IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01811-COA ANTHONY MURRY A/K/A ANTHONY JAMES MURRAY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/28/2015 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH TEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION DISPOSITION: REVERSED AND REMANDED - 04/18/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. CARLTON, J., FOR THE COURT: ¶1. A j u

r y i n t he Hinds County Circuit Court, First Judicial District, f ound Anthony

Murry guilty of aggravated assault. See Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006). On appeal f rom his conviction and sentence, Murry r aises the f o llowing issues: (1) whether the circuitcourt erred by ref using to grant him a new trial due to j u r o r m i s c onduct; (2) whether the circuit court erred by d eny ing his m otions to com p el evidence and to grant a c ontinuance; (3) whether the circuit court f ailed to adequately i nstruct t he jury ; and (4) whether the verdict was against the overwhelm ing weight of the evidence. ¶2. Upon r e v i e w , w e f i n d dispositive M urry ’s f i rst a ssignm ent of e r

ror regarding the circuit c o urt’s f

ailure to g rant him a new trial due to juror m isconduct. During Murry ’s trial, im p roper contact occurred between a juror a nd Murry ’s f iancée. In deny ing Murry ’s newtrial m otion, the circuit court m i sapplied the relevant standard to determ ine “whether it was reasonably possible that the com m unication altered the verdict.” Roach v. S tate , 116 So. 3d 126, 132 (¶17) (Miss. 2 013) (citing Glad n e y v. C larksdale Beverage Co. , 6 25 S o. 2d 407, 419 (Miss. 1993)). As a r esult, w e reverse Murry ’s c onviction and sentence and rem and this case f or a new trial. FACTS ¶3. On June 7, 2 0 1 4, Murry shot Marquavious Brent in t he a nkle d uring a n altercation.
A grand j ury indicted Murry f or aggravated assault. At M urry ’s trial, the jury considered all the evid e n c e and testim ony presented and then f o und M urry guilty of aggravated assault. The circuit court sen t enced Murry to f if t een y ears in the custody o f the Mississippi Departm ent of C orrections, with ten y ears to serve, f ive y e ars suspended, and f ive y ears of supervised probation. ¶4. Murry subsequently f i le d a m o t i o n fo r a j u d g m e n t notwithstanding the verdict (JNOV)

2or, in the alternative, a new trial. In addition to his other assignm ents of error, M urry claim ed

in his m otion that juror m i sconduct denied him the right to a f air trial. Murry alleged that, during the course of the trial, Dennis Harris, one of the jurors, initiated im proper contact with Murry ’s f iancée, Laronda Brooks, and tried to begin a relationship with Brooks. As a result of this alleged m isconduct, Murry argue d t h a t H a r r i s lost his a bility to rem a in f

air and im p artial and tainted the jury

. To support his c laim s , Murry attached to his m otion Brooks’s af f idavit, copies of pictures that Harris sent Br o o k s , a n d copies of text m essages between Harris and Brooks. 1 ¶5. The c ircuit court held a hearing solely o n Murry ’s allegation of juror m i s c o n d u c t. Brooks testif

ied that she f

irst e ncounte r ed Harris on T uesday , October 13, 2015, on the second day of Murry ’s trial. According t o B r o o k s, Harris initiated contact with her in the hallway d uring a t rial recess. Brooks stated that Harris asked her whether he was too late. Brooks testif

ied that she t hought Harris was a sking whether he w a s l a t e returning to the

courtroom af

ter the recess. As a result, Brooks said she r esponded, “No, y ou’re not too late.” Brooks stated that Harris then told her he was not talking about returning to the courtroom

on tim e, a n d he a sked f

or her phone num

ber. Brooks testif

ied that she g ave Harris her phone

num ber and told him that s he w as “with the [ D ]ef endant.” Brooks f

urther testif

i ed that she

1 T h e reco rd ref

lects th at H arris sen t B ro o k s sev eral ex p l icit tex t m essag es. O n e o f H a rris’s t ex t m essag es to B ro o k s stated , “T reat me r i g h t[ ,] an [ d ] I w ill tak e care o f y o u .” A n o t h er o f H a rris’s tex t m e ssag es to B ro o k s said , “Y o u [ w i l l n o t ] h av e to w o rry ab o u t an y t h in g [ ,] an [ d ] I [ a m ] n o t j u s t s a y i n g so m e th in g .” In ad d itio n , th e reco rd ref lects t h at H a rris sen t B ro o k s a n early n ak ed p ictu re o f

h im self

. 3was unaware at the tim e of their initial conversation that Harris was a juror in Murry ’s case.

