SECOND DIVISION

February 16, 1999

No. 1-97-4531

JUSTICE GORDON delivered the opinion of the Court:

Plaintiff brings this appeal from the trial court's entry of judgment on a jury verdict for defendant in his personal injury action. He contends that the jury verdict was tainted because (1) the court improperly instructed the jury during its deliberations, and (2) a note that the jury sent out during its deliberations revealed that physical coercion had occurred in the jury room in arriving at the verdict. For the reasons explained below, we find the errors have been waived and, further, are without merit. Accordingly, we affirm.

FACTS

In May 1992 plaintiff Angelo Palanti filed suit against defendant Dillon Enterprises, Ltd. Plaintiff's complaint alleged that plaintiff was injured when he slipped and fell in a parking lot near which defendant was doing remodeling work. The case went to trial in July 1997, and the jury returned a verdict in favor of defendant. The record contains neither a transcript nor a bystander's report of the trial, any pre-trial proceedings, or of any proceedings which occurred during the jury deliberations. Because of this state of the record, the only indications of what transpired before the jury reached its verdict are plaintiff's post-trial motion, the argument at the hearing on that motion (which was transcribed), the common-law record (including the notes which the jury sent out during its deliberations), and the court's written order denying the motion.

Plaintiff's post-trial motion contended that the verdict was against the manifest weight of the evidence and that plaintiff was entitled to a new trial because of error committed by the trial court in certain actions it took during jury deliberations. Specifically, plaintiff contended that the court committed reversible error "by allowing these proceedings to continue subsequent to receipt of notation from Jury foreman, on August 1, 1997, at or about the hour of 5:00 p.m." Plaintiff attached the jury note to which he referred as an exhibit to his motion; it read in full as follows:

"We have one juror who has stated emphatically he will not change his mind and basically refuses to deliberate in good faith. At this point, the remaining eleven are of the firm belief that there will never be any unanimous decision. This is not through lack of effort. One person refuses to consider the FACTS and several people are becoming agitated to the point of possible physical confrontations.

"If you have any suggestions that will resolve this problem we need to hear them now.

"I'm not sure what you are able to legally do to offer myself or other jurors advice or solving this stalemate.

"We simply cannot deliberate with a single juror if he refuses to do so." (Emphasis in original.)

The note was signed by the jury foreman. Plaintiff contended in his post-trial motion that the court erred when it proceeded to poll the jury without a court reporter present and to give the Prim instruction "as per I.P.I. 1.05,"⁽¹⁾ even though counsel for both plaintiff and defendant "expressed opinion that mistrial should be declared."

Plaintiff further alleged in the post-trial motion that at or about 6:30 p.m., the jury sent out another note; the court again conferred with counsel for plaintiff and defendant; and the court again instructed the jury "as per I.P.I. 1.05." In addition, plaintiff contended in his motion that "it was agreed that mistrial would be granted should jury not return by 8:00 p.m." Nevertheless, plaintiff stated, the court "held [the] jury beyond the agreed time and at approximately 10:15 p.m. verdict was returned." Plaintiff argued that by giving the jury Illinois Pattern Jury Instruction 1.05 twice, orally, without a court reporter present, "no evidence exists as to the propriety of instruction and accuracy of same." Plaintiff stated that the court "did hasten the action of the jury, irrespective of its worthy motive and *** by so doing its conduct was improper."

At the hearing on plaintiff's motion, in addition to repeating a number of factual assertions from the motion, plaintiff also asserted that the jury foreman was a police officer and was in possession of a weapon in the jury room. He also contended that the jury had deliberated from approximately 1:00 to 6:30 p.m. on Thursday, July 31, and from approximately 9:30 a.m. to 10:15 p.m. on Friday, August 1, before returning a verdict. In his reply argument in support of the motion, plaintiff further stated as follows:

"And I would like to bring to the Court's attention that IPI 1.05, as read by the Court, uses the term violence. Not physical, but violence. That is reflected in 1.05. In the note that we got back from the juror [sic], they're close to physical confrontation."

The common-law record contains the actual notes the jury sent out, including the note sent out at 5:00 p.m. on August 1 (the second day of deliberations), the text of which has been set out above. It also contains the text of another jury note which states on its face that it was sent out at 6:00 p.m. on August 1 (and is most likely the note to which plaintiff referred in his post-trial motion as having been sent out at 6:30, as the record contains no other notes sent out at or near that time). This note requested an answer to the following question:

"Are we allowed to consider at all the contract between Dillon + Russ Brun? It is an essential element in our group decision making process. In other words, is that contract part of the evidence we are supposed to consider?"

