*1 alet v. Kenneth BLACKMON et al MARTIN Clyde of Arkansas Court Supreme delivered October Opinion *2 Jennings, for Wright, Lindsey appellants. & P.A., & Wright Chaney, appellees. is The issue this case principal Holt, Frank Justice. of the trial court aside its declaration setting
whether erred a mistrial and verdicts. reinstating 24, 1981, of November rendered verdicts
On $18,755.76 $222,698.81 in favor of Delma Gold and appellee against in favor of Kenneth and David Blackmon Light Martin Arkansas Power and Clyde that the trial Company. appellants’ attorney requested eleven The court then asked each poll jury. verdicts, whether were his or who had jurors, signed Ten own and “not the result of compromise.” her verdicts their own. One affirmed the verdicts as spontaneously stated, further ques- Upon “That was juror compromise.” verdicts were a stated that juror another tioning, asked one Thereupon, “compromise.” and the court what he meant by “compromise,” the following explanation: gave all have
Well, you that after saying what I’m it that are not to you to discuss every opportunity individual ideas after have you course own give up your it between yourselves had an discuss opportunity if this is a such compromise and to debate it then pure all wrote and divided it eleven figure as if down you it’s compromise. *3 the verdicts this another stated that explanation
After a a The trial court declared mistrial and compromise. were the counsel jury excused the As jury. dispersed, appellants’ left while counsel for the to appellees attempting the compromise, and that a object although valid or inasmuch as there was no permissible showing was the in advance. jury that to be bound agreed week, the notice to
Within next without appellants’ court, counsel and of the the attorneys without approval affidavits, the obtained transcribed the official by appellees court from each of the eleven that the jurors stating reporter, had, the by without be bound jury previous agreement results, taken the of the of each average percentage liability would to the and used that as a basis for assign appellants The discussion. was fault attributable to the average 76% The then concluded that this jury appellants. average and the high too reduced amount of fault attributed to the 60%. verdicts 60%of the amount appellants represent the requested appellees.
After the the moved the obtaining trial court to set aside the mistrial order and reinstate the motion, a verdicts. At on the over the of hearing objection counsel, the affidavits were read to the court and appellants’ entered into The trial evidence. acknow- candidly that he had erred in the since ledged declaring mistrial verdict was not “a lot verdict” and reinstated the verdicts. A have the mistrial later moved to days few order The court’s written order denying appel- reinstated. states, lants’ motion to reinstate the mistrial pertinent part:
. . . of the transcript considering pro- [A]fter 24,1981 conducted this Court of November ceedings herein, at the conclusion the trial of the cause responses to the Court’s questioning, Jurors counsel, arguments of . . . The court of the specifically polling finds that tended to confuse and that jury, Court while if verdict had attempting identify been lot, reached if inquired ‘compro- mised’ in their reaching verdict....
After considering cases on the Arkansas sub- ject, reviewing transcription jurors’ at the taken the official reporter Court, time the verdict was rendered to the Court of the opinion that there is no evidence the verdict was reached lot or in such a manner as would render the verdict impermissible. (Italics supplied.) The court further found:
. .. need not those rely upon affidavits or [T]his its reaching decision herein. The record to according the statements of the jurors being before dismissed is clear of evidence of misconduct or of any the jury having reached its verdict lot. (Italics supplied.) is taken
Appeal from that order the motion to denying reinstate the mistrial.
The appellants argue that should have appellees been required to clear up confusion at the verdict any be proceedings by that requesting polled further. Perkins, Ark. Stat. Smith v. Ann. (Repl. 1979); 27-1737 246 § Smith, Ark. 439 (1969). S.W.2d 275 Unlike 194 be reasonably
here
and did all
could
objected
expected
they
circumstances, as
to have
under
indicated pre-
done
the trial
mistake and clear
viously,
to correct
court’s
confusion at the time of the verdict proceedings.
the trial
erred
argue
that
and,
record
juror
into the
the eleven
accepting
therefore,
to
erred
the motion
reinstate
it
granting
to
verdict and
motion
reinstate
denying
may
an affidavit
although
mistrial.
that
Appellees respond
be
be
into
may
not
received to
it
received
impeach
Heard, Ark. 403
evidence
v.
to
a verdict. Pleasants
support
Here,
State,
v.
(1854);
Stanton
Ark. 317
however,
is
we must
this evidence
inadmissible
agree that
Ark. Stat. Ann.
Rule 606
(Repl. 1979),
to
pursuant
28-1001
§
(b), Uniform Rules of
That rule
states
clearly
Evidence.
“a
not
matter or
testify
any
as to
statement
the course
but
occurring during
deliberations”
jury’s
“may
on the questions
preju-
whether extraneous
testify
dicial
was
information
to the
improperly brought
jury’s
attention or whether
outside influence
any
improperly
State,
to bear
v.
brought
any jurors.”
upon
Ashby
Pullum,
v.
