Penfield v. Venuti, Civ. No. H-81-307.

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: JOSÉ A. CABRANES
• Citation: 589 F. Supp. 250
• Parties: Gary A. PENFIELD v. Joseph VENUTI and Scott Venuti.
• Docket Number: Civ. No. H-81-307.
• Decision Date: 24 May 1984

589 F. Supp. 250

Gary A. PENFIELD
v.
Joseph VENUTI and Scott Venuti.

Civ. No. H-81-307.

United States District Court, D. Connecticut.

May 24, 1984.

589 F. Supp. 251

COPYRIGHT MATERIAL OMITTED

589 F. Supp. 252

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

JOSÉ A. CABRANES, District Judge:

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 defendant Joseph Venuti. Plaintiff contends that his injuries resulted from the negligent operation of that vehicle by Joseph Venuti, or by his son, defendant Scott Venuti, or by their agent, servant or employee. See Complaint ¶¶ 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,

589 F. Supp. 253

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. See Penfield 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.

I.

A. Admissibility of Arrest

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 (Conn.Super.Ct. May 12, 1981). 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); see C. Tait & J. LaPlante, Handbook of Connecticut Evidence § 7.21, at 111-112 (1976 & Supp.1982); see also Annot., 20 A.L.R.2d 1421, 1425 § 3 (1951).

The Supreme Court has noted that an

arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.

Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948); see 3A 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); see State 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), citing State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505, 508 (1959). See also United States v. Dardi, 330 F.2d 316, 336 (2d Cir.) ("while an arrest alone is not normally admissible to impair the credibility of a witness, the fact that it may embitter him so as to motivate him to testify as he has may be relevant"), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964).

Defendants argue that the erasure of records pertaining to Joseph Venuti's arrest, pursuant to Conn.Gen.Stat. § 54-142a, prohibits plaintiff from inquiring about the arrest at trial, notwithstanding the rule of State v. Moynahan. See Motion in Limine (filed Mar. 1, 1984) at 1. It is true that section 54-142a, in addition to preventing courts and state agencies from disclosing records relating to a criminal prosecution which results in a disposition favorable to the accused, see Doe v. Manson, 183 Conn. 183, 184-188, 438 A.2d 859, 861-862 (1981), also provides that

any person who shall have been the subject of such an erasure shall be

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deemed to have never been arrested within the meaning of the general statutes with respect to the proceeding so erased and may so swear under oath.

Conn.Gen.Stat. § 54-142a(e); see State v. West, 192 Conn. 488, 492, 472 A.2d 775, 778 (1984) (Peters, J.). When the Connecticut Supreme Court decided State v. Moynahan, the predecessor of section 54-142a(e) already provided that

no person who shall have been the subject of such an erasure shall be deemed to have been arrested ab initio within the meaning of the general statutes with respect to the proceeding so erased.

Conn.Gen.Stat. § 54-90(e), quoted in Jacobs, 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," see 1974 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. See State v. Luzzi, supra, 147 Conn. at 46-47, 156 A.2d at 508.

Moreover, the legislative history of the 1974 amendment to section 54-90(e) (now section 54-142a(e)) indicates that overruling the holding of State v. Moynahan was neither contemplated nor intended by the General Assembly. The amendment was designed to minimize the stigma of an arrest by permitting persons whose arrest records are erased to inform potential employers or bank loan officers that they have never been arrested, thereby enabling them to "become respectable citizens in our society." 17 H.R.Proc., 1974 Sess. 3052 (remarks of Rep. Fabrizio); see also id. at 6115 (remarks of Rep. Bingham); 17 S.Proc., 1974 Sess. 2776 (remarks of Sen. Fauliso); id. at 2779 (remarks of Sen. Guidera). As one sponsor of the measure noted,

"very often, persons are concerned ... about what their status is and, in my opinion, this bill makes their status clear. They have no record and may so state.

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, see C. McCormick, Law of Evidence § 42, at 84 (E. Cleary 2d ed. 1972), and extraneous evidence of the arrest will not be admitted. See Penfield 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, quoting 124 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.

B. Admissibility of Invocation of Fifth Amendment Privilege

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), citing 8 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

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v. Cunningham, 431 U.S. 801, 808 n. 5, 97 S.Ct. 2132, 2137 n. 5, 53 L.Ed.2d 1 (1977); see National Acceptance Co. v. Bathalter, 705 F.2d 924, 929-931 (7th Cir. 1983) ("Baxter established that the drawing of an adverse inference from privileged silence in a civil case does not make the exercise of the privilege sufficiently `costly' to amount to compulsion when there is other evidence of the fact"). Connecticut decisions are in accord with this "prevailing rule." See Olin 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...