¶6. Brooks stated that Harris called her Tuesday night af ter their initial contact and that the two spoke f

o r a bout f

if teen m inutes. She said that, during their conversation, Harris dis c l o s e d to her t hat he was a juror in Murry ’s trial. I n addition, Brooks stated that Harris told her that he f

elt Murry was innocent. Brooks also testif i ed that Harris called her again the f o llowing night, on W e dnesday , af ter the jury reached a ver d i c t i n M urry ’s case. According to Brooks, Harris sent her text m essages say i ng she did not have to w orry and that, if she treated h im right, he would take care of her. She f urther stated that Harris sent alm ost nude pictures of

him self and asked her to send a picture of herself to him

. ¶7. Brooks testif

ied that s he f

irst tried to contact the public def ender’s of

f i ce on the day of Harris’s initial contact. Howeve r , B r o o k s testif ied that the def

ense attorney , Dennis Martin, was out of the of

f ice. Brooks then stated that she told another of Murry ’s a ttorney s, Candace Gregory -May

berry , about the contact the f ollowing day as they lef

t the courtroom af ter the jury ’s verdict. Brooks said she told G regory -May berry that she (Brooks ) f

e l t t he verdict was not r ight since Harris had said he f elt that Murry w a s i n n ocent. Brooks stated that, af ter her disclosure, the def

ense attorney s instructed her to com e to their of f ice and sign an af f i davit about her contact with Harris. ¶8. Despite B rooks’s testim ony about when s h e t o l d t h e d e f e n s e of her contact with Harris, Gregory

- May

berry testif

ied dif f erently

. Under o ath, Gregory -May b erry denied that Brooks t old her about H arris’s a lleged m isconduct a s they l ef t the courtroom the day of the

4jury v erdict. Instead, Gregory -May berry testif

ied that she f

irst learned of the contact the next day o n Thursday , October 14, 2 015, and that B ro o k s mu s t h a ve been conf used as to the tim ing of the disclosure. ¶9. As the record ref

lects, Brooks and Harris c o ntinued their com m unication w i t h o n e another until October 18, 2015, which was f our day s af

ter the j ur y r eached its verdict. Brooks signed her af

f idavit on October 19, 2 015. Although she was present in the courtroom af ter the com m

unication with H arris began, Brooks s tated that she f ailed to notif

y the def ense or the court earlier because she was unsure of what to do. ¶10. Harris a lso testif

i ed about the a l l e g a t i o n of juror m isconduct and never denied his

com m unication with Brooks during t he trial. Ho w ever, Harris stated t hat Brooks initiated the contact with him

. Harris testif ied that he was standing in the hallway during a recess on the second day o f trial when an unf am iliar y oung wom an approached him and a sked f or his phone num

b er. Harris said he gave the w o ma n h i s p hone num b er and that she called h im later t hat evening. According to H arris, Brooks told him during their c onversation that she

was Murry ’s s i s t e r. H arris said that he then cut of f contact with Brooks u ntil the jury had reached its v erdict the f

ollowing day

. Despite Brooks’s t estim o ny to the contrary , Harris stated that he never told Brooks he thought Murry was innocent. ¶11. Harris test i f

ied that Brooks also called him W ednesday night af ter the jury

reached its verdict. Harris said that he m issed Brooks’s call and that, w hen he tried to call her back, she did not answer. Howev er, Harris testif ied t hat Brooks then returned his m issed call.

