Marsh v. Washburn, 4759

Decision Date07 July 1987
Docket NumberNo. 4759,4759
Citation11 Conn.App. 447,528 A.2d 382
CourtConnecticut Court of Appeals
PartiesJanice MARSH v. Henry WASHBURN.

Van A. Starkweather, with whom were Paul B. Groobert, Manchester, and, on brief, Frederick Murolo, Cheshire, for appellant (plaintiff).

David J. Elliott, Hartford, for appellee (defendant).

Before HULL, SPALLONE and BIELUCH, JJ.

SPALLONE, Judge.

The plaintiff is appealing from the judgment rendered by the trial court after a jury returned a defendant's verdict. The plaintiff, in a broad-based attack upon the conduct of the trial judge, claims that the court erred (1) in improperly allowing the defendant to attack the credibility of the plaintiff by suggesting she had committed welfare fraud and then in giving a curative instruction specifically intended to lend credence to the accusation, (2) in assuming the role of advocate in its charge to the jury and by instructing the jury to disregard that part of the plaintiff's closing argument concerning the credibility of an investigating police officer, (3) in allowing a police officer to reconstruct the accident by way of opinion testimony and in admitting an accident reconstruction diagram prepared by him, (4) in allowing defense counsel to examine the plaintiff's passenger as to her claim against the plaintiff's insurance company while precluding the plaintiff's counsel from inquiring as to her reasons for this claim, and in refusing to charge the jury properly as to the evidence on this matter, (5) in allowing the defendant to impeach the plaintiff's credibility through the use of a prior withdrawn claim for lost earning capacity and in instructing the jury that they could consider the withdrawn claim as a prior inconsistent statement, (6) in instructing the jury on driving while intoxicated or impaired when there was insufficient evidence to support such a charge, (7) in instructing the jury on reckless driving when there was insufficient evidence in the record to support such a charge, (8) in instructing the jury that the plaintiff's failure to file a motor accident report was an admission, (9) in refusing to charge the jury that if the defendant had not used reasonable care to avoid the accident, then the jury could find for the plaintiff, and (10) in admitting into evidence the defendant's self-serving statement to the police, in refusing the plaintiff's request that the jury disregard the statement, and in charging the jury to consider the statement as a prior consistent statement. We find no error.

The jury could have reasonably found the following facts. During the early morning hours of June 3, 1981, the defendant was operating his 1978 Chevrolet pickup truck in a westerly direction on Burnside Avenue in East Hartford. At the area where the accident occurred, Burnside Avenue consists of four lanes, two traveling in an eastbound direction and two in a westbound direction. The lanes are divided in the center of the roadway by a double yellow line, with the two lanes in each half of the roadway further subdivided into two distinct lanes of travel by a single broken white line. Just prior to the point of collision, the defendant was operating his vehicle in the farthest right hand or northerly lane of the westbound portion of Burnside Avenue closest to the right shoulder of the road. The plaintiff was driving her vehicle easterly from the opposite direction.

Burnside Avenue curves sharply at the point where the accident occurred. The vehicle driven by the plaintiff, a 1966 Volkswagen, moving at an excessive rate of speed, suddenly crossed the center line of Burnside Avenue and continued into the farthest westbound lane of travel, where the defendant was operating his vehicle, and struck the defendant's vehicle approximately in the center of the most northern, westbound lane of travel. The defendant never left the farthest right hand lane in which he was traveling and the vehicles came to rest at the point of impact. The plaintiff's high rate of speed precluded the defendant from taking evasive action. He had no time to blow his horn or to turn the steering wheel between the time he observed the plaintiff's car and the time of the impact.

Subsequently, the plaintiff brought suit against the defendant claiming damages for personal injuries arising out of the accident. The defendant filed his answer denying the material allegations of the complaint and alleging two special defenses. The first of these alleged that the plaintiff had impaired her facilities by consuming alcohol on the evening of the accident, which consumption substantially contributed to her damages, and the second alleged that the plaintiff was guilty of contributory negligence on various statutory and common law grounds. The plaintiff denied the special defenses and claimed the case to a jury. During the four day trial that ensued, the plaintiff, with the permission of the court, filed an amended complaint withdrawing certain claims for damages that had been made in the original complaint. The case went to the jury, which, after deliberating approximately twenty-seven minutes, returned a defendant's verdict. The plaintiff's motion to set aside the verdict was denied and this appeal followed.

The plaintiff's first claim of error alleges that the court improperly permitted the defendant to attempt to impeach her testimony by suggesting that she had committed welfare fraud. The plaintiff further alleges that the court's curative instructions were inadequate. We disagree.

During cross-examination of the plaintiff, the defendant inquired whether the man, with whom the plaintiff testified she had been living for the ten year period previous to the accident, had been contributing during this period to her and her children's support. The plaintiff initially responded that she and this individual were sharing expenses for most of their relationship, but then added that such was the case "only after I got off of welfare." After this response, the defendant inquired whether the plaintiff had advised the department of welfare in writing that the plaintiff's companion was contributing to her expenses and if she did, whether the welfare department permitted her to continue to receive welfare payments. The trial court, over the plaintiff's objection, permitted such questions, ruling that a witness may be impeached by revealing specific acts of misconduct if the misconduct relates to the plaintiff's truthfulness and veracity. The plaintiff then testified that she did in fact advise the department of welfare of her relationship with her companion, and counsel for the defendant asked no further questions on this subject. The next trial day, the court found that counsel for the defendant acted in good faith when he inquired of the plaintiff with regard to the department of welfare. The court immediately thereafter gave a curative instruction 1 to the jury and later in its charge to the jury gave an additional curative instruction 2 which, in essence, cautioned the jury not to draw any negative inferences of misconduct on the part of the plaintiff.

