Young v. Johnson
| Decision Date | 20 September 2001 |
| Docket Number | No. 1 CA-CV 00-0159.,1 CA-CV 00-0159. |
| Citation | 31 P.3d 835,201 Ariz. 61 |
| Parties | Diane O. YOUNG, Plaintiff-Appellee, v. Charles N. JOHNSON, Defendant-Appellant. |
| Court | Arizona Court of Appeals |
Sacks Tierney, P.A., by Kraig J. Marton, Scottsdale, and Grant, Williams, Lake & Dangerfield, by Maria C. Speth, Adam Kunz, Phoenix, Attorneys for Defendant-Appellant Johnson.
The Langerman Law Offices, by Amy G. Langerman, Phoenix and, The Cohen Law Firm, by Larry J. Cohen, Phoenix, Attorneys for Plaintiff-Appellee Young.
¶ 1 A jury awarded Diane Young compensatory and punitive damages for the assault and battery she suffered at the hands of Charles Johnson, her former husband. On appeal, Johnson challenges the judgment on several grounds, but the following issue is dispositive: is Johnson entitled to a new trial because the trial court erred by excusing a juror from further service on the fourth day of the seven-day trial? Because we answer this question affirmatively, we must reverse and remand for a new trial.
¶ 2 Young and Johnson were married in February 1993. The marriage was stormy, and the couple ultimately divorced in September 1997. Young eventually sued Johnson for assault, battery, and intentional infliction of emotional distress. She also asserted a claim under the Violence Against Women Act, 42 U.S.C. § 13981 (1994) ("VAWA") (held unconstitutional in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)).
¶ 3 Trial commenced on May 18, 1999, and nine jurors were empaneled to decide the case. From the outset, the jurors actively submitted written questions to witnesses. See Ariz. R. Civ. P. 39(b)(10) (). Juror # 8 was particularly active in submitting questions. Johnson contends, and Young does not dispute, that by the end of the fourth day of trial, Juror # 8 had submitted 43 questions to witnesses called by Young.1 The juror generally presented her questions as testimony unfolded and before Johnson had an opportunity to conduct cross-examination.
¶ 4 During an in-chambers conference held in the afternoon on the fourth day of trial, a Friday, Young's attorneys expressed their concern that Juror # 8 was advocating Johnson's position through her questions and inappropriately communicating with other jurors after her questions were answered. The judge responded that he had "neutralized" some of the questions by re-phrasing them. After explaining their fear that Juror # 8 had already decided the case, Young's counsel asked if it would be appropriate to question the juror about "what's going on." The judge indicated that he had been aware of the problem from the first day of trial and stated that he would give the matter thought over the weekend and perhaps confer with other judges about how to handle the situation. ¶ 5 Before recessing the trial for the day, the judge instructed the jurors to keep their questions to witnesses as fair and neutral as possible. After excusing the jury, the judge and counsel met in chambers to discuss various issues. At that time, Young's attorneys again complained that Juror # 8 was inappropriately communicating with fellow jurors. They also described her as appearing "smug" while she penned her adversarial questions "as though she ... is doing the defense job." The judge ended the discussion by stating that he was "concerned enough that [he would] deal with it at some level."
¶ 6 On the morning of the fifth day of trial, Young filed a motion to dismiss Juror # 8 and argued that the juror's questions to witnesses revealed clear bias against Young. The parties argued the motion to the court prior to resuming the presentation of evidence to the jury. During argument, the judge observed that nine out of ten questions submitted by Juror # 8 favored the defense and had an adversarial tone. Eventually, the judge took the motion under advisement, stating that, in light of his admonition to the jury given on the previous trial day, he wanted to observe how Juror # 8 asked questions before ruling on Young's motion.
