Supreme Court
No. 2014-141-Appeal. (KC 11-1386)
Richard Roma et al. :
v. :
Ernest Moreira et al. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, Richard Roma, appeals from a
judgment in favor of the defendants, Ernest and Elaine Moreira, in this negligence action. The
plaintiff argues that the trial justice erred by denying his motion to pass the case due to jury
prejudice. This case came before the Supreme Court pursuant to an order directing the parties to
appear and show cause why the issues raised in this appeal should not be summarily decided.
After considering the parties’ written and oral submissions and reviewing the record, we
conclude that cause has not been shown and that this case may be decided without further
briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Procedural History
On June 12, 2011, Richard 1 fell down the stairs in his residence at 10 Elm Street, West
Warwick. On November 10, 2011, Richard and his wife, Lori (plaintiffs), filed a negligence
action against defendants, their landlords. The plaintiffs alleged that defendants failed to
maintain the premises in a “clean, good, and safe condition.” Richard sought damages for
1 To avoid confusion, we shall refer to plaintiffs by their first names. No disrespect is intended. -1- personal injuries, and Lori sought damages for loss of consortium. A three-day jury trial began
on January 28, 2011.
On the night of January 30, 2011, plaintiffs’ lead counsel reported to the court, by way of
a voice-mail message, that his co-counsel had overheard a conversation between two jurors
regarding the case. The next morning, co-counsel addressed the court directly and stated that he
believed he overheard the juror in seat six say to the juror in seat five, “if he can survive
melanoma, he can survive this[,]” after the jurors had been dismissed the prior afternoon. The
co-counsel explained that he had not thought to report the statement immediately, and he had not
told lead counsel about it until late in the evening. Subsequently, plaintiffs’ lead counsel asked
the trial justice to discharge the two jurors and allow the alternate jurors to deliberate. He
expressed concern that, if the trial justice were to question the jurors, they would know that the
statement had been brought to the court’s attention by someone sitting at plaintiffs’ counsel table
because of the proximity of the table to the jurors. The trial justice responded that the clerk or
court reporter could have reported the juror’s comment.
The trial justice interviewed the jurors in question separately, in chambers, and on the
record. The trial justice first questioned juror No. 75, who was seated in seat six, about whether
she ever stated, “[i]f he survived melanoma, he can survive this.” Juror No. 75 responded, “[n]o.
I don’t -- no. On my children’s lives, I didn’t say -- I’m not even sure who -- survived -- no.”
When asked whether there were any conversations regarding the case, juror No. 75 replied “[n]o,
and let me say, we’re talking about food in there and we are getting along very well, but 100
percent no.” The trial justice then specifically asked juror No. 75 whether she spoke with the
juror in seat 5, and she responded, “I asked her for some gum.”
-2- Thereafter, the trial justice interviewed juror No. 107, who was seated in seat five. The
trial justice asked if juror No. 75 had said, “[i]f he survived melanoma, he can survive this.”
Juror No. 107 responded, “I didn’t hear that at all.” Juror No. 107 explained that she gave juror
No. 75 a piece of gum and added, “that’s it.” Juror No. 107 clarified that she had not had any
conversations about the case, and had not made up her mind on the case. The trial justice asked
if any other juror said, “[i]f he survived melanoma, he can survive this[.]” Juror No. 107
answered, “[n]o. I wouldn’t -- I’m a survivor. I--[,]” at which point the trial justice interrupted
the juror.
Subsequently, the trial justice stated, “I’m satisfied based on my conversations with the
two jurors that they were talking about gum,” and that “[i]f there were conversations, it [sic]
must have been misunderstood.” The plaintiffs objected and made an oral motion to pass the
case. The defendants objected to plaintiffs’ motion, noting that the jurors seemed generally
surprised at the court’s questions. The defendants argued that speaking with the jurors was the
appropriate method for the trial justice to determine whether the jurors should be excused.
The trial justice denied plaintiffs’ motion to pass the case, stating that she had observed
the jurors and their demeanor and that “[t]hey were completely taken aback. I didn’t sense from
them any apprehension. I thought that their answers were honest and open, and I believe that
they were telling the truth.” The plaintiffs once again objected, arguing, “there’s an opportunity
to cure the defect, those jurors should be excused and the alternates should take the [sic] place.”
The trial justice responded that there was no defect and again stated she was “satisfied with what
[she’d] heard” from the jurors.
