Opinion
No. SD23595
Handdown Date: July 24, 2001.
Appeal From: Circuit Court of Greene County, Hon. Calvin R. Holden.
Stanley J. Wallach and Jerome Wallach, Counsel for Appellant.
Charles B. Cowherd and Paul D. Link, Counsel for Respondent.
Parrish, P.J., and Barney, C.J., concurs. Montgomery, J., recuses.
This is an eminent domain case in which the City of Springfield, Missouri ("City"), condemned real estate owned by Thompson Sales Company and G-M Investments, a partnership. The case involved a total taking of the subject real estate and improvements. Following a jury trial and judgment based on the jury's award, Defendants appeal charging six instances of alleged reversible error by the trial court. Because Defendants' complaint regarding jury participation in the questioning of witnesses is dispositive, this court addresses only that issue. This court reverses and remands for further proceedings.
The Thompson land (approximately 5 1/2 acres) was improved by commercial buildings on which there was a "full-line" new and used car business. The property is on St. Louis Street near downtown in Springfield, Missouri. The City condemned all of the land at this location for use in constructing and maintaining a "Civic Park."
The case was heard by a jury and required six days to try. After the jury was selected, the trial judge told the parties he would allow juror questioning of witnesses. He explained, "[y]ou know I'm a fan of juror questioning." Both lawyers objected to the proposed interrogation of witnesses by jurors.
City's lawyer (who had previously tried a case in which juror questioning was permitted) told the trial judge:
"Well, I frankly thought the concern you raised before was a good one, that in this type of case where we're talking about experts, heavily dependent on expert testimony, that the chances of the jury sliding into areas that we can't get into is pretty great. And I kind of fear that they'll become frustrated because there may be so many of those areas that we ignore, and they won't know why, and they may find that to be less helpful."
Defendants' initial objection focused on the fact that some of City's expert witnesses would be presented by videotaped deposition. As such, Defendants complained that jurors could question all of their experts, but not all of City's witnesses. Defendants argued that City's experts "are now protected in effect by a shield that they're not here," and the disparate treatment of expert witnesses would prejudice Defendants. The trial judge's response to Defendants' objection was,
"I understand your concern. It's something that I will probably ask this jury about when we're done here. Did you place more weight on the fact that you couldn't ask questions of the [videotaped] experts . . . ? But my inclination is to let them ask questions and then try to be a lot more directive. If they get way off the mark, then give more of an instruction that we're really after values, not sentimental issues, or however they bring it up."
The trial judge then addressed certain other pre-trial matters and recessed the case until the next day.
The following morning, Defendants' lawyer renewed his objection to the trial court allowing jurors to question witnesses, saying, inter alia, "[w]e stand by [our position] that [allowing juror questioning is] prejudicial to our case." Continuing, Defendants' lawyer argued:
"Mr. Cowherd [City's attorney] also had objected to the jurors being permitted to pose questions, and in response to our argument the Court said, well, in my judgment it will work more in your favor and against their favor, or words to that effect. But a clear statement from the Court that it would, in effect, be prejudicial to them but not be prejudicial to us. "I suggest, with all due respect, that that is the stuff that reversals are made of. It concedes that it works to their detriment and our benefit. Having conceded that, I don't think we can go forward with the questions, Your Honor."
The trial judge took issue with Defendants' characterization of his remarks, offered an explanation, and then stated: "I don't think there's any prejudice to either side by the jurors getting to ask questions that is any different than a video or a depo. That's all I was saying."
After attending to other pre-trial matters — none of which related to juror questioning — the trial judge read a modified MAI-2.01 instruction to the jury. The pattern MAI-2.01 instruction was modified by adding these paragraphs at the end:
Any mention of MAI-2.01 is to MAI-2.01 1996 (5th ed), unless otherwise stated.
"You will be given the opportunity to ask written questions of any of the witnesses called to testify in this case. You are not encouraged to ask large numbers of questions because that is the primary responsibility of counsel. Questions may be asked only in the following manner.
