Stanley J. Foster et al. v. Sally C. Delman (2011)

MEMORANDUM OF DECISION

This memorandum of decision is issued in connection with the motion to arrest judgment filed by the defendant, Sally Delman, on February 10, 2011.   The basis of the defendant's motion is alleged juror misconduct during the deliberations of the case, including bullying and excessive control by male jurors over female jurors.   An objection to the motion to arrest judgment was filed by the plaintiff Stanly J. Foster, M.D., P.C. on March 4, 2011, a reply brief was filed by the defendant on March 11, 2011, and a surreply brief was filed by the plaintiff on March 17, 2011.

I

FACTUAL BACKGROUND

This action was commenced in 2006 by the plaintiffs Stanley J. Foster, M.D., P.C. and Stanley Foster, M.D., as against the defendant, his former office manager, for conversion of $265,000, larceny and negligent infliction of emotional distress.   The defendant asserted six counterclaims against the plaintiffs, all of which were withdrawn shortly before trial.   The plaintiff Stanley Foster's negligent infliction of emotional distress claim was withdrawn shortly after the close of evidence.   The trial in this matter commenced on January 13, 2011, evidence concluded on February 3, 2011, and closing arguments and the charge were given to the jury on February 4, 2011.   The case concluded in a jury verdict on February 9, 2011 as against the defendant for $508,000.   During the course of trial a substantial amount of time was devoted to the publication of exhibits to the jury.

The jury was comprised of three men and three women.   The jurors selected Mary Shock, a female, to be their foreperson.   The jury began deliberations at approximately 3:05 p.m. on February 4, 2011, was subsequently given a twenty-minute break that afternoon and then dismissed for the day at 4:48 p.m. The total time for deliberations and selection of a foreman on February 4, 2011, was one hour and twenty-two minutes.

The jury returned on February 8, 2011, and began its deliberations at approximately 9:33 a.m. At approximately 10:16 a.m., the first note from the jury was delivered to the court signed by Shock.  (Court Ex. B.) The note stated:  “We would like to hear whole thing of Debra Wessel and cross exam of Dr. Foster!   Also let's hear all of Sally Delman all over again.   Thank you.   Mary Shock.”   At approximately 10:17 a.m., the jury returned to the courtroom where its note was read and the jurors were advised the court reporter would be collecting the testimony to be played back.   The jurors returned to the courtroom at 11:03 a.m., and listened to the playback of Wessel.   The playback testimony concluded at approximately 11:46 a.m. The jury was dismissed to the deliberation room to give the court reporter time to put in place the testimony of Dr. Foster.   The jurors returned to the courtroom at 12:09 p.m. and requested additional time in the deliberation room.   At 12:30 p.m., the jurors, through Shock, sent another note to the court.  (Court Exhibit C.) The note stated:  “It seems to be listening to Dr. Foster will not change our minds.   Right now we are a hung jury.”   By the time the note was delivered to the court, the jury had spent two hours and fifty-one minutes together in the deliberation room.

The note was read to counsel and counsel was consulted as to the response to the jury.   At that time, defense counsel proposed a prepared “Chip Smith” charge to the court that he had filed that morning.   The proposed charge deviated from the standard charge for a hung jury prescribed in State v. O'Neil, 261 Conn. 49, 74, 75, 789 A.2d 730 (2002).   Defense counsel's modified “Chip Smith” charge was rejected by the court.   The jury returned to the courtroom where the note was read aloud and a standard “Chip Smith” charge was given to the jury.   Shortly thereafter the testimony of Delman was replayed until the lunch recess break.

After the lunch recess, the jury reconvened in the jury box for continued playback of Delman's trial testimony.   Playback continued until 2:50 p.m. when the jury was excused back into the deliberation room when an administrative issue arose.   The jury returned back to the courtroom at approximately 3:04 p.m. whereupon this court noticed a female juror in tears.   The jury was excused back to the deliberation room.   The court advised counsel of the court's observations with respect to this juror.   The court then requested to see in chambers counsel and the female juror who was visibly crying.   The juror was questioned regarding the reasons for her crying and she advised the court and counsel that it was due to a dispute with her boyfriend that morning, that things were fine in the jury room, and the other jurors were being nice.   The juror advised the court that she wanted to continue serving on the panel and counsel and the court agreed the trial should recess for the day to give this juror the opportunity to collect herself.