Written on the bottom of the note in a different handwriting is as follows:

"You have heard the testimony and have been presented with the evidence in court. You are to rely on your recollection of that evidence. The court has also instructed you on the law in this case. You are to decide this case based upon the evidence and the law."

The common-law record also contains a third jury note, which stated on its face that it had been sent earlier on August 1, at 2:17 p.m. (No mention was made of this note in plaintiff's written post-trial motion or in the argument thereon.) It read as follows:

"We are all in agreement except for one of us. It is 11-1. However, we have been at 11-1 for a very long time now, dating back to last night. We have reviewed all the evidence and we are still at 11-1. If you could please meet with us to clarify the law or something of that nature, maybe that would help. Thank you."

The trial court denied plaintiff's post-trial motion in its entirety, and issued a memorandum order detailing its reasoning and making a number of factual findings. The court stated that trial had commenced on July 21, 1997, and the case went to the jury in the afternoon of July 31. After adjourning in the "early evening" of July 31, the jury reconvened on Friday, August 1, 1997, at approximately 10:00 a.m.

The court stated in its memorandum that during Friday afternoon, "the court received a note from the jury regarding their difficulties in reaching a verdict." After reviewing the note with the attorneys for both parties, court and counsel all "agreed that the jury be instructed under I.P.I. 1.05 (the 'Prim' instruction) *** and agreed with the reading of the instruction to the jury," after which the jury resumed deliberations.

The memorandum recounted that subsequently, at approximately 5:00 p.m., the jury submitted another note regarding their deliberations. After reviewing the note with counsel, the court "proposed a response, which was agreed to by counsel. *** Both counsel complimented the court on the manner in which the inquiry by the jury was addressed." Later, at approximately 8:00 p.m., after the jury had requested dinner in order to continue deliberating, "pursuant to agreement with counsel, the court brought the jury into the courtroom, with both counsel present. The foreperson informed the court that the jury wished to continue deliberating." Thereafter, at 9:05 p.m., the jury returned a unanimous verdict in favor of defendant. The court polled each juror on its own initiative and subsequently, neither counsel requesting any further action, the jury was discharged.

The court noted that during Friday afternoon the court had inquired of counsel for both parties if a court reporter would be present, but neither party arranged for one. The court also specifically stated that plaintiff did not object to proceeding without a court reporter, did not request an opportunity to secure a reporter's services, and raised no question regarding the lack of a reporter before filing his post-trial motion. Further, the court stated that although the numerical division of the jury was revealed in the first and second notes, that information was unsolicited by the court, in that it did not at any time request the jury to disclose its numerical division. The court also stated that plaintiff's representation that plaintiff, defendant, and the court had agreed that a mistrial would be declared if the jury had not reached a verdict by 8:00 p.m. was "unfounded and clearly not accurate." Finally, the court found that the verdict was not against the manifest weight of the evidence.

Plaintiff appeals, contending that the cause must be remanded for a new trial because consideration of the entirety of the circumstances reveals that the jury was coerced into reaching a verdict. Plaintiff contends that the mere fact that the Prim instruction was given twice constituted reversible error in that doing so coerced the jury into reaching a verdict. Plaintiff argues that the coercive effect of the multiple Prim instructions was heightened by the facts that the jury knew, because of the contents of the notes it sent out, that the court (1) knew how the jury was divided, and (2) was aware that there was a possibility of a physical confrontation among the jurors. For the reasons given below, we affirm.

ANALYSIS

I. WAIVER

As a preliminary matter, defendant contends that plaintiff has waived the error of which he now complains by failing to object at trial. We agree. The trial court specifically found that plaintiff agreed that the deadlock instruction should be read to the jury on Friday afternoon, after the jury had sent out its 2:17 p.m. note indicating it was deadlocked. The court also found that plaintiff's counsel not only agreed to the trial court's subsequent response to the 5:00 p.m. note (the nature of which was not described in the court's findings), he complimented the court on that response. The court also noted that plaintiff's counsel never objected to proceeding without a court reporter and never requested an opportunity to attempt to find a reporter, even after the court inquired of both counsels on that subject.

