Rozbicki v. Huybrechts, 8084

• Citation: 576 A.2d 178,22 Conn.App. 131
• Decision Date: 26 June 1990
• Docket Number: No. 8084,8084
• Court: Appellate Court of Connecticut
• Parties: Zbigniew S. ROZBICKI v. Helen HUYBRECHTS.

Page 178

576 A.2d 178

22 Conn.App. 131

Zbigniew S. ROZBICKI v. Helen HUYBRECHTS.

No. 8084.

Appellate Court of Connecticut.

Argued Jan. 31, 1990.

Decided June 26, 1990.

Wesley W. Horton, with whom, were Karen L. Murdoch, law student intern, and, on the brief, Francis J. MacGregor, Hartford, for appellant (plaintiff).

Alfred B. Mencuccini, Torrington, for appellee (defendant).

Before SPALLONE, EDWARD Y. O'CONNELL and FOTI, JJ.

EDWARD Y. O'CONNELL, Judge.

The dispositive issue in this appeal is whether a party to a civil action has a right to be present during jury selection. We conclude that he has this right and that the trial court should have granted the plaintiff's motion for a continuance so that he could be present.

The facts are not in dispute. The plaintiff, a practicing attorney, was in Hartford representing a client in the trial of a law suit, when the present case, in which he is the plaintiff, was reached for trial in Litchfield. Through his counsel, the plaintiff requested a continuance in the Litchfield case so that he could be present in order to assist in jury voir dire. The court, Dranginis, J., denied his request, and jury selection proceeded without him. When jury selection was completed, the proceedings were suspended until the plaintiff finished the Hartford trial and could be present in Litchfield. The jury returned a defendant's verdict on the complaint and on the defendant's counterclaim and awarded the defendant $8020.60 in damages. ¹ The plaintiff's motion to set aside the verdict was denied.

In denying the plaintiff's request for a continuance, Judge Dranginis recognized that the plaintiff had a right to be present during voir dire but suggested that he had waived that right by proceeding with the Hartford case. The court remarked that the plaintiff was faced with a conflict between his personal interests and his professional obligations to his client and implied that the plaintiff improperly gave his professional obligations priority over his personal affairs. In denying the posttrial motion to set aside the verdict, the trial court, Moraghan, J., did not discuss waiver, but instead questioned whether a party in a civil case had a right to be present during jury selection.

We start our analysis with the observation that the seventh amendment to the United States constitution, which guarantees the right to a jury trial in civil cases involving more than $20, applies only to actions in federal court. Gluck v. Gluck, 181 Conn. 225, 227, 435 A.2d 35 (1980); Colt v. Eves, 12 Conn. 243, 252 (1837). In Connecticut, the right to have issues of fact decided by a jury is rooted in article first, § 19, of the Connecticut constitution. Hanauer v. Corsica, 157 Conn. 49, 53, 244 A.2d 611 (1968).

Although Connecticut courts have not addressed the precise question presented here, our Supreme Court has recognized that jury selection is an integral part of the trial process. In Antel v. Poli, 100 Conn. 64, 123 A. 272 (1923), jury selection was in progress and ten jurors were in the jury box when the plaintiff was carried into the courtroom on a stretcher amid continuous exclamations of pain clearly audible to all persons in the courtroom. 257 Rec. & Briefs 20, 44 (1923). The Antel court held that the plaintiff had a right, as a party, to be present at this stage of the trial as long as the trial court took steps to prevent a repetition of such theatrical behavior. ² Antel v. Poli, supra, at 69, 123 A. 272.

Courts have long recognized that a defendant in a criminal case has a right to be present during all phases of the trial, including jury selection. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); United States v. Crutcher, 405 F.2d 239 (2d Cir.1968); Boone v. United States, 483 A.2d 1135, 1137 (D.C.1984); State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). In criminal prosecutions, it is important that the defendant be present for jury selection because he "has peculiar knowledge about the facts of the alleged incident which brings him before his peers for judgment.... No matter how extensive or involved were prior discussions with his lawyer, what may be irrelevant when heard or seen by his lawyer may tap a memory or association of the defendant's which in turn may be of use to his defense." Boone v. United States, supra, at 1137-38.

This reasoning applies with equal force to civil cases, and our Supreme Court has used similar language in holding that a party has a right to be present during a deposition. Anderson v. Snyder, 91 Conn 404, 99 A. 1032 (1917). In an analysis singularly applicable to the question presented here, the Anderson court determined that "[t]he taking of the deposition is a part of the trial. In many cases the cross-examining attorney cannot anticipate, no matter how thorough his preparation, the developments in the examination of a witness. He cannot know all that his client knows. Oftentimes it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquires." Id., 91 Conn., at 408, 99 A....