City of Kotzebue v. Ipalook
|05 December 1969
|CITY OF KOTZEBUE, Appellant, v. Percy IPALOOK, Jr., Appellee.
|Alaska Supreme Court
Stephen S. DeLisio, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant.
C. R. Kennelly, Nome, for appellee.
Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.
On January 13, 1966, Percy Ipalook was shot by Officer Eisenhower, a city of Kotzebue policeman. Claiming no justification for the act, Ipalook instituted suit against the city of Kotzebue for damages. 1 At trial, Ipalook received a $25,000 jury verdict. Appellee city of Kotzebue then moved, pursuant to Civil Rule 59(a), for remittitur and alternatively for a new trial limited to the issue of damages. In its order of remittitur, the trial court remitted the sum of $10,000. 2 Ipalook accepted the order of remittitur and an amended judgment was entered in the amount of $15,000 plus costs and attorneys' fees.
During counsel for Ipalook's voir dire examination of the jury panel, five prospective jurors were asked if they owned interests in any insurance company. In addition to these questions, counsel for Ipalook asked one juror whether he had ever worked for an insurance company. As its first specification of error, the city of Kotzebue contends that the trial court committed error in permitting Ipalook's counsel to ask these questions pertaining to insurance.
Most jurisdictions permit the questioning of jurors respecting their interests in, or connections with, insurance companies provided such questions are propounded in good faith. 3 Appellant asserts that bad faith on the part of Ipalook's counsel is demonstrated by the latter's knowledge of the size and location of the community where the trial took place. 4 A determination of such good faith issues must be made in light of all the relevant circumstances. One such circumstance is the fact that trial counsel for Ipalook claimed that he had no actual knowledge of the absence of any possibility that any of the prospective jurors had any interest in, or connection with, an insurance company. 5 Quite possibly some prospective juror might have sold insurance, or held stock in an insurance company, or investigated claims for an insurance company. Our review of the record has not left us with a firm conviction that the trial court abused its discretion in permitting Ipalook's counsel to ask these questions pertaining to insurance. We therefore hold that no error was committed by the trial court in permitting such questioning on voir dire.
Appellant city of Kotzebue's second specification of error is that the superior court erred in failing to sustain its challenge for cause which was directed against juror Lorena Wright. AS 09.20.010 of Alaska's Code of Civil Procedure provides that 'A person is qualified to act as a juror if he is * * * (5) in possession of his natural faculties * * *.' Civil Rule 47(c)(1) establishes grounds for challenges for cause, one of which is that 'the person is not qualified by law to be a juror.' The basis of the city of Kotzebue's challenge of juror Lorena Wright was that her hearing was impaired. In ruling on this challenge, the trial court said, in part, 'I think she's just shy and at this time I'm going to overrule the objection.' When the city subsequently renewed its challenge, the trial court said: Trial court discretion as to challenges for cause is interfered with only in exceptional circumstances and to prevent miscarriages of justice. 6 We find no such abuse of discretion in the trial court's rejection of the city's challenge for cause of juror Lorena Wright, 7 especially since the city did not exhaust its peremptory challenges.
For its third specification of error, the city of Kotzebue argues that the superior court erroneously sustained Ipalook's challenge for cause to prospective juror Elizabeth Cross. Ipalook's counsel challenged juror Cross on the ground that she was related to one of the 'major witnesses' and 'major parties' on the other side. It was established that the prospective juror was the wife of John Cross, mayor of Kotzebue at the time Officer Eisenhower was hired and at the time the shooting of Ipalook occurred.
In Borman v. State 8 the general rule regarding a prospective juror's relationship to a witness was articulated in the following manner:
Neither mere acquaintance * * * nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. * * * Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts, in addition to mere relationship or association, which would give rise to a showing of actual prejudice.
