Trapasso v. Romero
Filed 1/22/14 Trapasso v. Romero CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(San Joaquin)
----
JOHN
TRAPASSO,
Plaintiff and
Appellant,
v.
JOSE
ROMERO ET AL.,
Defendants and
Respondents.
C070044
(Super. Ct. No. 39200900230085CUPASTK)
Plaintiff
John Trapasso sued defendants Jose Romero and Romero’s employer, Trees, Inc,.
for injuries he suffered when his motorcycle collided with the truck that Romero
was driving. The jury returned a defense
verdict. Trapasso moved for a new trial
on the basis, inter alia, of juror misconduct, submitting juror declarations
showing that two jurors presented mathematical calculations to the jury and one
juror found those calculations on the Internet.
The trial court denied the
motion for a new trial and Trapasso appeals.
We find the juror declarations
are insufficient to show juror misconduct.
Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The
accident occurred on December 15, 2007, on State
Highway 4, a two-lane road with a posted speed limit of 55 miles per hour. Romero was driving a tree-trimming truck and
towing a wood chipper. He pulled onto
Highway 4 from an agricultural road; he had to go one-tenth of a mile to a
dairy where he was to deliver his load of wood chips. Because his load of eucalyptus chips was
large and heavy, he was able to drive at only 25 miles per hour.
Motorcyclists
Trapasso, Brian Justice, Tom Ford, and Joe Placencia were riding on Highway 4,
in a two by two formation, slightly
staggered, when they came up behind Romero’s truck. Trapasso and Justice attempted to pass the
truck on the left. As they did so, the
truck made a left turn and Trapasso and Justice collided with the truck as it
entered the driveway of the dairy.
Trapasso
and Justice sued Romero and Trees, Inc. for damages
they suffered in the collision. Justice
is not a party on appeal. The case went
to trial before a jury. Almost every
aspect of liability was contested.
Trapasso
was unable to testify about the accident as he had no memory of it. Justice and Placencia testified all the
motorcycles slowed to the speed of the truck and Trapasso waited until the
double yellow line ended before passing and Justice followed. They did not see a turn signal. The truck moved abruptly to the left, cutting
off Trapasso and Justice with no escape route.
Plaintiffs’
expert accident reconstructionist testified the accident happened in the manner
testified to by the motorcyclists, and Romero was at fault for making the left
turn. The expert testified the motorcycles accelerated from 25 to about 55
miles per hour as they attempted to pass, and both motorcycles were fully
occupying the east bound lane when the truck began to turn. Trapasso’s motorcycle was going 53 miles per
hour at the point of impact. The expert
testified about how far a vehicle would travel at various speeds to support his
conclusions.
The
California Highway Patrol (CHP) officer who investigated the accident did not
suspect that alcohol was involved. The
officer testified that his inspection
at the accident scene revealed that the brake lights and turn signal on the
truck worked, but there were no functional lights on the chipper. The chipper’s lights were repaired shortly
after the accident.
Romero
testified he inspected the truck the day of the accident and all the lights on
the chipper were working. When he entered
Highway 4, he saw the motorcycles in the far distance. He turned on the left turn signal eight
seconds before the turn. Before he made
the turn, he checked his mirrors and saw only a car “not very close.†Before he turned, he had no reason to believe
anyone would attempt to pass on his left.
Several
motorists that the motorcycles passed on Highway 4, minutes before the accident,
testified the motorcyclists were going fast, between 65 and 80 miles per hour. One saw the truck’s left turn signal on
before the motorcycles began to pass.
Another saw the turn signal on the chipper blinking after the accident
before the truck was turned off or the police arrived. A third witness reported that Justice made
inconsistent statements. He overheard
Justice tell one of the other motorcyclists (either Ford or Placencia) that he
did not see the “son of a bitch’s†taillights until the last second when he had
no choice but to run into the back of Trapasso, but Justice told the CHP he was
not sure what happened.
