## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

McGe e v. City of Chicago , 2012 IL App (1st) 111084

Appellate Court Caption DONNY McGEE, P l aintiff-A ppellee, v. THE CI TY OF CHI CAGO; ERNA QUI

NN, Special Represe ntative for the Estate of Edwar d Fa rley ; ROBERT L ENI HAN; and ROBERT BA RTI K, Def endants-A

ppellants.

District & N o. First District, Second D ivision Docke t No. 1-11-1084

Filed October 9, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The judgme nt for plaintiff in his action ag ai n s t a city and some of its police office rs for malicious prosec ution was reve rsed and the cause was

rema nded for a new trial based on the trial court’s abuse of discretion in ref using to voir dire the jurors af t er lear ning that the Interne t rese arc h conducte d by one juror on the issue of mem o ry lapses, an issue in the

case , had re ache d the jury

.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 08-L -3503; the Hon. Susan Ruscitti -Grusse l, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Stephen R. Patton, Corporation Counsel, o f C hicag o (B enna Ruth Solomon, My

riam Z rec zny Kaspe r, and Ker rie Maloney L ay

tin, Assista

n t Corporation Counsel, of counse l), for a ppellants.

L oevy & L oevy , of Chicag o (Arthur L oevy , J on L oevy , Russell Ainsworth, and Roshna B ala Ke en, of c ounsel), for appellee

.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Murphy * and Connors conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Her e we are called upon to deter mine whether defe ndants are entitled to a new trial wher e the circ uit court failed to remove or even voir dire a juror who had perf ormed I nterne t

rese arc h on an issue in the ca se. We decide the answe r is y es. 1 ¶ 2 Plaintiff, Donny McGee, b ro u gh t cl ai m s o f m al i ci ous prosec ution and intentional infliction of emotional distress ag ainst defen d an t s t h e City of Chicag o; Erna Quinn, as specia l repr esentative for the es t at e of Chicag o police detec tive Edwar d Fa rley ; Chicag o police dete ctive Robert L enihan; and Chica g o police off icer Robert B artik. After

a trial, a 2 jury found for plaintiff on his malicious prosec ution claim and fo r defe ndants on the intentional infliction of emotional distress claim.

¶ 3 J URI SDI CTI ON ¶ 4 On J une 8, 2010, the jury returne d its verdic t, and the circ uit court enter ed judgme nt on that verdic t. On Marc h 9, 2011, the circ uit court denied defenda nts’ motion for a new trial

or remittitur. On April 6, 2011, defe ndants timely filed their notice of appea l. Acc ording ly
, this court has jurisdiction pursuant to I llinois Supreme Court Rules 301 and 303 g overning
appea ls from final judgme nts enter ed below. I ll. S. Ct. R. 301 (ef f. Fe b. 1, 1994); R. 303 (ef f. May 30, 2008).

*J ust ic e M ic hae l M urp hy reviewe d t he b ri ef s, r eviewe d an d si gned th e op ini on a nd
par ti ci pat ed i n or al ar gum ent pr ior to hi s de at h.

Due t o t he d is pos it ion of

th is app eal , we n eed not con si der def end ant s’ ot her ar gum ent s. 1

Bef ore thi s cou rt , al l of the def end ant s ar e re pre sen te d by the cor por at ion cou nse l of the 2 Cit y of Chic ago, and we wil l re fe r to the m col le ct ively as def end ant s. However, we wil l re fe r to the def end ant s ind ividu al ly by name when re fe rr ing to the ir re spe ct ive te st imony or when re fe re nce d by pla int if f’ s t est imony

.
-2-¶ 5 BA CKGROUND

¶ 6 I n his complaint, plaintiff alleg ed that defe ndants prosec uted him for the murde r of his elder ly next door neig hbor based on a fabr icated confe ssion. Plaintiff was acquitted but due
to the fabr icated confe ssion, he spent three y ea rs wr ong fully incar cer ated awa iting trial. Plaintiff’s civil compl ai nt contained claims of malicious prosec ution and intentional infliction of emotional distress ag ainst defe ndants. After a trial, a jury returne d a verdic t in favor of plaintiff on his malici o u s prosec ution claim and in favor of defe ndants on the intentional infliction of emotional distress claim. The jury awa rded compensatory damag es in the amount of $975,000 ag ainst defen d an t s , and punitive damag es of $110,000 ag ainst

eac h individual defenda

nt. ¶ 7 Be low, we will only rec ite the fac ts nece ssary for the dispositi on of this appea l. Namely
, we will r ecite the fac ts sur rounding plaintiff’s testimony of having memory lapses, and the circ uit court’s ruling s upon lea rn i n g t h at a juror had made an Interne t sear ch on memory lapses and, dur ing the trial, broug ht outside information into the jury room.

