ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
PERRY W. HOAG F. JOSEPH JASKOWIAK
COURT OF APPEALS OF INDIANA
Tomassi, Radogno, Cameli & Hoag KEVIN G. KERR
Chicago, Illinois Hoeppner Wagner & Evans
KARL L. MULVANEY
CANDACE L. SAGE
Bingham McHale LLP
VLADO NAUMOSKI, GREAT AMERICAN )
LINES, INC., INDEPENDENT CONTRACTORS )
LEASING CORPORATION, and AFA )
vs. ) No. 45A03-0303-CV-90
MIGUEL BERNACET and )
JANET BERNACET, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Robert A. Pete, Judge
Cause No. 45D05-0001-CT-018
November 25, 2003
OPINION FOR PUBLICATION
Appellants-defendants Vlado Naumoski, Great American Lines, Inc., Independent Contractors Leasing Corporation, and AFA
Enterprises (collectively, Naumoski) appeal the trial courts granting of appellees-plaintiffs Miguel and Janet
Bernacets Motion to Correct Errors. Specifically, Naumoski contends that the trial court
should not have granted a new trial where a jurors affidavit stated that
another juror voiced his personal knowledge of the location of the traffic accident
that was involved in this litigation. Finding that the trial court properly
admitted the affidavit, but that it was an abuse of discretion to grant
a new trial, we reverse.
On December 4, 1998, Miguel Bernacet was traveling eastbound in Lake County on
interstate 80/94, also known as the Borman Expressway, in his Honda Civic.
Naumoski, the owner-operator of the tractor and flatbed trailer he was driving, was
also traveling eastbound on the Expressway. Somewhere between the Kennedy Avenue and
Cline Avenue exits, which are approximately three-quarters of a mile apart, the two
Bernacet filed a negligence complaint on January 11, 2000, alleging that Naumoski swerved
into Bernacets lane. Naumoski filed his answer, denying responsibility for the accident.
At the trial, the jury was asked to determine whether Naumoski turned
right into the back of Bernacets vehicle or whether Bernacet cut left in
front of Naumoski. Part of the debate centered on whether there were
three lanes on the Expressway at the time of the accident such that
Bernacet had to move to the left because he was in an access
lane that ended, or whether there were four lanes on the Expressway such
that Bernacet would not have moved from the right lane before he reached
his intended exit of Cline Avenue. The Expressway had undergone a great
deal of construction between the date of the accident and the trial, and
conflicting evidence was produced at trial regarding the number of lanes that existed
in 1998. Additional debate centered on the extent of Bernacets injuries.
During the final jury instructions, the trial court gave the jury a slight
variation of Indiana Pattern Jury Instruction No. 1.09, saying, In weighing the testimony
to determine what or whom you believe, you should use your own knowledge,
experience, and common sense gained from day to day living. Tr. p.
942. The trial court also instructed the jury that, [i]n determing whether
any fact at issue has been proven by a preponderance of the evidence,
you may consider the testimony of all witnesses, regardless of who called them.
And all exhibits received into evidence, regardless of who may have produced
them. Tr. p. 933.
On October 3, 2002, after four hours of deliberation, the jury returned a
verdict for Naumoski. On November 5, 2002, the Bernacets timely filed a
Motion to Correct Error and filed a memorandum in support of that motion,
alleging juror misconduct. The Bernacets supported their motion with the affidavit of
juror Shannon Niles, which stated that another juror had related to the jury
that he lived near the scene of the accident and that he knew
that in 1998 the Expressway had three travel lanes and a merge lane
as Nauomski contended. Several other jurors concurred that Bernacet was in a
merge lane at the time. The Bernacets alleged that this constituted gross
misconduct that most likely resulted in prejudice, and therefore requested a new trial.
Naumoski filed a Motion to Strike Niless affidavit, contending that it violated
the fundamental rule prohibiting impeachment of jury verdicts by an affidavit concerning the
jurors thought processes. The trial court conducted a hearing on the matter
on February 4, 2003, and six days later granted the motion to correct
error and also granted a new trial. Naumoski now appeals.