(1980);
Sanson
S.W.2d 675
State,
Veasey
This is in
to
contrast
previous
statute,
Arkansas
which
to
allowed questioning
ascertain whether the
Ann.
verdict was
lot.
Stat.
§
This
1964).
statute was
(Repl.
specifically repealed
when
Uniform Rules of
Acts
Evidence
adopted.
(Extended
1976),
Sess.
No.
it
Presently,
1143 2.
appears
§
law in
Arkansas
jurors’
governing
admissibility
testimony with
is
(b),
their deliberatons
Rule 606
respect
which does not
permit questioning
ascertain
Further,
whether
reached their
verdict
lot.
Rule 606
makes
(b)
no distinción between questioning jurors
a verdict and
them to
questioning
support
Therefore,
Pullum,
verdict.
think
we
in Sanson v.
our caveat
325,
... after a to interview improper lawyer [I]t a trial in an effort to inadmissible affidavits obtain such their own verdict.
195 Likewise, in here it is to question impermissible of a verdict. support
Nevertheless,
cannot reverse
the error
we
unless
298,
State,
418
Brown v.
Ark.
556
262
S.W.2d
prejudicial.
Evidence;
A.R.Civ.P.
(1977); Rule 103 Uniform Rules
(a),
61.
the trial
have been
to set
obligated
Rule
Here
court would
in
aside the mistrial and reinstate the verdicts even
absence of the
there was no ground upon
because
declared,
an
which a mistrial could be
without
abuse
discretion, at the verdict
A verdict
not be
proceedings.
set aside
and without reasonable cause.
Rock
arbitrarily
Big
342,
Stone &Material Co. v.
344 S.W.2d
Hoffman, 233
Hemmer,
312,
(1961).
Bridges
See
v.
S.W.2d
Crowder v.
Flippo, 263
court,
It is
(1978).
S.W.2d
that the
at the
apparent
time of the verdict
was confused as to
proceedings,
distinction between a verdict
lot and a
quotient
Thorn,
which we recently
in
v.
explained
Scheptmann
(1981):
The party verdict as a verdict lot has challenging the burden of to the trial court that it was a proving verdict by lot and not a verdict. National quotient Credit Corp. Here, Ritchey, 254 Ark. nothing that any juror said when the trial court polled by on the day of the trial indicated that the rendered a verdict lot. Nothing said any juror indicated misconduct of any kind. Based on the solely statements of the jurors when trial, at polled we have no hesitation saying that evidence to support order of mistrial was insufficient. mistrial, Since the trial court erred in it ordering follows the court necessarily was correct in aside the setting mistrial. *6 out that the court heard appellants point the
affidavits from the jurors and
have been influenced
them. Proper
for the trial court
that we
respect
requires
give
due credence to his
that his decision to not reinstate
finding
the mistrial order was based
of the
upon
transcription
at the time the
verdict was rendered.
Finch,
151,
Garner v.
Even
S.W.2d
so, it is
irrelevant whether
ultimately
the trial court con
sidered or was influenced
jurors’ affidavits. The issue
is whether the trial court acted
properly
reinstating
verdict. If
reinstating
verdict was
action
proper
take,
that action does not become error
because the
simply
trial court
Dale,
gave
reason for
it.
wrong
taking
Co-
Sutton,
Administrators v.
The appellants’ final is that the argument trial court trial, erred in not a new because granting was not required deliberate further. and 27-1738. §§ However, the jury was excused the bailiff and the appellants’ counsel left the courtroom while the appellees’ counsel were attempting object the basis their objection Furthermore, to the court’s a mistrial. ruling said nothing at the verdict indicated proceedings that any uror j answered in the when if negative asked it was his or her verdict, nor did any juror with the disagree verdict. Cf. Williams, Williams v. 166 S.W.
Affirmed. Hays,
Hickman and dissent. JJ., Hickman, Darrell In Justice, dissenting. Sanson v. Pullum, 641 (1980), we said:
We take this to state opportunity unequivocally, Bar, guidance that in our opinion it is improper lawyer for a to interview after a trial in an effort their inadmissible affidavits to to obtain such own verdict. because delete the “unequivocally”
We should word A not rule. rule is not our majority policy enforcing *7 admitted over enforced no rule at all. The taken the statements of objections appellant contrary They improperly to the Sanson decision. will never admitted as evidence. We improperly taken his decision. know whether influenced the judge is the appellant. innocent of a mistake only party The trial error can be corrected new trial. only court’s Hays, in this dissent. joins J., of Arkansas
Odell v. STATE WATSON CR 82-39 Court Arkansas
Supreme delivered October Opinion