or external influence on the jury.  Extra-record
information revealed by a member of the jury does not fit neatly
into the external category because such information does not come
from a third person or from an external source such as a newspaper. 
But such information also does not clearly qualify as an internal
influence.  A juror who testifies about the use of such information
is not revealing the manner in which the jury reached the verdict;
for instance, he or she is not testifying that the jury had reached
a quotient verdict or flipped a coin to decide.  Neither does such
testimony deal with issues internal to the trial, such as whether
a juror misinterpreted the instructions or refused to participate
in deliberations.  We therefore conclude that the legislative
history is ambiguous with respect to the issue posed in this case. 
          2.   Policy considerations
          The commentary to Rule 606(b) recognizes that the rule
serves competing policy interests.  The rule imposes a general ban
on using juror testimony to impeach verdicts in order to protect
jurors from harassment, to encourage free jury deliberation, and to
promote the finality of verdicts.  See Alaska R. Evid. 606(b),
commentary.  At the same time, Rule 606(b) protects the interest in
avoiding injustice by creating exceptions to the general ban in
situations where irregularities have marred the integrity of the
deliberation process.  See id; see also Crump, supra, at 512 
(reviewing case law explaining the policy interests behind the
rule).  The interest in avoiding injustice protected by the rule
can be broken down into two related concerns: ensuring that
verdicts are accurate and that they are reached through a fair
process.  See Wright & Gold, supra, sec. 6071, at 402.
          Concerns about the accuracy and fairness of verdicts are
implicated when the jury considers evidence that has not been
presented in open court and thus has not passed the test of
adversarial challenge.  See id.  Additionally, the interest in
ensuring fairness and accuracy is particularly strong in criminal
cases, where an individual's liberty is at stake.  See Crump,
supra, at 518.  Because this is a criminal case, and because the
jurors appear to have considered evidence outside the record during
their deliberations, policy considerations suggest that this is the
type of case that should qualify for one of the exceptions included
in Rule 606(b).
          3.   Case law from other jurisdictions 
          Case law interpreting Rule 606(b) shows that courts draw
a distinction between pre-existing juror knowledge of a general
nature and pre-existing knowledge about the defendant or the case
itself.  See Wright & Gold, supra, sec. 6075, at 451.  Courts agree
that a juror who discusses his or her general knowledge during
deliberations, such as a familiarity with x-ray technology, has not
introduced extraneous prejudicial information into the jury room. 
See, e.g., Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th
Cir. 1989).  Cases refusing to consider such knowledge as falling
within the exception stand for the sound proposition that jurors
"can make intelligent decisions only by drawing upon their
accumulated background knowledge and experience."  Wright & Gold,
supra, sec. 6071, at 450.
          Most courts, however, including federal courts, hold that
pre-existing juror knowledge about the defendant or the case itself
does constitute extraneous prejudicial information. [Fn. 4]  See,
e.g., Hard, 870 F.2d at 1462 (stating that "if a juror's past
experiences were directly related to the litigation . . . the
discussion of those experiences would constitute extraneous
information that could be used to impeach a jury's verdict"); see
also Wright & Gold, supra, sec. 6075, at 451-52 n.32 (collecting
cases).  But see Marr v. Shores, 495 A.2d 1202, 1205 (Me. 1985)
(holding, in a case where a juror allegedly discussed personal
knowledge of facts directly related to the litigation, that "[t]he
mere communication of personal knowledge by a juror to his fellow
jurors during deliberations . . . [is] not extraneous").  In
justifying its interpretation of the rule, one federal court
implied that jurors who provide information about the case or the
defendant are acting as witnesses.  See United States v. Perkins,
748 F.2d 1519, 1533 (11th Cir. 1984).  Because their testimony
occurs in the jury room, however, the defendant is robbed of the
opportunity to subject it to adversarial challenge.  As a result,
the court concluded that permitting juror statements about such
knowledge compromises a defendant's right to confrontation, cross-
examination, and counsel.  See id.  
          We agree with the majority view that pre-existing
knowledge about the case or the defendant can constitute extraneous
prejudicial information under Rule 606(b); to interpret the rule
otherwise would jeopardize a defendant's constitutional right to
confrontation.  See Kenai Peninsula Borough v. Cook Inlet Region,
Inc., 807 P.2d 487, 498 (Alaska 1991) (stating that "statutes are
to be construed to avoid a substantial risk of unconstitutionality
where adopting such a construction is reasonable").  The court of
appeals erred in concluding that such knowledge could not qualify
for the exception because it failed to note the distinction in the
case law between background knowledge unconnected to the litigation
and knowledge about the facts of the case at hand.  See State v.
Titus, 933 P.2d 1165, 1176 (Alaska App. 1997).
          But the right to adversarial challenge is not the only
constitutional interest at stake in interpretation of Rule 606(b):
the federal constitution also guarantees defendants the right to be
tried in the locality of the alleged crime.  See U.S. Const., art.
III, sec. 2 & amend. VI.  Alaska guarantees defendants this right
through Criminal Rule 18(e).  Both the state and the federal
constitutions also guarantee defendants the right to a jury drawn
from a fair cross-section of the community.  See Alvarado v. State,
486 P.2d 891, 898-99 (Alaska 1971) (interpreting article I, section
11 of the Alaska Constitution); Taylor v. Louisiana, 419 U.S. 522,
528 (1975).  As the court of appeals stated:
          These guarantees are premised on the idea that
the jury functions as a representative body, that it should express
the knowledge and sentiments of the community affected by its
decisions, and that jurors should therefore be chosen from among
the people who live in that locality. . . . [T]he drafters of the
two constitutions believed that, generally speaking, there is a
better chance that justice will be done if jurors are selected from
people familiar with the community's culture and general conditions
of life.

