In re Phillips

• Decision Date: 20 October 2014
• Docket Number: No. A14A0188.,A14A0188.
• Citation: 760 S.E.2d 235,328 Ga.App. 686
• Parties: Lee V. PHILLIPS, IV By Next Friend Santhonia HECTOR v. HARMON, et al.
• Court: Georgia Court of Appeals

328 Ga.App. 686

760 S.E.2d 235

Lee V. PHILLIPS, IV By Next Friend Santhonia HECTOR

v.HARMON, et al.

No. A14A0188.

Court of Appeals of Georgia.

July 15, 2014.

Reconsideration Denied July 31, 2014.

Certiorari Granted Oct. 20, 2014.

Wayne Grant, Kimberly W. Grant, Jonathan A. Parrish, Atlanta, for Appellant.

Huff, Powell & Bailey, M. Scott Bailey, Anna Burdeshaw Fretwell, Hall Booth Smith, John E. Hall Jr., Mark W. Wortham, Atlanta, Heather L. Saum, for Appellees.

McMILLIAN, Judge.

Lee V. Phillips, IV, by and through his mother Santhonia Hector, and Hector individually, (collectively “Plaintiffs”) filed this medical malpractice action against Marcia R. Harmon, CNM,¹ Deborah E. Haynes, M.D., Eagles Landing OB–GYN Associates, P.C., Eagles Landing OB–GYN Associates II, LLC, and Henry Medical Center, Inc. (collectively “Defendants”), alleging that, due to Defendants' negligence, Phillips suffered oxygen deprivation shortly before birth, which resulted in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.

The case ultimately proceeded to a jury trial, which commenced on August 20, 2012 and, following approximately one and a half days of deliberations, the jury returned a verdict for the Defendants on September 6, 2012. Plaintiffs filed a motion for new trial asserting, among other things, that the trial court erred by engaging in a communication with the jury when neither the parties nor their attorneys were present, and by refusing to give Plaintiffs' requested charge on spoliation of evidence. The trial court denied their motion, and Plaintiffs filed this appeal, raising the additional claim that the Defendants improperly introduced evidence of collateral source benefits. We agree with Plaintiffs that they were entitled to a new trial and reverse.

1. We first consider Plaintiffs' contention that they are entitled to a new trial because the trial court responded to a note from the jury during the course of their deliberations without ever advising the parties or their counsel that the communication had taken place.

(a) As to this issue, the record shows that several weeks after the jury returned its verdict, two jurors contacted Plaintiffs' counsel to express concerns about possible juror misconduct.² During that conversation, Plaintiffs' counsel learned for the first time that the trial judge had responded to a note from the jury without ever disclosing the contents of the note or his response to either the parties or their counsel. Thereafter, Plaintiffs' counsel obtained affidavits from the two jurors, both of whom averred that, on the second day of deliberations, the jury sent a note to the trial judge “indicating that [they] were not able to reach a unanimous verdict.” According to the jurors, the judge sent a note back, which instructed the jury to “continue deliberating.”

After learning of the communication, Plaintiffs' counsel sent a letter to the trial judge requesting that he “take steps to see that both the jurors' note ... and [his] responsive note are filed with the Clerk.” After realizing that the court reporter did not have the note, the trial judge, without seeking input from counsel or holding a hearing, entered an order supplementing the record pursuant to OCGA § 5–6–41(d).³ The order recites that four notes were delivered to the court while the jury was deliberating, that three of the notes were preserved and made a part of the record, but that the note pertaining to the jury's inability to reach a unanimous verdict was not one of them. The order found that the note read “What happens if we can't reach a unanimous verdict,” and was delivered to the court immediately after lunch recess on September 5, 2012, which was the first day the jury deliberated. The trial judge further recited that due to the fact that the note did not actually indicate that the jury was “hung” and in view of the short amount of time the jury had been deliberating after such a lengthy trial, he did not believe consultation with counsel about his response to the note was necessary, and therefore wrote on the same piece of paper “please continue deliberating” and had the bailiff return the note to the jury. The trial judge also stated the note had remained with the jury, and presumably was destroyed along with the jurors' personal notes as instructed by the bailiff after the verdict was returned.

