Greene

MEMORANDUM **

OVERVIEW

The State appeals the district court’s grant of a writ of habeas corpus to Janet *526 Ruth Greene (“Greene”). The State argues that because the evidence in this case overwhelmingly supports the jury’s finding of malice, the conceded jury misconduct did not have a substantial or injurious effect or influence.

Because the parties are familiar with the facts, we will recount them here only as necessary to explain our decision, which we render based on a de novo review of the record.

DISCUSSION

Green maintains that the juror.misconduct had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)). We respectfully disagree.

First, the jury was properly instructed by the trial court as to the legal definition of malice, and that definition remained with the jurors during their deliberations.

Second, the disputed definition of malice introduced by Juror K, although incomplete, was not substantially or meaningfully different from the trial court’s…