The court then went on the record and stated:  “Met with counsel in chambers regarding the status of one of our jurors.   We discovered one of our jurors is having a very bad day, personal issues unrelated to this trial.   We've all agreed that she should be excused for the day.”  (Trial Tr. 1, 2/8/11.)   The court then brought the rest of the panel back into the courtroom and excused them for the day.   The court advised them:  “Ladies and gentlemen, I'm going to excuse you for the day at this point in time.   We can't continue without all of you.   As some of you might be aware, one of your jurors is having a bad day, personal issues.   And those issues are impacting her ability to serve as a juror today.   So counsel and myself have met and we've agreed that she should go home for the rest of the day to address—though she said that she's prepared to come back tomorrow morning and she'll be ready to serve with you again, she just needs some time to be able to collect herself and get these issues addressed.”  (Trial Tr. 2, 2/8/11.)

At no time during the court's questioning of this female juror did she indicate that it was “hell” in the jury room, that things were “bad” or that female jurors were being intimidated and threatened.   The female juror was specifically asked in the presence of counsel if things were all right in the jury room and if the cause of her crying was something going on in the jury room.   This female juror advised the court on February 8, 2011, that the rest of the jurors were being nice and the cause of her tears had nothing to do with the deliberations in the jury room.   By the time the jurors were dismissed on February 8, 2011, the jury had spent less than four hours deliberating together.

The jury reconvened on February 9, 2011 at 9:33 a.m. Playback continued of Delman's testimony until 10:29 a.m. At the request of the defendant's counsel the court reread the previous notes of the jurors (Court Exs. B and C) and specifically asked if they wanted the testimony of Foster read back.   Shock advised the court she would check with the jury.   The jury was excused into the deliberation room at that time and the court was subsequently advised the jury did not want to listen to the full testimony of Foster.   At 10:35 a.m., a note was sent from Shock to the court.   The note stated:  “We want to listen to rebuttel of Dr. Foster.”   Next to Shock's name on the note was a drawn smiley face.  (Court Ex. D.) Within a minute of that note being received a second note was sent from the jury room to the court from Shock.   The note stated “We have a question??   If we all agree that Dr. Foster proved his case does the full amount have to be awarded.   Mary Shock.”  (Court Ex. E.) At the top of Court Ex. E was drawn a large smiley face.   The jury was called into the courtroom and the question answered that the full amount did not need to be awarded.   At 10:55 a.m., the jury sent out another note to the court that:  “We would like to know what Dr. Foster's court costs are?   Total = $.” (Court Ex. F.) After reading the note to counsel and consultation with counsel, the jury was called into the courtroom and told they needed to review the exhibits in the jury room to determine the costs.

At 11:15 a.m., the jury was excused for morning recess and they reconvened back in the jury room at 11:35 a.m. At 11:54 a.m., another note was sent to the court from Shock.  (Court Ex. G.) The note stated:  “We can't meet 1/2 way Hung Jury (talking down to each other) Not good.”  Id. The note was read to counsel and counsel was consulted as to the response to the jury.   Defense counsel objected to the reading of the “Chip Smith” charge and at that time defense counsel once again proposed his modified “Chip Smith” charge to the court.   Defense counsel's modified “Chip Smith” charge was once again rejected by the court.

The jury returned to the courtroom where the note, Court Ex. G, was read aloud and a standard “Chip Smith” charge was given to the jury.   In addition, in response to the note advising the court that the jurors were talking down to each other, the court instructed the jury:  “I'm going to give again another instruction, and I'm going to send you back into the room.   And I'm going to give you the same instruction I gave you the other day.   But, in addition to that, I'm going to direct you that in your deliberations you are to conduct them respectfully and you are to speak to each other courteously and give deference to each other's opinions and try to reach a consensus on this verdict, if you can.   And I'm going to give you the instruction I gave you the other day on that.   But I'm going to remind you, it is your duty, you took an oath, to perform this function and to do it respectfully and with due regard to each other and your opinions with—on these issues.   And there—it will not be tolerated if you're talking down to each other or if you're talking disrespectfully to each other because that has no place in our system.   Everyone can have their own opinion, but you can do it respectfully.   The instructions I shall give you now are only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict.”  (Trial Tr. 5–6, 2/9/11.)   The court then gave the standard “Chip Smith” charge, including the portion “The verdict to which each of you agrees must express your own conclusion and not merely the acquiescence in the conclusion of your fellow jurors ․ Please remember this.   Don't ever change your mind just because other jurors see things differently or to get the case over with.   As I told you before, in the end, your vote must be exactly that, your own vote.   As important as it is for you to reach a unanimous agreement, it is just as important for you do so honestly and in good conscience.”  (Trial Tr. 6, 2/9/11.)   The jury was then excused into the deliberation room.   No further notes were received from the jury after these instructions.