¶ 8 Memory L apses ¶ 9 Def

endants’ counsel first introduced t h e i s s u e o f m em o ry lapses during his opening
argument. Def

endants’ counsel, w h i l e d i scussing what Detective L enihan would testify to at trial, stated:
“So [Detective L enihan] say s, Donny [t he plaintiff], y our prints match I tem Evidence No. 7. He say s it matches No. 7. What do y ou g ot to say about t hat? And Donny g ives kind of a vag ue an s we r. He’ s like, I didn’t do this. I couldn’t have done this. But, y ou know, I g ot hit in t he hea d in Mex ico and I blackout sometimes. Well, [pl aintiff] will admit he did g et hit in the head in Mexi co. He g ot hit in the head in Me x ico. So he say s–he kind of denies it, but then he say s, Oh, I g ot hit in the head in Mexi co and I

have bla ckouts. So the y said, will y ou take a poly g raph? And he ag ree s.” ¶ 10 Plaintiff’s sist er , Mirey a Oleszkiewicz, was asked about her brother’ s memory lapses during cross-e x amination. When asked whether her brother ever discussed with her that he had blac kouts or memory losses, she answe red, “ no.” ¶ 11 Plaintiff, during cross-e x amination, admitted that he wa s h i t i n the head with a bottle while in Mexi co, but he denied telling that to the detec tiv es

. He also denied telling the detec tives “any

thing about memory lapses,” but admitted that “[i] n cer tain situations” he did tell other people about having memory lapses. The following exchange t h en occur red betwee n plaintiff and de fenda nts’ counsel: “Q. I sn’t it true y ou had experienc ed memory lapses?
A. That is not true. Q. You deny

never having memory

lapses?
A. I don’t think–memory lapses like–I mean, some people have memory lapses but– Q. Well, y ou did say

y ou had told other pe ople you had memory lapses, rig ht?

-3-A. Yes. Q. B ut y ou’re saying it ac tually isn’t true?
A. All Ican r emember

is one time my

sister-in-law said I came out of my bedroom with my fianc é at that time in the buff, and I don’t reme m b er t h at happening

. I s that a memory lapse? Idon’t know. Q. Don ’t y o u reme mber at y our criminal trial there was testimony at some point befor e the tria l beg an in motions about y ou having blackouts and me mory lapses?
A. I don’t rea lly

reme mber that. Q. Well, let me see if I can ref resh y our rec ollection. Don’t y ou reme mber as a result of some testimony that was prese nted to the criminal co u rt ab o ut memory lapses and blackouts wer en’t y ou sent for a mental health exam to see if y ou wer e fit to stand trial?
A. I reme mber being sent to sit–to g o see if I was fit for trial, but I didn’t know it had
to do with alleg ed memory lapses. I thought they do that for ever y inmate to see if y ou’re fit for trial. Q. You just thought y ou wer e having a mental health exam beca use that was a routine
proce dure?
A. Yes. Q. You don’t rec all there being any thing about y our mental health exam befor e y our criminal trial that had a

ny thing to do with memory

lapses?
A. No. I rea lly don’t reme mber that. Q. I s that something that would be better answe red by Sam Adams, Senior or J unior?
A. More tha

n likely

. *** Q. So the memory

lapses par

t y ou deny

telling the de tectives? A. Yes, I deny

. Q. You ag ree y ou have sa id it to ot her pe ople? A. Yes, I have. Q. B ut y ou deny

it’s actually

true?
A. Yes.” ¶ 12 Sam Adams, Sr., later te s ti f ie d that he reme mbere d plaintiff “having problems with what 3 he called bl ackouts or so mething of that nature .” He testified further t hat because plaintiff was fa cing the death penalty and because of t he blackouts, plaintiff’s competency to stand trial was teste d. ¶ 13 Detec tive Fa

rley testified t hat he and Detective L en i h an questioned plaintiff re g arding the murder. Specifica lly
, they questioned plaintiff conce rning the las t time he was at the victim’s house. Fa

rley testified as follows:

Sam Adams, Sr., al ong wit h Sam Adams, J r., re pre sen te d pla int if f dur ing his cr iminal tr ia l. 3

-4-A. *** He then kind of stopped and said. Well, I don’t think I could have hurt her but if Idid–y ou know, I

have the se blac kouts. Q. And what else did he say ? Did he say about why

he had bla ckouts?
A. Well, then he we n t on to say that when he was in Mexi co that he had been in a fig ht–I ’m sorry

. He didn’t say that. He sa id, when I

was in Mexico I g ot hit in the head with a bottle and eve r since the n I ’ve ha d blackouts.

*** Q. *** What happens ne x t in that room?
A. I confr onted him and said, listen, y ou know, it’s very convenie nt for y ou to come out now all of a sudde n and have these blac kouts.” ¶ 14 Detec tive L enihan also testified reg arding the above incident. Dete c ti v e L enihan testified that he and Detec tive Fa rley asked plainti ff whether he had killed the victim. Detec tive L enihan testified that plaintiff’s “re sponse was rea lly interesting

. I t was, I don’t think I could have done it. I couldn’t have

. But if I did, I have the se blac kouts. I don’t reme mber. When I was in Mexico, Iwas hit in the head with a beer bott le. And, ag ain, he said, I don’t think I could have done it. But if I did, if I hurt her, I don’t reme mber.” Detec tive L enihan testified that he took notes during his interview with plaintiff, which are contained in his g ener al
prog ress repor

t. When shown the g ener al prog ress repor t, Detec tive L enihan testified that it ref lected pla intiff’s statements about memor y lapses.

¶ 15 J ury ’s Exposure to Outside I nformation ¶ 16 During the voir dire of jury selec tion, the circ uit court admonished the venire acc ording
to g ener al cautionar

y instruction No

. 1 .01 of the I llinois Pattern J ury I nstructions, Civil (I llinois Pattern Jury

I nstructions, Civil , No. 1.01 (2010)) , as follows:
“The use of cell phones, text messag es, internet postings, and internet acc ess device s in connec tion with y our duty violates the rules of evidenc e. And y ou are prohibited from using them. You should not do any independe nt investigation or rese arc h on any subject relating to the c ase. What y ou may have seen or hear d outside the courtroom is n o t ev i d en ce. This includes any press, radio, or TV prog rams. And it also includes any information available

on the internet. S u ch p ro g rams that repor t that information are not evidenc e and y our verdic t must not be influenc ed in any way by such mater ial.” ¶ 17 During the trial, the court bailiff informed the court that a juror had perf ormed her own

rese arc h on the I nterne t and had broug ht that information into the jury room. The court had the bailiff speak on the rec ord reg arding information that he had rec eived. The bailiff, on the

rec ord, st ated, “ Ihave inf ormation by

one juror that another juror went on the i nterne t and she rese arc hed memory lapses, and appar ently she has the information with her.” The bailiff did not know which juror had the outside information, but that juror Reg an Wil lis informed him of this information. The following exchang e then took place betwee n the court, counsel for the pa rties, and the ba iliff:
“ MR. HAL E [defendants’ attorney ]: Well, y our honor, this is definitely a troubling

-5-issue beca use t hey wer e instructed not to do this, and I have a lot of rese rvations about it ***.
THE COURT: This is what the court plans to do. *** This particula r juror walks befor e the court at this point sol ely with w hateve r information that juror has with the m today reg ardingthis, and then we c an do voir dire . Any other thoug hts?
MR. AI NSWOR TH: I

think it s ounds appropr iate.
THE COURT: [S peaking to the court bailiff] So lets do this. You’re g oing to be very tactful. Inquire who this person is, and I g uess the best way to do it–thus, the fac t of the matter is that what y ou just to l d u s re garding this information I need to speak with the
person who has secur ed that information and ask them to come out of the jury room. Do
not say any

