Haryanto v. Saeed

Decision Date05 August 1993
Docket NumberNo. C14-92-00846-CV,C14-92-00846-CV
Citation860 S.W.2d 913
PartiesSoerono HARYANTO, Appellant, v. Mohammad SAEED, Appellee. (14th Dist.)
CourtTexas Court of Appeals

James M. McGraw, James M. Whorley, Houston, for appellant.

Jeffery Steidley, D. Craig Olivier, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY, ROBERTSON, SEARS, CANNON, DRAUGHN, ELLIS, BOWERS and LEE, JJ.

OPINION ON MOTION FOR REHEARING EN BANC

J. CURTISS BROWN, Chief Justice.

Mohammad Saeed, appellee, brought suit against Soerono Haryanto, appellant, alleging false imprisonment, negligence, gross negligence, a terroristic threat, assault, reckless conduct, and intentional infliction of emotional distress. The jury found for appellee on all causes of actions and awarded him total damages of $3,000,000.00 including $1,000.000.00 in actual damages and $2,000,000.00 in punitive damages. The trial court entered judgment on the jury's findings. In five points of error, appellant challenges the voir dire and jury argument of appellee's counsel, the sufficiency of the evidence supporting the jury award, and certain evidentiary rulings by the trial court. We affirm.

Appellee worked as a night auditor for the Marriott Hotel located in the medical center in Houston, Harris County. On February 23, 1990, appellee was asked to deliver some blank credit card vouchers to a room. This room was assigned to an aide of a Saudi Arabian prince. When appellee delivered the vouchers, appellant asked him to enter the room to act as a witness for a business transaction. Appellee recognized appellant as a "V.I.P." or "special" guest of the hotel. Appellee was frightened by him. The night before, appellee had come in contact with appellant who became agitated and "came at him." Earlier that same night, appellee witnessed an incident in which appellant became extremely intoxicated and had to be escorted from the hotel's restaurant. Once appellee entered the room, appellant again became belligerent. He cursed appellee and repeatedly threatened to kill him. Appellant pulled a gun and ordered appellee to kneel down in front of him and to kiss his feet. Appellant told appellee that he would be "no more than a servant" in his country. Appellant called to the front desk and demanded $1,000,000.00 to spare appellee's life. Finally, hotel management and security were able to secure the release of appellee after approximately thirty-five minutes to an hour of this treatment. Appellant did not leave the hotel quietly. As he was being escorted to the hotel lobby, appellant went into a fighting stance and began to threaten a hotel security guard. The police were called, but before they arrived, appellant left the premises.

Appellee began to suffer physical problems from this experience. He was diagnosed as suffering from post-traumatic stress disorder. He continued to work at the Marriott but quit when he felt hotel management began to treat him differently. Appellee felt the hotel's concern was in placating appellant, a V.I.P. guest, and not in rectifying the wrong that had occurred. Appellee was unable to find employment so he left the country and went back to his family in Pakistan. During the four months that appellee was out of the country, he continued to see a doctor. When he returned, appellee was able to secure employment as a night auditor at another hotel chain. Appellee continues to have difficulty sleeping and is in fear of his life.

Appellee filed suit against appellant and his father four months after the incident occurred. Appellee later nonsuited appellant's father. Appellant completely ignored the judicial process. He did not engage in any pre-trial discovery and did not appear at trial even though counsel for both parties had agreed to the trial setting. Trial was in March 1992, and lasted three days. During trial, appellant's counsel cross-examined appellee's witnesses, but because he did not designate witnesses, he could not present a case-in-chief.

In the first point of error, appellant contends that the trial court committed reversible error by allowing certain statements made by appellee's counsel during voir dire and closing argument. Because the standards of review for determining error in voir dire and closing argument are different, we analyze each separately.

