Crawford v. Marshall Emergency Servs. Assocs., 2011–CA–001750–MR.
| Decision Date | 11 June 2014 |
| Docket Number | No. 2011–CA–001750–MR.,2011–CA–001750–MR. |
| Citation | 431 S.W.3d 442 |
| Parties | Jean CRAWFORD, Appellant v. MARSHALL EMERGENCY SERVICES ASSOCIATES, PSC; and Mark Spanier, M.D., Appellees. |
| Court | Kentucky Court of Appeals |
OPINION TEXT STARTS HERE
Larry B. Franklin, Jennifer M. Barbour, Louisville, KY, for appellant.
Clayton L. Robinson, Adam W. Havens, Lexington, KY, for appellees.
Before ACREE, Chief Judge; TAYLOR and MOORE, Judges.
Jean Crawford appeals the decision of the Boyle Circuit Court to deny her a new trial regarding her medical malpractice claims against appellees, Marshall Emergency Services Associates, PSC, and Dr. Mark Spanier. After careful review, we affirm.
Jean Crawford filed a medical malpractice action in Boyle Circuit Court against Dr. Spanier and Marshall Emergency Services. Following a trial that lasted several days, a jury rendered a verdict in favor of Dr. Spanier and Marshall Emergency Services. Before the circuit court entered judgment consistent with the jury's verdict, Crawford filed a motion asking the circuit court for leave to elicit testimony from the jurors post-verdict. In relevant part, her motion stated:
On Friday, January 28, 2011, at approximately 4:35 p.m., the jury assigned to this [case] was sent to deliberate. At approximately 5:17 p.m., the foreman notified the bailiff that a verdict had been reached. A verdict in favor of Defendant Mark Spanier, M.D. was rendered, with two jurors abstaining from voting with the majority. As the jury pool was exiting the courtroom after dismissal by this Court, Plaintiff Jean Crawford approached the two jurors who had not signed the verdict in favor of Defendant Spanier to thank them for their support of her case. At that time, one juror indicated to Plaintiff that the jury had refused to deliberate the case and was in a hurry to get home.
Since that time, four separate jurors have either been contacted by or made contact with Plaintiff or her family/friends. Those jurors have reportedly indicated that the jury was interested in getting home as soon as possible, that some jurors had expressed opinions about which party would be victorious from the outset of the trial, and that the jurors had been discussing the case amongst themselves prior to deliberations. Based upon this information, Plaintiff's Counsel seeks leave of Court to interview four jurors, including the alternate who did not participate in deliberations. Since the jurors are members of a larger pool that is slated to serve until May 1st, 2011, Plaintiff seeks permission from this Court prior to contacting the jurors regarding this matter.
Since this matter would obviously play a substantial role in any motion for a new trial, Plaintiff's Counsel would ask that this Court delay entering any Judgment in this case so that Plaintiff would not be prejudiced by the inability to obtain evidence in support of said motion.
The circuit court granted Crawford leave to interview the jurors over the objections of the appellees, but only permitted Crawford to ask the jurors the following questions:
1) At any point during the trial, were you aware of any juror who made statements to the effect that they intentionally did not respond truthfully to the judge or attorneys during the jury selection process? If so, could you identify the juror and the statements made?
2) During the trial, were you aware of any juror who was approached by or had contact with any person or group who attempted the [sic] influence the outcome of the jury's decision? If so, could you identify the juror?
3) Did you hear any jury member indicate that he or she had obtained information from a source outside of the evidence and testimony presented at trial? If so, could you identify the juror?
4) During deliberations, did any juror pressure, coerce, threaten, menace, or intimidate another juror into voting for a particular party? If so, could you identify the juror?
Based upon these questions, Crawford sought affidavits from the two dissenting jurors (Betty Jean Elliott and Karen Miller) and one alternate juror (Humphrey Ballou). Miller and Ballou answered each of these questions in the negative. Elliott, however, provided detailed answers which will be discussed more fully below in our analysis. Thereafter, Crawford notified the circuit court that she had completed interviewing the jurors and that she was ready for the circuit court to enter its judgment consistent with the jury's verdict. After the circuit court did so, Crawford then filed a motion for a new trial based upon Elliott's affidavit, an additional affidavit she obtained from her husband, Tony Griffin, and a theory of either juror misconduct or irregularity in the jury's proceedings.
