June 17, 2013
SHIRLEY VECCHIOLA, Plaintiff-Appellant,
AMANDA BLOOM and GEORGE BLOOM, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2685-08.
Stephen Guice argued the cause for appellant.
Francis X. Ryan argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief).
Before Judges Sapp-Peterson and Nugent.
Plaintiff, Shirley Vecchiola, appeals from the no cause verdict entered in favor of defendants, Amanda and George Bloom. Because we conclude the post-trial inquiry by the court into juror misconduct was not sufficiently probing to ensure the verdict reached was not the product of bias, we reverse.
Trial commenced on January 4, 2011. According to the evidence presented, on May 24, 2006, Bloom's vehicle collided with plaintiff's vehicle when Bloom drove across the median and struck plaintiff's vehicle head-on. Plaintiff sustained personal injuries for which she received treatment from a chiropractor, Dr. Barry Coniglio, who also testified as an expert on plaintiff's behalf. The jury returned a no cause verdict in favor of defendants on January 7, 2011, and the court entered judgment in favor of defendants by order dated February 23, 2011.
On February 7, 2011, the court received a letter from one of the deliberating jurors, Juror #2. The court forwarded copies of the letter to counsel for both parties. The letter expressed a number of the juror's concerns about the trial, including the juror's belief that one of the other deliberating jurors, Juror #4, exhibited bias towards chiropractors:
One of the [six] voting jurors was prejudiced against chiropractors. Although all jurors were specifically asked if they could be unbiased in accepting the testimony of a chiropractor, during jury deliberations it became apparent tha[t] one juror was highly prejudiced against chiropractors. In addition, the jury as a whole thought that the statements made by the one juror meant that no one could consider the testimony of the chiropractor. Although I tried to explain to the other members that everyone had a choice as to whether or not to accept the testimony of the chiropractor, the statements that had been made by the one juror had already tainted the minds of the remainder of the jury. This juror was [Juror #4], and she was an employee of [an insurance agency, an agency run by her father and brother. Clearly, she lied about her feelings towards chiropractors to the court during the questioning session prior to being accepted as a member of the jury, and her bias significantly impacted the jury's deliberations.
Based upon this correspondence, plaintiff filed a motion for a new trial. The court conducted oral argument on May 13, 2011, and initially concluded it should grant a new trial:
Having received the letter, having read it several times, the [c]ourt believes that it clearly and convincingly has a tendency on its face to have corrupted the jury process. As a matter of respect for the jury, I am not going to bring all of the jurors in and question them about the impact.
Now[, ] I think -- let me take my legal robe off and put my equity robe on. I think under the circumstances[, ] the [c]ourt's going to grant an application for a new trial. I find that the accusations in the letter[, ] coupled with the authenticity of the letter, the sincerity of the letter, and the words in the letter which [plaintiff's counsel] read into the record, with regard to how the jurors were affected by this juror who discounted and expressed certain beliefs, certain positions with regard to chiropractic care.
It's interesting because there is that chiropractic care question in the supplemental voir dire questions and I don't recall how far we went with that and I'll trust counsels' recollections. Based upon my reading of the law, my reading of the letter, [defense counsel] is quite right about the time constraints, but I think as a matter of justice and as a matter of fairness[, ] the [c]ourt has to grant [plaintiff] a new trial.
Defense counsel then requested the opportunity to place two points on the record, one of which was her request that the court "not . . . just grant the [m]otion" but "[i]f you're going to do it, you need to bring all the jurors back because that's what they talk about that is absolutely needed to be done in . . . Barber v. Shop-Rite of Englewood and Associates, 406 N.J.Super. 32 [(App. Div.), certif. denied, 200 N.J. 210 (2009)]." The court agreed to take the matter under further review.
For reasons that are not set forth in the record, the court did not formally re-visit the matter until August 2011. At that time, the court wrote to Juror #2, acknowledging receipt of the February 7, 2011 letter, and directed the juror to appear before the court for further inquiry.
The court conducted a hearing on September 19, 2011, in the presence of both plaintiff's and defendants' counsel and engaged in the following colloquy with the juror:
THE COURT: . . . In the letter you say one of the jurors was prejudiced against chiropractors, correct?
THE JUROR: Correct.
THE COURT: Okay. And you say you tried to convince them, the other jurors, that she was wrong, correct?
THE JUROR: I tried to convince the other jurors that they have to make up their mind, their own mind about the testimony of the chiropractor, that just because one juror says to discount the testimony of the chiropractor, the other members of the jury do not have to. That's the essence of what I told them.
THE COURT: Good. Well[, ] why -- and what did the jurors do? They listened to you and they listened to the other juror and they made their own decisions[?]
THE JUROR: The other juror had spoken first[, ] and even though I said what I said[, ] I felt that the seed had been placed in the jurors' mind to not consider the testimony of the chiropractor in this case.
THE COURT: Well[, ] did any other jurors say, yeah, that's right, don't trust chiropractors? Or did they just listen[?]
THE JUROR: They listened and there was very little discussion that I can recall about the testimony of the chiropractor beyond those comments.
THE COURT: [Juror #2], do you remember exactly what the juror said about chiropractors? Was she speaking about that specific chiropractor? Or was she just making general comments about chiropractic care?
