Perez By and Through Perez v. Community Hosp. of Chandler, Inc., CV-95-0522-PR

• Decision Date: 16 January 1997
• Docket Number: No. CV-95-0522-PR,CV-95-0522-PR
• Citation: 187 Ariz. 355,929 P.2d 1303,234 Ariz.Adv.Rep. 3
• Parties: , 234 Ariz. Adv. Rep. 3 Christopher Ray PEREZ, a Minor By and Through His Natural Mother, Sandra PEREZ; and Manuel Ray Hernandez, Plaintiffs/Appellants, v. COMMUNITY HOSPITAL OF CHANDLER, INC., an Arizona Corporation, dba Chandler Regional Hospital, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 1303

929 P.2d 1303

187 Ariz. 355, 234 Ariz. Adv. Rep. 3

Christopher Ray PEREZ, a Minor By and Through His Natural Mother, Sandra PEREZ; and Manuel Ray Hernandez, Plaintiffs/Appellants, v. COMMUNITY HOSPITAL OF CHANDLER, INC., an Arizona Corporation, dba Chandler Regional Hospital, Defendant/Appellee.

No. CV-95-0522-PR.

Supreme Court of Arizona In Banc.

Jan. 16, 1997.

[187 Ariz. 356] Roush, McCracken & Guerrero by Charles D. Roush and Peter A. Guerrero and Ortega and Moreno, P.C. by Daniel R. Ortega, Phoenix, for Plaintiffs/Appellants.

Jones, Skelton & Hochuli by William R. Jones, Jr., Lori A. Shipley, David C. Lewis, Phoenix, for Defendant/Appellee.

OPINION

FELDMAN, Justice.

Sandra Perez and Manuel Ray Hernandez, and their son, Christopher Ray Perez (collectively Plaintiffs), sought review of a court of appeals' decision holding that there is no conclusive presumption of prejudice for improper and unrecorded contacts between a bailiff and a jury. We granted review to determine whether Arizona recognizes a rule of presumed prejudice in cases of improper, ex parte communication between a bailiff and deliberating jurors. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Ariz.R.Civ.App.P. 23, and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

In this medical malpractice case, the parties stipulated to damages of $2.4 million and tried only the issue of liability against Defendant Community Hospital of Chandler. At the close of a five-day trial and two days of deliberations, the jury returned a unanimous verdict for Plaintiff, finding the Defendant only one percent at fault. The jury additionally found Dr. Bruce Eich, a non-party at fault ¹ who had previously settled with Plaintiffs, ninety-nine percent at fault. Shortly after the verdict, Plaintiffs' counsel discovered that the bailiff temporarily assigned to the trial judge had unauthorized, ex parte communications with the jurors during their deliberations, without the knowledge of court or counsel. ² Counsel moved at once for an order declaring a mistrial. Counsel later learned that there had been a total of three improper contacts between the bailiff and jury.

The first contact occurred when the jury called the bailiff into the jury room and asked whether certain portions of trial testimony or depositions admitted in evidence could be read to them or whether they could have a copy of the transcript to read and review. Without contacting the judge, the bailiff told the jurors that it was not possible for them to rehear testimony and that they had everything they needed to make a decision.

The second contact was a question regarding the procedure at impasse. The jurors were deadlocked at four-to-four and inquired what would happen if they were unable to reach a decision. Again, without advising the judge, the bailiff told the jurors that if they reported deadlock, the judge would speak to them about the problem and then send them back to deliberate until a verdict was reached. Despite reassurance from the bailiff, some of the jurors were concerned they would be reprimanded by the judge for not being able to reach a verdict.

The third contact occurred when the jury asked the bailiff whether signing the defense verdict form would allow Dr. Eich to escape responsibility. In response, the bailiff told the jury that obtaining an answer to such a question would be time-consuming because it would have to be presented to the judge and the attorneys, so the jury should be certain they wanted to ask the question.

At the time Plaintiffs' motion for mistrial was argued and denied by the trial judge on June 28, 1994, the details of two of these communications were not fully known. After the mistrial motion was denied and judgment was entered, Plaintiffs filed a motion for new trial under Rule 59(a)(1) and (6), Ariz.R.Civ.P., supported by the affidavits (reproduced in the appendix) secured on July 21 and 25, 1994, from four of the eight jurors. The judge conducted an evidentiary hearing on October 11, 1994, four and one-half months after the verdict was delivered. The judge limited the evidentiary hearing solely to matters concerning the first communication when the jury requested deposition or trial testimony. The record does not reveal, nor did the judge explain, why the hearing was so limited. ³ Six of the eight trial jurors testified regarding the first communication. Five jurors testified that during deliberations they asked the bailiff whether they could reread or rehear the trial or deposition testimony of several different doctors and a nurse. One of the six jurors, however, had absolutely no recollection of the events.