The
expert accident reconstructionist for the defense believed the motorcycles were
going at least 50 miles per hour and perhaps as much as 70 at the time of the
accident based on the damage to the motorcycles. He challenged the view of the plaintiffs’
expert that the motorcycles accelerated from 25 miles per hour because it was
unreasonable that Trapasso would not have braked to avoid the accident at that
speed.
A motorcycle expert testified the formation
that the motorcyclists rode in, side by side pairs, was unsafe. He also claimed they should have tried to
pass the truck one at a time.
The
defense also presented evidence that Trapasso consumed alcohol at lunch that
day and had alcohol in his system after the crash.
The
jury returned a defense verdict. By a
vote of nine to three, the jury answered “no†to the first question on the
special verdict form: “Was Jose Romero
negligent?â€
Plaintiffs
moved for a new trial on numerous grounds, including jury misconduct. They submitted the declarations of four
jurors. Three of the jurors provided
information about two other jurors presenting extra-record mathematical
calculations to the jury.
Juror
Megan McLeod, who did not join the verdict, stated that half of the jurors had
their minds made up at the beginning of deliberations and were not willing to
consider evidence supporting liability “of which there was plenty.†Juror Shaun Hiatt announced, with profanity,
that he did not want to see plaintiffs “get a single dime.†Hiatt got up to do calculations on the board,
letting it be known that he attended University of the Pacific. He also said he had taken math courses, or
had a degree in math, and that his math coursework was paying off. Hiatt claimed his calculations showed the
speed of the motorcycles at different times.
He then “explained and argued that the force of the impact (supposedly
shown by his calculations for the various speeds) had to go somewhere and was
probably responsible for the connection between the tree chipper and the truck
coming loose.†Juror Phillip Miller “also
got up and put calculations on the board.â€
The rest of McLeod’s declaration spoke to the intransigence of the pro-defense
block of jurors.
Juror
David Byrd stated he was eventually persuaded that Romero was not responsible
for the accident. He believed, however,
that Trees, Inc. had been negligent and was at least partially responsible. Byrd remembered Hiatt doing calculations on
the board in an attempt to convince other jurors that the motorcyclists were at
fault. The calculations showed how many
feet per second the motorcycles would travel at certain speeds. Byrd believed this occurred when the vote was
eight to four for the defense.
Juror
Miller, who did not join the verdict, declared that half of the jurors had
their minds made up when deliberations began and were unwilling to consider evidence
of defendants’ liability. The most
glaring example was Hiatt, who stated forcefully, “I hope they don’t get a
fucking dime.†During deliberations
Hiatt “announced that he had a college degree and did mathematical calculations
on his cell phone and put them on the board in the jury room trying to prove to
the jurors favoring the plaintiffs that the motorcyclists were driving at an
excessive rate of speed when the accident happened. I could see that his calculations were all
wrong.†Because these calculations were “erroneous
and misleading,†Miller “went home and researched the Internet. I found approximately 10 different
calculations on the Internet that were, in my opinion, relevant to the
liability discussion. Therefore I
brought those calculations into the jury room and I put them on the board the
following day.â€
The
fourth juror declaration was from the foreperson, who also did not join the
verdict. He did not address the issue of
jurors putting calculations on the board.
At
the hearing on the new trial motion, the trial court asked what type of
calculations were performed. Plaintiffs’
counsel answered he knew only that they were “mathematical.†The court recalled that experts had testified
to speeds and distances and stated it was difficult to tell if the juror
calculations were simple speed/distance calculations or something more. The court also noted there was no evidence
that anyone on the jury relied on these calculations. The defense argued there was no evidence of
calculations of force, only simple speed/distance calculations. The declarations were inadequate to show more. The defense further argued case law
established that these simple calculations were permissible; they were just a critical
examination of the evidence and were based on facts presented at trial.
The
trial court denied the motion for a new trial, making no specific findings as
to juror misconduct or any prejudice resulting therefrom.
