Nevers v. Van Zuilen

Page 726

700 A.2d 726

47 Conn.App. 46

Michael NEVERS v. Monique VAN ZUILEN et al.

No. 15778.

Appellate Court of Connecticut.

Argued Feb. 25, 1997.

Decided Sept. 30, 1997.

Steven P. Kulas, Seymour, for appellant (plaintiff).

Suzannah Nigro, Newington, with whom, on the brief, were Lawrence F. Reilly, Bridgeport, and Michael P. Bowler, Cheshire, for appellee (named defendant).

Before SCHALLER, FRANCIS X. HENNESSY and DRANGINIS, JJ.

DRANGINIS, Judge.

The plaintiff appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendant. ¹ The underlying cause of action arose from an automobile accident in which the plaintiff sustained personal injuries. The contested issue of fact was whether the plaintiff or the defendant was the operator of the vehicle when it crashed into a bridge abutment. On appeal, the plaintiff claims that the trial court improperly (1) failed to declare a mistrial upon the misconduct of defense counsel during cross-examination of the plaintiff and final arguments, (2) failed to give a Secondino ² charge, (3) instructed the defendant on how to testify, ³ and (4) admitted hearsay evidence contained in a medical report as to the identity of the motor vehicle driver. ⁴ We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 15, 1989, the defendant borrowed her father's car to drive from her home in Windsor to Beacon Falls in order to spend the evening with her then boyfriend, the plaintiff. The defendant was seventeen years old, and the plaintiff was twenty-two years old. On that evening, the plaintiff was wearing a white leather jacket. The plaintiff and the defendant, accompanied by a male friend, went to a liquor store, where one of the males bought a case of beer. They drank the beer at a variety of nearby locations. When their supply of beer was exhausted, another friend gave them more beer and a bottle of champagne, which they also consumed.

The defendant allowed the plaintiff to drive the vehicle due to her intoxication and her lack of familiarity with the area. As the plaintiff made his way to his home, he lost control of the vehicle and crashed. The defendant was found in the passenger's seat and had to be extricated from the vehicle. The plaintiff was found on the porch of a nearby home by the state trooper investigating the crash, Jose Trujillo.

At the accident scene, the plaintiff and the defendant were consistent in their statements that the plaintiff had been the driver of the automobile. Trujillo, however, did not observe injuries to the plaintiff that would have been consistent with the driver's having hit the steering wheel, and he saw a white leather jacket in the driver's seat that he assumed belonged to a female. Thus, Trujillo was not convinced that the plaintiff was the driver. In an attempt to discover the truth, Trujillo lied to the defendant and told her that the plaintiff had said that it was the defendant who was the driver. Knowing that the plaintiff had had some difficulties with the law, and wanting to protect him, the defendant said that she was the driver. That statement to Trujillo was the only statement the defendant made indicating that she was the operator of the vehicle.

After a jury trial, a verdict was returned in favor of the defendant. The plaintiff filed a motion to set aside the verdict and, after a full hearing, the trial court denied the motion. This appeal followed.

I

The plaintiff first claims that the trial court improperly failed to declare a mistrial as a result of defense counsel's continual references to the plaintiff as a felon during both cross-examination and final arguments. The plaintiff further argues that defense counsel's pervasive misconduct deprived him of a fair trial, and, thus, the trial court improperly denied his motion to set aside the verdict. We disagree.

Certain additional facts are necessary to our resolution of this claim. At trial, defense counsel asked the defendant whether she had told Trujillo that she had been driving the automobile at the time of the accident. The defendant answered in the affirmative. When asked why she had said that, the defendant responded that she had wanted to protect the plaintiff, "because he'd get in trouble because he had a [conviction for driving while intoxicated]." The plaintiff objected to that testimony on the grounds of relevancy and prejudice. Outside the presence of the jury, the court held a hearing on the admissibility of the testimony. At the conclusion of the hearing, the trial court ruled that the defendant could testify in front of the jury that the plaintiff had told her that his motor vehicle record was such that it would get him into trouble if he was found to be the operator of the car, but that she could not testify with respect to his specific prior arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs.

