Rodney Mayo v. Kevin Scott ( 2011 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-193
DECEMBER TERM, 2011
Rodney Mayo } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
v. } Civil Division
}
}
Kevin Scott } DOCKET NO. S0952-05 CnC
Trial Judge: Helen M. Toor
In the above-entitled cause, the Clerk will enter:
Plaintiff sued defendant police officer alleging that defendant used excessive force in
arresting plaintiff following a highway pursuit. The jury returned a verdict for defendant, and
plaintiff moved for a new trial alleging that the verdict was compromised by jury bias and
improper contact between defendant and two jurors. Plaintiff appeals the court’s denial of the
motion and the underlying verdict, and defendant cross-appeals the court’s denial of certain
costs. We affirm.
Although he was represented in the trial court, plaintiff appeals pro se. On appeal,
plaintiff has identified three subjects of appeal: (1) the trial court’s denial of plaintiff’s motion
for a mistrial on September 20, 2010; (2) the jury verdict of September 27, 2010; and (3) the trial
court’s ruling denying his motion for a new trial.
We consider the plaintiff’s motion for a mistrial along with his motion for a new trial
because the basis for his motion for a mistrial—his claim that the jury was compromised by the
remarks of a juror—was also a basis for his motion for a new trial.
We cannot evaluate plaintiff’s general appeal of the jury verdict because he has not
ordered a transcript of the trial, V.R.A.P. 10(b), and has not identified any specific arguments or
claims of error with respect to the jury verdict other than those specifically raised in his motion
for a new trial. See V.R.A.P. 28 (Arguments in briefs “shall contain the issues presented, how
the issues were preserved, the contentions of the appellant and the reasons therefor, with citations
to the authorities, statutes, and parts of the record relied on.”); Bock v. Gold, 2008 VT 81, ¶ 3,
184 Vt. 575 (claims not briefed on appeal are waived).
We do address plaintiff’s challenge to the court’s denial of his motion for a new trial
notwithstanding his failure to comply with the formal requirements of Rule of Appellate
Procedure 28 on the basis of the issue plaintiff appears to have raised. In re Deer View LLC
Subdivision Permit, 2009 VT 20, ¶ 2, 186 Vt. 536 (mem.). Plaintiff raised two issues in his
motion for a new trial. First, he argued that the court should have ordered a mistrial because the
jury was compromised by the comments of a juror. Second, he argued for a mistrial on the
ground that the defendant had had improper contact with two jurors while smoking outside the
courthouse.
The court rejected both arguments. With respect to the juror’s comments and the
integrity of the jury, the court described the following facts, which are supported by the record.
Between jury draw and the first day of trial, juror 12 reported to the court that she knew plaintiff.
The court interviewed juror 12 with counsel present and juror 12 disclosed that she believed
plaintiff was an “unsavory character” and had reported this to other jurors. Following this
disclosure, the court excused juror 12 and individually questioned the remaining jurors. Most
jurors reported that they did not hear juror 12’s comments about plaintiff. Juror 4 acknowledged
hearing Juror 12 describe plaintiff as an “unsavory character,” but affirmed that the comment
would not affect her ability to be fair in the case, as “the case hinges on what happened in this
particular situation, regardless of anybody’s opinion about somebody else’s personality.” Juror 7
admitted to hearing juror 12’s statement that plaintiff “wasn’t a very nice man,” but she
responded that she could put the statement aside and make an impartial decision in the case. The
court concluded that the remaining jurors, including jurors 4 and 7, retained their ability to fairly
assess the case and there was no potential prejudice.
With respect to plaintiff’s second argument, all plaintiff had alleged was that jurors were
seen smoking with the defendant. Because plaintiff did not detail what type of communication
took place or how it might have negatively impacted the jury, the court concluded that plaintiff’s
vague allegations did not establish any prejudice.
A motion for a new trial is “entrusted to the discretion of the trial court, and will not be
disturbed on appeal absent a showing that the court abused or withheld its discretion.” State v.
Grega, 168 Vt. 363, 370 (1998). In addition, where questions arise as to whether the jury “has
been tainted,” we afford the court’s ruling “every presumption in its favor.” Id. (quotation
omitted).
We conclude that the trial court took appropriate action to address the first incident. The
court dismissed juror 12 and then questioned the remaining jurors. While juror 7 admitted
hearing juror 12’s comments about plaintiff, she stated that she could nonetheless decide the case
impartially. Given this confirmation, there is no indication that the jury was improperly
influenced by juror 12’s statements, and plaintiff has failed to demonstrate that the court abused
its discretion in denying the motion for a new trial on this basis. See id. at 370-71 (concluding
that trial court did not abuse its discretion in denying mistrial where all jurors indicated upon
questioning that they could remain impartial); see also Farnum v. Brattleboro Retreat, Inc., 164
Vt. 488, 500 (1995) (affirming court’s denial of mistrial based on one juror’s comment where
juror was excused and all others indicated they were not influenced by the comment).
Plaintiff’s second allegation—that the jury was biased because defendant spoke to a juror
while smoking—was waived by plaintiff. In his motion for a new trial, plaintiff alleged that he
observed defendant smoking with juror 11 on two different occasions and that a court security
officer observed juror 3 speaking to defendant. Insofar as plaintiff was aware of the conduct
during the trial, yet failed to raise the issue until a post-trial motion, it was not adequately
preserved for appeal. See McKinstry v. Collins, 74 Vt. 147, 161-62 (1902). “Had the matter
been promptly raised, remedial action might have been taken to determine [the facts surrounding
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the incident] and to minimize or eliminate any prejudice that might have resulted therefrom.”
State v. Griffin, 152 Vt. 41, 44 (1989). Even if properly preserved, plaintiff makes no specific
allegation as to what was said during such interaction or how this might have influenced the jury.
State v. Schwanda, 146 Vt. 230, 233 (1985) (explaining that proponent of a motion for mistrial
must show that irregularity “had the capacity to influence jury deliberations”). Therefore, we
conclude that the court did not abuse its discretion in concluding that plaintiff’s “vague
allegations” did not warrant a mistrial.1
Next, we turn to defendant’s cross-appeal. Following the jury verdict in his favor,
defendant submitted a bill of costs. The court denied certain requests, including the costs of
deposing plaintiff’s primary care physician and of videotaping the deposition of the physician
and another witness, both of whom would not be available for trial. We review a court’s
decision on costs for abuse of discretion. Jordan v. Nissan N. Am., Inc., 2004 VT 27, ¶ 16, 176
Vt. 465.
Although not admitted at trial, defendant argues that his deposition of plaintiff’s doctor
was necessary in response to plaintiff’s disclosure of an expert physician who could testify about
plaintiff’s diabetic condition. The court concluded that the deposition of plaintiff’s doctor was
not “reasonably necessary,” V.R.C.P. 54(g), since evidence of plaintiff’s failure to properly care
for his diabetes was not relevant or admissible at trial. It was not an abuse of discretion for the
court to conclude that the medical testimony was not relevant to the proceeding and therefore the
deposition was not reasonably necessary. Peterson v. Chichester, 157 Vt. 548, 553 (1991)
(concluding court did not abuse its discretion in denying costs even when plaintiff prevailed at
trial). Similarly, the court’s assessment that procuring videotapes of the depositions of two
witnesses—as opposed to written transcripts—was advantageous to the defendant but not
“necessary” was not an abuse of discretion.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
1
Plaintiff also offered hearsay statements of a court security officer to support his claim
that defendant spoke with a juror during a smoking break. We do not consider the hearsay
statements but note that even if we did, the claimed statements of the security guard do not add
any further substance to plaintiff’s allegations.
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