DISCUSSION
I
The Law: A New Trial Due to Juror Misconduct
A
trial court may grant a new trial due to juror misconduct. (Code Civ. Proc.,
§ 657, subd. 2.) A juror generally commits misconduct when the
juror’s act “is a direct violation of the oaths, duties, and admonitions
imposed on actual or prospective jurors, such as when a juror conceals bias on
voir dire, consciously receives outside information, discusses the case with
nonjurors, or shares improper information with other jurors. . . . [Citations.]†(In re
Hamilton (1999) 20 Cal.4th 273, 294.)
“When
a party seeks a new trial based upon jury misconduct, a court must undertake a
three-step inquiry. The court must first
determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must
then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must
determine whether the misconduct was prejudicial. [Citations.]â€
(People v. Perez (1992) 4
Cal.App.4th 893, 905-906.)
“The
moving party bears the burden of establishing juror misconduct. [Citations.]â€
(Donovan v.
In reviewing a ruling on a new trial motion, “[w]e accept the trial
court’s credibility determinations and findings on questions of historical fact
if supported by substantial evidence.†(
582 (Nesler).) The determination of whether those facts
constitute juror misconduct is a legal question we review independently. (People
v. Collins (2010) 49 Cal.4th 175, 242, 232 (Collins).)
“Jurors
are not supposed to receive or communicate to fellow jurors information from
sources outside the evidence presented in court. [Citation.] If they do, they are guilty of misconduct. [Citation.]â€
(English v. Lin (1994) 26
Cal.App.4th 1358, 1363-1364 (English).) “‘The requirement that a jury’s verdict “must
be based upon the evidence developed at the trial†goes to the fundamental
integrity of all that is embraced in the constitutional concept of trial by
jury. . . . [Citation.]’†(Nesler,
supra, 16 Cal.4th 561, 578.)
Not
every consideration of “outside information,†however, is misconduct. “‘The jury system is an institution that is
legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge
and beliefs about general matters of law and fact that find their source in everyday
life and experience. That they do so is
one of the strengths of the jury system.
It is also one of its weaknesses; it has the potential to undermine
determinations that should be made exclusively on the evidence introduced by
the parties and the instructions given by the court. Such a weakness, however, must be
tolerated. “[I]t is an impossible
standard to require ... [the jury] to be a laboratory, completely sterilized
and freed from any external factors.†[Citation.] Moreover, under that “standard†few verdicts
would be proof against challenge.’
[Citation.] ‘The safeguards of
juror impartiality . . . are not infallible; it is virtually impossible to
shield jurors from every contact or influence that might theoretically affect
their vote.’ [Citation.]†(People
v. Danks (2004) 32 Cal.4th 269, 302.)
“It
is not improper for a juror, regardless of his or her educational or employment
background, to express an opinion on a technical subject, so long as the
opinion is based on the evidence at trial.
Jurors’ views of the evidence, moreover, are necessarily informed by
their life experiences, including their education and professional work. A juror, however, should not discuss an
opinion explicitly based on specialized information obtained from outside
sources. Such injection of external
information in the form of a juror’s own claim to expertise or specialized
knowledge of a matter at issue is misconduct.
[Citations.]†(
fn. omitted.)
Cases
have found no misconduct “where jurors employed their own reasoning skills in a
demonstrative manner or performed tests in the jury room that were confined to
the evidence admitted at trial.†(
1474, 1485, and cases cited.)
II
Analysis
Trapasso
contends jurors Hiatt and Miller committed misconduct by sharing outside
information with the other jurors, namely mathematical formulas and equations,
and to research the Internet to find these formulas. He further contends this misconduct raised a
presumption of prejudice which defendants failed to rebut.
As
a preliminary matter, Trapasso concedes that if all the jurors did was evaluate
the evidence using basic rules for time, speed, and distance, their conduct would
not be misconduct. That is a proper
concession.
The
presentation of mathematical calculations is akin to a jury experiment. Jurors as a body may “engage in experiments
which amount to no more than a careful evaluation of the evidence which was
presented at trial.†(
Cal.App.4th 919, 932.) They may also “bring
to their deliberations knowledge and beliefs about general matters of law and
fact that find their source in everyday life and experience.†(People
v. Marshall (1990) 50 Cal.3d 907, 950.)