Prior to releasing all of the jurors to begin their deliberations, the trial justice asked them
whether any of the jurors had had any conversations regarding the case with anyone, including
-3- other jurors, and they responded “[n]o.” After deliberating, the jury returned a verdict for
defendants, and judgment was entered on January 31, 2014. Thereafter, plaintiff filed a timely
appeal. 2
II
Standard of Review
“[I]t is well-settled law that motions to pass a case and declare a mistrial are matters left
to the sound discretion of the trial justice.” 3 State v. Pacheco, 763 A.2d 971, 978 (R.I. 2001)
(quoting State v. Figueroa, 673 A.2d 1084, 1091 (R.I. 1996)). “A trial justice’s ruling on a
motion to pass is given great weight and will not be disturbed unless clear error is shown * * *
because the ‘trial justice has a front-row seat at the trial and is in the best position to determine
whether a defendant has been unfairly prejudiced.’” State v. Alston, 47 A.3d 234, 250 (R.I.
2012) (quoting State v. Brown, 9 A.3d 1232, 1238 (R.I. 2010)). Moreover, “[w]e previously
have held that even prejudicial remarks do not necessarily require the granting of a motion to
pass.” Id. at 250-51(quoting Brown, 9 A.3d at 1239).
III
Discussion
The plaintiff argues that the trial justice committed reversible error by rejecting his
motion to pass the case due to juror misconduct. The plaintiff contends that the two jurors
should have been replaced with the available alternate jurors.
Free access — add to your briefcase to read the full text and ask questions with AI
Supreme Court
No. 2014-141-Appeal. (KC 11-1386)
Richard Roma et al. :
v. :
Ernest Moreira et al. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The plaintiff, Richard Roma, appeals from a
judgment in favor of the defendants, Ernest and Elaine Moreira, in this negligence action. The
plaintiff argues that the trial justice erred by denying his motion to pass the case due to jury
prejudice. This case came before the Supreme Court pursuant to an order directing the parties to
appear and show cause why the issues raised in this appeal should not be summarily decided.
After considering the parties’ written and oral submissions and reviewing the record, we
conclude that cause has not been shown and that this case may be decided without further
briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Procedural History
On June 12, 2011, Richard 1 fell down the stairs in his residence at 10 Elm Street, West
Warwick. On November 10, 2011, Richard and his wife, Lori (plaintiffs), filed a negligence
action against defendants, their landlords. The plaintiffs alleged that defendants failed to
maintain the premises in a “clean, good, and safe condition.” Richard sought damages for
1 To avoid confusion, we shall refer to plaintiffs by their first names. No disrespect is intended. -1- personal injuries, and Lori sought damages for loss of consortium. A three-day jury trial began
on January 28, 2011.
On the night of January 30, 2011, plaintiffs’ lead counsel reported to the court, by way of
a voice-mail message, that his co-counsel had overheard a conversation between two jurors
regarding the case. The next morning, co-counsel addressed the court directly and stated that he
believed he overheard the juror in seat six say to the juror in seat five, “if he can survive
melanoma, he can survive this[,]” after the jurors had been dismissed the prior afternoon. The
co-counsel explained that he had not thought to report the statement immediately, and he had not
told lead counsel about it until late in the evening. Subsequently, plaintiffs’ lead counsel asked
the trial justice to discharge the two jurors and allow the alternate jurors to deliberate. He
expressed concern that, if the trial justice were to question the jurors, they would know that the
statement had been brought to the court’s attention by someone sitting at plaintiffs’ counsel table
because of the proximity of the table to the jurors. The trial justice responded that the clerk or
court reporter could have reported the juror’s comment.
The trial justice interviewed the jurors in question separately, in chambers, and on the
record. The trial justice first questioned juror No. 75, who was seated in seat six, about whether
she ever stated, “[i]f he survived melanoma, he can survive this.” Juror No. 75 responded, “[n]o.
I don’t -- no. On my children’s lives, I didn’t say -- I’m not even sure who -- survived -- no.”
When asked whether there were any conversations regarding the case, juror No. 75 replied “[n]o,
and let me say, we’re talking about food in there and we are getting along very well, but 100
percent no.” The trial justice then specifically asked juror No. 75 whether she spoke with the
juror in seat 5, and she responded, “I asked her for some gum.”
-2- Thereafter, the trial justice interviewed juror No. 107, who was seated in seat five. The
trial justice asked if juror No. 75 had said, “[i]f he survived melanoma, he can survive this.”
Juror No. 107 responded, “I didn’t hear that at all.” Juror No. 107 explained that she gave juror
No. 75 a piece of gum and added, “that’s it.” Juror No. 107 clarified that she had not had any
conversations about the case, and had not made up her mind on the case. The trial justice asked
if any other juror said, “[i]f he survived melanoma, he can survive this[.]” Juror No. 107
answered, “[n]o. I wouldn’t -- I’m a survivor. I--[,]” at which point the trial justice interrupted
the juror.
Subsequently, the trial justice stated, “I’m satisfied based on my conversations with the
two jurors that they were talking about gum,” and that “[i]f there were conversations, it [sic]
must have been misunderstood.” The plaintiffs objected and made an oral motion to pass the
case. The defendants objected to plaintiffs’ motion, noting that the jurors seemed generally
surprised at the court’s questions. The defendants argued that speaking with the jurors was the
appropriate method for the trial justice to determine whether the jurors should be excused.
