Gash v. Kohm

• Decision Date: 18 April 1985
• Docket Number: No. 1-584A115,1-584A115
• Citation: 476 N.E.2d 910
• Parties: Stanton H. GASH, Defendant-Appellant, v. William KOHM, Rosemary Kohm, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 910

476 N.E.2d 910

Stanton H. GASH, Defendant-Appellant, v. William KOHM, Rosemary Kohm, Plaintiffs-Appellees.

No. 1-584A115.

Court of Appeals of Indiana First District.

April 18, 1985.

John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for defendant-appellant.

Terry Noffsinger, Noffsinger & Deig, Evansville, for plaintiffs-appellees.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Stanton Gash appeals a jury verdict finding him liable for the wrongful death of Kathleen Mary Kohm. Judgment was entered in favor of William and Rosemary Kohm, Kathleen's parents, for $5,000. We affirm.

FACTS

On April 5, 1981, Kathleen Kohm went jogging near her home in Christmas Lake Village, Indiana, but never returned. About 3:00 P.M., her family became concerned about her disappearance, and began looking for her. Despite an extensive search organized by the police, Kathleen could not be located. Then, on June 11, 1981, Steve Byers discovered her badly decomposed body in an isolated area near Christmas Lake. An autopsy revealed Kathleen's death was caused by a gunshot wound to the back of the head.

A police investigation into the homicide centered on Gash when police learned his car was spotted on April 5, 1981, near the area where the body was found. Gash told police he had been drinking beer and watching basketball that day with friends. While on his way home, he stopped to urinate and his car became stuck in the mud. Further investigation revealed the car was stuck over 300 feet off the nearest road and 383 feet from where Kathleen's body was discovered. All other attempts by the police to link Gash with the killing failed. Searches of Gash's home and his brother's residence produced no incriminating evidence. Scientific examinations of Gash's car and clothing and ballistic tests performed on the bullet recovered from Kathleen's skull were inconclusive.

After reviewing the evidence uncovered by the state police, the Spencer County Prosecutor decided against prosecuting Gash. Unhappy with this decision, Kathleen's parents filed a civil suit against Gash for wrongful death. The Kohms alleged Gash caused their daughter's death and asked for damages.

At trial, the Kohm's case consisted entirely of circumstantial evidence. The Kohm's established the proximity of Gash's car on the date of Kathy's disappearance to the area where the body was ultimately found. Also, Gash had made certain inconsistent statements regarding his conduct on April 5, 1981. It was also established that after being questioned by police on June 2, 1981, Gash went to Florida despite his promise to again meet with the police on June 4, 1981. Moreover, despite the inconclusive ballistic tests, a firearms expert established the bullet that killed Kathleen was .22 caliber. Gash owned a .22 caliber gun. The only other evidence adduced at trial was Gash's refusal to answer questions from the plaintiffs' counsel on the basis of his fifth amendment right. Gash was forced to assert his privilege against self-incrimination in the presence of the jury. Based on this evidence the jury returned a verdict against Gash and he now appeals.

ISSUES

The issues raised by Gash in his brief are as follows:

1. Did the court err in forcing Gash to assert his 5th amendment right in the jury's presence?

2. Was the jury's verdict supported by sufficient evidence?

3. Were the Kohms awarded excessive damages?

4. Was Gash entitled to a continuance because the Kohms totally failed to comply with the court's pre-trial order on specifying damages?

5. Were errors committed in the giving and refusing of certain instructions?

DISCUSSION AND DECISION

Issue One

The first issue involves Gash's assertion of his privilege against self-incrimination during the civil trial. Both the United States and Indiana Constitutions, in nearly identical language, protect the defendant from being compelled to testify against himself in a criminal proceeding. ¹ In the present case, Gash was called as a witness by the plaintiff and, asserted his fifth amendment privilege in front of the jury, declining to answer substantive questions. Gash argues the trial court erred because he was improperly penalized for asserting his privilege to the extent that the jury was allowed to infer his liability from his refusal to testify.

Indiana law is in conflict concerning the precise issue presented. State ex rel. Lesh v. Indiana Manufacturers of Dairy Products (1926), 198 Ind. 288, 153 N.E. 499, was a civil case charging a corporation with improper conduct. The trial court held in favor of Indiana Manufacturers and the state appealed. The state argued that because certain corporate officers refused to answer questions, relying on their fifth amendment privilege, this was a circumstance from which the wrongdoing of the corporation could be inferred. Our supreme court stated that such an inference could not be drawn from a witness who exercised his constitutional right. However, an earlier Indiana case held that, while assertion by a party of the privilege against self-incrimination is not conclusive of guilt, the jury may consider the defendant's refusal to testify in a civil case. Morgan v. Kendall (1890), 124 Ind. 454, 24 N.E. 143.