"After all lawyers have finished asking questions of a witness then you will be allowed to ask questions. Each of you will be requested to write a question or write something on a sheet of paper after each witness. You will then pass all sheets to the bailiff.
"The Court and lawyers will then review the questions and I will determine if your question is legally proper. The attorneys may then ask the question of the witness. No inference is to be drawn by which attorney asks the question of the witness. No adverse inference should be drawn if the question is not allowed by the Court or if the question is not asked by one of the attorneys."
The record does not reveal if the trial judge furnished the lawyers with a copy of the modified MAI-2.01 instruction or had otherwise informed them that he had modified the instruction. When Defendants' lawyer was asked at oral argument if the parties had seen the instruction before it was read to the jury, he replied he could only answer for Defendants; that they had never seen the instruction before it was read to the jury. City's attorney did not dispute that assertion. Moreover, the record does not reveal that the trial judge outlined the procedure for juror interrogation before the amended MAI-2.01 instruction was read to the jury.
During the trial, as the lawyers completed their questioning of each witness, the judge asked the jurors to submit their proposed questions. After the jurors' written questions were given to the judge by the bailiff, a conference was held (out of the hearing of the jury) at which the trial judge decided which jury questions he would allow. Jurors asked a total of 127 questions, and in one instance, a single juror asked 32 questions of one witness. The procedure used in juror questioning was not uniform throughout the trial. We recount the ways in which the procedure changed during trial as we analyze Defendants' claim of error regarding juror questioning.
The total number of questions propounded is impossible to ascertain with exactness. It appears some questions were submitted, and the judge began to read the question on the record, but did not continue as he determined the question was improper. For example, it was determined some questions called for irrelevant evidence. These are not included in our total. Likewise, certain questions were framed as a single inquiry, but asked two separate questions. These were totalled as only one question. In all, this court's estimate is lower than the actual number of juror questions submitted.
Defendants' point relied on maintains the trial court committed reversible error when it allowed juror questioning of witnesses. They argue that the trial court "abused its discretion in the manner in which it allowed jurors to ask questions, in that the court actively encouraged the jurors to submit questions, improperly amended MAI 2.01 to provide for such questions, provided no guidance to counsel on the procedure by which such questions would be handled, allowed the procedure to change during the course of the trial, and permitted jurors to inquire of all [Defendants'] witnesses but not all of the City's witnesses."
Arguably, we could begin our analysis of Defendants' point by holding the trial court committed error when it modified MAI-2.01, and the error is "presumptively prejudicial unless it is made perfectly clear to us no prejudice could have resulted." Chapman v. Bradley , 478 S.W.2d 873 (Mo.App. 1972). The Supreme Court of Missouri has given "a specific, direct order [via its Notes on Use] that MAI 2.01 must be given[,]" City of Jackson v. Barks , 476 S.W.2d 162, 164 (Mo.App. 1972), and "[i]t should be given to the exclusion of any other instruction on the same subject." Washington v. Sears Roebuck Co ., 585 S.W.2d 137, 138 (Mo.App. 1979); Rule 70.02(b). A finding of presumptive prejudice would not be precluded here even though Defendants failed to specifically object to the instruction. This is so because the trial judge read the instruction to the jury before the lawyers knew of its existence and without giving the parties an opportunity to object to the instruction "out of the hearing of the jury" as required by Rule 70.02(e). Moreover, it is significant that Defendants objected to the juror questioning proposal just before the trial court read the modified MAI-2.01 instruction. To repeat the objection after the instruction was read or to interrupt the trial court while it read the instruction would appear futile as the judge had made a clear ruling just before the instruction was read and had earlier announced he was a "fan" of juror questioning. See Pollock v. Searcy , 816 S.W.2d 276, 277 (Mo.App. 1991). There is no contention or indication that anything occurred here which might have changed the trial court's ruling between the time of Defendants' last objection and the reading of the instruction. Id . However, we do not rest our decision on the presumption of prejudice which arguably arose from the modification of MAI-2.01. For the reasons given herein, we find an abuse of trial court discretion without presuming prejudice due to the instruction modification.
