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COURT OF APPEALS
DECISION
DATED AND RELEASED
December 27, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0954
STATE
OF WISCONSIN IN
COURT OF APPEALS
KATHLEEN J. ANDERSON
AND
LARRY A. ANDERSON,
Plaintiffs-Respondents,
v.
BURNETT COUNTY AND
WISCONSIN
COUNTY MUTUAL
INSURANCE
CORPORATION,
Defendants-Petitioners,
STATE FARM MUTUAL
AUTOMOBILE
INSURANCE COMPANY,
Intervenor-Plaintiff-Respondent.
APPEAL from an order of
the circuit court for Burnett County:
JAMES H. TAYLOR, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Burnett County appeals an order for a
new trial in the interest of justice. Burnett County alleges that the court
incorrectly based its decision to grant a new trial in the interest of justice
based upon information presented during a hearing held on a motion to impeach a
jury verdict in favor of Burnett County.
Because we conclude that the statements attributable to the jury are not
competent to impeach the jury verdict, the court erred by basing its order for
a new trial in the interest of justice on the evidence presented at that
hearing. Accordingly, we reverse the
order for a new trial and direct that judgment be entered upon the jury
verdict.
Kathleen
and Larry Anderson filed a claim alleging that Kathleen sustained personal
injuries and the loss of her unborn fetus in a motor vehicle accident caused by
the negligent maintenance and repair of the roadway where the accident
occurred. The case was tried before a
jury, which resulted in a verdict finding neither Kathleen nor Burnett County
causally negligent. Shortly after
reaching its verdict, the foreperson, Carla Bockover, sent a letter to the trial
court complaining about some of the jurors' statements made during jury
deliberation. The information disclosed
by the letter attributed the following comments to one or more of the jurors: [1] I can't believe you are in her
favor when she caused you to lose 3 days of business[;]
[2] If we find in her favor, and
the County has to pay, our TAXES will go up[;]
....
[3] Why should we give her Dad any
money, he was just going to let her die, they are Jahovas' [sic] Witness[es;]
[4] Kathleen must not be a very
decent daughter ... because her mother wasn't in the Courtroom very much;
[5] NO TEENAGER is a responsible
driver[;]
[6] Kathleen's [counsel is an] ...
Ambulance Chaser[;] and
[7]
Five jurors ... worked for the same company, and [they indicated] that
they couldn't disagree with each other because they had to face each other at
work.
The
trial court held a hearing and received evidence in regard to these
comments. After the evidentiary
hearing, the court concluded that the comments represented neither extraneous
information nor reflected outside influences so as to fall within the
parameters of § 906.06(2), Stats. The court, however, concluded that a new
trial was warranted in the interest of justice based upon the evidence received
at the hearing to impeach the jury's verdict and ordered a new trial in the
interest of justice.
The first step in
determining whether a jury verdict may be impeached is to determine whether the
evidence offered is competent. State
v. Heitkemper, 196 Wis.2d 218, 223, 538 N.W.2d 561, 563 (Ct. App.
1995). If a juror is competent to
testify as to the deliberations of the jury panel, the evidence is admissible
at a hearing on a motion for a new trial and the court may then consider
whether the evidence discloses sufficient grounds to overturn the verdict or
prejudice. Castaneda v. Pederson,
185 Wis.2d 200, 208-12, 518 N.W.2d 246, 249-51, (1994). If the proffered juror testimony is not
competent, no further inquiry is necessary.
State v. Casey, 166 Wis.2d 341, 346, 479 N.W.2d 251, 253
(Ct. App. 1991). Section 906.06(2), Stats., controls the question of
competency of juror testimony:
(2) Inquiry Into Validity of Verdict or
Indictment. Upon an inquiry into
the validity of a verdict or indictment, a juror may not testify as to any
matter or statement occurring during the course of the jury's deliberations or
to the effect of anything upon the juror's or any other juror's mind or
emotions as influencing the juror to assent or dissent from the verdict or
indictment or concerning the juror's mental processes in connection therewith,
except that a juror may testify on the question whether extraneous prejudicial
information was improperly brought to the jury's attention or whether any
outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of
any statement by the juror concerning a matter about which the juror would be
precluded from testifying be received.
It is clear from the
language of the statute that no juror is competent to testify regarding the
mental processes of the jurors during jury deliberation. A juror may testify only as to improper
extraneous information that was considered during deliberation. This very restricted rule of competency is predicated
upon the need for finality of jury verdicts.