Titus, 933 P.2d at 1177.  Because jurors from the defendant's
community are more likely than strangers to have pre-existing
knowledge about his or her reputation and the charge, the
constitutional interest in adversarial challenge conflicts with the
interest in conducting trials in the defendant's community. 
Balancing these constitutional interests poses a special challenge
in Alaska, where many individuals live in small villages and towns. 
          After considering these competing constitutional
concerns, we conclude that they can best be balanced by a rule that
includes only knowledge of specific facts surrounding the alleged
crime and the defendant's connection to it within the scope of the
extraneous prejudicial information exception to Rule 606(b).  This
is a sound interpretation of the exception for two reasons.  First,
as the State argues, in many of the villages and small towns of
Alaska, it may well be impossible to find twelve jurors who are
totally ignorant of the defendant or the victim and the alleged
criminal conduct.  See United States ex rel. Owen v. McMann, 435
F.2d 813, 817-18 (2d Cir. 1970) (stating that rights of
confrontation and due process should not be deemed violated simply
because jurors were "influenced to some degree by community
knowledge that a defendant was 'wicked' or the reverse, even though
this was not in evidence").  As a result, a rule that interpreted
the extraneous prejudicial information exception to include such
general knowledge would preclude defendants who live in villages
and small towns from being tried by members of their community.
          Second, juror knowledge about the specific facts of the
alleged crime itself is more likely than general knowledge to lead
to inaccurate verdicts because it is unlikely to be tested by other
jurors during deliberations.  See Wright & Gold, supra, sec. 6075,
at
452.  Because not all jurors will have access to specific facts
about the crime and the defendant's connection thereto, those who
purport to have such information may be believed without debate,
even if their information is inaccurate.
          Permitting juries to convict defendants when they have
considered such extra-record information would undermine interests
in both fairness and accuracy by robbing the defendant of the
chance to contest such evidence.  We therefore conclude that a
distinction must be made between a juror's general background 
knowledge about the defendant or the charge and a juror's knowledge
about specific facts relating to the alleged crime and the
defendant's involvement in it. [Fn. 5]  The generalized knowledge
that is available to a significant portion of the community should
not qualify for the exception both because it would make it
impossible to hold trials in small communities and because such
information is more likely to be tested by the jury itself. 
Because neither consideration applies to information about the
defendant or the alleged crime that may be known only to a select
few, such information should qualify for the exception.
          4.   The nature of the extra-record information
discussed by the jury in this case
          