Allowing jurors to question witnesses was first discussed in Schaefer v. St. Louis S. Ry. Co ., 30 S.W. 331 (Mo. 1895):
"Plaintiff's counsel objects to the court having asked questions of the various witnesses, and also to the fact that one or two of the jurymen also asked questions of the witnesses in their endeavor to properly understand the facts in evidence. We do not see how this could have possibly been prejudicial to the plaintiff, and do not see why it was not a commendable thing in both the court and the jury, endeavoring to ascertain just exactly the situation at the time of the injury, so that they could properly determine the case before them."Id . at 333.
Questioning of witnesses by jurors was an issue in Sparks v. Daniels , 343 S.W.2d 661 (Mo.App. 1961). There, the trial court told jurors: "If you do not hear what a witness says . . . or if the language does not carry meaning to you, raise your hand and I will have the witness repeat what he or she has said or use different language that will carry meaning to you. . . ." Id . at 663. As the trial progressed, one juror raised his hand and when recognized, asked if he could question a witness. The court responded, "[t]here is no harm in asking the question, but, of course, questions from jurors are subject to the same rules of evidence the questions of the lawyers are subject to." Id . at 664. The juror posed his question, the trial court asked the lawyers if they objected, they answered no, and the witness was allowed to answer the juror's question. Another juror voiced a question he wanted to ask the witness. This was allowed after both lawyers said they had no objection. The next incident of juror questioning came when a juror spoke up and said, "[t]here was a phrase I missed completely." Id . at 665. The witness repeated her answer, but apparently the juror again did not understand or hear the answer and asked for clarification. There were two more instances when a juror asked for and received permission to question a witness. In finding no prejudicial error, the Sparks court observed:
"We cannot agree that the trial court, by its opening remarks regarding the jurors' actions if they did not hear or understand, invited disaster. Surely there can be no prejudicial error in the trial court's action in making sure the jury heard all of the testimony and appellants' real objection goes to that portion of the trial court's remarks as emphasized above. As to that matter, even the appellants admit that it is proper for a juror to ask a question through the trial judge in order to clarify some point in the juror's mind. . . . Of course, a juror is not selected for the purpose of asking questions and can be permitted or denied the privilege by the trial court. When it is permitted him to ask questions, the juror, to some extent at least, represents the court, and the court, because of giving its permission, has permitted the juror to assume the role of counsel. . . . Just as a judge must be even more cautious in asking questions in a jury case than in one tried before him, so must he exercise a corresponding degree of caution with respect to the questions he allows jurors to ask."Id . at 667 (emphasis added) (citation omitted).
In Callahan v. Cardinal Glennon Hosp ., 863 S.W.2d 852, 866 (Mo.banc 1993), a juror asked whether jurors were permitted to ask questions. The trial judge answered affirmatively and allowed juror questions via submission to the judge. On appeal, the Callahan court held that if a juror wanted to question a witness, a trial court has discretion to permit or deny the juror that privilege. Id . at 867 (citing Sparks , 343 S.W.2d at 667). The only procedural guidance given in Callahan was that the "judge should filter questions from jurors through the bench to ensure that no improper questions are asked of a witness." Id . Moreover, the Callahan opinion only dealt with the situation where a juror showed a desire to question a witness. Specifically, the Callahan court stated, "We do not reach the question of whether a trial judge by actively encouraging jurors to ask questions commits an abuse of discretion. In this case, the trial judge did not encourage the jurors to ask questions." Id . (Emphasis added.)
