Evans v Anderson, (02-1107) 08/05/2003

Appeal by plaintiffs from an order entered 25 February 2002 by Judge Zoro J. Guice, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 21 May 2003.

The Moore Law Firm, by George W. Moore and Jennifer W. Moore, for plaintiff-appellants.

Roberts & Stevens, P.A., by James W. Williams, Jacqueline D. Grant, and Kenneth R. Hunt, for defendant-appellees.

    HUNTER, Judge.

    Larry Evans and Carolyn Evans (“plaintiffs”) appeal from an order denying their motion for a new trial and allowing defendants' motions to strike juror affidavits and a juror's live testimony. We affirm for the reasons set forth herein.
    Plaintiffs, co-administrators of the estate of Rebecca Lynn Evans, filed a medical malpractice action against Joseph Robert Anderson, M.D. and Asheville Family Medicine, P.L.L.C. (“defendants”) on 27 July 2000. Subsequently, defendants filed ananswer, denying that they were negligent in rendering medical treatment to Rebecca Lynn Evans. On 29 January 2002, a jury returned a verdict, finding that the death of Rebecca Lynn Evans was not caused by the negligence of defendants. No jurors dissented when the verdict was read by the foreperson nor when they were asked if the verdict was their verdict. Following the announcement of the verdict in open court, the trial court inquired if there was anything further from plaintiffs, and counsel for plaintiffs responded in the negative. Plaintiffs did not request that the jury be polled.
    Seven days later, plaintiffs filed a motion for a new trial and submitted affidavits from three jurors who purportedly disagreed with the verdict. The jurors claimed in their affidavits that after deliberating for approximately five hours, the foreman left for a few minutes and informed them upon her return that they were required to stay until a verdict was reached. According to the affidavits, the foreman filled out the verdict sheet approximately twenty minutes later, even though the three jurors did not agree with the verdict. On 14 February 2002, defendants filed a motion to strike the juror affidavits pursuant to N.C. Gen. Stat. § 8C-1, Rule 606(b) (2001).
    A hearing was held on plaintiffs' motion for a new trial, during which plaintiffs presented testimony of one of the three jurors who had signed an affidavit. Plaintiffs' counsel argued at the hearing that the bailiff informed the foreperson of the jury that the jury would have to deliberate until they reached aunanimous verdict, and the foreperson in turn relayed this information to the jury. However, no evidence was admitted establishing that the bailiff made any such comments to the foreperson. On 25 February 2002, the trial court filed an order denying plaintiffs' motion for a new trial and allowing defendants' motions to strike the juror affidavits and the juror's live testimony. The court concluded that plaintiffs failed to present any competent evidence that there was misconduct by the jury, its foreperson, or any court personnel including but not limited to the bailiff. Accordingly, the court concluded the jury verdict was not coerced. Plaintiffs appeal.
    Plaintiffs contend the trial court erred in denying their motion for a new trial, made pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 (2001). They argued in their motion and during the hearing on their motion that they were entitled to a new trial because the verdict was not unanimous and the verdict was coerced. We find no merit in these contentions and therefore affirm the trial court's denial of plaintiffs' motion for a new trial.
    We initially note that plaintiffs waived their opportunity to have the jury polled by failing to request that the jury be polled in open court. See Lipscomb v. Cox, 195 N.C. 502, 142 S.E. 779 (1928). Therefore, plaintiffs may not now claim that they are entitled to a new trial because the verdict was not unanimous, basing such argument on their informal polling of the jury outside the courtroom and preparing affidavits. Our Supreme Court has stated:        [I]t should be clearly understood that the right to poll a jury can be waived, . . . and that the poll of the jury must be had immediately upon the return of the verdict in open court and before debate or discussion thereof . . . . Unless this procedure is strictly observed by trial judges, it is quite evident that a poll of a jury, after spirited discussion of the verdict, or of the merits of the case, in the presence of a jury, would result in confusion and uncertainty, and thus retard and impair the due administration of the law.

Id. at 506, 142 S.E. at 781. Accordingly, plaintiffs' argument that they are entitled to a new trial due to the verdict not being unanimous fails.
    Plaintiffs additionally contend the trial court erred in striking the juror affidavits and the live testimony of a juror. Plaintiffs assert that this evidence was admissible under N.C. Gen. Stat. § 8C-1, Rule 606(b). We disagree.
    Our review of a trial court's grant or denial of a motion for new trial is limited to determining whether the trial court abused its discretion. Pinckney v. Van Damme, 116 N.C. App. 139, 148, 447 S.E.2d 825, 831 (1994). In the absence of a manifest abuse of discretion, the court's ruling will be left undisturbed. Id. However, the issue of whether the juror affidavits and the juror's live testimony were properly excluded under Rule 606(b) is a question of law and fully reviewable. See Chandler v. U-Line Corp., 91 N.C. App. 315, 371 S.E.2d 717 (1988).
    Rule 606(b) provides:
        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 theeffect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his 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 his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

N.C. Gen. Stat. § 8C-1, Rule 606(b) (emphasis added). The reasons for Rule 606(b), referred to as the general rule of exclusion, include the following:
        (1)    to prevent harassment of jurors by the defeated party in an effort to discover misconduct sufficient to set aside the verdict . . . ; (2) the government's interest in insulating the jury's deliberative process . . . ; (3) preventing the disruption of the finality of the process . . . ; and (4) dissuading tampering of the process by preventing fraud by individual jurors who could remain silent during deliberations and later assert they were influenced by improper considerations . . . .

Chandler, 91 N.C. App. at 322-23, 371 S.E.2d at 721-22. It is well settled “that intrajury influences on a verdict, also known as matters that inhere in the verdict, cannot be inquired into.” Berrier v. Thrift, 107 N.C. App. 356, 365, 420 S.E.2d 206, 211 (1992) (citations omitted).
    Plaintiffs argue the trial court erred in striking the affidavits and testimony because under Rule 606(b), jurors may testify on the question of whether any outside influence was improperly brought to bear upon any juror. In this case, the juror affidavits and the juror's live testimony provided no evidence ofany outside influence. They only provided evidence that the foreman told the other jurors that they were required to stay until a verdict was reached and that the foreman then filled out the verdict sheet even though several jurors expressed their disagreement with the verdict. There was no evidence that the foreman received such information from an outside influence. Moreover, the foreman's alleged statement that the jurors would have to continue to deliberate until a unanimous verdict was reached and the three jurors' alleged disagreement with the verdict were matters inhering in the verdict and thus, could not be inquired into. See Berrier, 107 N.C. App. at 365-66, 420 S.E.2d at 211-12. Although not argued by plaintiffs, the affidavits and live testimony do not provide evidence that “extraneous prejudicial information was improperly brought to the jury's attention . . . .” N.C. Gen. Stat. § 8C-1, Rule 606(b). There was no mention in these affidavits or live testimony of any extraneous information filtering into the jury's deliberations. Therefore, the trial court was proper in striking the affidavits and the juror's live testimony pursuant to Rule 606(b). As we have concluded that the trial court was proper in striking this evidence, our inquiry ends since no additional evidence was submitted to the court in support of plaintiffs' motion. Accordingly, we conclude the trial court properly denied plaintiffs' motion for a new trial.
    Affirmed.
    Chief Judge EAGLES and Judge GEER concur.
    Report per Rule 30(e).

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