thing abou t b re ak i n g rules. I ’m telling y ou that. Be as tactful as y ou can without intimi dating any one. Ag ain, I want all the other jurors to fee l pretty rela x ed about this case. The y

don’t know any

thing a bout it.
MR. AI NSWOR TH: I

have no obje ction to proce eding in that reg ard. THE COURT: Do y ou have a ny questions reg ardingthat?
THE B AI L I FF : No. THE COURT: Def

ense c ounsel has any

objection?
MR. HAL E: I think y our rec ommendation sounds fine. L et’s take it one step at a time.”
L ater , the b ai l i ff returne d and stated to the court “No one owns up to it.” The following exchang e then oc curr ed:
“THE COURT: I g uess the only other thing we can do now is Mr. Reag an [ sic ] Wil lis
to come out. I t’s g oing to be highlig hted, a juror. May be we will be better if I rer ead this instruction in terms of the interne t what I first admonished.
MR. HAL E: Yea

h
THE COURT: I f y ou single him out, it ’s g oing to *** be come pr oblematic. You have to be ver

y delicate , to say

the least.” Whereupon, the court put aside it s consideration of having juror Reg an Willi s “come out” for voir dire and proce eded to rer ead to the jury the same instructions first admonished to the entire ve nire. ¶ 18 On the next court date, defe ndants’ counsel reque sted that the court voir dire juror Reg an Wil lis reg arding his fellow juror’s independe nt rese arc h. The following exchang e then

occur red be tween the court, pa rties’ c ounsel, and the ba iliff.
“MR. HAL E [defendants’ attorney ]: *** The issue I wanted to raise is the juror issue. *** [W ]e thought about it over the wee kend, the issue with the juror

. ***
I have two conce rns afte r having thought about it all wee kend and discussed it with

m y cl ients: One, that a juror did do obviously some sort of i ndepende nt rese arc h; tw o , that juror broug ht whateve r they had to court into the jury room; and three
, that juror did not disclose the fa ct that they had done that.

-6-So what the defe nse would reque st *** is bring Mr. Wil lis out. We ask him who was the juror that had the materia l. Once that jurors i dentified, we bring that juror out. W e ask them, y ou know, did y ou have a n article about memory

lapses?

***
And we flush it out and then we decide wher e we g o from there beca use we think *** it’s a pretty serious issue, and I think that would be–that’s–we reque st that the court do that. THE COURT: Response, plea se. MR. AI NSWOR TH [ p l ai n t iff’s attorney ]: I don’t fee l strong ly about t he is sue, but I do fee l that there hasn’t been proof that somebody was actua lly doing outside rese arc h. We just know that that article was observe d by Mr. Wil lis. We have no rea son to doubt his acc ount. But we don’t know that somebody was actua lly doing that in rela tion to this case

. We don’t know whether somebody was–just happene d to have that item in their possession related to this case.
We don’t know. We could find out. I think that it would highlig ht the issue to bring him and cre ate some te nsion to bring Mr. Willis out

. At the same time, judge
, I don’t fee l super strong ly about the is s ue. I f the court is inclined t o do so, I ’m not g oing to stand up and object, but I think the onl y rea son that I ’m taking a co n trary position is beca use I think the C ourt’s i nstruction direc ting them
not to look at thing s outside of the evide nce in this ca se solved whateve r the issue may have be en.

***
MR. HAL E: I mean, its no coincidenc e that the juror had a memory lapse document within the case beca

use memory lapse, as we all know it, has been about a big part of the trial and the te stimony

. So clea rly the juror, it sounds like he had something and broug ht it into court. Now, whether they g ot it from the internet or whether they g ot it somewher e else I don’t think

rea lly matters. The point is they broug ht–it sounds like, acc ording to Mr. Wil lis, they broug ht some article into the jury

room. So I just wanted to clea r that up.
THE COURT: Eric [t he bailiff], last wee k y ou advised the court that Mr. Wil lis had advised y ou reg ardinga docume nt havingto do with memory lapses.
Do y ou rec all if there was any further statement by him reg arding the title or the content of this document?
THE BA I L I FF : Other than it had to do with memory lapse. W h en I went in the second time, they

kind of identified who it was but that pe rson wouldn’t own up to it.
THE COURT: Okay

. When y ou say they kind of identified, can y ou tell me who was the per son who was identify ing w ho?
THE B AI L I FF : Actually

it wasn’t just him. I t was a c ouple of other jurors too.