It is apparent from the court's written findings that the first time plaintiff raised any objection to any of the actions taken by the court in response to the notes sent out by the jury during the course its deliberations was in his post-trial motion, after the jury had rendered its verdict in favor of defendant. This is not sufficient to preserve an allegation of error regarding jury instructions for appellate review. The rule is clear that errors raised for the first time in a post-trial motion which were not objected to or raised at the time at which the errors were purportedly committed are not preserved for appellate review.⁽²⁾ This is true with respect to jury instructions as well as errors in, e.g., admission of evidence or closing argument. See, e.g., People v. Watkins, 293 Ill. App. 3d 496, 508, 688 N.E.2d 798, 806 (1997) (noting, after finding that the court did not err in giving of two anti-deadlock instructions to the jury, that in any event defense counsel had acquiesced in the court's giving of the instructions, and accordingly "defendant invited any error and cannot now be heard to complain"); Stephenson v. Dreis & Krump Manufacturing Co., 101 Ill. App. 3d 380, 387, 428 N.E.2d 190, 195 (1981) (if a party has had an opportunity to object to any proposed instruction before its submission to the jury, it "cannot allow the jury to receive an instruction without specific objection and then for the first time in a post-trial motion or an appeal claim that error was committed"); Grover v. Commonwealth Plaza Condominium Ass'n, 76 Ill. App. 3d 500, 509, 394 N.E.2d 1273, 1280 (1979) ("a party cannot complain of the giving or refusal of an instruction unless the challenged matter is made the subject of objection both at the conference on instructions and in the post-trial motion, and all this is made part of the record"); LaPlaca v. Gilbert & Wolf, Inc., 37 Ill. App. 3d 259, 262, 345 N.E.2d 774, 776 (1976) ("Failure to make a specific objection at the instruction conference and then raising the objection for the first time in a post-trial motion or on appeal will not properly preserve the error for review"). In addition to the fact that it is incumbent upon a party to object while the trial court still has the opportunity to prevent or mitigate any adverse impact resulting from such error, "counsel cannot take a chance of failing to make objections and then, upon receiving what they consider an adverse jury verdict, claim error." Cook County v. Colonial Oil Corp., 15 Ill. 2d 67, 75, 153 N.E.2d 844, 848 (1958); accord, Onderisin v. Elgin, J. & E. Railway Co., 20 Ill. App. 2d 73, 78, 155 N.E.2d 338, 341 (1959) (counsel cannot "sit idly by and permit instructions to be given the jury without specific objection and then be given the advantage of predicating error thereon by urging the error for the first time in a post trial motion"). The trial court explicitly stated that it gave both parties the opportunity to object to its replies to the 2:17 and 5:00 notes, and neither party did so. In this regard we note that plaintiff's assertions that there were mentions of mistrials find no support in the record. Plaintiff has manifestly waived any objection to the instructions given to the jury during deliberation.

We note that even if the able trial judge had not on its own set out the facts which establish plaintiff's waiver, we would still be required to find waiver because of the plaintiff's failure to provide this court with a record which could support a contrary finding.

"To raise an issue on appeal concerning the giving of or the failure to give an instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court." Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 350, 415 N.E.2d 337, 339-40 (1980).

Accord, Holder v. Caselton, 275 Ill. App. 3d 950, 959-60, 657 N.E.2d 680, 688 (1995) (holding appellant had waived issue regarding jury instruction on appeal by her "failure to make a proper record" regarding her objection to the instruction); Zook v. Norfolk & Western Railway Co., 268 Ill. App. 3d 157, 165, 642 N.E.2d 1348, 1354 (1994) ("A party cannot complain of the giving or refusing of an instruction unless he makes the challenged matter the subject of an objection, both at the instructions conference and in the post-trial motion, and makes it a part of the record"); Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 575, 611 N.E.2d 1296, 1313 (1993) ("in order to raise an issue on appeal concerning the giving of or failure to give a jury instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant raised that argument at the instruction conference").