"It is beyond dispute that a witness may be impeached by specific acts of misconduct which relate to veracity, but not those that merely illustrate general bad behavior." State v. Horton, 8 Conn.App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986); see also State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986). In this case, the original reference to being on welfare was volunteered by the plaintiff. The minimal questioning of the plaintiff by counsel in response to this answer was a permissible attempt by counsel to impeach the witness' veracity, an attempt that the court found to be made in good faith. 3 When the plaintiff denied making any misrepresentations to the welfare department regarding her companion's contributions to her support, the defendant made no attempt to introduce extrinsic evidence on this matter. State v. Horton, supra, 8 Conn.App. at 380-81, 513 A.2d 168. We find no error in the trial court's refusal to sustain the plaintiff's objection to the defendant's question on this matter. Furthermore, the court's curative instruction properly stated the law. There is no merit to the plaintiff's first claim of error.

In her second claim, the plaintiff asserts that the trial court erred in commenting on the plaintiff's categorization of the character of Officer Richard Maloney of the East Hartford police department, who had investigated the accident. During his final argument to the jury, the plaintiff's counsel stated, "I was feeling like this [police officer] wanted to bury the plaintiff." In its charge to the jury, the court stated, "these assertions were not substantiated by the evidence, so you should not give them serious consideration." The court continued its charge by stating, "You are, of course, free to accept or reject, in whole or in part, Officer Maloney's testimony, but you should do this based on those standards of credibility that I have instructed you upon and also based upon the evidence that was presented to you."

Our reading of the transcript reveals that the comments made by the trial court were appropriate in the light of the nature of plaintiff's counsel's assertions as to the motivations behind the police officer's testimony. The trial court occupies a unique position in the trial of a case; the court is not simply a neutral observer of a forensic contest, but has an obligation to see that justice is done. The court may, in its discretion, call the attention of the jury to the evidence or lack of evidence on any point in issue and comment on the weight of the evidence as long as the court does not advise or direct the jury how to decide the case. State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982); State v. DeMatteo, 186 Conn. 696, 705, 443 A.2d 915 (1982)....

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4 cases
  • State v. Santiago
    • United States
    • Connecticut Court of Appeals
    • January 22, 2019
    ...not for the truth of the matters set forth in it, but solely for the jury to assess Algarin's credibility. See Marsh v. Washburn , 11 Conn. App. 447, 462, 528 A.2d 382 (1987) ("A trial court, in its discretion, may admit a prior consistent statement to rehabilitate a witness impeached on th......
  • DeLucia v. Burns
    • United States
    • Connecticut Court of Appeals
    • July 7, 1987
  • State v. Evans, No. CR 05-0048266 (Conn. Super. 7/14/2006)
    • United States
    • Connecticut Superior Court
    • July 14, 2006
    ...Conn. 402, 408, 198 A.2d 700 (1964). Such inquiries must be made in good faith. See State v. Chance, supra, 60; Marsh v. Washburn, 11 Conn.App 447, 452-53, 528 A.2d 382 (1987). The misconduct evidence sought to be admitted must be probative of the witness' character for untruthfulness, not ......
  • Deguzis v. Jandreau, 10240
    • United States
    • Connecticut Court of Appeals
    • April 21, 1992
    ...go to the weight to be given to his testimony and such weight is to be determined by the trier of fact. Marsh v. Washburn, 11 Conn.App. 447, 455, 528 A.2d 382 (1987). Upon our review of the record and transcripts in this matter, we cannot say that the trial court abused its discretion in pe......
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    • James Publishing Practical Law Books Is It Admissible? Part IV. Demonstrative Evidence
    • May 1, 2022
    ...witness the accident, and the vehicles had been moved prior to the officer’s arrival at the accident scene. 24 Marsh v. Washburn , 11 Conn.App. 447, 528 A.2d 382 (1987); Griffin v. Gregory , 355 So.2d 691 (Ala. 1978); Jones v. Consumers Coop. Propane Co ., 186 Neb. 629, 185 N.W.2d 458 (1971......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
    • July 31, 2015
    ...witness the accident, and the vehicles had been moved prior to the officer’s arrival at the accident scene. 21 Marsh v. Washburn , 11 Conn.App. 447, 528 A.2d 382 (1987); Griffin v. Gregory , 355 So.2d 691 (Ala. 1978); Jones v. Consumers Coop. Propane Co ., 186 Neb. 629, 185 N.W.2d 458 (1971......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Demonstrative evidence
    • July 31, 2017
    ...witness the accident, and the vehicles had been moved prior to the officer’s arrival at the accident scene. 22 Marsh v. Washburn , 11 Conn.App. 447, 528 A.2d 382 (1987); Griffin v. Gregory , 355 So.2d 691 (Ala. 1978); Jones v. Consumers Coop. Propane Co ., 186 Neb. 629, 185 N.W.2d 458 (1971......
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    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
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    ...or document may, itself, depending upon trustworthiness, achieve “official,” status and thereby be admissible. 25 21 Marsh v. Washburn , 11 Conn.App. 447, 528 A.2d 382 (1987); Griffin v. Gregory , 355 So.2d 691 (Ala. 1978); Jones v. Consumers Coop. Propane Co ., 186 Neb. 629, 185 N.W.2d 458......
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