Upon the return of the jurors to the courtroom, the trial court instructed them to disregard absolutely, not to consider and to strike from their minds all of the defendant's prior testimony regarding any previous conviction, record or specific charge, such as driving while intoxicated, related to the plaintiff. Defense counsel then asked the defendant why she had told Trujillo that she was the driver, and the defendant responded that it was "[b]ecause [she] thought that [the plaintiff] would be in more trouble than she would be in because of his past record and plus because [her] parents would be really upset if [she] let him drive."

During his cross-examination of the plaintiff, defense counsel asked him whether he was "aware that providing a minor with alcohol is a felony in Connecticut?" The plaintiff's objection to the question was sustained, and the trial court immediately gave the jury a curative instruction. ⁵

Defense counsel also asked the plaintiff whether he had reported to the Internal Revenue Service certain cash income that he had earned while working in 1989. The plaintiff objected to that question. The trial court excused the jury and, after a hearing, overruled the objection and allowed the question, based on Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964), and the question's relevance to the witness' credibility and veracity. Upon the jury's return, defense counsel once again asked the plaintiff whether he had reported the income to the Internal Revenue Service, and the plaintiff responded that he had not. At the conclusion of the plaintiff's case, the plaintiff moved for a mistrial based on defense counsel's improper questions.

Defense counsel referred to the plaintiff's admitted tax evasion in his final argument, stating that "[the defendant] lies on his tax returns.... He earns money in 1989, right at the time of the accident and admits to you, before the jury, admits in open court that he didn't report his income to the IRS.... So I submit to you that when you consider his testimony, you've really got to take it with a grain of salt." At the conclusion of defense counsel's closing argument, the plaintiff renewed his motion for a mistrial on the ground that defense counsel's accusation of criminal tax evasion by the plaintiff constituted prejudicial misconduct. The trial court denied the motion for a mistrial. The plaintiff reiterated his objections to defense counsel's improper questioning and arguments in his motion to set aside the verdict.

"The decision as to whether to grant a motion for a mistrial. .. is one that requires the trial court to exercise its judicial discretion.... Our review of the trial court's exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did.... Every reasonable presumption will be given in favor of the trial court's ruling.... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion." (Internal quotation marks omitted.) State v. Lasky, 43 Conn.App. 619, 635, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). The burden is on the plaintiff to establish that, in the context of the proceedings as a whole, the questions and arguments were so prejudicial that they deprived him of a fair trial. See id., at 636, 685 A.2d 336.

Applying this standard of review to the plaintiff's claim, we conclude that the trial court did not abuse its discretion in denying the plaintiff's motion for mistrial. First, the defendant's testimony that she told the state trooper she was the driver because she feared that the plaintiff would get into trouble because of his driving record was relevant to the defendant's state of mind at the time of the accident. See State v. Brokaw, 183 Conn. 29, 31-33, 438 A.2d 815 (1981). Moreover, any potential prejudice to the plaintiff resulting from the defendant's testimony was completely dissipated by the trial court's prompt delivery of a clear and concise curative instruction to the jury. See State v. Jones, 44 Conn.App. 338, 349-50, 689 A.2d 517 (1997). "In the absence of a clear indication to the contrary, [jurors] are presumed to follow the instructions that they are given." State v. Guess, 39 Conn.App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

Second, the plaintiff immediately objected to defense counsel's question regarding whether the plaintiff was aware that providing alcohol to a minor was a felony, and the objection was sustained by the trial court. Once again, the court promptly gave a curative instruction, ⁶ and we must assume that the jurors followed the instructions that they were given. See State v. Jones, supra, 44 Conn.App. at 349-50, 689 A.2d 517; State v. Guess, supra, 39 Conn.App. at 235, 665 A.2d 126. "Even if the [question was] improper, as the trial court apparently decided [it...