In denying Plaintiffs' motion for new trial, the judge stated:

After hearing six of the eight trial jurors, the Court concludes that plaintiffs' Motion For A New Trial must be denied.

The Court has no doubt that the bailiff erred when she answered the jurors' question (without consulting the Court) about the rereading of deposition testimony and the reading of trial testimony by telling them that they had to consider only what was before them. But, the Court does not find any prejudice has resulted from that answer.

The Court does not find this conclusion inconsistent with the holding in Perkins v. Komarnyckyj, 172 Ariz. 115, 834 P.2d 1260 (1992) in which the Arizona Supreme Court dealt with a trial judge's refusal to allow certain jurors to deliberate on the issue of damages.

The court of appeals affirmed the denial of Plaintiffs' motion for new trial, holding that there is no conclusive presumption of prejudice from improper communications to a jury and that Plaintiffs had not established any substantive error or deprivation of a fundamental right resulting from the communications between the bailiff and the jury. Perez v. Community Hospital of Chandler, No. 2 CA-CV 95-0174, filed October 12, 1995 (Memorandum Decision), at 8. The court of appeals concluded that, "[a]lthough the bailiff's conduct here clearly was improper, no prejudice to plaintiffs has ever been suggested, let alone established." Id. at 7.

DISCUSSION

The fairness of trial by jury derives in substantial part from the prohibition of ex parte communication to the jury of information regarding evidence and legal standards. Perkins v. Komarnyckyj, 172 Ariz. 115, 117, 834 P.2d 1260, 1262 (1992). In this case, the bailiff made three separate ex parte communications, and although Plaintiffs ask us to adopt a strict rule of presumed prejudice in cases involving such communications, we decline to do so. Instead, both common sense and existing Arizona case law persuade us to examine each situation on a case-by-case basis, applying a two-prong inquiry: (1) Was there an improper communication? and (2) Was the communication prejudicial or merely harmless?

In making this inquiry, factors that should be taken into consideration are: (1) whether the communication was improper or simply involved an "administrative detail," (2) whether the communication, despite its impropriety, concerned an innocuous matter, (3) whether the substantive response accurately answered the question posed, (4) whether an essential right was violated, and (5) whether the nature of the communication prevents ascertainment of prejudice. See Perkins, 172 Ariz. 115, 834 P.2d 1260.

We turn, therefore, to consider these factors.

A. The Communications Were Improper, Not Innocuous and Inaccurate

There is no dispute that the bailiff's actions in this case were improper. The jurors' affidavits were not controverted. During an in-chambers meeting with the judge, the bailiff admitted she had a conversation with the jurors that went beyond mere "administrative details" and in fact included a significant procedural question regarding what would happen if the jury could not reach a decision. Instead of relaying the jurors' questions to the trial judge, the bailiff answered the jurors' questions, violating Rule 39(e) and (g), Ariz.R.Civ.P. ⁴

The bailiff misled the jury about the process in the event of a deadlock, at the least failing to inform them that questions could and should be addressed to the judge and that any impasse problem should be presented to the judge. It was also improper for the bailiff to advise the jury of what would happen if an impasse were reported. See Rule 39(e) and (g), Ariz.R.Civ.P. Because the jurors' problem was not presented to the court, the court could not respond to or address the deadlock issue, and the attorneys were denied an opportunity to assist the deadlocked jurors during this crucial step in the trial process. ⁵

Likewise, the bailiff acted improperly in denying the jurors' request to read important portions of trial or deposition testimony, and in answering their inquiry concerning the verdict forms. The request and questions were certainly significant, and the bailiff's responses were inaccurate. The jurors might indeed have been allowed to rehear or read some of the testimony, and if the court or counsel were allowed to interject, some of the confusion surrounding the verdict forms might have been alleviated.

A long line of Arizona cases holds that a judge errs by responding to significant juror inquiries without consulting the parties. See, e.g., State v. Rich, 184 Ariz. 179, 180, 907 P.2d 1382, 1383 (1995); Perkins, 172 Ariz. 115, 834 P.2d 1260. We acknowledge, of course, that the impropriety in this case was attributable to the bailiff, not the judge, but do not believe the distinction is important in this type of situation. ⁶ The issue here is the effect of the improper communications, not who made the communications.

Moreover, as Plaintiffs suggest, there is far more potential for improper advice from a bailiff than from a judge on substantive legal and important procedural matters. ⁷ Thus, we do not believe a finding of error is negated simply because it was the bailiff and not the judge who improperly communicated with the jury...