We further note that the insufficiency of the record before us extends beyond facts pertaining to the waiver rule. More substantively, the record does not even show that the court gave the Prim instruction twice.⁽³⁾ Although the trial court stated that it had given the Prim instruction in response to the jury's 2:17 p.m. note, the court did not state that it did so again after receiving the 5:00 p.m. note. Rather, the court merely stated that it had given a "response, which was agreed to by counsel." As counsel conceded at oral argument before this court, the facts in the record are insufficient to support plaintiff's assertion that the 5:00 response involved the giving of another Prim instruction. Arguments made by an appellant which depend on facts which are not contained in the record are not sustainable on appeal. U.S. Minerals & Mining, Inc. v. Licensed Processors, Ltd., 194 Ill. App. 3d 428, 434, 551 N.E.2d 661, 665 (1990) ("The appellant has the duty to present the reviewing court with a complete record on appeal; any doubts arising from the incomplete record are therefore resolved against the appellant, and those issues which depend for resolution upon facts not in the record mandate affirmance"); Estate of Jacobs, 189 Ill. App. 3d 625, 629, 545 N.E.2d 502, 504 (1989) ("any doubt arising from an incomplete record shall be resolved against the appellant. *** Affirmance is dictated when crucial facts are omitted in the record"). Accordingly, plaintiff's complaint regarding the multiple Prim instructions must be rejected on this basis as well.

Finally, although the plain error rule may be applied in civil cases (Belfield v. Coop, 8 Ill. 2d 293, 313, 134 N.E.2d 249, 259 (1956)), this is not a proper case for its invocation. As civil trials "do not implicate sixth amendment concerns, the 'application of the plain error doctrine to civil cases should be exceedingly rare and limited to circumstances amounting to an affront to the judicial process.'" Holder, 275 Ill. App. 3d at 959, 657 N.E.2d at 687, quoting Allison v. Stalter, 251 Ill. App. 3d 127, 131, 621 N.E.2d 977, 979 (1993). As previously pointed out, based on the sparsity of the record before us, there is no reason to conclude that any errors approaching an "affront to the judicial process" in fact occurred in this case. Moreover, as shall be explained below, even if these alleged errors were not subject to waiver, we would not find the court to have acted improperly.

II. MULTIPLE PRIM INSTRUCTIONS

Plaintiff first complains that the court coerced the jury into reaching a verdict by giving the jury the Prim instruction twice when it was aware that the jury was divided 11-1. As previously discussed, in addition to waiver resulting from plaintiff's failure to object, the issue must also be resolved against plaintiff because of his failure to provide us with a record which shows a basis for his claim. But even assuming the truth of plaintiff's allegations we would not find the trial court to have erred.

Plaintiff's coercion argument has two parts. He contends that it was erroneous without more to give the Prim instruction more than once and he suggests that the coercive effect of the multiple instructions was compounded by the fact that the trial court was aware of the numerical division of the jury at the time that it gave the instructions. We reject both arguments. In People v. Watkins, referred to above, this court found no error in the court giving multiple Prim-type instructions to a deadlocked jury, notwithstanding that the jury had informed the court not only of its numerical division, but also of the result the majority favored (conviction). Watkins, 293 Ill. App. 3d at 507, 688 N.E.2d at 806. The court noted that although in some situations it could be improper for a court to issue supplemental instructions to deadlocked jurors once having become aware that a majority of jurors favored conviction, an order instructing the jury to continue its deliberations was not erroneous where the trial court had received an unsolicited statement regarding the numerical division of the jurors. Watkins, 293 Ill. App. 3d at 507, 688 N.E.2d at 805-6, citing People v. Iozzo, 195 Ill. App. 3d 1078, 1086, 552 N.E.2d 1308, 1314 (1990), and People v. Farella, 79 Ill. App. 3d 440, 445, 398 N.E.2d 615, 619 (1979). To hold otherwise would lead to the unpalatable result that a trial court would be barred from giving a Prim instruction in any trial in which the jury provided the court with unsolicited information regarding its numerical division, regardless of whether the court believed the jury should receive the instruction. In this case the information was unsolicited and moreover, was not as problematic as the information the court was given in Watkins, in that in this case the court was not told whom the majority favored.⁽⁴⁾

In addition to Watkins, Prim itself lends some support to our holding that multiple deadlock instructions are not per se error. Although Prim did not explicitly address the propriety of multiple deadlock instructions, the court explicitly directed Illinois trial courts to comply with the standards contained in the American Bar Association Minimum Standards Relating to Jury Trials (ABA Standards). Prim, 53 Ill. 2d at 76, 289 N.E.2d at 609-10. Both the 1968 Tentative Draft of the ABA Standards, from which Prim quoted at length, and the current edition of that work, state that "If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat" a deadlock instruction. (Emphasis added.) Prim, 53 Ill. 2d at 75, 289 N.E.2d at 609, quoting ABA Standards