          Citing Hard, the State appears to concede that "[i]f the
juror's past experiences are directly related to the litigation,
discussion of those experiences would constitute extraneous
information that could be used to impeach the verdict."  The State
argues, however, that the comments made by Titus's jurors did not
concern the facts of the case itself.  This interpretation of the
testimony ignores the trial court's finding that some jurors may
have had knowledge, mistaken or not, that Titus was drinking at the
time of the alleged rape.
          Judge Greene stated in her decision regarding Titus's
motion for a new trial that "[d]uring the jury's deliberations,
there was general discussion of Titus'[s] drinking at the time of
the alleged rape in Venetie and before the trial."(Emphasis
added.)  The State suggests that this characterization of the
evidence is inaccurate.
          The transcript shows that only two jurors testified that
there were comments made concerning the night of the alleged rape
itself.  First, Evelyn James testified that one juror had wondered
if Titus might have been drinking on the night in question because
it fell during Venetie's spring carnival.  This juror apparently
had no specific information but was simply hypothesizing based on
his or her knowledge that "people drink"during the carnival. 
Second, Vera James testified that several jurors stated that Titus
had, in fact, been drinking on the night in question.  
          The State is correct that Evelyn James's testimony does
not support the conclusion that extraneous prejudicial information
was presented to the jury.  The comment Evelyn James remembered
appears to have been mere speculation, based on a juror fitting
together pieces of his or her general knowledge about activities in
Venetie during carnival.  Because we conclude that general
community knowledge is not extraneous within the meaning of Rule
606(b), we also conclude that speculation based on such knowledge
is not extraneous.  See Crump, supra, at 540 (arguing that only
authoritative comments, not speculation, should qualify as
extraneous information). 
          Vera James's testimony, however, suggests that several
jurors did have information about the facts of the alleged crime
itself.  Instead of mere speculation, she remembered jurors
claiming to know that Titus was drinking at the time in question. 
Contrary to the State's argument, therefore, at least one of the
jurors testified that comments had been made that pertained
specifically to the facts of the alleged rape.
          Although Vera James's testimony could support a finding
that the jury had considered extraneous prejudicial information,
her recollection of the jurors' comments was contradicted by Sarah
Knudson, who stated that the jury had discussed Titus's drinking in
general terms only.  Further, Evelyn James's testimony suggested
that the comment Vera James remembered was based merely on
speculation.  Because general knowledge about the defendant and
speculation do not constitute extraneous prejudicial information,
the superior court's decision to grant a new trial would be
appropriate only if Vera James's recollection of the deliberation
was more credible.  
          In making its decision below, the superior court did not
have the benefit of the rule we announce today, distinguishing
between general knowledge of the defendant's reputation and the
charge on the one hand and knowledge about the specific facts of
the alleged crime itself on the other.  Given an absence of
specific findings on this issue, it is not possible for us to
evaluate the court's conclusions about what occurred during
deliberations.  Thus, we remand to the superior court for an
analysis that addresses the inconsistency in the testimony and
applies the legal standards established in this opinion. [Fn. 6] 
     C.   Titus Did Not Waive His Right to Impeach the Jury Verdict
by Failing to Question Jurors Properly during Voir Dire.

