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Banks v. Village Enterprises12/5/2000
d a juror's husband's nephew's daughter clearly falls outside the scope of that question. Where a juror has "disclosed everything that the voir dire question require ," Heinen, 982 S.W.2d at 248, no nondisclosure has occurred.
But, during the post-trial hearing, Juror Leppin's testimony was inconsistent concerning whether she deemed her husband's nephew's daughter to be a member of her "immediate family." Initially, when asked whether she remembered telling the other members of the jury that she had a relative who had a choking incident, she said she remembered telling them that her husband had a relative who did. When repeatedly asked whether that did not make the niece her relative, she said it made her a relative by marriage. When asked why she did not disclose the incident in voir dire, she said that she did not even remember the question and knows she never thought of the incident during voir dire. Indeed, she testified that "she would not even have thought about" her husband's nephew's daughter when asked whether a member of her immediate family had ever suffered a choking incident, that the girl did not live around them, and that she did not even know if the girl had received medical treatment. Later, however, in response to being asked whether she considered her "husband's nephew's daughter" to be a member of her "immediate family," Juror Leppin responded "yes."
The court below could have believed from consideration of Juror Leppin's testimony on this issue as a whole that she misspoke or misunderstood the question asked of her when she said that she thought her husband's nephew's daughter was part of her immediate family, in light of her earlier statements. In any event, she merely testified to what she considered to be within the term "immediate relative" at the post-trial hearing, following KFC's counsel's discussion of what he meant by the term. She did not state that she thought at the time of the voir dire that her husband's nephew's daughter came within the definition of immediate family. To the contrary, she clearly said that she was not close to the girl, only knew of the incident vaguely through hearsay, and did not even think of it during voir dire. The court was free to believe this testi-mony, and to conclude that the juror did not intentionally fail to disclose requested information.
As noted above, " hen nondisclosure is not intentional, a new trial is not required unless prejudice is shown to exist from the nondisclosure which may have influenced the verdict." Aliff v. Cody, 987 S.W.2d 439, 443-44 (Mo. App. W.D. 1999) (recognizing that counsel's questions may reasonably narrow the scope of information sought, resulting in unintentional failure to disclose relevant information.) The party alleging prejudice bears the burden of proving that the nondisclosure "may have influenced the verdict." Id at 444. It is well-settled that "an unintentional failure to disclose information not connected with the case or not bearing on the prospective juror's ability to fairly evaluate the evidence does not necessarily show prejudice on the part of the juror." Williams, 736 S.W.2d at 37. "Prejudice is a determination of fact for the trial court, its finding to be disturbed on appeal only for abuse of discretion." Id. KFC offers no reason why the fact that Juror Leppin's husband's nephew's daughter had some sort of choking incident would have disqualified her from serving on the jury. Indeed, we note that KFC did not try to disqualify Mr. Seek, who did disclose that his son had suffered a choking incident, but rather opposed plaintiffs' successful attempt to disqualify Mr. Seek on other grounds.
Here, the trial court acted well within its discretion in determining t
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