We agree with appellant that relationship to a witness does not fall within any of the enumerated grounds under Civil Rule 47(c) upon which a prospective juror can be challenged for cause. Because of the context in which this issue has been raised, we need not at this time decide whether the grounds enumerated in Civil Rule 47(c) are exclusive. For here, even assuming it was error to have excused juror Cross for cause, we can discern no resultant prejudice to appellant city of Kotzebue flowing from the trial court's ruling. As we noted previously, the city of Kotzebue did not exhaust its peremptory challenges. 9 A further basis for disposition of this assertion of error arises from the failure of the city of Kotzebue to make a timely objection to the trial court's ruling dismissing juror Cross. By virtue of this omission, the city of Kotzebue is thus precluded from raising the question at this time. 10
In its fourth specification of error, the city of Kotzebue advances the argument that the trial court erred in limiting its cross-examination of the witness Frank Ferguson. This witness had been called by Ipalook and on direct had testified that he was present in the Eskimo Building in Kotzebue on the night that Officer Eisenhower shot Ipalook. Ferguson testified that he saw Eisenhower immediately after he had shot Ipalook, and that in the latter's attempt to go up the stairs leading from the basement of the Eskimo Building, Eisenhower knocked Ipalook over. Upon cross-examination, counsel for the city attempted to inquire into events which occurred immediately prior to those to which Ferguson had testified on direct examination. Ipalook objected that such questions were beyond the scope of his direct examination of the witness. The trial court sustained Ipalook's objections indicating that its ruling would not preclude appellant from calling Ferguson either as its own witness or 'in rebuttal.' 11
In Fajeriak v. State 12 and Pederson v. State, 13 we held that determination of the scope of permissible cross-examination lies within the trial court's discretion. Also pertinent is Civil Rule 43(g)(7) wherein it is provided that:
An adverse party may cross examine a witness as to any matter stated in the direct examination or connected therewith * * *. 14
We are of the view that the trial judge's administration of Civil Rule 43(g) (7) was too restrictive. For in our opinion, the subject matter of the prohibited attempted cross-examination related to facts and circumstances which were 'connected' with matters Ferguson had testified to on his direct examination. 15 We further conclude that such rulings were in the nature of nonprejudicial or harmless error. For the record does not indicate any reasons why the city of Kotzebue failed to call Frank Ferguson as its own witness as part of its case in chief, or in rebuttal. Since thses options were available to the city of Kotzebue despite the court's scope of cross-examination rulings, we fail to discern any prejudice to the city attributable to these scope of cross-examination rulings. 16
As its fifth specification of error, the city of Kotzebue's position is that the trial court erred in permitting counsel for Ipalook, during his final argument, 'to comment on purported statements by Officer William Eisenhower, which statements were not in evidence.' 17 It is a well established rule that counsel, in his argument to the jury, may not include statements which are unsupported by evidence, but that his arguments may include reasonable inferences or deductions from the evidence. 18 Although Eisenhower did not testify, there was testimony from other witnesses as to what he had said and done. What Ipalook's counsel said in final argument could be fairly characterized as reasonable inferences or deductions from such other testimony. But even if there were some question as to the propriety of what counsel was arguing, possible prejudice to appellee was obviated by the court's admonition to the jury, made at the time appellee's counsel objected to the argument made by Ipalook's counsel, that if the jury found any basis in the evidence for support of such argument they could consider it, but if not, they may not consider such argument, and that the jury was the final arbiter of the evidence involved. We therefore hold that no error was committed by the trial judge in overruling the city's objections to this portion of counsel for Ipalook's final argument.
Appellant city of Kotzebue, in its last specification of error, states that, 'The trial court erred in granting remittitur of only $10,000.00 and in entering an Amended Judgment of $15,000.00 based on said remittitur.' We earlier indicated that the jury returned a verdict of $25,000 in Ipalook's favor, and that this verdict was remitted to $15,000 as a result of appellant's motion for a remittitur, or for a new trial on the issue of damages.
In ruling on appellant's motion for remittitur, the trial judge found that the jury's verdict was not the result of passion or prejudice. In making this decision, the trial judge stated:
I do not find that the...
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