Palomba v. Gray

• Decision Date: 21 June 1988
• Docket Number: No. 13047,13047
• Citation: 208 Conn. 21,543 A.2d 1331
• Court: Connecticut Supreme Court
• Parties: Laurie PALOMBA v. Richard E. GRAY.

Page 1331

543 A.2d 1331

208 Conn. 21

Laurie PALOMBA v.Richard E. GRAY.

No. 13047.

Supreme Court of Connecticut.

Argued March 9, 1988.

Decided June 21, 1988.

Denise Derby, Waterbury, for appellant(defendant).

Joseph X. DuMond, Jr., Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and J. Bernard Davis, and Robin L. Wilson, Asst. Attys.Gen., for appellee(State).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

HULL, Associate Justice.

The defendant in this paternity action, Richard E. Gray, appeals from the decision of the trial court setting aside the jury's verdict and ordering a new trial.We find no error.

The record discloses the following.The plaintiff, Laurie Palomba, and the defendant met in the summer of 1975 when the plaintiff was thirteen years old and the defendant was fifteen years old.They both lived on Rawley Avenue in Waterbury.Shortly after they met, they began to have sexual relations.According to the plaintiff, their relationship continued until October 13, 1975.She testified that she had last had sexual intercourse with the defendant in the beginning of October, 1975.The defendant stated that he had moved from Rawley Avenue to Wolcott the first week of August, 1975, and that he had last had sexual intercourse with the plaintiff while he lived on Rawley Avenue.He testified that he did not visit the plaintiff on Rawley Avenue after he moved to Wolcott.Sometime during August, 1975, the plaintiff moved from Rawley Avenue to Yale Street in Waterbury.She claimed that the defendant had visited her at her new home and that it was there that they last had sexual intercourse.The defendant admitted having visited the plaintiff on Yale Street two or three times but did not recall whether they had engaged in sexual intercourse.The defendant terminated their relationship by telephone on October 13, 1975.At that time the plaintiff suspected that she was pregnant.Her pregnancy was confirmed by her doctor in December, 1975.On May 6, 1976, the plaintiff gave birth to a son.

In September, 1976, the plaintiff filed a verified petition for paternity proceedings against the defendant.The attorney general is a party to this action since the plaintiff and her son are recipients of public assistance.General Statutes § 46b-160.¹ In November, 1985, the case was tried to a jury which returned a verdict in favor of the defendant.The plaintiff timely moved to set aside the verdict and for a new trial.Both motions were granted by the trial court more than one year after the conclusion of the trial.The defendant appeals and the state is defending the appeal.

The defendant claims that: (1)the trial court erred in setting aside the verdict; (2)the trial court's 441 day delay in rendering its decision on the motion to set aside the verdict denied the defendant a fair trial in violation of his due process rights; and (3)the trial court violated his due process rights in its application of General Statutes § 46b-160.

I

The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence.O'Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292(1981)."The supervision which a judge has over the verdict is an essential part of the jury system....[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality."Burr v. Harty, 75 Conn. 127, 129, 52 A. 724(1902).The court has a duty to set aside the verdict where the jury's action is so unreasonable as to suggest that it was the product of such improper influences.State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118(1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645(1980), aff'd, 188 Conn. 626, 453 A.2d 418(1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299(1983);Roma v. Thames River Specialties Co., 90 Conn. 18, 19-20, 96 A. 169(1915).A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.Roma v. Thames River Specialties Co., supra, 20, 96 A. 169.

The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb.O'Brien v. Seyer, supra.Our review of the trial court's action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness;Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85(1980);Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490(1968); since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence.Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797(1898).Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666(1988);Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249(1972).The focus of our inquiry is the action of the trial court in setting aside the verdict.Campbell v. Gould, 194 Conn. 35, 39, 478 A.2d 596(1984).

Litigants, however, have a constitutional right to have issues of fact determined by a jury.Mather v. Griffin Hospital, supra, 207 Conn. at 138, 540 A.2d 666;Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604(1982);Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915(1980)."The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court."Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714(1970).Since, in setting aside the verdict, the trial court has deprived the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.Jacobs v. Goodspeed, supra.

The plaintiff in a paternity suit must prove her case by a fair preponderance of the evidence.Lavertue v. Niman, 196 Conn. 403, 407, 493 A.2d 213(1985);Terrasi v. Andrews, 3 Conn.Cir.Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130(1965).Evidence that the plaintiff has been constant in accusing the defendant of being the father of the child is admissible at trial to corroborate her testimony and to establish a prima facie case.General Statutes § 46b-160;Lavertue v. Niman, supra;Armstrong v. Watrous, 138 Conn. 127, 129, 82 A.2d 800(1951).Once the plaintiff has established a prima facie case, the burden shifts to the defendant to prove his innocence by evidence other than his own.Mosher v. Bennett, 108 Conn. 671, 674, 144 A. 297(1929);Holmes v. McLean, 5 Conn.Cir.Ct. 476, 479, 256 A.2d 849(1969).²

The trial court found that the evidence demonstrated that the plaintiff had given birth to her child following a nine month period of gestation, that the defendant admitted having had repeated sexual relations with the plaintiff within the period of conception, that the plaintiff had remained constant in her accusation, and that the defendant had admitted that she had been constant in her accusation.The court also stated that the defendant had failed to present evidence other than his own to prove his innocence and, thus, had not met his burden of proof.The trial court concluded that the jury's verdict was unreasonable in that it did not hold the defendant to his burden of proof.The trial court further held that the verdict for the defendant was so clearly against the evidence as to lead to the conclusion that the jury erred in its application of the law or had been influenced by "lack of knowledge or understanding, or moved by partiality or sympathy for the defendant."

We first address the trial court's conclusion that the jury did not hold the defendant to his burden of proof.The record discloses that, although the jury was charged that, upon the plaintiff's establishment of a prima facie case, the burden of proving his innocence shifted to the defendant, the court never instructed the jury that evidence other than the defendant's own testimony was required to meet that burden.Accordingly, the jury could not have been expected to apply that legal principle.

We conclude, however, that the trial court, did not abuse its discretion in deciding that the jury's verdict was unreasonable in that it was so against the evidence as to compel the conclusion that it was the result of mistake, partiality or prejudice.Therefore, we hold that it was not error for the trial court to set aside the verdict.

The plaintiff, in addition to having testified to the time frame and the places at which she and the defendant had had sexual intercourse, stated that her son was a full-term baby, weighing seven pounds, eleven ounces and measuring nineteen inches at birth.She said that, during the October 13, 1975 telephone conversation, she had told the defendant that she thought she was pregnant...