-7-THE COURT: Okay . Can y ou tell me the others?
THE B AI L I FF : Yes, they know who broug ht it.
THE COURT: Can y ou tell me who the other jurors wer e who identified someone?
THE B AI L I FF : Ibelieve D avis.
THE COURT: Mr. Davis, Charlie Davis.
THE BA I L I FF : Yea

h, and I think a couple of others. I ’m not sure of exactly who else. THE COURT: Who was the per son that they

– THE B AI L I FF : They are saying it was Fre eman, F ree man, but Ididn’t even a sk no

one. THE COURT: Now, did either Charlie Davis or did Reag an [ sic ] Wil lis tell y ou any thing in re g ards to the title of this document or the actua l contents?
THE BA I L I FF : Mr. Wil lis told me. I don’t know how detailed they wer e able to rea d the information she ha d, but he said it had to do with memory lapses.
THE COURT: L ike what in par ticular re g ardingmemory lapses?
THE B AI L I FF : He didn’t g et into that. THE COURT: He didn’t know the subject matter?
THE B AI L I FF : No.” The court char acte rized the qu es t i o n befor e it as whether the information that rea ched the jury perta ined to the case or not. Def endants’ counsel argued that the issue of memory lapse

wa s rela ted to the case as shown by the testimony addre ssing the issue. Specifica lly
, defe ndants’ counsel argued that “[m] emory lapses is a ve ry specific ty

pe of a rticle a nd it’s

a ver y specific issue in this case, and so it just seems to me like it has to be something that

was broug ht and g ather ed beca use of the testimony that was hear d in this case .” Def endants’ counsel st at ed t h at he fea red the juror did not follow the court’s instructions reg arding outside rese arc h, that the juror broug ht the alleg ed doc u me n t into court, share d the document, and did not admit to bring ing it into court when asked by the bailiff. Acc ording ly
, he argued that if this is true about juror Fr eema n, then she should be remove d. In response , plaintiff’s attorney stressed “we don’t know whether or not this–article re lates to the ca se.” H e stated further “it hasn’t been a big issue in the case but it has been an issue in the case .” The court then asked the parties to submit a memorandum of law on the issue for the next cour t date. ¶ 19 The next court date, a h ea ri n g o n defe ndants’ motion resumed. Def endants’ c ounsel
argued that memory lapse was an issue i n t h e ca s e, evidenc ed by plaintiff’s offe ring of Detec tive Fa

rley ’s and Detec tive L enihan’ s testimony

. Def endants’ counsel pointed out that it is unknown what eff

ect the information had on juror F ree man and that “ the cour t should flush the issue out throug h a voir dire.” Counsel also argued that it is unknown which other jurors F ree man share d the information. ¶ 20 I n response , plaintiff’s counsel argued that bring ing i n Fr ee m an fo r questioning ma y impact her deliberation and may cause p ro b l em s with her fellow jurors. Additionally
, plaintiff’s counsel war

ned that “the more y ou talk about memory lapse to Ms. Fr eema n, then the more it become s an issue with her, and then y ou’re injecting additional fac ts that she now

-8-knows that the rest of the jury doesn’t know.” Plaintiff’s counsel maintained that the court’s

repe ated admonishment was a curative inst ru ct ion and the appropr iate course of action to take. ¶ 21 The court decide d t h at i t i s p re s umed jurors follow instructions and that the court is hesitant to voir dire a juror beca use “[t] he court surely doesn’t want to embar rass any juror,

or make that juror fee l that somehow or another that juror has done something wrong .” The
court c oncluded that voir dire of Ms. Fr eema n or any other juror

was not nec essar

y

. ¶ 22 After trial, defe ndants filed a motion for a new trial, and rele vant to this appea l, arg ued that the circ uit court abused its discretion by failing to remove or even voir dire the juror who perf ormed independe nt rese arc h on the issue of memory lapse. The circ uit court denied defe ndants’ motion for a ne w trial. De fenda nts tim ely filed their notice of appe al.