"[A jury has] the right and it is their duty not merely to listen to the words which a witness utters but to note his manner of testifying--not merely to observe how far his knowledge extends but to note equally where his ignorance, evasion, silence, hesitation or lapses of memory occur; ... The true position would seem to be that while the declination of the witness to answer is not to be taken as an admission of his guilt, yet it is a circumstance in his manner of testifying, which, like any other physical or mental circumstances, such as delay, pallor, evasion etc., may with other circumstances be considered by them in weighing the witness' testimony."

Morgan at 459-60, 24 N.E. at 145. Furthermore, the Morgan court determined that their holding did not "violate the well known rule that a party in a criminal case shall not be compelled to furnish evidence against himself, for as we have seen, when prosecuted criminally, his conduct in refusing to testify in the civil case can not be given in evidence against him." Id. at 461, 24 N.E. at 145.

We believe the Morgan decision correctly states the law regarding the scope of the fifth amendment privilege in civil cases. While our research has uncovered no recent cases supporting Gash's position, we have found a number of recent cases, directly on point, which follow the rule expressed in Morgan. Although the refusal to testify in a civil case cannot be used against the one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness' refusal to testify. Baxter v. Palmigiano (1976), 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810; Cabral-Avila v. Immigration and Naturalization Service (9th Cir.1978) 589 F.2d 957, cert. denied, (1979) 440 U.S. 920, 99 S.Ct. 1245, 59 L.Ed.2d 472; In re Meredosia Harbor & Fleeting Service (7th Cir.1976) 545 F.2d 583, cert. denied, Farmers and Traders State Bank of Meredosia v. Magill, 430 U.S. 967, 97 S.Ct. 1649, 52 L.Ed.2d 359; Justice v. Laudermilch (M.D.Pa.1978) 78 F.R.D. 201 (dicta); Hughes Tool Co. v. Meier (D.Utah 1977) 489 F.Supp. 354; Eldridge v. Herman (1980), Iowa, 291 N.W.2d 319; Labor Relations Commission v. Fall River Educators' Association (1981), 382 Mass. 465, 416 N.E.2d 1340; State ex rel. Schuler v. Dunbar (1981), 208 Neb. 69, 302 N.W.2d 674; Bastas v. Board of Review (1978), 155 N.J.Super. 312, 382 A.2d 923; Marine Midland Bank v. John E. Russo Produce (1980), 50 N.Y.2d 31, 427 N.Y.S.2d 961, 405 N.E.2d 205; City of Philadelphia v. Kenny (1977), 28 Pa.Comm. 531, 369 A.2d 1343, cert. denied 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281, reh. denied 434 U.S. 1025, 98 S.Ct. 754, 54 L.Ed.2d 774 (1978) (decision includes long list of cases from other jurisdictions supporting the rule as we have stated it). Therefore, it was proper for the jury to consider Gash's assertion of the fifth amendment privilege and to draw therefrom the inevitable inference he caused Kathleen's death.

Gash's argument that he is being penalized for asserting his fifth amendment right is incorrect. He cites Sabouri v. Hunter (1979), Okl., 596 P.2d 891, where the trial court prevented a party from pursuing discovery because he had earlier refused to answer deposition questions invoking the fifth amendment. The appellate court reversed. Sabouri is one in a line of cases to which the Garrity rule applies prohibiting the imposition of a sanction for asserting the fifth amendment privilege. ² In the present case, Gash was neither compelled to testify nor directly sanctioned for his refusal to answer questions. The only detriment suffered by Gash was the increased possibility that he would be found civilly liable for damages. Marine Midland Bank. To consider such a detriment in the same light as the sanctions applied for exercising the fifth amendment privilege outlawed in Garrity and its progeny, is simply too tenuous. In re Meredosia. The assertion of Gash's fifth amendment right in the presence of the jury was not error because the constitutional guarantee does not prohibit the jury from drawing an inference of liability therefrom in a civil trial.

Issue Two

Gash next argues the evidence was insufficient to support the jury's verdict. The parties devote much time in their briefs discussing our standard of review. Both sides note the distinction between the burden of proof in civil and criminal cases. Apparently, each side believes this distinction affects our standard of review. However, regardless of whether we are reviewing the sufficiency of the evidence in a civil or criminal case, our standard is the same. Cf. Lowery v. State (1984), Ind., 471 N.E.2d 258,...