Opinion
Civil Action No. 99-2106-CM.
April 8, 2002
MEMORANDUM AND ORDER
This case proceeded to trial in November 2001. Plaintiffs alleged that defendants' action in enforcing housing code provisions by seeking to enter and inspect residential properties either owned or occupied by plaintiffs violated plaintiffs' federal and state constitutional rights, as well as various state tort laws. Following a three and a half week trial, on December 4, 2001, a jury rendered a verdict in favor of all defendants against all plaintiffs. Accordingly, on December 5, 2001 the court entered judgment in accordance with the jury verdict. Pending before the court is plaintiffs' Motion for a New Trial (Doc. 209). As set forth below, plaintiffs' motion is denied.
The court notes that the jury was not presented with all of the plaintiffs' claims against all of the defendants. Instead, in accordance with rulings made throughout the course of the litigation of this case, only certain of plaintiffs' claims were submitted to the jury for consideration.
• Motion for New Trial
Pursuant to Fed.R.Civ.P. 59(a), a "new trial may be granted to all or any of the parties on all or part of the issues . . . in an action in which there has been a trial by jury. . . ." Motions for a new trial are committed to the sound discretion of the trial court. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1046 (10th Cir. 1993). They are "not regarded with favor and should only be granted with great caution." United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991).
In reviewing a motion for a new trial, the court must view the evidence in the light most favorable to the prevailing party. Griffin v. Strong, 983 F.2d 1544, 1546 (10th Cir. 1993). A new trial based upon an error of law is unwarranted unless that error affected the substantial rights of the parties. Fed.R.Civ.P. 61; Heyen v. United States, 731 F. Supp. 1488, 1489 (D.Kan. 1990), aff'd, 945 F.2d 359 (10th Cir. 1991). "The party seeking to set aside a jury verdict must demonstrate trial error which constitutes prejudicial error or that the verdict is not based on substantial evidence." White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983). The court should "ignore errors that do not affect the essential fairness of the trial." McDonough Power Equip., 464 U.S. at 553.
• Discussion
• Objections Based on Juror Comments
Plaintiffs set forth several objections related to information obtained by plaintiffs' counsel during a post-trial interview with the jurors. Specifically, plaintiffs assert that "[i]n [a] post trial interview with the jury[,] attorney for the plaintiffs was made aware of certain facts that directly relate to the fairness of the trial and effected (sic) the substantial rights of the plaintiffs." (Pls.' Mem. at 3).
The court notes that District of Kansas Rule 47.1 regarding communication with jurors after trial provides, in relevant part:
(b) Under no circumstances except by order of the court in its discretion, and under such terms and conditions as it shall establish, shall any party or any party's attorney or their agents or employees examine or interview any juror, either orally or in writing, nor shall any juror consenting to be interviewed disclose any information with respect to the specific vote of any juror other than the juror being interviewed, or the deliberations of the jury.
Federal Rule of Evidence 606(b) prohibits reliance upon jury comments as a basis for a new trial. 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 the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. . . .
Fed.R.Evid. 606(b). Rule 606 provides an exception only where "extraneous prejudicial information was improperly brought to the jury's attention" or where "any outside influence was improperly brought to bear upon any juror." Id. The rule indicates not only that a juror may not testify regarding the prohibited subject, but also that no "juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying [may] be received for these purposes." Id. The Tenth Circuit strictly construes Rule 606(b) "to prohibit a juror from testifying to the effect of anything upon that juror's mind not within the specified exceptions to the rule." Capps v. Sullivan, 921 F.2d 260, 263 (10th Cir. 1990).
Plaintiffs' arguments do not indicate the jury received any outside influence or extraneous prejudicial information. Instead, plaintiffs assert that, based on the post-trial interview with the jury, plaintiffs' counsel learned that:
• the "jury relied heavily on the condition of the property, which was not an issue;"
• the jurors "in effect relied on their personal belief that they wouldn't want to live next to the building;"
• the jurors were "so tainted by passion and prejudice against plaintiffs based on what they perceived as the condition of the property that they totally failed in their duty and acted contrary to their oath;"
• the "jury did not have any concept of the requirements of law placed o[n] counsel in regard to the way plaintiffs could be questioned;"
• the "jury did not understand that plaintiffs['] counsel was limited to asking open questions on direct examination while defense counsel was allowed to ask leading question[s] on cross examination . . . lead[ing] the members of the jury to find that the plaintiffs lacked credibility;"
• "[a]fter a simple explanation of the requirements of law in examination of a witness the jury had a different view;"
• the jurors "very candidly admitted that their main consideration was why the Unified Government was no longer a party to the action . . . [and] considered it unfair to the other defendants;" and
• the jurors were "very frank in stating that if they had known the search warrant had been overturned . . . it would have had very substantial impact on their decision."
