Manning v. Michael

Decision Date07 December 1982
Citation188 Conn. 607,452 A.2d 1157
CourtConnecticut Supreme Court
PartiesNormand MANNING v. Jack MICHAEL.

Averum J. Sprecher, East Haddam, for appellant-cross appellee (defendant).

Elizabeth Allen, Higganum, for appellee-cross appellant (plaintiff).


GRILLO, Associate Justice.

This appeal from a judgment in an action for assault and battery raises the following issues: (1) whether the court erred in prohibiting the defendant from examining two of the plaintiff's witnesses as to their mental competency and capacity to testify; (2) whether the court erred in failing to require the plaintiff to prove nonprovocation where the plaintiff rather than the defendant had pled it as an allegation of his complaint; (3) whether the court erred in awarding the plaintiff $5000 in damages where only $336 of that sum represented medical expenses which was the amount of his special damages; (4) whether the court erred in failing to render judgment in favor of the defendant on his special defense and counterclaim; (5) whether the court erred in failing to award punitive damages to the plaintiff.

The trial court found the following facts which are supported by the evidence: On the morning of June 6, 1978 the plaintiff was planting laurel bushes on a strip of land bordering a public road which faces, on the opposite side of this road, a junkyard and auto parts business owned by the defendant. Over the years the defendant has used the strip for parking in conjunction with his business, much to the consternation of several previous owners and the present plaintiff. 1 Previous attempts by these owners to prevent the unauthorized use of the strip, including erecting a fence and a "No Parking" sign, failed to prevent its use by the defendant and his business customers. The laurel planting, clearly another attempt to deter the defendant from utilizing the strip, became the catalyst for the altercation which followed.

On the morning in question, the defendant, viewing the planting, ordered the plaintiff to stop. When words proved ineffective, the defendant crossed the street and uprooted the laurel, subsequently returning to his side of the road. The plaintiff thereafter planted a second bush, and the defendant repeated his actions. After remarking that the defendant's actions would not deter him, the plaintiff began walking away, carrying his shovel. The defendant, wishing to settle the issue, ran after him, and, as the plaintiff turned to face the defendant, the plaintiff's shovel brushed the defendant. The defendant subsequently pushed the plaintiff to the ground and struck him repeatedly about the face and ears.

The plaintiff instituted the present action for assault and battery on December 11, 1978. In addition to denying the allegations of the complaint, the defendant pleaded self-defense and filed a counterclaim 2 alleging malicious assault and battery. After a trial of approximately eight and one-half days, the trial court ruled for the plaintiff on all issues, from which the defendant appeals. Additionally, the plaintiff has cross appealed, maintaining that he pleaded and proved punitive damages.

The defendant's first assignment of error concerns the propriety and scope of challenges to a witness' competency upon cross-examination. "The incompetency of a witness is determined at the time he is offered, or, if the ground of incompetency is discovered during the trial, upon objection promptly made at that time." (Footnotes omitted.) 81 Am.Jur.2d, Witnesses § 139, p. 180. Another authority states that "[t]he competency of witnesses is a preliminary question of fact for the court. [Citations omitted.] Challenges to competency must be made when the witness is first sworn if the grounds are then known, otherwise as soon as the grounds become evident.... [The objector] is allowed to examine the witness and offer other proof." Tait & LaPlante, Handbook of Connecticut Evidence, § 7.11, p. 86.

Following the direct examination of the plaintiff's witness Thomas Reed, the defendant questioned Reed relative to whether he was undergoing psychiatric treatment. After receiving an affirmative answer the defendant attempted to question him further on his "competency to testify as a witness," but was precluded by the trial court. Defense counsel stated that he first became aware that the witness had mental problems on the evening of the day Reed testified on direct examination. 3

While it is recognized that the competency of a witness is a matter peculiarly within the discretion of the trial court; State v. Rodriguez, 180 Conn. 382, 389, 429 A.2d 919 (1980); it is clear that under the circumstances the trial court was in no position to exercise that discretion since the defendant's attempt to test the witness' competency was denied. After hearing the relevant testimony the court should have considered " 'the proposed witness' maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral duty to tell the truth ...' "; State v. Piskorski, 177 Conn. 677, 715, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); and thus determined whether the witness was competent to testify.

