Heaver v. Ward

• Decision Date: 07 February 1979
• Docket Number: No. 77-547,77-547
• Citation: 24 Ill.Dec. 930,386 N.E.2d 134,68 Ill.App.3d 236
• Parties: , 24 Ill.Dec. 930 Ruth HEAVER, Plaintiff-Appellant, v. Delbert WARD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 134

386 N.E.2d 134

68 Ill.App.3d 236, 24 Ill.Dec. 930

Ruth HEAVER, Plaintiff-Appellant, v. Delbert WARD, Defendant-Appellee.

No. 77-547.

Appellate Court of Illinois, Second District.

Feb. 7, 1979.

Sullivan, Smith & Hauser, Robert J. Hauser, Richard J. Smith, Waukegan, for plaintiff-appellant.

Hall, Meyer, Fisher, Holmberg & Snook, Edward A. Puisis, Waukegan, for defendant-appellee.

GUILD, Presiding Justice:

Plaintiff, Ruth Heaver, brought suit against defendant, Delbert Ward, and another party, David Hyden, for injuries sustained in an automobile accident. Mr. Hyden was dismissed from the case before its conclusion. The jury returned a verdict in favor of the defendant Ward on July 19, 1977.

On July 20, 1977 the trial court, having been informed of allegedly improper activities on the part of jurors, interviewed two jurors, John F. Brookman and James W. Van Cleave.

The trial court entered judgment on the jury's verdict on August 1, 1977. On August 2, 1977 plaintiff filed a motion for a mistrial, alleging that the jury's verdict was based, at least in part, on consideration of materials not properly admitted into evidence at the trial. The trial court treated this as a post-trial motion and denied it on August 11, 1977. Plaintiff appeals.

Before reaching the merits of this appeal it is necessary to discuss certain procedural matters. After plaintiff filed her notice of appeal she moved in the trial court for certification of the transcripts of the post-trial interviews with the jurors. On November 15, 1977 the trial court signed an order which included, Inter alia, the following:

"IT IS ORDERED that the court declines to certify the record of sworn interrogation by judge of two jurors after verdict and prior to entry of judgment for the reason that said certification would serve to impeach the verdict of the jury.

IT IS FURTHER ORDERED that the original of the record of sworn interrogation by judge of two jurors after verdict and prior to judgment is to be removed from the Court's file and the Clerk's file stamp is stricken, they having been erroneously filed."

We have agreed to consider a transcript of the interviews with the jurors together with the certified record and both parties have based their arguments on portions of this transcript. Certification of the record on appeal is not a jurisdictional requirement. When no prejudice is alleged concerning inaccuracies or omissions in the verbatim report of proceedings, we can, pursuant to Supreme Court Rule 329 (Ill.Rev.Stat.1977, ch. 110A, P 329) amend the record and treat it as having been properly certified. Ray v. Winter (1977), 67 Ill.2d 296, 10 Ill.Dec. 225, 367 N.E.2d 678. Therefore, we believe it important to discuss the trial court's order of November 15, 1977.

The Illinois Supreme Court Rules of Procedure indicate that the testimony of the jurors should have been certified as part of the record on appeal. Supreme Court Rules 323(a) and 323(b) (Ill.Rev.Stat.1977, ch. 110A, P 323(a) and P 323(b)) provide that:

"(a) Contents. A report of proceedings may include evidence, oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the party submitting it desires to have incorporated in the record on appeal. The report of proceedings shall include all the evidence pertinent to the issues on appeal. (Emphasis added.)

"(b) Certification and Filing. A report of proceedings shall be submitted, upon notice, to the judge before whom the proceedings occurred or his successor . . . for his certificate of correctness, and shall be filed, duly certified in the trial court . . . ."

The issue on appeal is the alleged misconduct of the jury. Obviously the testimony of the jurors is "evidence pertinent" to this.

Illinois case law also indicates that testimony of the jurors should have been certified as part of the proceedings. The facts which support a decree must be in the record on appeal. (Yates v. Thompson (1891), 44 Ill.App. 145.) The record should contain all matters relied upon by the trial court. (Fitzgerald v. Van Buskirk (1974), 16 Ill.App.3d 348, 306 N.E.2d 76.) A trial judge cannot refuse to certify on the basis that the testimony certified, although accurate, would tend to impeach the verdict. See, People ex rel. Crofut v. Gibbons (1894), 54 Ill.App. 617.

Public policy also requires that any accurate transcript relating to a case which the parties wish to include in the record be sent to the reviewing court. The only questions the trial court may ask are whether the transcript is accurate and whether it relates to evidentiary matters of the case in question. He may not refuse to certify because he feels the testimony is irrelevant and he should never ask the court reporter to remove an accurate account of proceedings from the record on appeal.

The trial court's actions in this case were not based on any reprehensible motive. However, an appellate court must be allowed to review the entire, unedited record, including its warts and blemishes. The trial court may honestly but incorrectly interpret what is relevant on appeal or an unethical trial judge could use his powers to delete evidence from the record on appeal to deny meaningful review of decisions. The only advantage in allowing such a procedure would be to keep the record free from irrelevant material. This is a very small benefit when weighed against the potential evils involved.

Fortunately, we have the relevant transcripts before us and can proceed to consider the appeal on its merits.

Despite differences in the testimony of the two jurors, Brookman and Van Cleave, certain facts are undisputed. The foreman of the jury, Mr. Brookman, made an independent visit to the intersection near which the accident occurred. There he made a diagram of that intersection which he brought to the jury room during the deliberations of the jury. Mr. Brookman also brought a copy of "Rules of the Road", an official booklet designed to instruct applicants for driver's licenses in Illinois, to the jury room where it was discussed by the jury during deliberations. Neither party maintains that Mr. Brookman's actions were proper. A jury should only consider the facts introduced into evidence during the trial and the law is given to it by the trial court judge. Each party should both have an opportunity to cross-examine adverse witnesses concerning their factual testimony and an opportunity to see and object to the instructions given by the judge.

Thus, the questions before us are (1) a threshold question of whether a jury verdict can be reversed on the basis of post-trial testimony by the jurors relating to impermissible investigations and evidence; (2) if a jury verdict can be reversed on the basis of such testimony, is the improper conduct of Mr. Brookman so serious as to warrant a reversal in this case?

The answer to both questions is in the affirmative. Therefore we reverse.

In People v. Holmes (1978), 69 Ill.2d 507, 14 Ill.Dec. 460, 372 N.E.2d 656, the Illinois Supreme Court resolved prior inconsistent rulings (E. g., Sawyer v. Stephenson (1820), 1 Ill. (1 Breese) 24; People v. Stacy (1962), 25 Ill.2d 258, 184 N.E.2d 866), by ruling that jurors' testimony could be used to impeach a verdict in certain cases. Testimony at Holmes' trial involved identification of the defendant's shoes with footprints left in the snow at the scene of the crime. Several members of the jury made an independent visit to a Florsheim shoe store to inspect the design on the logo on the heels of that type of shoe. The results of this investigation were discussed during the deliberations of the jury. In holding that subsequent testimony or affidavits from the jurors could be used to impeach the verdict, the court distinguished between testimony concerning the subjective mental processes of the jurors and testimony about improper external influences upon the jurors.

"In the first...