Shamburger v. Behrens

Decision Date13 January 1988
Docket NumberNo. 15505,15505
Citation418 N.W.2d 299
PartiesElston SHAMBURGER and Signe Shamburger, Plaintiffs and Appellees, v. Clayton L. BEHRENS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Donald R. Shultz, of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for plaintiffs and appellees.

William G. Porter and Lonnie R. Braun, of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellant.

SABERS, Justice (on reassignment).

This medical malpractice case is before this court for the second time. In Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986), we reversed a jury verdict in favor of Dr. Clayton L. Behrens (Behrens) and remanded for a new trial because a jury instruction on good faith error by a physician was improper.

The second trial concluded with a jury verdict for Elston and Signe Shamburger (Shamburgers) which Behrens now appeals. After the verdict Behrens filed timely motions for a new trial and judgment notwithstanding the verdict. These motions were denied. Later Behrens filed a motion for relief from the judgment based upon alleged juror misconduct. This motion was also denied. Behrens appeals from these orders denying his requested relief. We affirm.


In May 1986, in preparation for upcoming trials in Pennington County, the clerk of courts sent out a "Personal Information Form" to prospective jurors. James R. Curtis (Curtis), received one, filled it out, and returned it to the clerk.

The clerk summoned Curtis as a prospective juror for this trial since nothing appeared on the returned form which would disqualify him as a juror. Curtis was seated on the jury and participated in the jury deliberations which resulted in a verdict favorable to Shamburgers. The vote of the jury was ten to two; Curtis was one of the ten.

The jury returned the verdict on July 1, 1986 and the trial court entered its judgment on July 2, 1986. The order denying a new trial and judgment notwithstanding the verdict were entered on August 7, 1986. Twenty days later Donald R. Shultz (Shultz), Shamburgers' attorney, received the following handwritten letter from Curtis 8-26-86

Donald R. Shultz

P.O. Box 8110

Rapid City, SD 57709

Dear Mr. Shultz:

As a juror on your case against Dr. Clayton Behrens, I commend you for a job well done. I trust that it will not be appealed!

However, I have a felony conviction on my record which could be just the ammunition that Mr. Porter and his firm needs to file such an appeal.

If this information were revealed, along with how instrumental I was in the verdict and the large dollar amount awarded, an appeal would certainly be made.

If you wish to prevent this situation, I feel that withholding this information is worth a percentage of your fee similar to what you charged your clients.

If this case were to go to trial again, your chances of winning it a second time would be "slim to none"!


/s/ James R. Curtis

Acting with responsible and ethical dispatch, Shultz contacted the judge who in turn called the Pennington County sheriff. A meeting was arranged between Shultz and Curtis at Shultz' law office. The conversation between the parties was taped. Curtis' demand for $30,000 was refused. He eventually left with $1,000 in marked bills. As Curtis left Shultz' office, he was arrested. He was subsequently charged and convicted of grand theft by threat and sentenced to a term in the state penitentiary.

After learning of Curtis' extortion maneuver, Behrens moved for relief from the judgment under SDCL 15-6-60(b). The motion was based upon not only the extortion attempt, but also subsequent findings that:

1) James Curtis' real name was James Curtis Svihovec;

2) James Curtis was convicted under the name Svihovec of mail fraud in Omaha, Nebraska on May 31, 1978, and received a five year sentence most of which was spent on probation;

3) James Curtis had been involved in other litigation in Pennington County particularly a foreclosure of a contract for deed proceeding in 1984.


It is undisputed that Curtis was not questioned about his qualifications during voir dire. Although no record was made of that portion of the trial, the parties agree on this point. The earliest anyone knew of the potential problem was when Shultz received the August 26, 1986 letter. Shamburgers argue that Behrens' failure to object or even question Curtis about prior felony convictions during voir dire constitutes waiver of his right to now complain.

The basis of this argument depends upon the function of the personal information form. Shamburgers take the position that Behrens had to question the prospective juror and could not rely upon the questionnaire. Anything less, they contend, is a waiver.