¶ 23 ANAL YSI S ¶ 24 Def

endants argue that a new trial is require d due to the circ uit court’s failure to remove

or vo i r d i r e the juror who conducte d her own I nterne t rese arc h on memory lapses. Def endants alleg e that the juror in question broug ht the I nterne t rese arc h into the jury room, wher e at least two other jurors saw it. Due to the conflicting nature of the testimony
, which called for the jury to make a cr edibility assessment, defe ndant maintains that plaintiff’s
memory lapse was a cruc ial issue in the case

. Acc ording to defe ndants, it is unknown what eff ect the article had on the other jurors due to the circ uit court’s ref usal to voir dire the juror. Def endants c ontend we should not g ive t he cir cuit court’s de cision any defe renc e “in lig ht of that court’s failure to even g ather the fac ts that wer e nece ssary for the proper exercise of its discretion.” ¶ 25 I n response , plaintiff argues that the abuse of discretion s t an d ar d i s t h e appr opriate standard of revie w this court should follow, and that the circ uit court acte d within its sound discretion in allowing the juror in question to rema in empane led. Plaintiff also maintains that defe ndants waived their rig ht to challeng e the circ uit court’s decision beca use the defe ndants alleg edly ratified the circ uit court’s plan to issue a curative instruction to the jury

. Plaintiff
argues voir dire of the juror “ca rried the risk of co m p o unding the problem rathe r than amelior at ing it.” Plaintiff disputes that memory lapses were a cruc ial issue to the case and
argues that def

endants c annot show pre

judice bec ause this was not a close c ase. ¶ 26 I n reply
, defe ndants argue the circ uit court’s failure to question the juror who broug ht in her own rese arc h showed disreg ard for t he presumption t h at ex t ri nsic evidenc e viewed by the jury is prejudicia l. Although defe ndants maintain that this court owes the circ uit court no defe renc e on this issue, they argue that a new trial i s re q u i red even under the abuse of discretion standard due to the circ uit court’s failure to even ascertain the content of the

rese arc h broug ht in by the j uror. Defe ndants dispute that they waived this issue on appea l,
arguing that the rec ord shows they proper ly prese rved the issue for appea l by objecting at trial, the objection of which was fully briefe d by the parties at trial, and by objecting in a posttrial motion. Def

endants argue that the circ uit court did not treat the issue as waived, as shown by its order ing the parties to brief the issue and then ruling on the merits of the issue. ¶ 27 I nitially , we hold that def endants did not waive this issue on appea l beca use the c ircuit

-9-court ruled on the merits of t he issue both during the trial and in denying defe ndants’

posttrial motion. See Truchon v. City of Streator
, 70 I ll. App. 3d 89, 94 (1979) (par ty waived objec t i o n t o any proce dural insufficienc y wher e the issue was argued and decide d on the merits in the circ uit court); W atseka First National Bank v. R u d a , 1 3 5 I ll. 2d 140, 146-47 (1990) (whe re a defe nse was first raised du r in g a d e fenda

nt’s opening statement, our supreme

co urt stated “[ a]ny proce dural error that might have arisen from thi s method of raising the issue is inconseque ntial, howeve r, beca use no objection appea

rs in the rec ord, counsel later
argued the mer its of the defe nse and the judge ruled on it”). ¶ 28 Evidence of a jury ’s m o t i v es , m et h o d s , or its decision-making proce ss is ty pically inadmissible to impeach a verdic t. People v. Colli ns , 351 I ll. App. 3d 1 7 5
, 179 (2004). Howeve r, whe re e x trane ous or unauthorized information has re ache d the jury , evidenc e of such events can be used to impeach a verdic t. Id. I f extraneous or unauthorized information has re ache d the jury
, it is presumed pr ejudicial. Thornton v. Garcini , 364 I ll. App. 3d 612, 616-17 (2006) . “The party challeng ing the verdic t needs to show only that the information relates direc tly to something at i s s u e i n the case which the losing party did not have the opportunity to ref

ute and that may have influence d the verdic t.” Id

. at 617. I f this is shown, the burden shifts to the nonmovant to show that no prejudice occur red. Stallings v. Black & Dec ker ( U.S.)