If a verdict could be impeached by evidence concerning the mental
process of the jurors, no matter how mistaken or inappropriate that process may
be, all jury verdicts would be subject to collateral attack. State v. Shillcutt, 119 Wis.2d
788, 803-04, 350 N.W.2d 686, 694 (1984).
In addition, the rule of competency encourages free and open discussion
among jurors and discourages harassment of jurors by a losing party seeking to
set aside the jury verdict. Id. Wisconsin's public policy strongly supports
the finality of jury verdicts because it is essential to the viability of the
jury as an institution integral to our judicial system. Id. at 793, 350 N.W.2d at
689.
The sole areas where
jurors are competent to testify concerns extraneous information that was
considered during the jury deliberations or outside influences. Section 906.06(2), Stats. Extraneous
information is information from a nonevidentiary source that is not part of the
general life experiences jurors bring to the jury room. In Shillcut, our supreme court
defined extraneous information as "'existing or originating outside or
beyond: external in origin: coming from the outside.'" Id. at 794, 350 N.W.2d at 690
(quoting Webster's Third New Int'l
Dictionary at 80 (1976)). The
court further defined "'information' as 'knowledge communicated by others
or obtained from investigation, study, or instruction' or 'knowledge from a
particular event or situation.'" Id. Thus, "'extraneous prejudicial
information' is knowledge coming from the outside which is
prejudicial." Id.
The burden of
demonstrating that the jury considered extraneous information that was
prejudicial rests upon the party seeking to set aside the jury verdict. State v. Poh, 116 Wis.2d 510,
520, 343 N.W.2d 108, 114 (1984). That
burden is to demonstrate that the information considered was extraneous
information, that the extraneous information was improperly brought to the
jury's attention and that it was prejudicial.
Id.
The threshold question
is whether the information identified by the foreperson's letter consisted of
extraneous information. We conclude
that it did not and, accordingly, no juror was competent to testify as to the
nature of the deliberative process that occurred among the various jurors in
reaching their verdict. See State
v. Messelt, 185 Wis.2d 255, 275, 518 N.W.2d 232, 241 (1994). We note that unfortunately many of the
comments evince a mean-spiritedness and often an erroneous perception. For example, the comment that Anderson could
not have been a very decent daughter because her mother was not in the
courtroom is not only offensive, but fails to consider her mother's absence was
by virtue of a sequestration order made by the trial court that precluded her
attendance. Nonetheless, the impression
of the jurors as to the nature, character or trustworthiness of any party or
witness is a matter for the jurors to determine based upon their own mental
processes, including their experiences in life.
No matter how mistaken
the perception of a juror may be, it is part of the human condition that all
jurors bring to the jury deliberations.
While we do not condone a juror reaching any conclusion based upon such
subjective impressions, the conclusion was not a product of extraneous
information because the juror who spoke these words was reflecting upon the
juror's observations regarding the relationship between the daughter and
mother, including the juror noting the mother's absence from significant portions
of the trial. While the juror's
conclusions were wrong, they reflected the specific juror's mental processes
and are not the result of extraneous information. Therefore, no testimony regarding this subject should have been
received because no juror was competent to testify in this regard.
The same is true
regarding the jurors' conclusions that if they find against Burnett County it
might affect their tax rate and that Anderson was responsible for the jurors
losing three days of business. It is
unfortunate that these irrelevant factors were a consideration in the jurors'
deliberative process, but they once again reflect the mental process of a
specific juror and do not reflect extraneous information introduced into the
jury room outside either the evidentiary hearing or the jurors' general
knowledge.
Even more objectionable
is the suggestion of general prejudice against teenagers in regard to how they
operate a motor vehicle or prejudice against Anderson because of perceptions in
regard to her attorney. Nonetheless,
this too is a reflection of mental processes of specific jurors. Jurors take their human condition into the
jury room and preconceived prejudices may become a part of the jury
deliberation process. Such attitudes
should be identified during the impaneling of the jury and jurors who hold such
prejudices should be excused from jury service. Once they are impaneled as part of the jury and are participating
in the jury deliberation process, however, such comments are reflections of mental
processes and are not the product of extraneous evidence or outside
influences.
Finally, we consider the
comment about the five jurors who worked for the same company and were
reluctant to disagree because of their frequent contact in the future. Although this is a foolish reason, it too is
a reflection of the specific attitudes of each of the five employees. It is a reason for their opinion, not a
reflection of extraneous information derived from an outside source. No juror was competent to testify in regard
to this factor because it reflects the mental processes of the jurors in
question.
