Penfield v. Venuti
Decision Date | 24 May 1984 |
Docket Number | Civ. No. H-81-307. |
Citation | 589 F. Supp. 250 |
Parties | Gary A. PENFIELD v. Joseph VENUTI and Scott Venuti. |
Court | U.S. District Court — District of Connecticut |
COPYRIGHT MATERIAL OMITTED
George D. Royster, Jr., Mark B. Seiger, Halloran, Sage, Phelon & Hagarty, Hartford, Conn., for plaintiff.
John J. Langenbach, Regnier, Taylor, Curran & Langenbach, James A. Wade, Steven L. Richards, Robinson, Robinson & Cole, Hartford, Conn., for defendants.
RULING ON PENDING MOTIONS
In this diversity action, plaintiff alleges that late in the evening of June 6, 1979, while operating his motorcycle on Route 17 in Middletown, Connecticut, he was struck and seriously injured by a motor vehicle owned by defendantJoseph Venuti.Plaintiff contends that his injuries resulted from the negligent operation of that vehicle by Joseph Venuti, or by his son, defendantScott Venuti, or by their agent, servant or employee.SeeComplaint¶¶ 2-7(filed May 5, 1981).Defendants maintain that they were both at home asleep when the incident occurred and thus deny all liability.
On March 1, 1984, defendants filed a motion in limine seeking the exclusion of evidence indicating that Joseph Venuti was arrested in connection with plaintiff's mishap or that Scott Venuti invoked his Fifth Amendment privilege against self-incrimination at a deposition held September 10, 1979 in a substantially identical state court action.The motion also requests that evidence relating to plaintiff's medical expenses or lost wages for the period following May 1980 be excluded.In addition, defendants seek to prevent the admission of testimony derived from toxicological reports which the court has previously held to be protected from disclosure by the Connecticut criminal records erasure statute, Conn.Gen.Stat. § 54-142a.SeePenfield v. Venuti,93 F.R.D. 364(D.Conn.1981).
Finally, defendants have moved for the imposition of sanctions, claiming that possession of the toxicological reports by plaintiff's counsel and their stated intention to use the reports at trial constitutes a knowing and willful violation of prior orders of the court.
Criminal charges against Joseph Venuti stemming from the incident which gave rise to this lawsuit "were dismissed in the criminal division of the Middletown Superior Court."Penfield v. Venuti,No. 30597, slip op. at 1.Under Connecticut law, which is controlling in these circumstances,1 it is well-settled that "evidence of arrest without conviction is not admissible to attack the credibility of a witness."State v. Corley,177 Conn. 243, 245-246, 413 A.2d 826, 828(1979);State v. Annunziato,169 Conn. 517, 524, 363 A.2d 1011, 1016(1975);seeC. Tait & J. LaPlante, Handbook of Connecticut Evidence§ 7.21, at 111-112(1976& Supp.1982);see alsoAnnot., 20 A.L.R.2d 1421, 1425 § 3(1951).
Michelson v. United States,335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168(1948);see3A J.Wigmore, Evidence § 980a(J. Chadbourn rev.ed. 1970).Nevertheless, in Connecticut, evidence of an arrest without conviction is admissible for the limited purpose of showing a witness' interest, bias or motive to testify falsely.State v. Moynahan,164 Conn. 560, 600-602, 325 A.2d 199, 220-221, cert. denied,414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219(1973);seeState v. Tropiano,158 Conn. 412, 426, 262 A.2d 147, 153-154, cert. denied,398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288(1969), citingState v. Luzzi,147 Conn. 40, 46, 156 A.2d 505, 508(1959).See alsoUnited States v. Dardi,330 F.2d 316, 336(2d Cir.)(), cert. denied,379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50(1964).
Conn.Gen.Stat. § 54-90(e), quoted inJacobs, Erasure of Arrest Records: The Connecticut Statute, 47 Conn.B.J. 2, 10(1973).The addition of the phrase "and may so swear under oath,"see1974 Conn. Pub.Acts 74-163 § 2, did not reverse the long-standing rule that an arrest without conviction is admissible to establish a witness' bias, interest or motive to testify falsely.The fear that an arrest may engender hostility in a witness which will color his testimony is not eliminated by the erasure of records relating to that arrest.The arrest occurred, and the opponent of the witness cannot be foreclosed from attempting to show that the arrest has impaired the witness' ability to testify in an unbiased manner.SeeState v. Luzzi, supra,147 Conn. at 46-47, 156 A.2d at 508.
17 H.R.Proc., 1974 Sess. 3051(remarks of Rep. Bingham).
Accordingly, defendants' motion in limine with respect to the fact of Joseph Venuti's arrest is denied.On cross-examination, plaintiff's counsel will be permitted to ask Joseph Venuti if he was arrested.Other witnesses may not be called to prove that the arrest occurred, seeC. McCormick, Law of Evidence§ 42, at 84(E. Cleary2d ed. 1972), and extraneous evidence of the arrest will not be admitted.SeePenfield v. Venuti, supra,93 F.R.D. at 369-370.Before questioning Joseph Venuti about the arrest, plaintiff's counsel must indicate to the court, out of the hearing of the jury, "in what connection any motive or bias is intended to be shown,"State v. Moynahan, supra,164 Conn. at 601, 325 A.2d at 220, quoting124 Record & Briefs 298, Hayward v. Maroney, 86 Conn. 261, 85 A. 379(1912), and defendants' counsel will be free at that time to object on the grounds that evidence of the arrest is sought to be introduced for an invalid purpose.
The Fifth Amendment secures a right "to remain silent unless a witness chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence."Spevack v. Klein,385 U.S. 511, 514-515, 87 S.Ct. 625, 627-628, 17 L.Ed.2d 574(1967).However, "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them ...."Baxter v. Palmigiano,425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810(1976), citing8 J. Wigmore, Evidence§ 2272, at 439(J. McNaughton rev.ed. 1961);id. at 335, 96 S.Ct. at 1566(Brennan, J., concurring in part and dissenting in part);Lefkowitz v. Cunningham,431 U.S. 801, 808 n. 5, 97 S.Ct. 2132, 2137 n. 5, 53 L.Ed.2d 1(1977);seeNational Acceptance Co. v. Bathalter,705 F.2d 924, 929-931(7th Cir.1983)().Connecticut decisions are in accord with this "prevailing rule."SeeOlin Corp. v. Castells,180 Conn. 49, 53-54, 428 A.2d 319, 321(1980).2
At a deposition held September 10, 1979, Scott Venuti refused to answer any questions concerning his whereabouts the evening plaintiff was injured or otherwise pertaining to his involvement in or knowledge of the incident, invoking his Fifth Amendment privilege.There is no doubt that the privilege against compelled self-incrimination may be invoked in a pretrial proceeding such as a deposition.E.F. Hutton & Co. v. Juniper Development Corp.,91 F.R.D. 110, 114(S.D.N.Y.1981);seeIn re Folding Carton Antitrust Litigation,609 F.2d 867(7th Cir.1979).It is equally clear, however, that a refusal to answer questions upon assertion of the privilege is relevant evidence from...
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