Voir Dire

During voir dire, counsel for appellee made light of appellant's absence from the trial and the fact that appellant and his family were wealthy foreign nationals. He also commented on the fact that appellant wielded a gun during the incident in question and that appellant's conduct, while criminal in nature, was subject to civil damages. Counsel further instructed jurors on the purpose of punitive damages and suggested that such damages were permissible to send a message to appellant and other visitors to this country that such conduct would not be tolerated. Appellant's counsel made a single attempt at an objection during voir dire:

* * * * * *

One of the things that happens to be true at least in some circumstances in the United States, is that if you have money, you can do things easily. Some things you can do instead that people that don't have money can't do. That's the way things are. If you have the money, you can drive a better car. If you don't then you don't drive a better car. Does anybody feel like that the fact that someone has comparable wealth at their disposal--

Mr. Jefferson: Your Honor, I'm going to object to the grounds that--

Mr. Pearce: That we are having a trial by wealth instead of trial by facts.

The Court: What rule of evidence?

Mr. Pearce: I don't have a rule of evidence.

The Court: Then your objection is overruled. Please limit your argument to proper voir dire.

Appellant did not object to any other statements and questions by appellee's counsel and thus, failed to preserve error. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 707-08 (Tex.1989) (opinion on motion for rehearing) (plaintiffs in medical malpractice action preserved error in voir dire by timely objections); TEX.R.APP.P. 52(a). Even if the grounds for appellant's complaint do not require an objection because they are apparent from the record, we find that appellant's complaint is without merit. See Babcock, 767 S.W.2d at 708.

The right to a fair and impartial trial is guaranteed by the Constitution and by statute. See TEX.CONST. art. I, § 15; TEX.GOV'T CODE ANN. § 62.105 (Vernon Supp.1993). Counsel is permitted broad latitude on voir dire. Texas Employers Ins. Assoc. v. Loesch, 538 S.W.2d 435, 440 (Tex.Civ.App.--Waco 1976 writ ref'd n.r.e.). Voir dire examination is a matter within the sound discretion of the trial judge and his or her judgment will not be reversed absent a clear abuse of discretion. Babcock, 767 S.W.2d at 709 (citing Loesch, 538 S.W.2d at 440). A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges. Id. (citing Dickson v. Burlington N.R.R., 730 S.W.2d 82, 85 (Tex.App.--Fort Worth 1987, writ ref'd n.r.e.)). The purpose of many of counsel's statements and questions was to ascertain whether prospective jurors had any connection or relationship with appellant or his family as well as whether jurors were biased or prejudiced in favor of, or against appellant because of his nationality, wealth, and status. Those matters are clearly within the scope of proper voir dire examination. See TEX.GOV'T CODE ANN. § 62.105; Gonzales v. Texas Employers Insurance Association, 419 S.W.2d 203, 209 (Tex.Civ.App.--Austin 1967, no writ). In addition, we find that other statements and questions by counsel touching upon appellant's absence from trial, the criminal versus civil nature of appellant's conduct, and prospective jurors' attitudes toward the purpose of punitive damages are all proper subjects of voir dire examination.

Appellant also accuses appellee's counsel of falsely declaring that appellant was arrested and a fugitive from justice. The record reflects that appellant was not charged with a crime but was merely detained and released. Although counsel did state that "the evidence will be" that appellant was "arrested" and "taken downtown," the trial judge cured any harm when he interjected immediately thereafter to instruct the jury that what the attorneys say during voir dire is not evidence.

This is simply not a case where on voir dire one party was prohibited from delving into a topic explored by the other party. Counsel for appellant had an equal opportunity to question prospective jurors about the subject matter touched upon by appellee's counsel and more importantly, to inquire into the effect of comments by appellee's counsel. Appellant's counsel made the following inquiry:

* * * * * *

Do any of you feel that the comments that have been made by Mr. Steidley, or Steidley, having to do with his allegations and his statement that there was a gun, that Mr. Saeed was held for hours, and these people are Philippino [sic] and we need to send a message to the Philippines and do any of you know Imelda Marcos, would you be surprised to find that Mr. Haryanto is not Philippino [sic], but is Indonesian? And would you be surprised that he has no association or knowledge of Imelda Marcos?

The fact that these comments have been made by Mr. Steidley as a preclude [sic] to the presentation of what the real facts are in this case, has any of that prejudiced any of you to the extent that you can't sit here and listen to the evidence from both sides in this case and make a just and fair decision based on the evidences [sic] presented from the stand and presented in this courtroom, and not what Mr. Steidley says? Do any of you have a problem with that?

Clearly, appellant's counsel was not deterred from remedying any prejudice that might have occurred as a result of the remarks...

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