DISCUSSION AND DECISION
Naumoski contends that the trial court abused its discretion when it granted Bernacets
motion to correct errors. Specifically, Naumoski argues that the information contained in
juror Niless affidavit was insufficient grounds upon which to grant a new trial.
In resolving the issue of juror misconduct advanced by the defendants, we note
that the trial courts ruling with respect to a motion to correct error
carries a strong presumption of correctness and will be reversed only for an
abuse of discretion. South Bend Clinic, Inc. v. Kistner, 769 N.E.2d 591,
592 (Ind. Ct. App. 2002). Indiana Rule of Evidence 606(b) states:
(b) 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 jurys deliberations
or to the effect of anything upon that or any other jurors mind
or emotions as influencing the juror to assent to or dissent from the
verdict or indictment or concerning the jurors mental processes in connection therewith, except
that a juror may testify (1) to drug or alcohol use by any
juror, (2) on the question of whether extraneous prejudicial information was improperly brought
to the jurys attention or (3) whether any outside influence was improperly brought
to bear upon any juror. A jurors affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying may not be received for these purposes.
We also note that a jurys verdict generally may not be impeached by
the testimony of the jurors who returned it. South Bend Clinic, 769
N.E.2d at 592 (citing Ward v. St. Mary Med. Ctr. of Gary, 658
N.E.2d 893, 894 (Ind.1995)). However, the plaintiff may obtain a new trial
based on allegations of extraneous prejudicial information if he proves that extraneous information
was improperly brought to the attention of the jury and that it involved
gross misconduct that was prejudicial to the complaining party. Id. That
is, the existence of prejudice must be affirmatively demonstrated; it will not be
assumed. Id. at 593. Finally, we note that it is within
the province of the jury to resolve discrepancies in the evidence. Wedge
v. Lipps Indus., Inc., 575 N.E.2d 332, 338 (Ind. Ct. App. 1991).
Here the trial court acted within its discretion by admitting juror Niless affidavit
into evidence. Bernacets motion to correct errors alleged that extraneous prejudicial information
was improperly brought to the jurys attention. The affidavit was necessary for
the court to determine whether the information provided to the jurors was extraneous
and prejudicial. Therefore, the trial court was within its discretion when it
considered the affidavit.
The question remains, however, as to whether the trial court acted properly by
granting Bernacet a new trial. Juror Niless affidavit stated that one of
the male jurors said that he was familiar with the appearance of the
accident scene in 1998 because he lived nearby and walked his dog in
that area. Appellants App. p. 57. He further stated that at
the time of the accident there were only three lanes of eastbound traffic
between Kennedy Avenue and Cline Avenue and that the fourth lane was a
merge lane that ended at some point before Cline Avenue. Appellants App.
p. 57. Several other jurors stated that they also remembered the lane
configuration in 1998 to be that way, and they therefore concluded that the
accident was the fault of Bernacet. Juror Niles originally believed that the
accident was the fault of Naumoski, and she would not have agreed to
a verdict against Bernacet absent the statement of the other juror about his
recollection of the lane configuration in 1998. Appellants App. p. 58.
Throughout the trial, both sides presented conflicting evidence regarding the configuration of the
Expressway on the day of the accident. Gary Wayne Cooper, an accident
reconstructionist, testified that there were not three lanes of eastbound traffic, tr. p.
546, but rather that there were four lanes. Tr. p. 560.
Bernacet testified that he was in the far right lane and that he
was under the impression that from Kennedy Avenue to Cline Avenue there were
only three lanes. Tr. p. 89, 92, 94, 96, 144. However,
his counsel corrected him while he was testifying, saying, You keep saying the
third lane. There is [sic] four lanes out there. Tr. p.
94. Naumoski testified on direct examination that there were three lanes but
agreed that there were four on cross examination. Tr. p. 491-92, 506.
Indiana State Trooper Matthew Lawrence, one of the investigating officers at the
accident scene, testified that there were four lanes at the accident scene.