, Inc.
, 342 I ll. App. 3d 676, 681 (2003). “A verdict m ay stand only if it is ‘obvious’ that no prejudice acc rued to the defe ndant. ” Colli ns , 351 I ll. App. 3d at 179-80 (quoting People v. Hobley
, 182 I ll. 2d 404, 462 (1998))

. “The deter mination o f whether prejudice has occur

red rests in the sound judicial discretion o f t h e court afte r it has considere d all the fa cts and c ircumstance s.” Thornton , 364 I ll. App. 3d at 617. ¶ 29 I n this case , we hold the circ uit court abused its discretion by failing to voir dire the juror who perf ormed extraneous rese arc h on an i s sue that had a direc t bear ing on the case , i.e.
, plaintiff’s all eged memory lapses. Defenda nts, as t he parties challeng ing the verdic t, wer e require d to show that the extraneous information direc tly related to an issue in the case that they wer e not able to ref ute and that the information may have had an i n fl u en ce on the verdic t. See Thornton
, 364 I ll. App. 3d at 617 (“[t] he party challeng ing the verdic t needs to show only that the information relates direc tly to something at issue in the case which the losing party did not have the opportunity to ref ute and that may have influence d the verdic t”). ¶ 30 Plaintiff’s complaint alleg ed defe ndants comm i t t ed m al i ci o u s p ro s ec u t i o n and the intentional infliction of emotional distress due to the fabr ication of a confe ssion. Def endants initially broug ht plaintiff’s alleg ed mem o ry lapses to the jury ’s attention during opening
arguments. Plaintiff denied tellin g Detectives Fa rley and L enihan that he experience d
memory lapses, and denied that he actua lly experience d memory lapses, but admitted that he had told other people that he has had memory lapses. He also testified that he was hit in the head by a bottle wh i l e i n M exico. Both Detec tives Fa rley and L enihan testified reg arding plaintiff’s statement to them that he did experience memory lapses and that he started to experience memory lapses afte r he was hit in the head by a bottle while in Mexi co. Plaintiff’s criminal trial attorne y

rec alled plaintiff “ having problems with what he c alled blac kouts.” ¶ 31 The plaintiff’s alleg ed memo ry l ap s es b ea r d i re ct l y o n both his and def endants’

cre dibilit y

. The jury ’s consideration of plaintiff’s claimed memory lapses was critica l to the
outcome of the case

. Be cause the court did not voir dire the informing and offe nding jurors,

-10-defe ndants wer e never able to ref ute whateve r was in the extraneous information conce rning
memory lapses. I t is rea sonable to conclude that the information likely aff ecte d the verdic t,

as shown by the juror’s eag erne ss to perf orm independe nt rese arc h on the issue and share the information within the jury room. Acc ording ly
, we hold th at defe ndants have shown that plaintiff’s alleg ed memory lapses direc tly related to an issue at trial, that they wer e not able to refute the extraneous information, and that it may have inf luence d the ver dict. ¶ 32 The burden then shifted to plaintiff, as the nonmovant, t o s h o w t h at n o p rejudice

occur red. Stallings
, 342 I ll. App. 3d at 681; see also Colli ns , 351 I ll. App. 3d at 179-80 (“A verdic t may stand only if it is ‘obvious’ that no prejudice acc rued to the defe ndant.” (quoting Hobley , 182 I ll. 2d at 462)). We hold that plaintiff has not satisfied this burden. ¶ 33 The circ uit court abused its discretion in denying defe nd an t s ’ re q u es t to voir dire the jurors. Once it be came appar ent that extraneous information on memory lapse had rea ched
t h e j ury , the circ uit court’s well-intentioned conce rn not to embar rass any juror wa s misplaced. The circ uit court should have sustained defe ndants’ reque st to voir dire the juror in chambe rs. At a minimum
, the circ uit court should have deter mined what was broug ht into the jury room , what it contained, and who had rea d it. The court could then deter mine whether the extraneous information was prejudicia l. Unfortunately
, this did not occur and plaintiff has not overc ome the presumption that the extraneous information was prejudicia l. Thornton
, 364 I ll. App. 3d at 616-17. Acc ording ly
, we reve rse the judgme nt of the circ uit
court a nd rema nd the matter f

or a ne w trial.

¶ 34 CONCL USI ON ¶ 35 The judg ment of the c ircuit court is re verse d and the c ause is re manded.

¶ 36 Reverse d and re manded.

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