Klingeman v. MacKay, 9053

• Decision Date: 19 September 1991
• Docket Number: No. 9053,9053
• Citation: 25 Conn.App. 217,594 A.2d 18
• Court: Connecticut Court of Appeals
• Parties: Laura D. KLINGEMAN, Administratrix (Estate of Todd KLINGEMAN) v. William MacKAY et al.

Page 18

594 A.2d 18

25 Conn.App. 217

Laura D. KLINGEMAN, Administratrix (Estate of Todd KLINGEMAN) v. William MacKAY et al.

No. 9053.

Appellate Court of Connecticut.

Argued May 3, 1991.

Decided July 9, 1991.

Certification Denied Sept. 19, 1991.

Thomas J. Weihing, Bridgeport, with whom were Joseph E. Sakal, Seymour, and, on the brief, John T. Bochanis, Bridgeport, for appellant (plaintiff).

Thomas G. Parisot, Waterbury, with whom, on the brief, was Richard R. Talbot Cheshire, for appellees (named defendant et al.).

Paul E. Pollock, Bridgeport, for appellee (defendant J. William Burns).

Before SPALLONE, NORCOTT and LAVERY, JJ.

NORCOTT, Judge.

The plaintiff in this wrongful death action appeals from the judgment in favor of the defendants after a jury trial. On appeal, she principally challenges the trial court's (1) failure to determine that prejudicial juror misconduct had occurred during the jury deliberations, (2) refusal to allow into evidence a motor vehicle summons issued to one of the defendants, (3) charge to the jury on "sole proximate cause" as it related to the defendant J. William Burns, commissioner of the state department of transportation, and (4) refusal to set aside the verdict. ¹ We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 12, 1984, Todd Klingeman was driving on Route 64 in Middlebury when his car slid on an icy patch in the road. After the car came to rest, it was struck by a logging truck operated by the defendant Clarence Marcotte and owned by the defendant William MacKay. At the time of the accident, the logging truck was 19,520 pounds overweight. Todd Klingeman died from injuries he sustained in the accident.

The plaintiff, the decedent's mother and administratrix of his estate, commenced a wrongful death action against the defendants, MacKay, Marcotte and Burns. ² After a trial, the jury returned a verdict in favor of the defendants. The plaintiff moved to set aside the verdict and for a new trial. From the trial court's denial of these motions, this appeal ensued.

I

The plaintiff's first claim is based on alleged juror misconduct. The following additional facts are relevant to our discussion of this issue. The jury returned its verdict on May 8, 1990. That same day, the courtroom clerk, while retrieving the exhibits from the jury room, discovered a page copied from a dictionary. The page contained a definition of "proximate cause" and was not a piece of evidence in the case. In addition, a note to the court from certain members of the jury during deliberations suggested that one juror had reduced his thoughts to writing and had introduced this writing into the jury deliberation room.

On May 10, 1990, the plaintiff filed a motion for an evidentiary hearing regarding the alleged juror misconduct. She also filed motions to set aside the verdict, for a new trial and in arrest of judgment. At a hearing held on December 19, 1989, the court heard testimony from five of the six jurors. The remaining juror was out of state. Although certain jurors could not recall reading the dictionary page, the jurors all testified that they had agreed to follow the trial court's definition of proximate cause. The jurors who had not been involved in the specific acts of misconduct testified that the author of the writing had shared his transcribed thoughts with the other jurors and that they had voiced concern over that action to the offending juror. The court denied the plaintiff's motions on March 8, 1990.

We begin by noting that there is no claim in this case that the juror misconduct was occasioned by the prevailing party. "[A]bsent misconduct brought about by the prevailing party, the burden is on the complainant to show prejudice." Williams v. Salamone, 192 Conn. 116, 121, 470 A.2d 694 (1984); Hamill v. Neikind, 171 Conn. 357, 360 n. 5, 370 A.2d 959 (1976). The test adhered to by our Supreme Court is " 'whether the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror.' " Williams v. Salamone, supra, 192 Conn. at 122, 470 A.2d 694. We find that, here, the plaintiff has not met this burden.

It is now axiomatic that not every instance of misconduct requires a new trial. Hamill v. Neikind, supra, 171 Conn. at 360, 370 A.2d 959. While we in no way condone the practices undertaken by one juror in this case, we do not accept the plaintiff's claim that these events prejudiced the fairness of the trial.

