Brown v. Johnson

416 N.E.2d 799, 92 Ill. App. 3d 1095, 48 Ill. Dec. 526, 1981 Ill. App. LEXIS 2047
CourtAppellate Court of Illinois
DecidedFebruary 6, 1981
Docket80-5
StatusPublished
Cited by9 cases

This text of 416 N.E.2d 799 (Brown v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Johnson, 416 N.E.2d 799, 92 Ill. App. 3d 1095, 48 Ill. Dec. 526, 1981 Ill. App. LEXIS 2047 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE BARRY

delivered the opinion of the court:

The original action underlying this appeal was a suit for damages for injuries the plaintiff, Anthony Brown, suffered when defendant Donald E. Johnson, driving his automobile in the course of his employment with defendant G & M Distributors, made a left turn across the path of plaintiff’s oncoming motorcycle. Following a jury trial, judgment was entered on the jury’s verdict in favor of the defendants and against the plaintiff. The plaintiff appealed from the order of the trial court denying his post-trial motion. This court’s opinion, issued in response to the plaintiff’s appeal, is contained in Brown v. Johnson (1978), 60 Ill. App. 3d 76, 378 N.E.2d 757.

Among the issues raised by the plaintiff in his first appeal was whether the trial court erred in refusing to consider an affidavit by court reporter Emily Stessman concerning the post-trial statements of juror Robert Folkland. The day after the trial (July 2,1976), plaintiff’s attorney, Joseph Edler, with the permission of the court and in the presence of Ms. Stessman, asked Folkland numerous questions about the trial. Most of the questions related to Mr. Folkland’s understanding and comprehension of both the instructions and the various legal issues involved in the case. During the questioning, Edler asked Folkland if John Strader, one of the defense witnesses, was credible. Briefly, Strader had testified that at the time of the accident involving the plaintiff’s motorcycle and defendant’s automobile, he was standing inside of Black’s Radio and Television store in Galesburg. Just prior to the collision he looked out of the store’s window and observed plaintiff’s motorcycle traveling at a high rate of speed toward the intersection where the accident with defendant’s car occurred. The following colloquy ensued between Edler and Folkland:

“Q. What was your — How did you accept the witness Strader?
A. How did I accept him?
Q. Did you believe what he said? Was he credible?
A. I don’t remember now.
Q. He was the one standing in the window looking out of the window.
A. Yeah. One of the guys went to see. You know he questioned about him — whether he could see a block and a half away and one of the jurors went over there and looked out of that window.
Q. When did they do that?
A. Let’s see. It was the last day of the trial. Maybe a day before. I’m not sure. Might have been the day before. But he said he could see down that far because that’s only a short block.
Q. Did they believe what Mr. Strader said?
A. Right.”

On July 7, 1976, Edler had a second conversation with Folkland, again in the presence of Ms. Stessman. The relevant portion of that conversation is as follows:

“Mr. Edler: Hi, Bob. Bob, the reason I stopped over here is to talk to you about the statement that I took from you last week where you told me that one of the jurors went over to Black’s T.V. Store and looked out of the window to see if he could see what the witness, Mr. Strader, testified to, and on Sunday when I spoke with you on the telephone you told me you thought there might have been at least two of the jurors that went over and looked out of the window. Both times you told me you didn’t recall who they were. Have you been able to think of their names since I last talked to you?
Mr. Folkland: No. There may have been two or three that went over there.
# # «*
Q. Well, Bob, the reason that I’m here is to ask you if you would sign an Affidavit to that. Let me read it to you. (Mr. Edler reads Affidavit.)
A. Well, I don’t know.
Q. Well, Bob, is it true?
A. Yeah, it’s true, but I’m not going to sign anything.
Q. Okay, Bob, I won’t ask you again. It has to be up to you and your own conscience.
A. But I know two or three of them went out there.
Q. Okay. That’s fine. I won’t bother you with this any more.”

In light of these revelations the plaintiff alleged in his post-trial motion that the unauthorized visit to the accident scene by one or more jurors had so tainted the jury verdict that a new trial was warranted. The trial court, however, denied the plaintiff’s motion without considering the substance of either Ms. Stessman’s affidavit or juror Folkland’s statements. (See Wyckoff v. Chicago City Ry. Co. (1908), 234 Ill. 613, 85 N.E. 237.) On appeal, this court, relying on the reasoning of the subsequently decided Illinois Supreme Court case of People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, remanded the cause for a hearing to allow the trial court “an opportunity to hear evidence concerning whether the jury had in fact considered extraneous matters which were prejudicial to the plaintiff.” Brown v. Johnson (1978), 60 Ill. App. 3d 76, 80, 378 N.E.2d 757, 760.

On July 5, 1978, the hearing pursuant to our mandate was held. The trial judge and the attorneys agreed upon a series of questions to be asked by the court. The first question was whether the jurors visited the scene of the occurrence or Black’s T.V., from which eyewitness Strader had viewed the accident scene, any time during the course of the trial. The second question was phrased as follows: “Did you gain knowledge that any member of the jury visited Black’s T.V. or the scene of the occurrence?” If a juror answered “No” to these questions, it was agreed that the juror would be excused, with no further questioning. An affirmative answer to the second question would prompt further inquiry by the judge to elicit the name of the juror who visited the scene and the date of the visit.

Immediately following the preliminary conference, the first witness was sworn in and questioning by the trial judge began. Of the five witnesses called, only four were questioned about the alleged improper jury visits to the accident scene. The fifth witness, Joseph L. Kuntz, the father of one of the jurors, was questioned about his association with the defendant’s insurance carrier.

Jurors Keith A. Kuntz and Zada Wiedenhamer testified that they did not visit the scene of the occurrence or Black’s T.V., nor did they gain any knowledge during the course of the trial that any member of the jury had visited the scene or Black’s T.V.

Robert Folkland was next to testify.

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Bluebook (online)
416 N.E.2d 799, 92 Ill. App. 3d 1095, 48 Ill. Dec. 526, 1981 Ill. App. LEXIS 2047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-johnson-illappct-1981.