For
example, in Collins, supra, 49
Cal.4th 175, during deliberations the jurors demonstrated how the victim may
have been shot while on his knees, using two jurors as the victim and the
defendant, and a piece of string to show the path of the bullet. Our Supreme Court found no misconduct because
the jury, using only variables that were in evidence, was only evaluating the
evidence. (Id. at p. 251.) Nor did the
court find misconduct in a juror’s home use of a computer to create a model
showing the relative positions of the shooter and victim. The diagram did not interject any new
evidence from outside the record; the juror used height and distance
information presented at trial. (
his own permissible thinking about the evidence received, and was not an
experiment resulting in the acquisition of any new facts.†(Id.
at p. 252.)
Here,
Hiatt and Miller expressed their respective reasoning processes and why each
believed or disbelieved certain witnesses, using understood and accepted
formulas for calculating speed and distance.
evidence. While we have found no
published California case on the jury’s use of mathematical formulas, other states have found
no misconduct in the use of such formulas.
(Kendrick v. Pippin (Colo.
2011) 252 P.3d 1052, 1063-1067 [no misconduct where juror calculated defendant
motorist’s speed, distance, and reaction time]; State v. Mann (N.M. App. 2000) 11 P.3d 564, 588-589 [engineer juror’s
challenge to expert testimony by formal presentation with calculations not
misconduct]; McIlry v. Wagley (Tex.Civ.App.
1969) 437 S.W.2d 5, 11 [mathematical calculations supported by evidence do not
constitute misconduct].)
Trapasso
contends that the conduct of both Hiatt and Miller went beyond simple
calculations of speed and distance. He
contends their “obtaining physics formulas from the [I]nternet and then using
them to make presentations to the jury constituted misconduct.†But he fails to establish what type of
formulas Hiatt and Miller presented to the rest of the jury, thereby failing to
demonstrate that misconduct occurred. A
lack of specificity in juror declarations can defeat an attempt to show
misconduct. In English, supra, 26 Cal.App.4th 1358, plaintiff claimed his injuries
prevented him from playing college football and the loss of a football
scholarship prevented him from obtaining an art degree to fulfill his dream of
becoming a commercial artist. After the
jury awarded plaintiff of over $500,000, defendant moved for a new trial,
citing juror misconduct. A juror
declaration stated that during deliberations Juror Foster spoke of his
brother-in-law and the salary he made as a commercial artist. (Id.
at p. 1363.) The court found no
misconduct because the declaration failed to specify the circumstances in which
Foster’s comment was made. “Because of
the lack of a specific context for Foster’s statements, the trial court
reasonably could have concluded that the declaration was insufficient to show
that Foster’s remarks were intended by him, or interpreted by other jurors, as
additional evidence to consider in this case, as opposed to an explanation as
to Foster’s reasoning processes-i.e., why Foster believed or disbelieved
certain witnesses or believed an award of damages would be appropriate or
inappropriate or too low or too high.†(
The
only specificity in the juror declarations as to Hiatt’s calculations indicated
he presented calculations to show the speed of the motorcycles. Byrd declared that Hiatt tried to convince
the other jurors that the motorcycles were at fault by doing calculations that
showed “how many feet per second the motorcycles would travel at various
speeds.†Miller declared that Hiatt
announced he had a college degree and did mathematical calculations on his cell
phone; he put these on the board to prove the motorcyclists were speeding when the
accident occurred. McLeod’s declaration differed
slightly. She stated Hiatt did calculations
“that were supposed to prove how fast the motorcycles were going when they hit
the truck,†but also that Hiatt argued “the force of the impact (supposedly
shown by his calculations for the various speeds) had to go somewhere and was
probably responsible for the connection between the tree chipper and the truck
coming loose.†Although McLeod’s
declaration mentioned “force of impact,†it did not establish that Hiatt
actually calculated the force of the
impact. The trial court could have reasonably
concluded that Hiatt calculated only the speed of the motorcycles and, based on
that calculation, argued about the force of impact.