In State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984), our Supreme Court addressed a similar claim of juror misconduct involving the use of a dictionary during deliberations. There, the court found that the defendant was not prejudiced by the jury's use of a dictionary definition of the word "inference" because the trial court had given a lengthy and complete charge to the jury on that word which it had repeated at the jury's request. Id. Similarly, the trial court in this case gave a complete and adequate jury instruction concerning proximate cause, which it repeated when requested to do so by the jury. Jurors are presumed, in the absence of evidence to the contrary, to follow the court's instructions. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985). Thus, in this case, as in Asherman, the jury's use of the dictionary definition of proximate cause did not prejudice the plaintiff.

The plaintiff's argument that she was prejudiced by the submission to the jury of a writing that reflected one juror's thoughts must also fail. When a juror relies on extrinsic evidence in reaching a decision, such deviation is measured by the likelihood that the impropriety influenced the jury's verdict. State v. Asherman, supra, 193 Conn. 695, 478 A.2d 227. In a civil proceeding, such misconduct does not by itself infringe on the constitutional right to a fair trial; Williams v. Salamone, supra, 192 Conn. at 120, 470 A.2d 694; but is instead tested by the "probable prejudice" standard. Speed v. DeLibero, 215 Conn. 308, 316, 575 A.2d 1021 (1990).

In Speed, the Supreme Court noted that "[a] reviewing court cannot, on appeal, speculate on what jurors may have discussed and then speculate that the discussion probably prejudiced the plaintiff." Id., 215 Conn. at 315, 575 A.2d 1021. Applying Speed to the present case, we cannot say that the plaintiff has sustained her burden of showing probable prejudice so as to warrant a new trial. To determine the impact of the juror's transcribed thoughts, this court would be forced to engage in the type of speculation that Speed precludes.

On the basis of the evidentiary hearing, the trial court was satisfied that nothing that had transpired affected the fairness of the trial. ³ It is for the trial court to assess the credibility of the jurors and the weight to be accorded their testimony in resolving matters of potential jury misconduct. McNamee v. Woodbury Congregation of Jehovah's Witnesses, 194 Conn. 645, 648, 484 A.2d 940 (1984). Where the trial court had the opportunity to observe jurors and to examine them at a post-trial hearing, "[i]t is not for us to question that court's findings absent a showing of clear error." Id. Here, there has been no such showing.

II

The plaintiff next claims that the trial court improperly refused to admit into evidence a motor vehicle summons issued to William MacKay, the owner of the logging truck, for violation of General Statutes § 14-267a, the overweight motor vehicle statute. At trial, the plaintiff twice attempted to introduce the summons and its disposition into evidence. The plaintiff's first attempt came in an offer made outside of the presence of the jury immediately before the direct examination of Clarence Marcotte, the driver of the logging truck. The summons, which was marked as an exhibit for identification only, was issued by the Middlebury Police Department to William MacKay on January 12, 1984, at 10:17 a.m. and alleged a violation of § 14-267a. The summons, which was certified by an assistant clerk of records as a true copy of record, further indicated that the driver of the truck was Clarence Marcotte and that the truck was 19,520 pounds overweight. The disposition of the summons was indicated by the letter "G." The trial court took judicial notice of the fact that the "G" on the summons represented a finding of guilty, but excluded the exhibit because it found that the plaintiff had laid no foundation to connect the defendant MacKay with the William MacKay referenced on the traffic summons.

The plaintiff later offered the exhibit as a certified public document pursuant to General Statutes § 52-165. ⁴ The trial court again found a lack of foundation connecting the defendants MacKay and Marcotte to the summons. We find that the trial court should have allowed the exhibit into evidence as a public document under General Statutes § 52-165. Our review of the record reveals that, at the time of the second offer, there was a foundation laid from which the jury could have reasonably believed that the defendants MacKay and Marcotte were the very same individuals reflected on the traffic summons. As such, the trial court should have let the jury work their will with the public document.

Our analysis of this claim does not end here, however, because we must determine whether the trial court's ruling was harmful so as to require reversal. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985). The burden of proving that an incorrect evidentiary ruling was harmful rests on the party asserting the error. Id.; Saphir v. Neustadt, 177 Conn. 191, 201, 413 A.2d 843 (1979). The relevant inquiry is whether the court's action would likely affect the final result. Spiniello Construction Co. v. Manchester, 189 Conn....