Tr. p. 13. The police report, however, described three lanes of traffic.
Appellants App. p. 82. In short, the evidence was in conflict.
The positions of the cars and whether one of them may have
been changing lanes at the time of the accident were central issues to
the determination of the case. Thus, it was not only proper but
also necessary for the jury to resolve this conflict.
Inasmuch as the trial court instructed the jury to consider their own knowledge,
experience, and common sense gained from day to day living, it was not
improper for a juror to say that he personally remembers the configuration of
the Expressway in 1998. Based on juror Niless affidavit, all of the
jurors except for her remembered that there were three lanes at the location
of the accident in 1998. Appellants App. p. 58. This knowledge
was gained by traveling on or near the road in their day to
day living in Lake County. Appellants App. p. 57. Additionally, as
stated above, the number of lanes was a central issue about which a
great deal of testimony was adduced. Therefore, the jurors discussion of their
recollection of the number of lanes was not extraneous.
Nevertheless, Bernacet contends that the jurors statements were gross misconduct based on his
Nothing has changed in our system of jurisprudence to alter . . .
the reasoning of the Indiana Supreme Court, over one hundred years ago in
Conrad v. State: . . . Evidence should not be acted upon, which
all the jury had not originally an opportunity of acquiring in the legitimate
way, which is prescribed and sanctioned by the rules of law and which
should be in the presence of the parties or their professional agents.
Appellants Br. p. 16-17 (quoting Conrad v. State, 144 Ind. 290, 43 N.E.
221, 224-25 (1896)). Contrary to Bernacets assertion, many things have changed in
the last 107 years, not the least of which being the new Indiana
Jury Rules, which became effective on January 1, 2003. In the past,
jurors were treated as empty vessels that were to be filled only with
the information the court, legal counsel and the witnesses provided them during the
trial. These new rules were promulgated to
aid in educating the jurors and [to] promote a better understanding of their
vital role within our legal system. Additionally, Hoosier jurors may very well
be provided with an opportunity to reconnect with their fellow citizens and their
government. Moreover, the application of the rules may communicate to jurors that
their time is valued.
Hall v. Eastland Mall, 769 N.E.2d 198, 205 (Ind. Ct. App. 2002).
We no longer expect or wish for our jurors to ignore the knowledge
with which they enter the courtroom. As in this case, we instruct
them to use that knowledge. Thus, it cannot be gross misconduct to
do precisely what the court instructed the jurors to do.
Be that as it may, Bernacet goes on to argue that he was
prejudiced by the jurors comments because he did not have a full and
fair opportunity to rebut his testimony. Appellants App. p. 55. However,
as discussed above, there was a great deal of testimony during the trial
regarding the number of lanes at the scene of the accident in 1998.
Tr. p. 13, 82, 89, 92, 94, 96, 144, 491-92, 506, 546,
560. Bernacet had ample opportunity during the trial to offer evidence to
the jury that there were four lanes rather than three. Therefore, Bernacet
cannot show that he was prejudiced by the jurors comments.
Inasmuch as Bernacet failed to carry his burden of proof to the trial
court that the jurors statement amounted to gross misconduct and prejudice, we conclude
the trial court erred in granting the motion to correct errors and in
granting a new trial. Thus, we reverse and remand with instructions to
reinstate the jurys verdict.
Reversed and remanded.
BROOK, C.J., and SHARPNACK, J., concur.
Footnote: Bernacet filed a Motion to Strike Portions of the Reply Brief of
the Appellant and Supplemental Transcript on October 20, 2003, alleging that Naumoski failed
to designate the facts in relation to the voir dire and thus raised
a new issue in the reply brief contrary to the dictates of Appellate
Rule 46(C). Inasmuch as the transcript of the voir dire was not
submitted with the record or appendix, we grant the motion to strike the
materials that were not part of the original filing, specifically, pages 20-21 of
the brief and the transcript of the voir dire. Even so, had
we considered this material, our disposition of this case would remain unchanged because
Bernacet has failed to prove that the jurors statement amounted to gross misconduct