Opinion
No. UWY-CV-06-50022506
April 5, 2011
MEMORANDUM OF DECISION
This memorandum of decision is issued in connection with the motion to set aside judgment filed by the defendant, Sally Delman, on February 10, 2011. The grounds set forth in the defendant's motion to set aside verdict are: 1) that the court abused its discretion in requiring a dead-locked jury to continue to deliberate when the jury allegedly advised the court that the conditions in the deliberation room were bad; 2) that the court abused its discretion in giving a second "Chip Smith" charge; and 3) that the court abused its discretion by giving the standard "Chip Smith" charge and by refusing to give the defendant's proposed modified "Chip Smith" charge. An objection to the motion to set aside judgment was filed by the plaintiff Stanly J. Foster, M.D., P.C. on March 4, 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 The defendant asserted six counterclaims against the plaintiffs, all of which were withdrawn shortly before trial. The plaintiff Foster's negligent infliction of emotional distress claim was withdrawn shortly after the close of evidence.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 physical assault from 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, the plaintiff 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 set aside the verdict, a motion to arrest the verdict on the grounds of juror misconduct and a motion for remittitur. See court's 3/31/11 Memorandum of Decision on Motion to Arrest Judgment.
The present motion to set aside verdicts set forth that "the jury in this case sent two notes, 1 day apart, declaring they were a hung jury. Included in the second note was a comment that the deliberations had become `bad.'" The defendant argues that while a court may require a dead-locked jury to continue to deliberate pursuant to Practice Book § 16-29, this jury, under the conditions present should not have been required to deliberate after they declared themselves deadlocked for a second time and after the conditions in the jury room were termed "bad" by the jury foreperson. The defendant also contends that the verdict should be set aside as the court did not, over counsel's objection, read to the jury the defendant's proposed "Chip Smith" charge which language deviated from the standard "Chip Smith" charge prescribed by the Connecticut Supreme Court. The defendant filed no brief in support of its motion, nor any supporting case law for any of its positions.
II DISCUSSION
A motion to set aside or open a civil judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion . . . This limitation on a trial court's discretion results from the constitutional right of litigants to have issues of fact determined by a jury . . ." (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, cert. denied, 298 Conn. 905, 2 A.3d 69 (2010).
"The setting aside a verdict can occur for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Novak v. Scalesse, 43 Conn.App. 94, 97-98, cert. granted, 239 Conn. 92, 682 A.2d 1004 (1996).
The defendant does not make the argument that there was no evidence to support the jury's verdict or that the jury mistakenly applied a legal principle. There was in fact ample evidence upon which the jury could have reached its verdict against the defendant. Instead, the grounds on which the defendant has made this motion to set aside the verdict is that the court abused its discretion during trial in making the jury continue to deliberate when an alleged note came out of the jury room saying the conditions and atmosphere were "bad." (Def Mem. Set Aside Verdict 1.) The defendant's argument has no merit on multiple grounds.
First, there was no such "bad" note. The actual note that came out of the jury room was: "We can't meet 1/2 way Hung Jury (talking down to each other) not good." (Court Ex. G.) Although the notes were marked as court exhibits, the defendant chose not to attach the actual note to its motion nor quote the actual language, instead taking liberal license to what was said.
Second, there was no evidence prior to the verdict that the conditions in the jury room were "bad." Both the court and counsel were given some insight into the atmosphere and conditions in the jury room on the afternoon of February 8, 2011, when a female juror was crying in the jury box. After consultation with counsel, the court, counsel and the juror met and an inquiry was conducted into the cause of the female juror's tears. The female juror advised the court and counsel that she had a dispute with her boyfriend that morning and that the cause of her tears had nothing to do with the deliberations in the jury room. She also advised the court and counsel that things were fine in the jury room and everyone was nice.
Third, there was no communication from the jury prior to the verdict that the conditions in the room were "bad." The foreperson of the jury, Shock, was in frequent communication with the court by the use of notes. The court has examined the seven notes sent by Shock out of the jury room. Several notes have drawn smiley faces, including one with a large drawn smiley face shortly before the hung jury note. None of the notes advised the court that the conditions in the jury room were "bad" in the manner suggested by defendant, but instead advised the court that the jurors were "talking down to each other." (Court Ex. G.) The court, prior to giving its "Chip Smith" charge, specifically directed the jurors to treat each other respectfully and to speak to each other respectfully. There were no subsequent notes received from the jury relating to this issue or any other conduct issue. Based on the foregoing, the defendant's motion to set aside the verdict on the grounds that the court abused its discretion in requiring the jury to continue to deliberate after Court Ex. G was sent is denied.
The defendant next argues that the court should have read the jury her prepared "Chip Smith" charge, rather than the standard "Chip Smith" charge specifically prescribed by the Connecticut Supreme Court in State v. O'Neil, 261 Conn. 49, 74-75, 789 A.2d 730 (2002). The defendant cites no case law to support her position that the court should have deviated from the standard "Chip Smith" charge set forth in O'Neil or that it was an abuse of discretion to do so. The defendant's motion to set aside the verdict entered in this case on this ground is denied.
The defendant finally argues that the court's giving a second "Chip Smith" charge was an abuse of discretion and the verdict should be set aside on this ground. The defendant once again cites no case law for her position and the defendant's argument has no merit. "[T]he delivery of an antideadlock instruction that urges minority view jurors to think again about the views of the majority view jurors generally constitutes an acceptable method of encouraging a deadlocked jury to reach unanimity, especially when the instruction is balanced with cautionary language directing jurors not to abandon their conscientiously held views." State v. O'Neil, supra, 261 Conn. 73. The court's second "Chip Smith" charge to the jury was the standard "Chip Smith" charge prescribed by the Supreme Court in State v. O'Neil. The court's repetition of a "Chip Smith" charge does not necessarily threaten a defendant's constitutional right to an uncoerced jury. State v. Stevenson, 39 Conn.App. 810, 813, 667 A.2d 1296 (1995); See also State v. Lyons, 36 Conn.App. 177, 189-90, 649 A.2d 1046 (1994) (despite the defendant's claims, repetition of a "Chip Smith" charge does not create an atmosphere of coercion that may threaten a defendant's constitutional right to a fair trial.) The defendant's motion to set aside the verdict on this ground is denied.
III CONCLUSION
Based on the foregoing, the defendant's motion to set aside the verdict entered in this action is denied.