The court does not construe plaintiffs' motion as raising a challenge to the court's ruling dismissing the Unified Government from the action. Plaintiffs provide no legal support for such an argument.
The court does not construe plaintiffs' motion as raising a challenge to the court's in limine ruling, wherein the court limited the admissibility of evidence regarding the status of the "original" search warrant. Plaintiffs provide no legal support for such an argument.
(Pls.' Mem. at 3-5). None of these enumerated assertions fits within the exception to Rule 606(b). Therefore, because Rule 606(b) "specifically precludes judicial `inquiry into the validity of a verdict,'" the court denies plaintiffs' motion for a new trial based on juror comments. United States v. Voigt, 877 F.2d 1465, 1469 (10th Cir. 1989) (citing Fed.R.Evid. 606(b)). Plaintiffs' motion is denied on this basis.
• Objections Based on Counsel's Comments
Plaintiffs next assert that "[c]omments and content of the leading questions by defendants['] counsel led the jury to believe facts not in evidence." (Pls.' Mem. at 2). Specifically, plaintiffs allege that defendants' counsel made comments:
• "such as plaintiff Watson['s] granddaughters['] safety was the `REAL' reason why Watson closed down her office;"
• "about court cases Watson and the city had been in while knowing Watson could not defend or explain her position to the (sic) satisfaction due to the court[']s rulings;" and
• "made remarks unfounded in law."
( Id. at 2-3).
The court finds plaintiffs fail to set forth a sufficient basis for a new trial. First, the court notes plaintiffs provide no legal basis in support of their contention that these comments, if made, entitle them to a new trial. Second, there is no evidence that plaintiffs contemporaneously objected to these statements during trial. Failure to timely object to a statement or argument of counsel precludes a party from relying on that statement or argument as a basis for a new trial. This is because it is well established that a party's failure to object at trial or to move for a mistrial forecloses the party from raising the issue as grounds for a new trial unless the objected to action constitutes plain error, in which case a new trial is required to prevent a miscarriage of justice despite the lack of an objection at trial. Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962 (10th Cir. 1993); Ortega v. City of Kan. City, Kan., 659 F. Supp. 1201, 1214 (D.Kan. 1987), rev'd on other grounds, 875 F.2d 1497 (1989). Plaintiffs have not set forth any basis for the court to find the comments at issue to be plain error.
Third, the court instructed the jury regarding the effect of counsel's statements. The court's instructions to the jury indicated that "[s]tatements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. You should disregard any such utterance that has no basis in the evidence." Fourth, to the extent that plaintiffs object to defense counsel's use of leading questions when examining plaintiffs, the court notes that Federal Rule of Evidence 611(c) expressly provides that "leading questions should be permitted on cross-examination." Generally, defense counsel's questioning of plaintiffs could be construed as cross-examination. Therefore, the use of leading questions by defendants' counsel was not improper.
Fifth, regarding defense counsel's comments with respect to "court cases," the court entered rulings throughout the course of the trial regarding the admissibility of evidence concerning the prior legal proceedings between the parties. However, it is unclear which specific statements of defense counsel plaintiffs' motion references. Therefore, it is not possible for the court to address whether such comments were allowed into evidence in error and whether such error affected "the essential fairness of the trial." McDonough Power Equip., 464 U.S. at 553. Failure to specify which testimony was allegedly admitted incorrectly precludes the court from considering any claimed error in its admission. Sanjuan v. IBP, Inc., 941 F. Supp. 1000, 1005 (D.Kan. 1996), aff'd in part, rev'd in part, 160 F.3d 1291 (10th Cir. 1998). Moreover, the court finds that, absent a proper objection to establish either that the court's ruling was in error or that the defendants violated the court's order regarding the admissibility of this evidence, plaintiffs' motion based on the comments of counsel is insufficient to merit a new trial. See White, 710 F.2d at 1443 (noting that the party seeking to set aside jury verdict bears burden to demonstrate prejudicial error).
Finally, the court finds plaintiffs have failed to demonstrate that defense counsel's comments had a substantially prejudicial effect upon the proceedings, as is necessary to sustain a new trial motion pursuant to Rule 59. Plaintiffs' motion is denied on this basis.
• Length of Deliberations
Plaintiffs next object to the verdict based on the "length of the trial and minimal (less than two hours) duration of jury deliberation." (Pls.' Mem. at 4). The court finds that the length of the jury's deliberations does not present a proper basis for a new trial in this case. There is no indication that the jury did not follow the court's instructions in reaching a lawful verdict. See Baty v. Willamette Indus., Inc., 985 F. Supp. 987, 998 (D.Kan. 1997) (rejecting similar argument that jury did not properly deliberate based on three-hour duration of deliberations). Plaintiffs' motion is denied on this basis.
Order
IT IS THEREFORE ORDERED that plaintiffs' Motion for a New Trial (Doc. 209) is denied.
IT IS SO ORDERED.