After the personal information form was received by the clerk, and there was nothing on the form which the clerk could discern would disqualify Curtis, the basic information was shared with the litigants. This is a common practice within this state. While the form may vary from circuit to circuit, the use of these forms has become a basic part of the jury selection process. The purpose of these forms is to shorten the time required for jury selection. It allows the attorneys to bypass routine questioning about name, age, children, and spouse's employment and to ask questions dealing with the pertinent issues at trial.

The personal information forms are not and were not intended to be a substitute for voir dire, but are merely a tool to aid trial efficiency. Nevertheless, the personal information form sent to Curtis contained a section asking potential jurors to inform the court if they were disqualified for jury duty for any one of several reasons, including "convicted felon not restored to civil rights." Either through mistake, misunderstanding or intent, Curtis did not mark the appropriate box. It is speculation to assert that the correct information as to his status or former name would have been revealed through voir dire. Reliance upon the answers given in the personal information form and those given in voir dire both depend upon the honesty and capability of the potential juror.

Behrens' reliance upon the answers given by Curtis in the personal information form was not unreasonable and failure to question Curtis about prior felony convictions did not operate as a waiver. State v. Delfs, 396 N.W.2d 749 (S.D.1986).


Juror Curtis was convicted of mail fraud in 1978 under 18 U.S.C. Sec. 1341 (1982). He was sentenced to thirty days in prison and placed on probation for four years, eleven months. At the time of this trial he was no longer on probation because, apparently, his probation termination date had passed.

The qualifications of a petit juror are generally found at SDCL 16-13-10:

Qualifications of jurors. All citizens of this state, who are registered to vote and of sound mind and who are able to read, write, and understand the English language, and not justices or clerks of the Supreme Court or a judge of the circuit court or any court of the United States, or a court of limited jurisdiction, or licensed attorneys, or clergymen as defined in Sec. 19-13-16 when jury service conflicts with their religious beliefs and who have not been convicted of any felony unless restored to their civil rights and who are not subject to disability by the commission of any offense which by special provision of law does or shall disqualify them, are and shall be competent persons to serve on all grand and petit juries within their counties respectively. (emphasis added)

Shamburgers argue that SDCL 16-13-10 does not exclude from jury service persons previously convicted of federal felonies who are no longer on probation or parole. Behrens argues that it does and that juror Curtis was disqualified. Even assuming Behrens' position is correct, Shamburgers' argument makes sense: "it would be absurd to rule that a South Dakota felon statutorily restored to his civil rights by completion of his probation is a qualified juror, whereas a federal felon who had completed his probation was not a qualified juror sitting on a South Dakota jury." To hold that a federal felon is disqualified as a juror absent a demonstration that his civil status has been restored places an unreasonable burden on the system. To hold that the lack of such a demonstration can invalidate an otherwise valid verdict could be disastrous.

We hold that a person who has been convicted of a felony under federal law is not automatically disqualified as a juror under SDCL 16-13-10 where circumstances demonstrate he is no longer under the jurisdiction or control of the federal criminal system. Likewise, juror Curtis was not disqualified as a juror because involvement in prior litigation does not constitute cause for disqualification under SDCL 16-13-10.


Shortly after the Curtis letter surfaced, Behrens requested relief from the judgment. The trial court denied the motion and in doing so found that there was no intrinsic or extrinsic influence upon the jury verdict; that the jury had not been tampered with or influenced by juror Curtis; that there was no showing of any substantial effect on the jury verdict by Curtis, and that to allow the post-verdict innuendos suggested by Curtis' letter to set aside the jury verdict would allow his threat to be condoned and give an unacceptable taint to the jury verdict. This is solid reasoning by the trial court.

A person seeking a new trial on the grounds of alleged juror misconduct has the burden in the trial court to show that the alleged misconduct materially affected his substantial rights. Carpenter v. Union Baking Co., 67 S.D. 151, 290 N.W. 322 (1940). The standard to be used in reviewing the trial court's ruling is that the trial court is in the best position to evaluate the relevance of undisclosed evidence or later discovered facts and their impact...

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