dissenting:
Our supreme court has often explicated the relative functions and authorities of juries, trial courts and appellate courts. Among the most frequently cited and followed opinions on this subject is the venerable case of Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992) (Maple), in which the court made clear:
“An initial step in analyzing the issue before us is to determine the authority of the jury, trial court, and appellate court, and their relationship to one another. Unquestionably, it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses’ testimony. [Citation.] A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. [Citations.] Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.” (Emphasis added.) Maple, 151 Ill. 2d at 452-53.
As great as the temptation may be to emulate fact finders in our review, this court must avoid usurping such nisi prius functions, as settled law directs. As will be seen later, the jury was confused with respect to its role as fact finder, for which the appropriate remedy should be reversal and new trial rather than a judgment as to the facts by this court and a strained application of law to those facts to the detriment of law and justice.
In the majority opinion, the approach to the instant jury trial obliterates appropriate boundaries and the majority sets itself up as fact finder and, having made its findings, proceeds to review them. Recountal of the evidence presented to the jury during the trial of this case from a different prespective reveals the following and demonstrates why reversal and a new trial would be appropriate.
Plaintiff, Melissa Johnson, supervisor and food avenue team leader for Target was an African-American female, 29 years old and the mother of two boys. She had never been disciplined by Target prior to the date of the incident, January 16, 1998. Prior to January 16, 1998, Ruben Garcia, a senior asset protection employee, who signed the original criminal complaint against Johnson on behalf of Target, had discussed with Johnson his disapproval of her dating and being engaged to a Mexican employee of Target. Garcia was close to the Mexican employee’s family. On January 16, 1998, Johnson planned to get a ride home from another team leader, Gwen Curtis, when her shift ended, so she waited. She and Curtis did some shopping, shared the same shopping cart, selected various items, including binders, and then went to a specific register designated for employee purchases.
The evidence reveals that more than one video was trained on the checkout registers. One videotape of the checkout purportedly showed Donna Anderson, a cashier supervisor, standing behind Ronna Campos, the cashier at the employee’s register, during the subject transaction. She later was seen talking with Campos at a different location. The video also purportedly showed Keena Williams, the store leader on duty, keying in one of the items at the register.
Johnson purchased the binders for the use of her two sons, ages nine and six. The Target employee at the binder display location had told her that the binders were on clearance, which meant the best possible price. Johnson did not know the regular or sale price of the binders. She also bought some items of boys’ clothing. She paid the cashier $30.75 for her items and, with Curtis, went to the employee exit.
The store alarm sounded. Corey Claybon, another asset protection employee, asked to see the contents of her bag, then examined the receipt, noted that she had six binders, but she was charged for nine, and told her to get three more binders. She could not find more binders and went to Donna Anderson, the cashier supervisor, who told her to get a refund. She went back to where Claybon was, and then to the refund line where Ruben Garcia said he wanted to talk to her immediately. She got out of the line without any refund and went with Garcia to an office. When Garcia told her that she had merchandise in her bag that had not been paid for, she asked him to look at the receipt and tell her what had not been paid for. They later discussed whether the binders were underrung, of which she denied any knowledge. Evanston police entered, placed her in handcuffs and escorted her to a squadrol. When she left, Target retained the merchandise that she had purchased, as well as the money she paid for that merchandise.
Brad Fiala, the assets protection team leader at the Evanston store on January 16, 1998, was not present during the occurrence, but investigated what occurred and made a report for his superiors. Fiala’s report showed that $155.79 was the full retail value of the items involved and stated that no merchandise was recovered that evening. According to Fiala’s report, Johnson received “passed”4 merchandise, although Target later admitted Johnson received no passed merchandise. Target allowed Johnson to return three of the binders that she bought that night and was ready to refund her $1.24 for each. There is a service desk video purportedly showing Johnson returning three binders. In contradiction, the report also stated that $155.79 was recovered. Fiala reviewed the report for accuracy before he sent it to his supervisor. The merchandise paid for by Johnson had been returned to the selling floor for Target to sell again. Parenthetically, it is significant that the jury made a separate award to Johnson of $30.75 for the items paid for but confiscated by Target.
Fiala admitted that Garcia was authorized to sign criminal complaints in his absence and Garcia signed the criminal complaint against Johnson on behalf of Target. In the complaint, Garcia swore that Johnson had received goods valued at $99.44 for $9.44. Fiala did not know what items comprised those numbers. No one from Target knew what the numbers on the criminal complaint referred to.