The jury did not reach a verdict by the lunch recess and were dismissed at 1:00 p.m. The jury returned at 2:04 p.m. and Shock advised the court at 2:30 p.m. the jury had a verdict.   At 2:35 p.m., the jury returned to the courtroom where Shock announced to the court that the jury had a verdict.   The verdict and jury interrogatories were then handed to the court for review and then given to the clerk to be read aloud.   The verdict and interrogatories were read aloud and the entire jury affirmed twice that it was their verdict and answers to interrogatories.   The verdict was in the plaintiff's favor in the amount of $508,000 and in the interrogatories the jury had found that the plaintiff had proven by a preponderance of the evidence its conversion and larceny claims.   Both were signed by Shock.   Neither counsel asked for the jury to be polled.

The verdict entered by the jury on the larceny claim can reasonably be construed as a compromise verdict as it awarded the plaintiff $162,000 before trebling instead of the $265,000 before trebling it had requested.  (Hearing Tr. 27, 3/4/11.)   The verdict was also consistent with the jury note received at 10:35 a.m. on February 9, 2011 which stated:  “we have a question??   If we all agree that Dr. Foster has proven his case does the full amount have to be awarded.   Mary Shock.”  (Court Ex. E.) At 2:43 p.m., the jury was discharged from their duties.

On February 10, 2010, the defendant filed this motion to arrest the verdict on the grounds of juror misconduct.   The motion set forth that the defendant's counsel was “contacted immediately after the verdict by members of the jury who arrived unsolicited at defense counsel's law office to complain about the way they were treated during deliberations.”  (Def.Mem.1.) The motion also set forth that the “jurors, both females, commented that they were screamed at and intimidated by male members of the jury.”   They also said they were called “stupid,” mocked and ridiculed.   One juror insisted that she only changed her verdict because she felt coerced by the second (Chip Smith) deadlocked jury instruction that was given.   This same juror insisted that she was still of the opinion that the plaintiff had not proven his case.   For all of the above reasons, the defendant asks this verdict to be set aside.  “In the interest of justice, this court should, at the very least hold a hearing on the above allegations.”  (Def.Mem.1–2.)

On February 14, 2011, the court upon review of the motion entered an order scheduling a date for a preliminary inquiry into this issue and ordered defense counsel to disclose, by no later than February 17, 2011, the names of the two jurors at issue to plaintiff's counsel.   In addition, as the defendant's motion to arrest judgment offered unsworn and uncorroborated statements of the two jurors, the court ordered that defense counsel obtain affidavits from each of the jurors.   The affidavits were ordered to be filed by February 22, 2011.¹

Two affidavits were in fact filed with the court on February 22, 2011.   In her affidavit, Shock claims she sent out a note to the court “saying the jury was hung and I called the conditions “bad” in the deliberation room.   I said this because two of the male jurors refused to look at or consider any exhibits.   I was called “stupid” and I was told to sign the “the fucking paper” (the verdict form).   I felt very uncomfortable.   After additional instructions from the judge, it appeared to me that we would be required to render a verdict before we could leave the building.”  (Shock 2/17/11 Aff.) Shock went on to say she was the lone holdout and after another juror threatened to walk out, she gave in.  Id. Shock admitted she acquiesced in the verdict, but now wanted to change her verdict.  Id.

The affidavit of juror Monique Wright filed by defendant claimed “the jurors who were for the plaintiff refused to look at any exhibits,” “two of the men had their minds made up as soon as we walked into the jury room,” “it was ‘hell’ in that jury room, and “one man called me stupid.   He said more than once, you are really stupid.”  (Wright 2/22/11 Aff.) Wright then alleged that “I only went along with the verdict because it was our understanding that we could not leave unless we returned a unanimous verdict.   I did not think the judge would let us go if we didn't bring back a verdict.”   She then goes on to say “one male juror became so angry I thought he might strike me.   I actually discussed with Mary [jury foreperson] the need to bring my boyfriend to courthouse to protect me.”  (Wright 2/22/11 Aff.) Wright also admitted she acquiesced in the verdict, but now wanted to change her verdict.

A preliminary inquiry into the nature and extent of the alleged jury misconduct was held on March 4, 2011.   At the hearing the court went through the notes from the jury at trial, written by Shock, the jury interrogatories signed by Shock, verdict form signed by Shock, the history of the deliberations and affidavits filed.   The court also heard argument from counsel as to the issues presented.   The court made a finding that neither affidavit contained any allegations of racial bias or slurs occurring during deliberations and that neither affidavit alleged that the prevailing party was in any way responsible for the alleged juror misconduct.   After review of all of the foregoing materials and argument of counsel, the court found no basis for a further evidentiary hearing on the issue of juror misconduct during deliberations in this action.