Plaintiffs subsequently filed a motion to recuse or disqualify the trial judge due to the perceived conflict between his order supplementing the record and the jurors' affidavits. The trial judge granted the motion to recuse, and the case was re-assigned. Following a hearing on Plaintiffs' motion for new trial, the assigned judge rejected Plaintiffs' claim that the trial court's communication with the jury was per se reversible error, and concluded that the Plaintiffs were not entitled to a new trial because the note was not impermissibly misleading or coercive. Plaintiffs now challenge that ruling, arguing that, under the circumstances of this case, we should presume that the trial judge's communication with the jury was harmful, and that, in any event, the trial judge's response was coercive under the circumstances in which it was given.

(b) In Kesterson v. Jarrett, 291 Ga. 380, 728 S.E.2d 557 (2012), our Supreme Court reaffirmed and elucidated the fundamental right of a natural party to be present in the courtroom during the trial of his or her case. As the Court explained,

[The right to be present] has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court.... Tift v. Jones, 52 Ga. 538, 542 (1874) (explaining that a civil litigant has a “right to be present in the court during the whole trial of his case.”) ... The right to be present is also reflected textually in our State Constitution, in the provision guaranteeing to every person “the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.

Kesterson, 291 Ga. at 384(2)(a), 728 S.E.2d 557.

The issue in Kesterson—whether a party may be denied the right to be present and properly excluded from the courtroom because his or her physical or mental condition might invoke undue sympathy from the jury—was one of first impression in this state.⁴ However, there is, as noted in Kesterson, a long line of precedent in Georgia affirming a civil litigant's right to be present at their trial. See, e.g., St. Paul Fire & Marine, Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789, 39 S.E. 483 (1901) (it is “ manifestly erroneous ” for a party to the “issue” to be excluded from the courtroom); Mays v. Tharpe & Brooks, 143 Ga.App. 815, 816, 240 S.E.2d 159 (1977) (“A substantial right of a party to litigation is to be present at the trial and render assistance to his counsel as the developments unfold”); Walden v. MARTA, 161 Ga.App. 725, 726, 288 S.E.2d 671 (1982) (in sequestering of witnesses, plaintiff should be given the option of testifying first so that plaintiff can be present during the trial).

Although a party's right to be present is firmly established in both our civil and criminal jurisprudence, there appears to be a dearth of authority addressing the right of a civil litigant to be present when the trial judge engages in communications with the jury. However, our appellate courts have addressed this issue numerous times in criminal cases and, as have the parties, we turn to those cases for guidance.⁵

As our Supreme Court explained in Hanifa v. State, 269 Ga. 797, 807(6), 505 S.E.2d 731 (1998), “[w]ithin the Georgia constitutional right to the courts is a criminal defendant's ‘right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.’ A colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” (Citations and punctuation omitted; emphasis in original.) Id. at 807(6), 505 S.E.2d 731. See also Cox v. Yates, 96 Ga.App. 466, 100 S.E.2d 649 (1957) (generally, parties to civil action have the right to be present at all stages of the trial).

Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused ...; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial.

Hanifa, 269 at 807(6), 505 S.E.2d 731.Lowery v. State, 282 Ga. 68, 73(4)(b), 646 S.E.2d 67 (2007) (“[a] trial court's communication with a jury on substantive matters is a part of the proceedings to which the defendant and counsel are entitled to be present.”).

Further, and pertinent to this case, our appellate courts have specifically considered judge/jury communications concerning a jury's ability, or inability, to reach a verdict, and routinely held that it is error for a trial judge to respond to such an inquiry in the absence of the defendant and/or his counsel. E.g., Lowery v. State, 282 Ga. at 74(4)(b)(i), 646 S.E.2d 67;Wells v. State, 297 Ga.App. 153, 159–160(2), 676 S.E.2d 821 (2009); Barnett v. State, 276 Ga.App. 238, 241–242(2), 623 S.E.2d 136 (2005). But see Stewart v. State, 165 Ga.App. 428, 429–430(2), 300 S.E.2d 331 (1983) (trial court's response of “keep on trying” to deadlocked jurors “not so material to app...