The one comment that is
not so clearly the result of incompetent evidence concerns the suggestion that
the jury should not award Anderson's father money for future medical expenses
because they are Jehovah's Witnesses.
If this comment is construed as a general prejudice toward a party's
religious beliefs, it becomes an exception to the general rule that mental
processes are not subject to inquiry.
If the bias demonstrated goes to fundamental issues such as religion and
presumably race, national origin and perhaps some other limited categories, the
process is deemed so infirm that evidence of such bias is competent. Shillcutt, 119 Wis.2d at
805-06, 350 N.W.2d at 695; After Hour Welding, Inc. v. Laneil Management
Co., 108 Wis.2d 734, 739-40, 324 N.W.2d 686, 690 (1982). This showing of prejudice must demonstrate
"such a magnitude of prejudice" so as to constitute "an obvious
default of justice." Shillcutt,
119 Wis.2d at 805, 350 N.W.2d at 695.
The policy underlying this exception is that while we will accept the
erroneous and even foolish reasoning of jurors as a reflection of the human
condition that all jurors bring to the jury deliberation table, we will not
tolerate such racial or religious prejudices that are violative of our
fundamental beliefs of fairness and equality.
Id. at 805-06, 350 N.W.2d at 695.
Evidence of such bias is
admissible to protect the overall integrity of the judicial process. Accordingly, if the comment regarding
Jehovah's Witnesses is a matter of religious prejudice, testimony concerning
the comment and its role in jury deliberations would be competent to be
received in evidence. The trial court
correctly held a hearing and evidence was received in regard to this
issue. After the hearing, the trial
court concluded that this evidence was not competent. This finding implies that the religious comment did not reflect
religious animus, but rather reflected a concern over the award of future
medical expenses because of the general perception that Jehovah's Witnesses
would not participate in ordinary medical care. See Sohns v.
Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960). Because the context of the comment was
unrelated to the jury's determination of negligence but was limited to the
narrow issue of damages, the court's conclusion not to impeach the verdict
based on that comment is supported by the evidence. See Shillcutt, 119 Wis.2d at 805-06, 350
N.W.2d at 695. Having determined that
none of the concerns identified represent extraneous evidence, we conclude that
no juror was competent to testify as to the nature of the deliberations or the
reasons why some or all of the jurors may have reached the results reflected in
the verdict.
We must now determine
whether the non-religious evidence, although incompetent, can provide a basis
for the trial court's granting of a motion for a new trial in the interest of
justice. If a witness is not competent
to testify in regard to specific issues, no testimony may be received from them
on the issues. See Heitkemper,
196 Wis.2d at 223-24, 538 N.W.2d at 563.
If the court erroneously permitted testimony regarding the issues, the
evidence remains nonetheless inadmissible.
Because we conclude that no witness was competent to testify in regard
to any of the issues identified except the religious issue, reliance on this
evidence is inappropriate.
In this case, the trial
court properly concluded that none of the claims represented proof of
extraneous influences on the jury's deliberation and, accordingly, denied the
motion to impeach the jury verdict. The
trial court, however, considered the incompetent evidence in making its
determination to grant a new trial in the interest of justice. This is error.
We recognize that a
decision to grant a new trial in the interest of justice is normally a matter
submitted to the trial court's sound discretion. State v. Eison, 194 Wis.2d 160, 171, 533 N.W.2d
738, 742 (1995). We review exercises of
discretion with deference. Wojkiewicz
v. American Family Mut. Ins. Co., 33 Wis.2d 351, 353-54, 147 N.W.2d
249, 250-51 (1967). A determination
made upon an erroneous view of the law, however, is an erroneous exercise of
discretion and cannot be affirmed. Jesse
v. Danforth, 169 Wis.2d 229, 246, 485 N.W.2d 63, 69 (1992).
Here, the trial court
erroneously believed that it could consider the evidence received at the jury
impeachment hearing in making its determination as to whether to grant a new
trial in the interest of justice.
Because the witnesses were incompetent to testify as to these matters,
no use of any type may be made of the evidence erroneously received at the jury
impeachment hearing. Had the court
properly determined in advance of the hearing that all the allegations except
the one that may have reflected religious animus represented the mental process
of the jurors, no evidentiary hearing would have been held on those issues.
We, therefore, conclude
that the trial court erred by relying on the evidence received at the hearing
to impeach the jury verdict and ordering a new trial in the interest of
justice. We are required to reverse the
order and direct the entry of judgment based upon the jury verdict.
By the Court.—Order
reversed and cause remanded with directions.