Fiala admitted that Johnson was either overcharged for three binders or the number she received was wrong. Fiala stated that she went through the line with nine, and she returned three, leaving six, but all Target reports alleged that she stole nine. Johnson most likely returned those three binders before she was placed in the interview room. Fiala did not understand why a “thief’ was allowed to return some, but not all, of the “stolen” goods. He did not remember what Garcia said about this; it is not in any report.
Ruben Garcia testified that he signed all three criminal complaints at the police station. He swore to the correctness of the allegations and swore that he was a security manager, although Target admitted that Garcia was not the security manager at that time. Garcia read the criminal complaints before signing them. Garcia had been called to the security room and met with Corey Claybon, who was watching Johnson and Curtis check out at Campos’s register. He did not speak to the cashier supervisor that night. He did see some other employee come to the register during the transaction. Garcia admitted that if hypothetically the cashier supervisor told the cashier that the binders were $1.24, then only the cashier and cashier supervisor would be at fault. There were two different video machines taping the transaction, from two different angles. After Garcia talked with Fiala the first time, Claybon went to determine the price of the binders and came back and told him it was $13.99.
Garcia admitted that in his deposition he testified Johnson and Curtis each “had one binder that was on clearance that was clearly priced clearance.” Garcia also admitted that at his deposition he testified that he knew those binders were marked clearly as on clearance because earlier that day he looked at the binders, which his children might use, and wanted to purchase them at that price. He had taken them in his hands and was aware of which were on clearance, because they exhibited a red sticker tag. Garcia also testified that in his deposition he stated that one of Johnson’s binders clearly was marked as clearance. Johnson continually denied doing anything wrong.
When he next spoke with Fiala, Garcia did not report that Johnson and Curtis each had a binder with a clearance sticker on it. No report or document stated that at least one binder for each woman was on clearance. At trial, Garcia reversed himself and testified that he did not see the clearance sticker on any binder, although Garcia admitted he thought he had testified previously that he had actually seen the clearance sticker. He did not tell the police that some binders were on clearance.
Garcia was never asked about the second videotape by Fiala or other Target officials. Target was unable to produce the second tape at trial, though it was the last entity that possessed it. (The circuit court gave the jury Illinois Pattern Jury Instruction, Civil, No. 5.01 (1995), as to the missing tape.) Garcia testified that the taping was done on two video monitors. He stopped the taping of one so that he could review what had been taped. One tape goes from beginning to end, and the one from the opposite side was the one that he stopped to review.
Garcia testified that he swore to the truth of the criminal complaint against Johnson, but that he had no idea of what the $99.44 with which she was charged with stealing represented. Garcia knew that Johnson did not get nine binders and that if the reports say she did they are wrong. Garcia thought the $99.44 was for five or six binders, for which she paid $9.44. The receipt, which shows Johnson buying nine binders at $1.24, for a total of $11.16, also is wrong. Garcia did not know where the $9.44 came from, although he swore that that number was true and correct on the criminal complaint. He believed Johnson was charged for nine binders but got only five or six. He never told that to anyone. Garcia testified the case activity notes portion of the incident report stated that $70.60 was the total discount, but that he did not know how that was calculated. Another report listed the discounted items as being $70.42, and Garcia also signed that paper, but he did not know where that number came from. In another report, which he signed, Garcia admitted that Johnson did not tell the cashier that the binders were $1.24 specifically, or any specific price.
According to Garcia, the video shows Campos on the phone during the checkout transaction, but Garcia did not ask her about that. The video shows a woman, not the cashier Campos, hand-keying in the price for certain items, but Garcia did not speak to that woman and did not know who she was. Garcia testified that the video showed the cashier turning on her light, which could have been a call for assistance from her supervisor. The missing video would show which light was on. Garcia admitted that the report stated that the primary reason for Johnson’s arrest was passing merchandise, but that Johnson did not pass any merchandise or receive any passed merchandise. Garcia wrote no report that he had heard Johnson tell the cashier what price to charge for the binders, although he was trained to document important observations.