The trial justice denied plaintiffs’ motion to pass the case, stating that she had observed
the jurors and their demeanor and that “[t]hey were completely taken aback. I didn’t sense from
them any apprehension. I thought that their answers were honest and open, and I believe that
they were telling the truth.” The plaintiffs once again objected, arguing, “there’s an opportunity
to cure the defect, those jurors should be excused and the alternates should take the [sic] place.”
The trial justice responded that there was no defect and again stated she was “satisfied with what
[she’d] heard” from the jurors.
Prior to releasing all of the jurors to begin their deliberations, the trial justice asked them
whether any of the jurors had had any conversations regarding the case with anyone, including
-3- other jurors, and they responded “[n]o.” After deliberating, the jury returned a verdict for
defendants, and judgment was entered on January 31, 2014. Thereafter, plaintiff filed a timely
appeal. 2
II
Standard of Review
“[I]t is well-settled law that motions to pass a case and declare a mistrial are matters left
to the sound discretion of the trial justice.” 3 State v. Pacheco, 763 A.2d 971, 978 (R.I. 2001)
(quoting State v. Figueroa, 673 A.2d 1084, 1091 (R.I. 1996)). “A trial justice’s ruling on a
motion to pass is given great weight and will not be disturbed unless clear error is shown * * *
because the ‘trial justice has a front-row seat at the trial and is in the best position to determine
whether a defendant has been unfairly prejudiced.’” State v. Alston, 47 A.3d 234, 250 (R.I.
2012) (quoting State v. Brown, 9 A.3d 1232, 1238 (R.I. 2010)). Moreover, “[w]e previously
have held that even prejudicial remarks do not necessarily require the granting of a motion to
pass.” Id. at 250-51(quoting Brown, 9 A.3d at 1239).
III
Discussion
The plaintiff argues that the trial justice committed reversible error by rejecting his
motion to pass the case due to juror misconduct. The plaintiff contends that the two jurors
should have been replaced with the available alternate jurors. He maintains that the jurors were
2 Although Richard and Lori were both plaintiffs to the original claim, only Richard appeals the judgment. 3 “In Rhode Island, the terms ‘motion to pass the case’ and ‘motion for a mistrial’ are synonymous.” State v. Robat, 49 A.3d 58, 83 n.28 (R.I. 2012) (quoting State v. Rosario, 14 A.3d 206, 212 n.4 (R.I. 2011)).
-4- biased by the trial justice’s interview with them because the comment was most likely only heard
by plaintiffs’ counsel, who was positioned approximately eight feet from the two jurors.
Furthermore, plaintiff argues that the trial justice failed to interview the jurors sufficiently in
order to assess their credibility.
The defendants counter that the trial justice did not abuse her discretion in allowing the
jurors to deliberate because she performed a proper voir dire of both jurors and found that there
had been no juror misconduct. Furthermore, defendants contend that plaintiff waived his appeal
by failing to move for a new trial after the jury returned the verdict. 4
In the case at bar, the trial justice provided a detailed account of why she denied the
plaintiffs’ motion to pass the case. After speaking with the jurors about the alleged statement
and observing their demeanor, the trial justice found that the jurors’ answers were “honest and
open,” that they were discussing gum, and that they never discussed the case. The trial justice
noted that when the plaintiffs’ co-counsel originally reported the statement, “if he can survive
melanoma, he can survive this[,]” he had said that “he heard something to this affect [sic].”
Thus, the trial justice concluded that “[i]f there were conversations, it [sic] must have been
misunderstood.” We are satisfied that the trial justice acted appropriately under the
circumstances by questioning the two jurors in camera. Although it might have been preferable
to ask each juror directly whether he or she could remain fair and impartial, the trial justice made
a credibility determination and found that they had not been talking about the case. Accordingly,
she declined to discharge the two jurors and denied the plaintiffs’ motion to pass the case. The
4 The plaintiff appeals from the trial justice’s denial of plaintiffs’ motion to pass the case. Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure states that “[a]n appeal from a judgment reserves for review any claim of error in the record * * *.” Thus, because plaintiff made a motion to pass, albeit prior to jury deliberations, the issues he raises relating to the allegation of juror misconduct are properly before this Court. -5- plaintiff has failed to demonstrate that the trial justice overlooked or misconceived evidence,
otherwise clearly erred, or abused her discretion in any way.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record of the case shall be returned to the Superior Court.
-6- RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Richard Roma et al. v. Ernest Moreira et al.
CASE NO: No. 2014-141-Appeal. (KC 11-1386)
COURT: Supreme Court
DATE OPINION FILED: November 13, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Kent County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Sarah Taft-Carter
ATTORNEYS ON APPEAL:
For Plaintiffs: Ronald J. Resmini, Esq.
For Defendants: Lauren D. Wilkins, Esq.