THE JUROR: It was -- I've tried to remember the exact words, and I don't. It was something to the effect of, we don't have to count the testimony of the chiropractor, but that is not the exact words. I just don't remember what she said.
THE COURT: Okay. When you say there was very little discussion, do you mean she said that, you said what you said, and then you went on to determine liability? Do you remember any part of the conversation?
THE JUROR: It was a few times that that was mentioned by this person on the jury. I said what I said to remind them to make up their own minds only one time.
Based upon the testimony elicited from the juror, the court concluded "on that alone[, ] there is no basis to order a new trial, that the jury verdict was not sufficiently tainted or had been prejudiced by extraneous non-evidential information . . . ." The present appeal followed.
On appeal, defendant raises the following points:
THE EXTRANEOUS MATERIAL CONSIDERED BY THE JURY IS PREJUDICIAL ON ITS FACE, AND THE MISCONDUCT OF THE JURY MANDATES A NEW TRIAL.
A. THE EVIDENCE OF BIAS AGAINST CHIROPRACTORS DURING JURY DELIBERATIONS IS PREJUDICIAL ON ITS FACE[.] [T]HEREFORE A NEW TRIAL IS WARRANTED.
B. REFUSING TO VACATE THE JURY'S VERDICT, WHICH WAS REACHED AS THE RESULT OF BIAS AND IMPROPER CONSIDERATIONS, WOULD RESULT IN A MISCARRIAGE OF JUSTICE.
THE TRIAL JUDGE COMMITTED ERRORS DURING THE POST[-]TRIAL PROCEEDINGS WARRANTING REVERSAL OF THE JURY VERDICT AND A NEW TRIAL.
A. [THE TRIAL JUDGE] INCORRECTLY INTERPRETED CASE LAW TO MEAN THAT HE MUST PERFORM AN EX POST FACTO VOIR DIRE WITH [JUROR #2].
B. [THE TRIAL JUDGE] APPLIED AN IMPROPER STANDARD WHEN CONSIDERING THE EVIDENCE OF PREJUDICE DURING JURY DELIBERATIONS.
We begin by expressing our disagreement with plaintiff's conclusion that because the court proceeded to conduct the post-trial voir dire, after initially concluding plaintiff was entitled to a new trial, the court incorrectly interpreted our decision in
Barber, supra, 406 N.J.Super. 32 at 54-56, as requiring the court to conduct such a proceeding. The court, after initially determining it should grant a new trial, agreed to review the Barber decision. Several months later, however, it determined to conduct the hearing.
Absent a statement of reasons to the contrary, it is just as plausible that during the course of its deliberations, the court concluded the bias was not apparent on its face as it had earlier determined and decided to engage in further inquiry. Resolution of why the court decided to conduct the hearing is not, however, critical to our decision.
In Barber, we held that "[w]hen there are allegations of jury misconduct, 'the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality.'"
Barber, supra, 406 N.J.Super. at 54 (quoting State v. Scherzer, 301 N.J.Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997) (citing State v. Weiler, 211 N.J.Super. 602, 609-12 (App. Div.), certif. denied, 107 N.J. 37 (1986))). After the court has conducted its probing inquiry, the decision to grant a new trial requires a determination whether the conduct at issue had "a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." State v. McGuire, 419 N.J.Super. 88, 154 (App. Div.) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61-62 (1951)), certif. denied, 208 N.J. 335 (2011).
The questions posed to Juror #2 were probing. The juror's responses, however, did not definitively convey what was said by Juror #4 and the impact, if any, the comments may have had upon the other jurors. The passage of time may have affected the clarity of the juror's recollection. In any event, Juror #2's responses should not have ended the court's probing inquiry nor resulted, at that point, in the court's conclusion that there was insufficient evidence upon which to determine whether the alleged conduct of Juror #4 had the capacity to influence the jury's verdict in a manner inconsistent with the court's charge and the legal proofs. Ibid. Rather, Juror #2's allegations contained in the letter to the court written within one month of the trial, along with Juror #2's continued belief expressed to the court during the hearing seven months later that Juror #4 had "placed the seed" of bias in the minds of the other jurors, required more probing.
Thus, while we find no error in the court's decision to conduct an interview of Juror #2 before ruling on the new trial motion, it erred by limiting its inquiry to Juror #2. Once the court determined it would conduct further inquiry, all of the deliberating jurors should have been interviewed to satisfy the court that Juror #4 had not expressed predetermined or biased views about chiropractors to other jurors, or that if those views were in fact expressed, the remaining jurors had not been influenced by those views. See State v. Loftin, 191 N.J. 172, 193 (2007).
The denial of a motion for a new trial is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing the claimed error injuriously affected the substantial rights of a party
Hill v Dep't of Corr 342 N.J.Super. 273 302 (App Div 2001) certif denied 171 N.J. 338 (2002).
However where as here a new trial is sought because of the misconduct of a juror another factor is involved and the motion should be determined "with a view not so much to the attainment of exact justice in the particular case as to the ultimate effect of the decision upon the administration of justice in general"
Consumers Coal Co v. Hutchinson
Here the limited inquiry did not ensure that the administration of justice remained "pure and free from all suspicion of corrupting practices" Id. at 61-62. Consequently alleged comments had a "tendency" to influence the verdict warranting a new trial Barber supra 406
N.J.Super. at 56.
Reversed and remanded