D. Juror Misconduct {50} Defendant argues that the trial court should have granted an additional evidentiary hearing due to alleged juror misconduct under Kilgore v. Fuji Heavy Indus. Ltd. , 2010-NMSC-040, ¶¶ 22-23, 148 N.M. 561, 240 P.3d 648, and that the trial court erred in denying Defendant's motion for a new trial. {51} We review "the trial court's factual findings and its ruling on the movant's motion for a new trial ... for an abuse of discretion."
2004) (en banc), the Colorado court applied the reasonable possibility test. In contrast, the New Mexico Supreme Court recently overhauled its approach to handling cases in which jurors receive extraneous material in Kilgore v. Fuji Heavy Industries Ltd. , 148 N.M. 561, 240 P.3d 648, 656 (2010). The Kilgore court abandoned the notion of presumption of prejudice for a new approach.
As we discuss in more detail below, to obtain these facts a court should determine and then evaluate the circumstances surrounding the communication, including what was said, how it was said, and when it occurred. See infra ¶¶ 20–21; Kilgore v. Fuji Heavy Indus. Ltd. , 148 N.M. 561, 240 P.3d 648 (2010). ¶ 11 Here, CSK did not controvert the accuracy of the statements attributed to the bailiff by H.T. Thus, on this record, the superior court was required to assume H.T.'s affidavit accurately represented the communication.
In all other cases, because the court cannot inquire into the effect of the communication on individual jurors, the court must determine whether the communication would likely prejudice a hypothetical average juror. See United States v. Boylan, 898 F.2d 230 , 262 (1st Cir.1990); United States v. Calbas, 821 F.2d 887 , 896 n. 9 (2d Cir.1987) (noting that “post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on ‘a hypothetical average juror’”); accord Kilgore v. Fuji Heavy Indus. Ltd., 148 N.M. 561 , 240 P.3d 648 , 655 (2010) (citing 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 606.05[2][b] (2d ed.2010)). In other words, the moving party is not required to prove actual prejudice, but is required to demonstrate the objective likelihood of prejudice.
The alleged failures rest on the law that it is only if extraneous prejudicial information (rather than a jury's deliberative process) reaches a jury that the jury's verdict may be impeached. Kilgore v. Fuji Heavy Industries Ltd., 2010-NMSC-40, ¶¶ 11-13; 148 N.M. 561.
{63} A mistrial is warranted on the basis of jury tampering when the movant "establish[es] that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably probable that the extraneous material affected the jury's verdict or a typical juror." Kilgore v. Fuji Heavy Indus. Ltd. , 2010-NMSC-040, ¶ 21, 148 N.M. 561, 240 P.3d 648. While the first communication reached the jury, speculation about the end date of trial could not reasonably have affected the verdict.
These state courts focus on rules of evidence that render the presumption difficult to rebut by prohibiting examination of jurors about their thought processes or deliberations. See People v. Wadle, 97 P.3d 932, 935–36 (Colo.2004); Roll v. Middleton, 115 Idaho 833, 838–39, 771 P.2d 54 (App.1989); Kilgore v. Fuji Heavy Industries, Ltd., 148 N.M. 561, 569, 240 P.3d 648 (2010). The South Carolina Supreme Court appears to hold that the burden is on the defendant to approve actual bias, but does not mention the presumption, despite citations to both Remmer I and Phillips.
A ruling or decision is fairly invoked if a party's objection or motion is "made with sufficient specificity to alert the mind of the [district] court to the claimed error." Kilgore v. FujiHeavy Indus. Ltd., 2010-NMSC-040, ¶ 26, 148 N.M. 561, 240 P.3d 648 (internal quotation marks and citation omitted). Therefore, "[t]o preserve an argument for appellate review, it must appear that an appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court."
See Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 1127 ("The primary purposes for the preservation rule are: (1) to specifically alert the district court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the district court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue."), rev'd on other grounds by 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648. Thus, the argument is unpreserved and we decline to address it.
The State counters that "the presumption of prejudice no longer exists under New Mexico [jurisprudence]" and that as the moving party, Defendant bore the burden of demonstrating prejudice. {13} In Kilgore v. Fuji Heavy Industries Ltd., our Supreme Court "disavow[ed] any further reference to a 'presumption of prejudice' " and clarified that the presumption of prejudice discussed in Remmer does not exist "because the burden remains on the moving party throughout the proceedings to prove the ultimate fact in issue, i.e., that there is a reasonable probability that the extraneous material affected the verdict or a typical juror." Kilgore, 2010-NMSC-040, ¶ 22, 148 N.M. 561, 240 P.3d 648. Specifically, the Court stated that the proponent of the mistrial motion bears the burden to "establish that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably probable that the extraneous material affected the jury's verdict or a typical juror."