Here, the trial court did actively and affirmatively encourage jurors to ask questions; consequently, Callahan , McGrath , and Sparks are not authorities that support the trial court's solicitation of juror questions. To the contrary, there is language in Sparks suggesting that a trial court abuses its discretion by encouraging jury questioning. State and federal appellate courts have repeatedly considered the issue of juror questioning of witnesses. Although the majority of such courts have expressed varying degrees of disapproval of juror questioning, only a few have concluded that the questioning warranted reversal. Courts expressing general disapproval of juror questioning have done so after identifying risks that jury questioning entails. Among the perils contemplated are those listed in United States v. Ajmal , 67 F.3d 12 (2nd Cir. 1995):
"When acting as inquisitors, jurors can find themselves removed from their appropriate role as neutral fact-finders. If allowed to formulate questions throughout the trial, jurors may prematurely evaluate the evidence and adopt a particular position as to the weight of that evidence before considering all the facts. The practice also delays the pace of trial, creates a certain awkwardness for lawyers wishing to object to juror-inspired questions, and runs a risk of undermining litigation strategies."Id . at 14 (citations omitted). Also, there is the peril of jurors being distracted from comprehending new testimony because they are preparing questions on prior testimony, or injecting prejudice by displaying skepticism. United States v. Douglas , 81 F.3d 324, 326 (2nd Cir. 1996). Accordingly, although nearly all jurisdictions have ruled that trial judges have discretion to allow questioning by jurors, most of them have made it clear that "the risks of adverse consequences make it inappropriate for a trial judge to invite or encourage such questioning." Id . As explained in Douglas , inviting jurors to ask questions as each witness testifies "risks an undue extent of questioning and might even cause some jurors to feel that they are not fulfilling their responsibilities unless they ask questions." Id .
Concerns about juror questioning as outlined above have led courts to suggest that such practice should be "strongly discourage[d]," United States v. Bush , 47 F.3d 511, 515 (2nd Cir. 1995), and "should be reserved for exceptional situations, and should not become the routine, even in complex cases." United States v. Cassiere , 4 F.3d 1006, 1018 (1st Cir. 1993). In DeBenedetto v. Goodyear Tire and Rubber Co ., 754 F.2d 512 (4th Cir. 1985), the court held that because "the practice of juror questioning is fraught with dangers which can undermine the orderly progress of the trial," it should be used only in "compelling circumstances." Id . at 516. In State v. Graves , 907 P.2d 963 (Mont. 1995), the court announced it would neither encourage nor discourage the practice of allowing jurors to question witnesses, but noted "[j]urors have no inherent right to question witnesses, and juror questioning may not be appropriate in all cases or of all witnesses." Id . at 967. The Graves court also cautioned that "juror questioning of witnesses must be at all times carefully controlled[.]" Id . In a similar vein, the court in Commonwealth v. Urena , 632 N.E.2d 1200 (Mass. 1994), held that "in those rare cases where jurors are permitted to question witnesses," the court "must inform the parties and give them an opportunity to . . . suggest the procedure to be followed." Id . at 1206.
In Missouri, traditional jury trial practice has never included an open-ended and ongoing invitation by the trial judge for juror questioning of witnesses. Moreover, Missouri Supreme Court Rules provide no procedural guidance for juror questioning. Consequently, it was essential that the trial judge adequately warn the lawyers here that he intended to allow juror questioning. Adequate warning and inclusion of the lawyers in developing a jury questioning procedure would have promoted a more consistent juror questioning process and an opportunity for equal understanding of it by all litigants.
It does not appear, however, that the lawyers were included here. Although the record is not clear on whether the lawyers knew in advance that juror questions would be solicited, the record does reflect they had no role in or advance notice of the procedure to be followed. The procedure seemingly evolved and changed by "trial and error" as the litigation progressed. For instance, after Defendants' first witness (George Thompson) testified and all cross-examination was completed, the trial court invited the jurors to write down any questions they had and hand them to the bailiff. The lawyers then approached the bench, examined the juror questions, and a colloquy with the judge occurred regarding which questions should be asked. Near the end of this discussion, Defendants' lawyer asked the court: "Can you explain to them that there are certain rulings or whatever." The court answered:
"I don't explain anything — I've already given them the instruction. All we do is, you go back out, you ask the questions you want to ask. Ms. Tracy [City's lawyer] asks the questions she wants to ask. If you want to ask some follow up — just like normal, when you're done, we're done."
