The opinion
LEIBSON, Justice,
dissenting.
Respectfully, I dissent.
This is an RCr 11.42/60.02 collateral attack on the verdict, based on evidence at the hearing from two jurors that:
1) A third juror, Watkins, had provided additional evidence in the jury room by drawing a map. This map explained why, if the victim screamed when attacked, as she claimed, she could not be heard because the alleged location of the offense in *502 a wooded area was too far from nearby houses to be heard.
2) Further, Juror Watkins revealed in the jury room a close association and friendship with the victim’s grandfather, which necessarily implied a bias in favor of the victim and disqualification which should have been revealed on voir dire. Pennington v. Commonwealth, Ky., 316 S.W.2d 221 (1958).
We should reverse on point one (1) because RCr 10.04, prohibiting the examination of jurors about their deliberations in the jury room, does not apply to situations where the juror provides new evidence in the jury room. C.f. In re Beverly Hills Fire Litigation, Ky., 672 S.W.2d 922 (1984), and, more particularly, the underlying case of the same name cited therein, 695 F.2d 207 (6th Cir.1982), wherein the U.S. 6th Circuit reversed a lengthy and complex trial because of similar juror misconduct, furnishing additional, material evidence in the jury room. I would follow the ruling in Watkins v. State, 237 Ga. 678 , 229 S.E.2d 465 (1976) and People v. De Lucia, 20 N.Y.2d 275 , 282 N.Y.S.2d 526 , 229 N.E.2d 211 (1967).
In this instance RCr 10.04 conflicts with the right of confrontation preserved by the Fifth Amendment and the right to confront witnesses “face to face” in the Kentucky Constitution, § 11.
We should reverse on point two (2) because the “conduct” of juror Watkins (presumably his conduct in the jury room) was already examined in the Motion for a New Trial wherein Watkins testified about his association with the alleged victim’s grandfather and his answers on voir dire. Under CR 60.02, the court can and should reopen this issue, previously affirmed on appeal, where there is new evidence showing false information was provided which underlies a previous decision. In this case it was an abuse of discretion to deny the 60.02 Motion.
LAMBERT, J., joins this dissent.