II

DISCUSSION

Whenever there is a claim of juror misconduct, the trial court is required to conduct an inquiry to determine the nature and extent of the jury taint, if any.  State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995).  “Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct.   That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between.”  Id. “[F]rivolous or incredible allegations may be disposed of summarily.”  Id., 531.

Juror misconduct occurs when the jury who decides the case is “not free from external influences that might interfere with the exercise of deliberate and unbiased judgment.”   See State v. West, 274 Conn., 605, 647–48, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed. 601 (2005);  State v. Roman, 262 Conn. 718, 726, 817 A.2d 100 (2003).  “Juror misconduct which results in substantial prejudice to the defendant is not to be tolerated.   But not every irregularity in a juror's conduct compels reversal.   The dereliction must be such as to deprive the defendant of the continued, objective and disinterested judgment of the juror, thereby foreclosing the accused right to a fair trial ․ Consideration of extrinsic evidence is presumptively prejudicial because it implicates the defendant's constitutional right to a fair trial before an impartial jury.   A presumption of prejudice may also arise in cases involving communications between a juror and third persons.”  (Citation omitted;  internal quotation marks omitted.)  State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed. 814 (1985).

“The rule, long ago enunciated by this court, is that if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in his behalf, if it do[es] not indicate any improper bias upon the juror's mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial;  the verdict ought not to be set aside.”  (Internal quotation marks omitted.)  Bernier v. National Fence, Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979).

“A jury verdict may not be impeached by an affidavit of a juror showing that he misunderstood the instructions of the court ․ It follows, therefore, that the verdict also may not be impeached by an unsworn and uncorroborated statement offered by a party to the action [indicating that a juror had made statements after the verdict suggesting that the jury misapplied the law].”  (Citations omitted;  internal quotation marks omitted.)  Enquire Printing & Publishing Co. v. O'Reilly, 193 Conn. 370, 378, 477 A.2d 648 (1984).  “That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible.   But verdicts cannot be upset by speculation or inquiry into such matters.”  (Internal quotation marks omitted.)  State v. Gary, supra, 273 Conn. 393 (2005).

“[T]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact ․ When ․ the trial court is in no way responsible for the [possible] jury misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice.”   (Citation omitted;  internal quotation marks omitted.)  State v. Sinvil, 90 Conn.App. 226, 240–41, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005).

In this action, many of the allegations of misconduct in the affidavits executed by the two jurors go to the alleged heated arguments of the jurors during their deliberations and supply evidence as to their own motives, beliefs, mistakes and mental operations in arriving at their verdict.  “[I]t is well established that evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict is excludable in postverdict proceedings as immaterial ․ [An] affidavit to avoid the verdict may not be received to show any matter which does not essentially inhere in the verdict itself, as that the juror did not assent to the verdict;  that he misunderstood the instructions of the court;  ․ that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast.”(Citation omitted;  internal quotation marks omitted.)  State v. Gary, 273 Conn. 415.

To the extent the affidavits filed of jurors Shock and Wright allege misconduct based on expressions or heated arguments in the jury room, a misunderstanding of the court's instruction as to rendering a verdict, that these jurors were unduly influenced by the statements of fellow jurors, their mental processes, beliefs and motives in rendering their verdict those portions of the affidavits are properly excludable from the court's consideration of whether to arrest judgment based on juror misconduct.   These are the types of matters that inhere in the verdict itself and into which the court is not permitted to inquire.

However, the trial court, in any inquiry into juror misconduct, may entertain “testimony regarding the failure [of jurors] to obey certain essential formalities of juror conduct, i.e., irregularities and misconduct extraneous to the mental operations of the jury ․ Thus, any conduct in violation of [General Statutes] § 51–245 [prohibiting jurors from conversing with any person who is not a member of the jury relative to the cause under consideration before they have returned their verdict] ․ may be established by the testimony of a juror.   As early as 1866 it was recognized [t]hat affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney;  that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors;  that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner.”  (Internal quotations mark omitted.)  State v. Gary, supra, 273 Conn. 393, 416 (2005).

As to the issues that the court may consider, the defendant contends that she was prejudiced as the female jurors were improperly threatened and intimidated by the male jurors during jury deliberations into rendering a verdict for the plaintiff.  (Motion in Arrest of Judgment 1.) The defendant argues that the question for the court is whether threats and bullying objectively lead to an unfair and prejudicial juror and that the affidavits of the two jurors are an “unvarnished look at the threats and fear in the jury room during deliberations.”  (Pl.'s Reply Mem. 9.) The defendant's argument is without merit on a number of grounds.