The majority asserts that although the jury’s verdict was read, signed by each juror, and each juror was polled and affirmed that the verdict signed by each of them was their verdict, nevertheless a statement thereafter handed to the judge somehow vitiated the signed verdict and, in contradiction to the verdict specifically finding Ruben Garcia and Target guilty as to malicious prosecution, the statement must prevail as better representing the jurors’ true disposition of the cause before it.
The report of proceedings reflects the following with respect to the event in question:
“THE COURT: I have been handed forms of verdict purporting to bear the signature of all twelve jurors.
The first of which reads as follows: We the jury find in favor of the plaintiff, Melissa Johnson and against the defendants, Ruben Garcia and Target as to Count I and II, false arrest, no. Count III and IV, malicious prosecution, yes.
We award the plaintiff in compensatory damages against the defendants as follows: For pain and suffering experienced, $75,000.” (Emphasis added.)
The court then began its polling process, as follows:
“Beginning with you, Ms. Bloch, was that your verdict at the time that you signed it and is it your verdict now?
JUROR BLOCH: It was and, yes, it is.
THE COURT: Ms. Reed?
JUROR REED: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
UNIDENTIFIED JUROR: Yes.
THE COURT: All jurors having answered in the affirmative, I read next the verdict form, A-l: We the jury find that punitive damages should be awarded as follows: Against Ruben Garcia, no. Against defendant, Target, yes.
For Ruben Garcia, punitive damages in the sum of zero against Target, $125,030.75, to be written as two checks one, $125 [sic] and one $30.75.
And, again, this purports to bear the signature of all twelve jurors. Again, starting with you Ms. Bloch, was that your verdict as to punitive damages at the time that you signed this verdict form and is it your verdict now?
JUROR BLOCH: Yes, it was and yes, it is.
THE COURT: Again, all twelve jurors having answered in the affirmative.”
After having polled the jury as noted above, the circuit court then remarked:
“Counsel is directed to prepare a judgment order consistent with the jury’s verdict and the purpose directed to enter judgment on the verdict.”
After directing counsel to draft an order reflecting the jury’s verdict, the court stated:
“I don’t think I want to read this. I prefer that you do this. I have been handed a statement of some kind bearing the signatures of the jurors, and I’ll allow the foreperson to read that if she wishes.
JUROR BLOCH: Mr. Garcia, in lieu of the fact that we found you not guilty of malicious prosecution by our interpretation of the law given to us, the intent the jury gives to be more responsibly fill out your paperwork or to do more thorough investigative work and be responsible for appearing in court.”
After the statement was read into the record, no motion to clarify the record or to question the jurors or to correct the record or to amend the record or to enter any kind of objection was made by Garcia or Target.
The court then observed:
“THE COURT: Ms. Bloch, ladies and gentlemen of the jury, I want to thank you for your service. You did, in fact, pay careful attention throughout the trial. I know that counsel and the court appreciate the service you provided. ***
I discharge you, and at this time you are free to discuss this case with anybody that you may choose to speak with, including the attorneys.
}¡s *
If there’s any questions that I can answer that I’m permitted to within the ethical boundaries that prescribe my conduct, then I will be glad to try to talk to you about those as well. And if I can’t, I’ll let your know that. Okay? Again, my heartfelt thanks. I appreciate it.”
No record objection was made nor any questions asked by any of the parties, their counsel or any jurors following these remarks.
To reach the conclusion that the jury’s extra-verdict statement controls here, the majority cites only a partial excerpt from Chalmers v. City of Chicago, 88 Ill. 2d 532, 539-40, 431 N.E.2d 361 (1982) (Chalmers). In consideration of the unique procedure authorized by the majority decision and in fairness to the development of the law, the balance of the Chalmers opinion as it applies to this issue must be set forth.
“It is apparent to us that under the facts before us plaintiff seeks to impeach the verdict not because of a ‘clerical’ mistake in recordation but because of the jury’s misapprehension of the instructions or the effect of their findings. This type of impeachment is clearly impermissible.
