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Young v. Johnson9/20/2001
ge excused the juror for appropriate reasons rather than to grant Young the relief she sought in her motion. See State v. Bible 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993) (trial judges must avoid any "appearance of partiality"). A more complete inquiry may have also assured the juror that she was being excused for compassionate reasons rather than being "pushed off" the jury for being "a pain with the questions," as she later expressed in her affidavit.
At oral argument before this court on appeal, Young contended that the judge appropriately based his decision on Juror #8's demeanor while the judge was speaking, which we could not observe on the videotape. Young is mistaken. The camera remained on the juror's face during the entire conversation, and the videotape does not reveal that Juror #8 was overly emotional about the death of her goddaughter. Although the judge noted that the juror had tears in her eyes at one point, she appeared composed and was well-spoken throughout the exchange. Moreover, even if tears briefly welled in Juror #8's eyes, this fact did not make it evident that she should be excused, thereby dispensing with the need to make additional inquiry. See Green, 715 F.2d at 555-56.
Indeed, she later stated in her affidavit that if she had tears in her eyes it was because she was nervous and "had little to do with the death of od-daughter ."
In light of the insufficient inquiry, we conclude that the judge lacked a sound basis to excuse Juror #8 from continued service and therefore erred by excusing her. We next consider whether this error prejudiced Johnson so as to require a new trial.
IV. Prejudice
Johnson argues that he did not need to demonstrate actual prejudice stemming from the excusal of Juror #8, because such prejudice must be conclusively presumed. He relies primarily on our supreme court's decision in Perkins to support his contention. After the jury in Perkins retired to deliberate the medical malpractice case at issue, it "posed a series of written questions to the judge." 172 Ariz. at 116, 834 P.2d at 1261. Without informing or consulting the parties, the judge erroneously instructed the jury that only the jurors who agreed on liability should fix damages. Id. at 117, 834 P.2d at 1262. Ultimately, the jury returned a verdict in favor of the plaintiffs, although two jurors found in favor of the defendants. Id. at 116, 834 P.2d at 1261. The supreme court held that the judge's improper instruction required a new trial on all issues rather than one solely on damages. Id. at 120, 834 P.2d at 1265. The court reasoned that because a jury's decision on liability is not final until the verdict is accepted by the trial court, the jury could have reached a different conclusion on the issue of liability while deliberating the amount of damages to award. Id. at 119, 834 P.2d at 1264. The court held that removal of two jurors from the deliberative process before its conclusion deprived the defendants "of their right to have all of the jurors participate in deciding all of the issues." Id.
Significantly, for purposes of the case before us, the court also held that prejudice is conclusively presumed when the litigant is deprived of an "essential right," and the nature of the error prevents the court from determining the extent of the prejudice. Id.; see also Leavy v. Parsell, 188 Ariz. 69, 73, 932 P.2d 1340, 1344 (1997) (citation omitted) (" rejudice will be found when there has been significant misconduct affecting the essential rights of a litigant and when the very nature of the misconduct makes it impossible to determine the extent of prejudice."). The court then concluded that the right of trial by jury was
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