5Harris claim ed that he only sent pictures of h im self to B rooks because she a sked h im to do

so af ter t hey discussed working out and his job as a personal trainer. Harris testif ied that his last com m

unication with Brooks w a s a r o u n d October 18, 2015, w hich was f o ur day s af

ter the t rial ended. Despite the circuit court’s i nstruction t o report any i m proper contact, Harris

state d h e d i d n ot report the contact with B rooks because he never discussed the jury ’s deliberations with her and because he f elt an obligation to f

inish his jury

service. ¶12. Af ter considering the testim ony p resented at the evidentiary h earing, the c ircuit court entered its order on Murry ’s m otion f or a JNOV or a n e w t r i a l

. W hile acknowledging its

concern over the i m

proper com m

unicat i o n s b e t ween Brooks and Harris, the circuit court questioned the credibility a nd veracity of Brooks’s testim ony , the tim ing of her disclosure about the contact, a nd whether she purposef ully initiated the contact. The circuit court f ound tha t B r o o ks “had m ore than am ple opportunity to inf

orm [ M urry ’s] counsel a nd/or this [ c]ourt” a bout the contact prior to the jury ’s verdict. Although Brooks c l aim ed she told the def ense about t he contact while e xiting the courtroom af ter the jury v erdict, t he c i rcuit court dism issed her statem e nt a s f a lse since G regory -May

berry , as an of

f icer of the court, denied learning of the im

proper contact “prior to t h e v e r d i ct being returned or while in the courthouse.” ¶13. In a ddition to questioning Brooks’s credibili t y , t h e circuit court concluded that her

contact with Harris f

ailed t o alter the j ury ’s verdict. T he circuit court f ound that the eleven other jurors had n ot been exposed to the im proper contact a nd that they all f o u n d Murry

6guilty

. The circuit court a lso determ ined t hat both Harris and Brooks “ generally contend[ ed]

the t rial was not discussed” a nd that Harris had denied telling Brooks he thought Murry was innocent. ¶14. Based on its f

i ndings, the circuit court denied Murry ’s m otion f or a JNOV or a new trial. Aggrieved, Murry

tim e ly appeals his conviction and sentence. DISCUSSION ¶15. In a ddition to his other claim s r a i sed on appeal, M urry argues that t he circuit court

m isapplied c aselaw in deny i ng his m otion f or a n e w t r i a l based on j uror m isconduct. W e review the circuit court’s denial of Murry ’s new-trial m o tion f or an abuse of discretion. See Dependable Abrasives Inc. v. Pierce , 156 So. 3d 891, 895 (¶12) (Miss. 2015). Because we f ind Murry ’s argum ent o n t his issue dispositive, w e d ecline to address the m e r i t s o f h is

rem aining assignm ents of error. ¶16. W h en i n quiring into t he validity of a jury ’s verdict, Rule 606(b)(1) of t he Mississippi Rules of Evidence provides: [ A] juror m ay not testif

y about any statem ent m ade or incident that occurred during t he jury ’s deliberations; the ef f ect of any thing o n that juror’s or another juror’s vote; or any juror’s m e ntal processes c o n c erning t he v erdict or indictm ent. The co u r t m ay not receive a juror’s af f idavit o r e v idence of a juror’s statem e nt on these m atters. However, Rule 606(b)(2) states t hat a juror m a y t estif y a b out the f ollowing: (1) whether “extraneous prejudicial inf orm ation was im

properly brought t o t h e jury ’s attention” or (2) whether “an outside inf

luence was im

properly brought to bear on any

juror.”

7¶17. The Mississippi Suprem e C ourt h as p reviously explained the procedure a trial court

should f ollow when claim s of juror m isconduct or extraneous inf orm ation arise. Roach , 116 So. 3d at 132 (¶17). The trial court f irst determ ines whether an investigation is warranted. Id. “An investigation i s warranted if the trial judge f inds that ‘good cause exists to believe that there w as in f

a ct an im proper outside inf

l uence or extraneous prejudicial inf orm ation.’” Id. ( quoting Gladney , 625 So. 2d at 419). The trial court’s in q u i r y s tops if it f inds “no threshold showing of

external inf

luences[ .]” Id. However, where the trial court possesses “good c ause to believe there was im proper inf

luence on the jury , t he c o u rt should conduct

a posttrial hearing” a nd “determ i ne whether t he com m unication w as m ade and t he nature of the com m unication.” Id. If the c ourt’s “ investigation reveals that the com m unication was