We will discuss the substance of Crawford's arguments below; suffice it to say, however, that the circuit court rejected them and denied her motion. This appeal followed.
As noted, Crawford's arguments on appeal focus solely upon alleged juror misconduct. Misconduct by the jury, or irregularity in the jury's proceedings, are grounds for a new trial. SeeKentucky Rules of Civil Procedure (CR) 59.01(a) and (b). A trial court's denial of an Appellant's new trial motion is reviewed for abuse of discretion. Brown v. Commonwealth, 174 S.W.3d 421, 428 (Ky.2005) (). Only if the appellate court concludes that the trial court's order was clearly erroneous may it reverse. Turfway Park Racing Ass'n v. Griffin, 834 S.W.2d 667, 669 (Ky.1992).
Kentucky Rules of Criminal Procedure (RCr) 10.04, which applies to both criminal and civil cases,1 provides that “A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.” This rule has been generally interpreted to mean that while juror testimony may be offered in support of a verdict, evidence provided by jurors “may not be received either to prove the misconduct of themselves or of their fellow jurors, ‘occurring within or without the jury room.’ ” VanHoose v. Bryant, 389 S.W.2d 457, 462 (Ky.1965) (citing Pollack v. Southern Ry. Co. in Kentucky, 220 Ky. 302, 295 S.W. 150 (1927)).
This rule at times may work a hardship when juror misconduct, a valid basis for a new trial as set forth in CR 59.01, can only be shown by the testimony of a fellow juror. However, the theory is that a juror will recognize and report any misconduct to the trial court immediately and that to allow him to do it after the verdict would invite the very kind of mischief the rule was designed to obviate.
Doyle By and Through Doyle v. Marymount Hosp., Inc., 762 S.W.2d 813, 815 (Ky.App.1988) (internal citations omitted).2
To be sure, the general rule stated in RCr 10.04 has been qualified by caselaw. In Commonwealth v. Abnee, 375 S.W.3d 49 (Ky.2012), the Supreme Court of Kentucky cited examples from various Federal and Kentucky cases where certain overt acts described in a juror's affidavit, transpiring during deliberations, have merited or would merit consideration in Kentucky. The examples included a situation where a juror conducted an experiment in her own home concerning a disputed issue in the trial and then related the results of her experiment to her fellow jurors during deliberations; 3 the jury's use of a dictionary during deliberations to define a legal term; 4 exposure to a record of the defendant's prior criminal history during deliberations, where that criminal history was not part of the evidence presented; 5 and the reading aloud, in the jury room, of a newspaper article relevant to the case.6
Other examples have included instances of patently improper conduct on the part of an outside actor in a position to influence the jury. See, e.g., Young v. State Farm Mut. Auto. Ins. Co., 975 S.W.2d 98 (Ky.1998) (); Ne Camp v. Commonwealth, 311 Ky. 676, 225 S.W.2d 109 (1949)7 (); and Dalby v. Cook, 434 S.W.2d 35, 37 (Ky.1968) ().
In light of the above, Kentucky's position on juror affidavits has shifted in many ways toward the position of the Federal Courts, i.e., that verifiable evidence of a jury's consideration of extraneous prejudicial information or of an outside influence being brought to bear upon the jury could be considered by courts while still respecting the finality of jury verdicts by disallowing testimony as to the unverifiable thoughts of jurors. Abnee, 375 S.W.3d at 54 (citing Mattox v. United States, 146 U.S. 140, 148–49, 13 S.Ct. 50, 36 L.Ed. 917 (1892)).
Turning to the case at hand, Crawford has presented two affidavits in support of her contention that she is entitled to a new trial. The first affidavit is from her husband, Tony Griffin, and it concerns a conversation that he purportedly had outside of a restaurant with juror Humphrey Ballou on the Monday following the jury's verdict. In relevant part, his affidavit states that Ballou told him at that time that “the juror who sat immediately to his left throughout the trial had not paid attention since the first day of testimony,” and “that juror never took a single note and did not listen to the...
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