The court, therefore, erred in excluding the questions concerning Reed's competency. In order to constitute reversible error, however, the ruling must be both erroneous and harmful. State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975). The burden of proving harmful error rests on the party asserting it; State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979); and the ultimate question is whether the erroneous action would likely affect the result. State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). In the present case other witnesses testified about the earlier problems with the fence and the defendant's aggressive tendencies, which were the substance of Reed's brief testimony. State v. Piskorski, supra, 177 Conn. at 726, 419 A.2d 866. Moreover, the testimony of Reed, while supplying background information, was not cardinal to the central issue in the case. See New Haven v. Public Utilities Commission, 165 Conn. 687, 717, 345 A.2d 563 (1974). Under these circumstances, therefore, the court's ruling, although erroneous, was harmless.

Ronald Witzman, a former state trooper, testified as to the defendant's reputation for truth and veracity which he classified as "poor." After a searching cross-examination of the witness by defense counsel in an attempt to debilitate his testimony regarding the defendant's reputation, counsel attempted to elicit responses to indicate that Witzman had left the state police department because of emotional problems. Upon objection, defense counsel claimed the question on the ground of competency to testify. The objection was sustained as irrelevant. No objection was made to Witzman's competence during his direct testimony. The piecemeal transcripts indicate that only after cross-examination relative to the direct testimony did defense counsel question Witzman's capacity to testify. 4 It was too late at that time to interrogate regarding a subject of which the defendant was obviously aware prior to the witness' being sworn. Tait & LaPlante, supra, § 7.11, p. 86. There is no indication, unlike the circumstances surrounding defense counsel's last-minute acquisition of knowledge concerning Reed's competency, that the defendant had just learned of the claimed emotional problem. Indeed, one can glean from the proffered questions regarding the witness' alleged emotional problems that the information forming the basis of the questions was well known by defense counsel. To countenance this procedure would be to sanction a tactic whereby a litigant could cross-examine a witness and then, sensing that his cross-examination did not effectively weaken the direct testimony, raise the issue of noncompetency--trial by ambuscade. Had the question of competency been advanced at the proper time by defense counsel, an inquiry could have been conducted via voir dire relative to that issue. 5

The defendant attempted to justify the propriety of the question on the basis that competency and credibility are intertwined and that therefore the question was admissible on the ground of credibility. Evidence relating to competency would also affect credibility. The plaintiff, in objecting, remarked that the nature of the inquiry was an attempt to embarrass the witness and suggested that if "lurid" things were to be divulged, a conference should be held in chambers.

The trial judge's general control over cross-examination and the issue of credibility allows him to exercise his discretion as to whether to exclude a question of this nature. The judge's determination must be made according to reason and judicial experience, and every reasonable presumption should be given in favor of the correctness of the court's ruling. State v. Moye, 177 Conn. 487, 501-502, 418 A.2d 870, vacated, 444 U.S. 893, 100 S.Ct. 199, 62 L.Ed.2d 129, on remand, 179 Conn. 761, 410 A.2d 1011 (1979). In foreclosing the line of inquiry initiated by the defendant, the court properly exercised its discretion, and its ruling was correct.

The defendant next assigns as error the failure of the trial court to require the plaintiff to sustain the burden of proof as to provocation where nonprovocation was alleged by the plaintiff. He contends that it was the plaintiff's burden to prove nonprovocation as a condition precedent to recovery. The plaintiff responds by asserting that from the failure of the court to address this issue in its memorandum it may be inferred that the question of provocation played no part in the court's award of damages.

In support of his position, the defendant cites Boyd v. Geary, 126 Conn. 396, 12 A.2d 644 (1940), and Grecki v. New Britain, ...

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