Trapasso
contends that “the evidence strongly suggests that Hiatt went far beyond these
simple calculations.†He argues that if
only speed and distance calculations were involved, “it is unlikely†that
Miller would have found the calculations “erroneous and misleading;†instead,
he would have simply corrected the math.
In arguing that Hiatt’s calculations went to the physics of accident
reconstruction, Trapasso relies on McLeod’s declaration that Hiatt argued about
the force of the impact and referred to his college math courses and that they
were “paying off.†Trapasso’s argument
is based on speculation about what the evidence “suggested†and what was “unlikelyâ€
to have occurred. Such speculation is
insufficient to carry his burden to show misconduct. (See People
v. Espinoza (1992) 3 Cal.4th 806, 821 [speculation that a juror “appearedâ€
to be asleep was insufficient to require an inquiry into juror misconduct].).
Tellingly,
Miller, who voted in favor of plaintiffs and prepared a declaration in support
of the new trial motion, did not describe what Hiatt’s calculations were. As we discussed ante, plaintiffs’ argument about the significance of Miller’s
Internet use is speculative; the few facts on this subject in his declaration
just as easily support the notion that Miller’s use of the Internet to refute
Hiatt’s calculations might be only an indication that Miller lacks math skills,
just as Hiatt’s reference to his college math courses might be only boasting or
a joking reference to the lack of math skills in the general public. There was no evidence that Hiatt’s
calculations went beyond simple time, speed, and distance calculations.
Miller’s
conduct presents a closer question. The
court instructed the jury:
“Do
not do any research on your own or as a group.
Do not use dictionaries, the internet or other reference materials.†Miller stated he “researched the Internet,†but
it is unclear what Miller looked up
and whether he actually performed research.
Miller stated he found “approximately ten different calculations on the
Internet that were, in my opinion, relevant to the liability discussion. Therefore I brought those calculations into
the jury room and I put them on the board the following day.†Perhaps tellingly, Miller failed to describe
even the type of calculations he
found or what he was calculating. He was the only juror with personal knowledge
regarding precisely what his Internet search revealed and yet he failed to explain
even the general nature of the calculations he brought to the other jurors. He stated only that the calculations Hiatt
used to prove “that the motorcyclists were driving at an excessive rate of
speed†were “all wrong.†Thus the record
supports a finding of no juror misconduct, as the record supports a finding
that all the calculations at issue were simple speed and distance calculations.
Miller’s
use of the Internet does not necessarily mean that he conducted research or obtained
new facts. The Internet can be used as a
tool, like a calculator. (See
Cal.App.4th 174, 184-189 [no juror misconduct where juror used a calculator to recalculate
marijuana yield substituting a single factor used in expert’s formula].) It was not misconduct for the juror in
assist in his drawing. (
252-253.) There are many sites on the Internet
that can be used to perform mathematical calculations, such as converting miles
per hour into feet per second, calculations that can be performed with a pencil
and paper. Absent any evidence to the
contrary, we find the trial court could reasonably conclude (as it implicitly
did) that Miller used the Internet only as a tool to make, in his view, the
proper calculations about the speed of the motorcycles.
Here,
as in English, nothing in any of the
juror declarations indicated the calculations presented by Hiatt and Miller
were intended by them, or interpreted by other jurors, to be additional
evidence or anything beyond an explanation of their reasoning. (English,
supra, 26 Cal.App.4th at pp. 1365-1366.)
Notably, some of the submitted juror declarations did not even mention
the calculations.
In
summary, the trial court did not abuse its discretion in denying the motion for
a new trial because the juror declarations were insufficient to show juror
misconduct. From the information in the
declarations, it appears that the dueling calculations of speed and distance
did not introduce new evidence, but were based on facts of generalized
knowledge. The evidence shows only that Hiatt
and Miller used these calculations to explain and argue their view of the
evidence, a use that is not improper in jury deliberations. Without more, we find no error.
DISPOSITION
The
judgment is affirmed. Defendants shall
recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Defendant’s expert accident
reconstructionist testified he used “simple calculations†to convert miles per
hour to feet per second to calculate the distance from the truck’s turn to the
point of impact.