m ade, the court m

ust determ ine whether it w as reasonably possible t hat the c o m m unication altered the verdict.” I

d

. W e review the “[ t]he t rial court’s decision as to whether it is reasonably p ossible the c o mmu n ication inf luenced the juror” f

or an abuse of discretion.
W allace v. State , 166 So. 3d 520, 527 (¶31) (Miss. Ct. App. 2014). ¶18. In the p resent case, the circuit court f o und good cause existed to conduct a posttrial

e v i d e n t iary hearing on Murry ’s claim of juror m isconduct. The circuit court ser v e d subpoenas on b oth Brooks and Harris. Although Brooks a nd Harris both t estif ied that they

com m unicated with one a nother during Murry ’s trial, their accounts dif f ered as to who initiated the contact d u r i n g the trial recess on Tuesday a nd w ho called the other later that

sam e evening.

8¶19. The rec o r d i s u n c l e a r a s t o whether H arris and Brooks initially knew each other’s

relationship to Murry when they exchanged phone n u mb e rs. H owever, the circuit court f ound that they discovered the c onnection to M urry d u ring their f if teen-m inute phone conversation Tuesday evening. Brooks stated th a t H arris told her Tuesday night he was a juror in Murry ’s case. Although Harris testif ied that Brooks claim ed to b e M urry ’s sister rather than h is f

i ancée, Harris nevertheless adm i tted that he learned d uring t he conversation that Brooks had a c l o s e r e l a t ionship with Murry

. The record a lso clearly e stablishes that, regardless of w h e t h e r H a r ris thought Brooks was Murry ’s f iancée o r sister, he engaged in

rom antic overtures and com m u n ications with Brooks during the course of the trial. ¶20. Based on their testim ony , the circuit co urt f ound that both Brooks a n d Harris generally contended t hat they never d iscussed t h e trial. Even so, the circuit court acknowledged Brooks’s claim that Harris tol d h e r during their Tuesday -night conversation he believed
M u rry was innocent. For his part, however, Harris denied m aking any such s t a t e me n t t o Brooks o r any one else. Harris did adm it, however, that he s ent Brooks t ext m essages af ter the jury ’ s verdict stating that Brooks did n ot need t o worry a nd that, if she treated h im right, he would take care of her. In addition, Harris s e n t Brooks several n early nude p ictures of him self a nd asked her to s end him a picture of her. A ccording to Harris, h is statem ents were

m erely an attem

pt to be nice to Brooks and to r eassure her f ollowing the ve r d i c t

. H e also testif i ed that he only sent the p ictures of him self , and the request f

or her picture, b ecause the two had discussed his work as a personal trainer.

9¶21. At the hearing, B rooks testi f i e d t h a t she f

irst tried to i nf

orm the public def

ender’s of f ice about the im

proper contact on Tuesday , t he sam e day that the contact initially occurred. However, Brooks stated the attem pt was unsuccessf

u l because Murry ’s attorney

was out of the of

f ice. Brooks f

urther testif

ied that she then inf

orm ed t he def

ense attorney s about the im

proper contact as they exited the courtroom f ollowing the jury ’s v e rdict. One of Murry ’s attorney s, t hough, t e s t i f i e d t hat Brooks a ctually inf orm ed the def

ense of the im p roper contact the day af

t er the jury ’s v erdict and that Brooks m ust have been conf

used about the tim ing of

her disclosure. ¶22. Despite c onf

licting testim ony as to w h en she actually inf orm ed the def

e nse about the im p rope r contact with Harris, t he record ref lects that Brooks d id, in f act, inf orm Murry ’s attorney s. By c ontrast, Harris, in direct v iolation of the court’s instructions to the j ury , never revealed his contact with Brooks until questioned a bout it during t he e v i d entiary hearing.
Even so, t he circuit c ourt f a ulted only Brooks f

or the f a i l u r e t o mo re t im ely disclose the im p roper contact. The circuit court st a t e d that Brooks possessed “m ore than am ple opportunity to inf

orm [ Murry ’s] counsel and/or this [ c]ourt” but that she f ailed to d o so. As

a result, the circuit court questioned whether B rooks purposef ully i ni t i a t e d the im

proper
contact and waited until af ter the jury ’s verdict to r eport the com m unication. In addition, the circuit court f

ound tha t H a r ris was the only j uror exposed to the im proper contact. The circuit c ourt theref

o re concluded that, because the eleven other jurors w ere n ot exposed to the contact a n d s t i l l f ound Murry guilty , “it [ was] not reasonably possible [ the]