¶ 7 Before the judge recessed the in-chambers proceeding, he was informed that Juror # 8 had requested to speak with the court about missing the next day's morning session in order to attend the funeral of her goddaughter, who had died over the weekend. After the judge communicated the request to the parties, Young's counsel responded that excusing Juror # 8 from further service would be an "an easy solution" to the problem that comes "from a higher authority." The court agreed, stating that, "I think we should do that because we are on a tight schedule and we can't recess for half a day to accommodate her, so I think we just got our easy out." Johnson's counsel asked the judge to "give her the opportunity that, should [Juror # 8] prefer to be here rather than at her god-daughter's [sic] funeral, that she [have] that choice." The court did not respond to the request, but queried whether the parties needed to be present while he spoke with Juror # 8. The parties agreed that they did not need to attend the meeting.
¶ 8 The judge next met with Juror # 8 in his chambers.2 The judge began the discussion by stating his understanding that Juror # 8 "need[ed] to go to [the] funeral." Juror # 8 responded that she did not need to attend but desired to do so and could return for jury duty immediately after the service. She also related that she had previously had temporary custody of her goddaughter for a four-month period and then stated that it "depends on how well I do [at] the viewing tonight as to how well I do tomorrow." The judge then stated that he wished to excuse her from jury service to "free [her] up emotionally" and allow her to attend to family matters. Juror # 8 immediately answered that she wanted to remain on the jury and that she would forego attending the funeral. The judge then encouraged the juror to reconsider the wisdom of her decision. Although Juror # 8 never asked to be excused in order to attend the funeral, she eventually declared that she would "go with whatever [the judge] wish[ed]." The court then excused her from the jury.
¶ 9 After concluding his meeting with Juror # 8, the judge joined the parties, counsel, and the jury in the courtroom and announced that he had excused Juror # 8 from further service to allow her to attend a funeral and because the court "simply can't recess the trial." He did not inform counsel that Juror # 8 had wanted to remain on the jury.
¶ 10 Ultimately, the jury returned a unanimous verdict for Johnson on the intentional infliction of emotional distress and VAWA claims. However, the jury unanimously found Johnson liable on the assault and battery claims, and five of the jurors awarded Young compensatory and punitive damages.3
¶ 11 Following the verdict, Johnson filed a motion for relief from judgment/new trial based, in part, on the court's excusal of Juror # 8, and the court denied it. In his order, the judge stated that prior to speaking with Juror # 8, he had refused Young's request to strike the juror for bias. The court then stated that Johnson had waived his right to object to the excusal of Juror # 8 by agreeing to allow the judge to meet with her alone. Alternatively, the judge concluded that he had acted appropriately because Juror # 8 was emotional and "should not have been forced to choose between a funeral and jury service." This appeal followed.
¶ 12 Johnson argues that the trial court erred by excusing Juror # 8 from the jury, and we must, therefore, reverse and remand for a new trial. Before addressing the merits of this argument, however, we consider Young's potentially dispositive contention that Johnson waived his right to contest the judge's decision to excuse the juror.
¶ 13 Young argues that Johnson waived his right to complain about the trial court's excusal of Juror # 8 because he (1) agreed to allow the judge to meet with the juror alone and "make a determination about how best to deal with the situation," and (2) failed to object to the excusal at the time it occurred. Johnson does not dispute that he waived his right to object to the judge's discussion with Juror # 8 about her desire to attend the funeral. He contends, however, that his waiver was limited to this topic and did not prevent him from later challenging the judge's decision to excuse the juror after she expressed her desire to forego the funeral and remain on the jury. He further argues that he did not waive the issue by failing to object at the time of the excusal, because he was not then on notice of the circumstances surrounding Juror # 8's excusal.
¶ 14 It is evident from the record that the parties and the judge anticipated that Juror # 8 would ask to forego continued jury service and attend the funeral once she was told that the judge would not recess the trial. Significantly, the parties did not discuss or agree upon how the judge should proceed if the juror elected to remain on the jury. In the absence of such an agreement, we decide that Johnson did not waive his right to challenge the excusal of Juror # 8 by merely agreeing to the ex parte discussion. See United States v. United States Gypsum Co., 438 U.S. 422, 461, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)
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¶ 15 We also conclude that Johnson did not waive the issue by failing to object to the excusal when it occurred. First, Johnson was not present when the judge excused Juror # 8 and obviously did not have the opportunity, therefore, to object at that time. Second, the judge did not inform counsel that he had excused Juror...
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