Defendants' lawyer then asked those juror-propounded questions allowed by the court. He asked, however, no additional questions of George Thompson. After Defendants' second witness testified, the court again solicited juror questions. During a conference outside the jury's hearing on this set of questions, the following happened as Exhibit 11 was being discussed:
"[CITY'S LAWYER]: "I'll do that.
"THE COURT: It's not your witness, but —
"[CITY'S LAWYER]: I don't think that's the point here, is it?"
The court gave no answer to the inquiry thus made. Upon returning to open court, Defendants' lawyer first asked the witness some questions propounded by jurors. Next, City's lawyer began posing some juror questions to the witness. However, as City's lawyer started his juror questions, he announced he needed to refer to a map. Thereon, this occurred:
"[DEFENDANTS' LAWYER]: Your honor, if I may, isn't it the procedure to just read the question?
"THE COURT: No. That's not the procedure. We'll go over that in a minute.
"[DEFENDANTS' LAWYER]: This is new ground for me, sir, with all due respect.
"THE COURT: I understand."
City's attorney then went on with his presentation of juror questions to the witness until he offered to show the witness another exhibit. At that point, another bench conference was held.
"[DEFENDANTS' LAWYER]: [T]he jury question process is new to us.
"Yesterday we just read the questions and they answered, and neither side really followed up. And today we're — we think that's not the process and it's compounded on this particular question because there is a dispute that we discussed regarding the listing price in the City of Springfield case.
. . . .
"We approached seeking clarification on the jury question process and also to object to any further inquiry down this road.
"THE COURT: The jury question process is not — you can ask if that question comes from the jury. You don't have to. Many times they're bringing up just an area, and if they ask the question in a way that you think your witness can understand it, then that's fine.
"But if you need to restate it, lead them up to it, because sometimes, you know, if you just start reading off the questions they've come and they're talking about maybe four or five different areas of his testimony. So it's okay to just lead up to it and say, you know, and we want to know — you don't have to ask the exact question.
"In other words, you can put it in lawyerese and lead them up to it."
It appears that, while the initial procedure was to have one lawyer ask all approved questions as written by the jury, by the end of the trial the process had developed into a reopening of witness examination by the lawyers. For example, the reexamination of witness Troy Willis through the jury questioning process covered seventeen pages of transcript and for the last witness, Fred Wagner, required twelve pages of transcript.
Also, it appears the initial practice was for the lawyers to ask the jurors' questions verbatim. From the record it appears Defendants' lawyers believed that was the procedure the trial court intended, and we find that belief reasonable based on what they were told. However, after several witnesses had testified, the trial judge explained otherwise, saying the lawyers could "restate the question," "lead them [the witnesses] up to it," and put "the question in lawyerese." We find these comments by the trial judge particularly curious and troublesome. We say this because a presumed advantage of juror questioning is "to present the evidence at the jury's level" and bridge the "semantic gap" in language between "counsel or witness and juror" which may exist due to "different social, cultural, and educational backgrounds." See Michael A. Wolff, Juror Questions A Survey Of Theory And Use, 55 Mo. L. Rev. 817, 824 (1990). This court is hard-pressed to understand how rephrasing juror questions into "lawyerese" promotes the goal of "understanding" between lawyers and jurors.