1 0com m

unication altered the v erdict.” As required by prece d e n t , a f t e r determ ining that the im p roper contact occurred between Harris a n d Brooks, the circuit court should have f urther determ ined whether it was reasonably possible that the contact and com m unication altered the verdict. See Roach , 116 So. 3d at 132 (¶17). ¶23. Upon review, we f ind the circuit court a

bused its discretion by m i sapply ing relevant caselaw to its determ ination of whether juror m isconduct justif ied granting Murry a new trial. See Dependable Abrasives , 1 56 So. 3 d at 895 (¶12). The undisputed testim ony ref lects that

an im proper rom antic com m

unication occurred between Harris and Brooks that d isplay ed a

m otive f or Harris to a lter t he verdict in this case. A s t he record dem onstrates, Harris m ade

rom anti c o v e r tures to Brooks and sent her alm o st nude pictures of him self

. Thus, all that

rem ained was f

o r t he circuit court to “determ i ne whether it was reasonably possible that the

com m unication altered the verdict.” Roach , 116 So. 3d at 132 (¶17) (citing Gladney , 625 So. 2d at 419). Although the circuit court acknowledged the proper s tandard in i ts judgm ent, the

rec o r d n e vertheless ref

lects that t he court m isapplied M ississippi caselaw and f ocused on im p roper bases t o r each its decision. Instead of determ ining whether it was reasonably possible that the com m

unication between Brooks and Harris altered the verdict, the circuit

cour t e mphasized the tim ing of Brooks’s disclosure and whether s he h ad purposef ully initiated the contact. ¶24. Regardless of who f irst initiated the contact and when t he contact was disclosed, the record is clear that i nappropriate contact and com m unication repeatedly occurred between

1 1Harris a nd Brooks during and af t er Murry ’s trial and that this im proper contact resulted in juror m isconduct. The established contact between Harris and Brooks evidences a m otive

on Harris’s behalf to a lter o r im pact t he verdict to pursue his interest in Brooks. As stated, f ollowing the jury ’s v erdict, Harris sent Brooks alm ost n u d e pictures of him self and suggestive m essages stating that he would take care of her if she treated him

right. ¶25. The State and F ederal Constitutions guarantee Murry the right to a f air t rial bef

ore an im p artial jury

. See J

ames v. S tate , 912 S o. 2d 940, 950 ( ¶17) (Miss. 2005). However, based
upon a review of the a

pplicable standard set f

orth in Mississippi caselaw, the record ref lects i t is reasonably possible that the com m unication between Brooks a nd Harris altered t h e verdict in this case. See Gladney , 625 So. 2d at 419. As a result, we f ind the circuit court abused its discretion b y deny ing Murry ’s new-trial m o tion. See Dependable A b rasives , 156 So. 3d at 895 (¶12). W e theref ore reverse the circuit court’s j udgm e n t and r em and this case f or a new trial. ¶26. THE JUDGMENT OF THE HI N D S C O U N T Y C I R C U I T C OURT, FIRST JUDIC I A L D ISTRICT, IS REVERSED, AND T HIS CASE IS REMANDED FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T HI S O P I N I O N . A L L C O S T S O F THIS APPEAL ARE ASSESSED TO THE APPELLEE. IRVING, P.J., ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCU R . G RIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES AND WILSON, JJ. GRIFFIS, P.J., DISSENTING: ¶27. Because I a m o f the opinion the trial court d id not abuse its discretion, I respectf u lly dissent f rom the m ajority ’s decision to reverse and rem and this case f or a new trial.
1 2¶28. As the m ajority s ay s, we m ust review t he “[ t]he trial c ourt’s decision as to whether it is reasonably possible the co mmu n ication inf luenced the juror” f