First, neither affidavit filed by the two jurors alleges that the female jurors on the panel were threatened, intimidated or coerced by the male jurors on the panel into rendering a verdict for the plaintiff.   The affidavits allege that heated discussions occurred during jury deliberations between different jury members and, as set forth above, the court is not permitted to inquire into this part of the jury deliberative process.   Second, Shock does not allege she was threatened.   The only use of the word “threatened” in her affidavit is that Shock alleges a juror threatened to walk out of the jury room.   In her affidavit she describes heated discussions that occurred during deliberations.   Heated deliberations are properly excludable from the court's consideration of whether to arrest judgment based on juror misconduct.

Third, there is no allegation in Shock's affidavit that corroborates Wright's allegation that a male juror was so angry that Wright thought he might strike her, even though Wright alleges she told Shock this.   Since both of the affidavits were prepared by defense counsel, the absence of this corroborating allegation is striking.   The court also notes that Wright does not allege in her affidavit that the other juror threatened her, threatened to strike her or moved to strike her, but that he became “so angry.”

Fourth, the court does not find the threat and intimidation allegation credible for the following reasons.   Shock was the foreperson and as such had control over the communications sent to the court.   In fact, Shock was in frequent communication with the court by the use of notes.   The court has objectively examined the seven notes sent by Shock out of the jury room, some with large drawn smiley faces, and not one of them advised or even suggested to the court that threats and intimidation tactics were going in the jury room.   (Court Exs. D & E.) Instead, she advised the court the jurors were “talking down to each other.”   Once again, heated discussions of a jury during deliberations are not a permitted area for the court to inquire into in determining whether to set aside a verdict for juror misconduct.   Finally, the allegation itself that the female jurors were being threatened and intimidated by the male jurors in the jury room is not supported by the third female juror who advised both the court and counsel on February 8, 2011, that things were fine in the jury room and everyone was nice.

The court has examined the misconduct claimed in the affidavits that remotely relate to this issue and finds that what is claimed in the affidavits is not the type of behavior that renders a juror unfair or prejudicial.   The defendant's motion to arrest judgment on this ground is denied.

The defendant also argued at the March 4, 2011 preliminary inquiry that the verdict should be arrested on the grounds that a male juror was partial and biased.   The basis for this allegation was Wright's allegation in her affidavit that a male juror, who worked for a police department, told her “he sees this every day.”   There is no allegation in Wright's affidavit that this juror obtained any information relating to this case from his police department or that he made specific statements, not a general statement, to Wright or any juror as to information outside of the case he was relying on.   There is also no allegation that there was an unauthorized introduction into the deliberation process of a new evidential fact.   The comment appears to be a general statement made by this male juror and standing alone does not show bias.²  The court finds that there was no reasonable probability of prejudice from the statement made or that it rendered the juror unfair or partial.

The court finds that the defendant has not sustained her burden of establishing juror misconduct on this ground and that such conduct resulted in probable prejudice to her.   The defendant's motion to arrest judgment on this ground is denied.

III

CONCLUSION

The court finds that there is no reasonable probability of prejudice arising from the conditions in the jury deliberation room and the conditions alleged were not of such a nature that it rendered the jurors unfair or partial.   Based on the foregoing, the court finds that the defendant has not sustained her burden of establishing juror misconduct and that such conduct resulted in probable prejudice to her.   The defendant's motion to arrest the verdict is denied.

OZALIS, J.

FOOTNOTES

FN1. The court's February 14, 2011 order was filed electronically and due to the time constraints involved, both defense and plaintiff's counsel were contacted by phone by the clerk's office and read the order.   Defense counsel never contacted plaintiff's counsel regarding the names of the jurors, notwithstanding the fact that plaintiff's counsel called defense counsel on February 17, 2011 to obtain such names.   Defense counsel did not return plaintiff's counsel's call..  FN1. The court's February 14, 2011 order was filed electronically and due to the time constraints involved, both defense and plaintiff's counsel were contacted by phone by the clerk's office and read the order.   Defense counsel never contacted plaintiff's counsel regarding the names of the jurors, notwithstanding the fact that plaintiff's counsel called defense counsel on February 17, 2011 to obtain such names.   Defense counsel did not return plaintiff's counsel's call.

FN2. The court notes the defendant selected this juror for this panel knowing he worked for a police department..  FN2. The court notes the defendant selected this juror for this panel knowing he worked for a police department.

Ozalis, Sheila A., J.