Zuluaga v. Bashas'Inc., 757 Ariz. Adv. Rep. 12 (App. Div. I, February 3, 2017) (J. Vasquez)

ABSENT PROOF OF PREJUDICE BY JURY TRIAL JUDGE'S ABUSE OF DISCRETION IN LIMITING SCOPE OF VOIR DIRE IS NOT REVERSIBLE/CURATIVE INSTRUCTION WITHIN BROAD DISCRETION OF TRIAL COURT WHERE POTENTIAL MISLEADING INFERENCE IS PERCEIVED IN OPENING STATEMENT

Plaintiff brought this negligence action on behalf of her  six year old daughter, who collided with a store employee in the produce aisle of Food City, a Bashas' supermarket, suffering a skull fracture and subdural hemorrhage. Central issues in the case were whether or not the store employee or child were running at the time of collision and who ran into whom. The jury returned a defense verdict, and plaintiff's motion for new trial was denied. On appeal the Arizona Court of Appeals affirmed.

During voir dire the court asked if any juror or close friend or family member worked for Bashas' or Food City. One answered yes and was excused. Later plaintiff's counsel asked in voir dire if any juror, family member or close friend had ever worked in a grocery store. Five jurors raised their hand and plaintiff's counsel followed up with questions for four of them before the court interrupted and insisted counsel move on stating in part,  you can ask if anything that “might [a]ffect [their] ability to fairly weigh the credibility of the witnesses in this case, whether they worked in a grocery store or not. So that's really the question here. So get on with it.”

Plaintiff's counsel then asked, “With respect to those of you who have had experience yourself in a grocery store or a close friend or family member, is there anything about those associations in your life or those people in your life, anything about conversations with them or knowledge about their jobs that would make it more likely, in this case, for you to start off favoring the grocery store or its employees in terms of credibility?” No jurors responded and two of the four who were questioned in more detail sat on the panel along with the fifth who never disclosed the nature of their experience.

The court of appeals found the trial court restricting questions to those that would support a challenge for cause (bias or prejudice) an abuse of discretion. Ariz. R. Civ. P. 47(d) says, voir dire "may extend to any legitimate inquiry which might disclose a basis for exercise of a peremptory challenge."  That said the court refused to reverse because plaintiff failed to make a showing that the restriction was prejudicial. “The test is whether prejudice seems affirmatively probable[,] and prejudice will not be presumed, but must appear probable from the record. [citations omitted] In other words, [plaintiff] must show ‘not only that the voir dire examination was inadequate, but also that, as a result of the inadequate questioning, the jury selected was not fair, unbiased, and impartial.' . . And [plaintiff] does not assert that there were special circumstances surrounding the factual issues in this case to cause a specific concern regarding juror bias."

During opening statement plaintiff's counsel highlighted the fact that the store employee's deposition testimony was in conflict with a statement that “surfaced” after the deposition as further confirmed by a subsequent deposition of the employee.  While no objection was made by the defendant at the time of opening statement, on the third day of trial, as plaintiff introduced the conflicting testimony and statement defense counsel objected. Defense counsel argued that telling the jury the conflicting statement “surfaced” after the deposition created a false impression that the defendant had done something wrong related to the late production of the statement. In essence, defendant argued the late production was based upon a good faith belief the statement was privileged or work product and after the trial court ruled against defendant on that issue the statement was produced. 

Consequently, the court read the following curative instruction to the jury on the fifth day of trial: “You are instructed that the timing of the production of the . . . report was the result of a ruling of the Court. You are not to draw any negative inference with respect to any party, as a result of the timing of the production of the . . . report.” The court of appeals deferred to the trial court on this issue finding the trial judge had the unique ability to evaluate the effect of plaintiff's counsel's characterization of the timing of the production of the statement while the court of appeals had nothing but a “cold record.”

Finally, plaintiff argued the curative instruction was a comment on the evidence prohibited by Ariz. Const. art. VI, §27. The court of appeals disagreed holding, "To violate Arizona's constitutional prohibition against commenting on the evidence, the court must express an opinion as to what the evidence proves or interfere with the jury's independent evaluation of that evidence." The court of appeals found that the trial court did neither here. Plaintiff was entitled to show the conflict between the deposition, trial testimony and statement but was not entitled  to suggest the timing of the statement was wrongful. The curative instruction addressed only that issue and did not suggest how the jury should decide any issue in the case.