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Banks v. Village Enterprises12/5/2000
hat the nondisclosure was unintentional and non-prejudicial.
C. Psychological Conditions.
Finally, KFC alleges that Jurors Leppin, Thomas, and Brantnor were also guilty of nondisclosure because they sat silent when counsel for KFC asked the panel members whether they or members of their immediate families had experienced problems similar to the depression experienced by Mr. Banks as a result of the choking incident. The question KFC asked was:
Mr. Banks alleges that he suffered severe mental problems or depression, post traumatic stress disorder and even some symptoms of obsessive compulsive disorder as a result of this choking incident . . . what I need to know on behalf of the defendant is whether or not any of you or any member of your immediate family have had a similar problem?
KFC alleges that Juror Leppin improperly failed to disclose the fact that her husband's nephew's daughter had a choking incident from which she developed mental disorders. Again, we note that that the question called for venirepersons to reveal whether members of their "immediate family" suffered such incidents. As noted previously, Juror Leppin's distant relative would not normally be considered "immediate family," as the term is commonly understood, and thus the question on its face did not ask for the information which KFC now alleges she should have disclosed. In any event, the court was entitled to believe her explanation that she did not think of the incident during voir dire because the relationship was so remote, and KFC has failed to show how any prejudice could have arisen due to the unintentional failure to disclose this incident involving the juror's husband's nephew's daughter.
Jurors Thomas and Brantnor, however, arguably should have responded to this question. Juror Thomas testified, at the hearing on KFC's motion for new trial, that her son suffered from manic depression and that she was aware of his condition at the time of voir dire. Juror Brantnor testified at the same hearing that her husband had suffered from depression for several years prior to the trial for which he took medication. Neither juror disclosed this information during voir dire. Both jurors testified at the post-trial hearing, however, that during voir dire they simply did not interpret the question to ask whether they or their immediate family had suffered from depression generally, but rather whether any panel member, or any member of his or her immediate family, suffered such problems as a proximate result of a choking incident.
This ambiguity was brought into sharp relief at the post-trial hearing in this case, during which Jurors Brantnor and Thomas testified as to their understanding of the question as it was posed. During this hearing, Juror Brantnor was asked again, verbatim, the question as it was originally posed during voir dire:
Q: Now, this question was asked [during voir dire]. I'm going to ask you putting yourself back there in that Voir Dire panel on that day when you were being asked questions, the truthful answer to this question would be what? . . . 'Mr. Banks alleges that he suffered severe mental problems or depression, post traumatic stress disorder, and even some symptoms of excessive compulsive disorder as a result of this choking incident at the KFC in Brookfield and what I need to know on behalf of the defendant is whether or not any of you or any member of your immediate family have had a similar problem?' Now, what is the answer to that question?
A: No.
On re-direct examination, counsel for KFC, presumably in an attempt to emphasize perceived inconsistencies in her testimony, asked Juror Brantnor:
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