The authorities are in accord that the testimony or affidavits of jurors cannot be used to show that the jury misunderstood the instructions or the law (see 8 Wigmore, Evidence sec. 2349 (rev. ed. 1961) and cases cited therein), the effect of a particular finding or of their verdict (see 66 C.J.S. New Trial sec. 169(n) (1950); 76 Am. Jur. 2d Trial sec. 1220 (1975)). The meaning and effect of the verdict must be judged from its terms alone. ‘Hence, no statements by the jurors, either unanimously or individually can be resorted to for explaining or changing its meaning or legal effect.’ (8 Wigmore, Evidence sec. 2356, at 723 (rev. ed. 1961).) As Dean Wigmore explains:
‘This must be so by virtue of the general principle that a legal act is to be construed by the words used in it and not by the private meaning or intention of the person uttering them. [Citation.] To resort to the jurors’ motives, beliefs or intentions would be to violate the general principle *** [8 Wigmore, Evidence sec. 2349 (rev. ed. 1961)] [that] the verdict as uttered is the sole embodiment of the jury’s act and must stand as such without regard to the motives or beliefs which have led up to its act [8 Wigmore, Evidence sec. 2349 (rev. ed. 1961)].’
*** If there was an error, it should have been discovered prior to the jury’s discharge, at which point the trial judge could have taken such action as might have been appropriate. Plaintiff had a right to poll the jurors. She cannot now substitute the affidavits of the jurors following her ex parte communication with them for the purpose of impeaching their verdict.
In view of the inconsistency between the jury’s special finding and the general verdict, the trial court correctly disallowed the award for punitive damages. (See Ill. Rev. Stat. 1977, ch. 110, par. 65; Albaugh v. Cooley (1981), 87 Ill. 2d 241.) For the reasons stated the post-trial relief predicated upon the affidavits of the jurors was correctly denied.” (Emphasis added.) Chalmers, 88 Ill. 2d at 539-41.
Following Chalmers, the appellate court in Couch v. State Farm Insurance Co., 279 Ill. App. 3d 1050, 666 N.E.2d 24 (1996) (Couch), observed:
“It is well settled that the meaning and effect of a verdict must be judged from its terms alone. Chalmers v. City of Chicago, 88 Ill. 2d 532, 539, 431 N.E.2d 361, 365 (1982). Consequently, no statements by the jurors, either individually or unanimously, may be resorted to for explaining or changing the verdict’s meaning or legal effect. Chalmers, 88 Ill. 2d at 539-40, 431 N.E.2d at 365; Sale v. Allstate Insurance Co., 126 Ill. App. 3d 905, 925, 467 N.E.2d 1023, 1036 (1984). Only evidence that the jury considered extraneous information can be used to impeach a verdict. See Macias v. Cincinnati Forte, 277 Ill. App. 3d 947, 950, 661 N.E.2d 472, 474 (1996).” (Emphasis added.) Couch, 279 Ill. App. 3d at 1056-57.
And, in Sale v. Allstate Insurance Co., 126 Ill. App. 3d 905, 467 N.E.2d 1023 (1984) (Sale), the appellate court noted:
“Testimony or affidavits of jurors cannot be used to show that the jury misunderstood the instructions or the law, the effect of a particular finding, or of their verdict. The meaning and effect of the verdict must be judged from its terms alone. Hence, no statements by the jurors, either unanimously or individually, can be resorted to for explaining or changing its meaning or legal effect. (Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 539-40, 431 N.E.2d 361, 365.) We hold that the trial court properly denied plaintiffs motion for a new trial predicated upon the affidavit of the juror.” (Emphasis added.) Sale, 126 Ill. App. 3d at 925.
It cannot be said that the circuit court properly should have entered a nunc pro tunc order in the case sub judice exonerating Garcia under these circumstances, as the majority rules. Instead, the court should have endeavored to clarify the jury’s verdict and findings then and there, when the note was handed to the court and read by the juror into the record. Clearly, the jury was confused; its statement was inconsistent with its verdict. Under Chalmers, the court was obligated to take appropriate ameliorative action by questioning the jurors while they were still in court before it and straighten out the patent inconsistencies or vacate the verdict and grant a new trial. As set forth above, there is ample evidence upon which an action for malicious prosecution can proceed.
To now hold, as the majority would do, that the jury statement prevails over its verdict, as verified by its poll, overrules Chalmers, or at least stands that decision on its head. I would follow Chalmers and its progeny, reverse and remand for a new trial. To grant judgment for Garcia and Target as a matter of law miscarries the rule of law and rewards their indolence in failing to take remedial action until almost four months after the jury had been discharged and dispersed.
For the reasons stated above, I would reverse and remand for a new trial.
Unpaid for.