          The State argues alternatively that we can affirm the
decision of the court of appeals even if we conclude that
extraneous prejudicial information reached the jury because Titus
waived any objection to the jurors having personal knowledge about
him or his reputation in the community. [Fn. 7]
          Titus does not contest the State's view that voir dire
revealed that most of the jurors knew him and probably knew of his
use of alcohol.  Despite this fact, Titus did not challenge jurors
who were familiar with him and insisted that his trial be held in
Fort Yukon rather than in Fairbanks when the State moved for a
change of venue.  As a result, the State's argument that Titus 
waived his right to impeach the jury verdict based on bias stemming
from the jurors' general familiarity with him has merit.  See
Hancock v. Northcutt, 808 P.2d 251, 259 (Alaska 1991); see also
United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989).
          But Titus does not only allege that the jurors were
biased; he also alleges that they considered prejudicial
information about his conduct at the time of the alleged rape that
was not presented at trial.  None of the jurors revealed such
knowledge during voir dire.  Instead, all of the jurors eventually
chosen denied having any knowledge of the details of the alleged
rape. [Fn. 8]  In reviewing the testimony during voir dire, Judge
Greene specifically found that "[a]lmost all of these people who
have heard about the case have heard that there was a charge, and
virtually nothing else."  Furthermore, because alcohol was not an
issue in the case, there would have been no reason for Titus to
question the jurors about their knowledge of his drinking habits. 
We therefore conclude that Titus did not waive his right to impeach
the jury verdict based on the jury's consideration of extra-record
evidence.
IV.  CONCLUSION     
          Because we conclude that pre-existing juror knowledge
about the facts of the alleged crime or its surrounding
circumstances constitutes extraneous prejudicial information under
Rule 606(b), we REVERSE the decision of the court of appeals.  In
order to resolve the discrepancies in the testimony presented about
the kind of information brought before the jury, we also REMAND to
the superior court for further findings.


                            FOOTNOTES


Footnote 1:

     Alaska Rule of Evidence 606(b) states:

          Upon an inquiry into the validity of a verdict
or indictment, a juror may not be questioned as to any matter or
statement occurring during the course of the jury's deliberations
or to the effect of any matter or statement upon that or any other
juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's
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 juror. 
Nor may a juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be precluded
from testifying be received for these purposes.


Footnote 2:

     The commentary to Alaska Rule 606(b) recognizes that our rule
is based on the federal rule; as a result, analysis of the federal
rule's legislative history is appropriate in this case.


Footnote 3:

     The final version enacted by Congress may have approved two
different exceptions in order to differentiate between the types of
extraneous influences discussed: the first two examples listed
above can be considered outside influences and the third, because
it does not involve a juror talking to another person, fits best
into the extraneous prejudicial information exception. See H.R.
Rep. No. 93-650, at 9-10 (1973), reprinted in 1974 U.S.C.C.A.N.
7075, 7083. 


Footnote 4:

     In general, federal law interpreting Rule 606(b) is more
helpful than state law interpreting state versions of the rule
because many states enacted modified versions of Rule 606(b),
specifically expanding or contracting the scope of permissible
juror testimony.  See Wright & Gold, supra, sec. 6071, at 379-85. 
The
states, other than Alaska, that either enacted versions identical
to the federal rule or made only semantic changes are: Arkansas,
Colorado, Delaware, Iowa, Maine, Minnesota, Mississippi, Nebraska,
New Mexico, North Carolina, Oklahoma, South Dakota, Utah,
Wisconsin, and Wyoming.  See id. 


Footnote 5:

     In drawing this distinction, we determine only the kind of
pre-existing juror knowledge that qualifies as extraneous
prejudicial information within the meaning of Rule 606(b).  We
express no opinion on the type of juror knowledge that would
warrant a change of venue.


Footnote 6:

     On remand, the superior court may consider juror testimony
regarding the jury's knowledge of Titus's reputation when drinking
for the limited purpose of determining whether a comment that he
was drinking at the time of the alleged crime would have posed a
substantial likelihood of influencing the vote of one or more
jurors.  See Swain v. State, 817 P.2d 927, 931 (Alaska App. 1991)
(citation omitted).  The court may also hold a supplemental hearing
on the nature of comments made by jurors in the jury room if it
finds it necessary.


Footnote 7:

     The State did not raise this argument in the trial court. 
Neither was this argument considered by the court of appeals. 
However, we can affirm the decision of a lower court on any
grounds.  See James v. McCombs, 936 P.2d 520, 523 n.2 (Alaska
1997).


Footnote 8:

     If any of the jurors had deliberately lied about their
knowledge of the case, such conduct could in and of itself justify
a new trial under the test laid out in Fickes v. Petrolane-Alaska
Gas Service, Inc., 628 P.2d 908, 910-11 (Alaska 1981).  Juror
misconduct in the form of non-disclosure of relevant information
during voir dire provides a separate basis from Rule 606(b) for
requesting a new trial.  See United States v. Perkins, 748 F.2d
1519, 1531-33 (11th Cir. 1984).