or an abuse of discretion.
W allace v. State , 166 So. 3d 520, 527 (¶31) (Miss. Ct. App. 2014). ¶29. In its order, the trial court ruled:
T h i s C o u rt served subpoenas upon the juror and the f iancé[ e] a n d held an evidentiary hearing af

ter receiving Def

endant’s m otion which contained an af f idavit f rom his f

i ancé[ e] as well as text m essages, including p ictur es, between her and a m ale juror. The j uror and f

iancé[ e]’s accounts as to which one of them i nitiated the initial contact i n the hallway the Tuesday of trial conf lict[ ;] obviously each blam es the other. W hat is not in dispute is that they did end u p with each o ther’s cell phone num

bers and did talk Tuesday night f or approxim ately f

if t een m inutes, and even i f they did not k now who each other w ere whe n t h e y e x c h anged num bers, the f

iancé[ e] adm its the juror told her Tuesday night he was on the jury

. He adm i ts he knew that she was in s o me w a y r elated to the Def endant. The f i ancé[ e] contends she told t r i al counsel of the c o m m unication W e dnesday , while in the courth o u s e , a f act that counsel, as an o f

f icer of the court, vehem e ntly denies. The jury of ten (10) wom en and tw o ( 2 ) m en returned a guilty verdict W ednesday af ternoon. The j uror and f

iancé[ e ] talked again a f e w day s later. Both generally contend the trial was not discussed but the f iancé[ e] contends the juro r t o l d her he thought the D ef endant was innocent. The juror denies this. This Court q u e s t i o n ed the f iancé[ e] extensively as to why she did not f eel it proper to report t he conduct prior to the jury returning the verdict. Despite all her contentions to the contrary , she had m ore than am ple opportunity to i nf

orm her c o u n s e l and/or this C ourt and she f ailed to d o so. This f

act alone raises doubt i n the C ourt’s m ind a s to her m otives. Further, this Court knows that s he has given f

alse testim ony r e g a rding at least one f act; the Court is bound to believe an of

f icer of this court, that practices b ef ore it, when she testif

ied s he was n ot inf

orm ed of the i m

proper contact prior to the v e r d i c t being returned or while in the courthouse. It has occ u r red t o this Court that perhaps the f iancé[ e] is the one who purposef ully initiated contact.

1 3The Court listened to the evidence and d enied the m otion f o r directed verdict and JNOV on evidentiary grounds. M ost im portantly , the f

act that eleven (11) j u r o r s (ten ( 10) w om en and one ( 1) m an) that were not exposed to t h i s im p roper contact voted guilty persuades this Court t o believe that “it is [ not] reasonably possible this com m unication altered the verdict.” ¶30. I am of the opinion that the trial court f o llowed the appropriate legal procedure and conducted a hearing to allow all relevant evidence to be introduced. T he learned trial judge hea r d testim ony f

rom both Brooks and Harris. Neither Brooks nor Harris testif ied that Brooks ever attem

pted t o inf luence Harris’s decision as a j uror. Further, contrary to Brooks’s claim that Harris k

new that she was with the def e ndant, Harris testif

ied that Brooks told h im that Mu r r y w as her brother. A s a result, the t rial judge f ound that a com m

unication had occurred t hat should not have occurred. However, the trial judge concluded that a new trial

was not warranted because the jury ’s verd i c t w as not a product of the im proper

com m unication. The trial j udge concluded that no part of the com m u nication h ad, or could have had, any i mp a c t o n t h e v erdict. The court a lso f ound t hat Brooks did not attem pt to inf luence Harris’s decision a nd t hat she d id not of f er any extraneous prejudicial i nf orm ation. Thus, the trial j udge c oncluded that it was not reasonably likely that Brooks’s c onversations with Harris altered the verdict. ¶31. Because I am of the opinion that the t rial c o u r t d i d not abuse its discretion when it declined to grant a n ew t r i a l a f t e r f inding that it was not r easonably possible that the

com m unication altered the verdict, I m u s t r espectf u lly dissent. I would af f i rm the trial court’s judgm ent.

1 4LEE, C.J., BARNES AND WILSON, JJ., JOIN THIS OPINION.

1 5