Besides this concern, we are persuaded that the absence of a clear, well-defined jury questioning procedure and the failure to include the lawyers in the development of that process was an abuse of trial court discretion. Because the procedure was undefined and foreign to Defendants' lawyers, there was an increased chance the jury might view Defendants' lawyers as incompetent or unprepared, thus raising the specter of prejudice to Defendants. Potential prejudice also existed because Defendants' lawyers were not initially told they could rephrase jurors' questions and reexamine witnesses after jurors' questions. Moreover, if adequate warning had been given that juror questions would routinely be solicited, it would have enabled the lawyers to structure their trial strategy to deal with this new way of trying lawsuits. Adequate warning would have made the procedure "more fair for all counsel, and, thus, to the parties to [this] action." See Michael A. Wolff, Juror Questions A Survey Of Theory And Use, 55 Mo. L. Rev., 817, 841 (1990). The notice given here was inadequate to guarantee a fair procedure for all the parties.
Second, the goal in a jury trial is to ensure, to the extent possible, that jurors remain as neutral decision-makers, do not become advocates, and do not decide facts prematurely, and thus be the cause of possible injustice. See MAI-2.01, Committee Comment to MAI-2.01. We are persuaded that the sheer number of juror questions, collectively and individually, tainted the trial process by promoting premature deliberation, allowing jurors to express positions through non-fact-clarifying questions, and altered the role of the jury from neutral fact-finder to inquisitor and advocate, and thus became the source of possible injustice. See Ajmal , 67 F.3d at 15.
Third, the sheer size and number of juror questions required lengthy bench conferences that extended the time required to try this case beyond what the lawyers and trial judge anticipated. At one point during a bench conference, City's attorney pleaded with the court: "Can't you limit the number of questions? You do us." The court did not respond, but simply continued with the lengthy examination and rulings on juror questions submitted. It is clear from this record that the unfamiliarity of Defendants' lawyers with the juror questioning process would have been apparent to the jurors. It is not unreasonable to believe the jury would have attributed much of the delay and bench conference time to Defendants' lawyers, and thus prejudiced the jurors against Defendants.
Fourth, we agree with Defendants' complaint that soliciting juror questioning of all live witnesses was prejudicial when at least one of City's experts who testified via videotape was "shielded" from such interrogation. Although the trial court conceded there was a potential for prejudice in this disparate treatment of witnesses — the prejudice being to the City in the trial court's opinion — the court affirmatively and repeatedly solicited jurors' questions over the objections of both parties. In doing so, the trial court abused its discretion.
"The underlying rationale for the practice of permitting jurors to ask questions is that it helps jurors clarify and understand factual issues, especially in complex or lengthy trials that involve expert witness testimony of financial or technical evidence." U.S. v. Richardson , 233 F.3d 1285, 1289-90 (11th Cir. 2000). This, however, was not a "complex" case or an "extraordinary circumstance" or an "unusual situation" that triggered juror questions. This was a straightforward condemnation case in which all the property was taken; consequently, the frequently voiced rationale for allowing juror questioning had, at most, only limited application here.
Believing that jurors "are not selected for the purpose of asking questions[,]" Sparks , 343 S.W.2d at 667, this court is firmly convinced that the better reasoned cases are those holding that juror questioning should be discouraged. We are confirmed in this view by what took place in this trial. The extensive juror questioning that occurred here was not justified. For the reasons discussed herein, we find the trial court abused its discretion when it invited, received, and allowed this large number of juror questions.
This court does not ignore closing argument remarks by Defendants' lawyer to the effect that he had started the trial with some trepidation about juror questions, but realized in the end that he had "missed some things" the jury "picked . . . up." Continuing, counsel said: "I think that the jury questions that you put forward filled in a lot of blanks for me. And some of them were directed to the very nature of this business, the very use of this property." When viewed in context, these remarks do not act as a waiver of Defendants' objections to juror questions, nor as a concession there was no abuse of discretion. We find the remarks to be nothing more than an attempt by Defendants to unring the bell of prejudice via closing argument remarks.
The judgment is reversed and the cause is remanded for further proceedings.