Lo Sacco v. Young

• Decision Date: 19 September 1989
• Docket Number: No. 5736,5736
• Citation: 20 Conn.App. 6,564 A.2d 610
• Court: Connecticut Court of Appeals
• Parties: Frank X. LO SACCO v. Debra M. YOUNG et al.

Page 610

564 A.2d 610

20 Conn.App. 6

Frank X. LO SACCO v. Debra M. YOUNG et al.

No. 5736.

Appellate Court of Connecticut.

Argued May 12, 1989.

Decided Sept. 19, 1989.

Frank X. Lo Sacco, pro se.

Joseph P. Petrucco, filed a brief, for appellees (defendants).

Before DUPONT, C.J., and DALY and FOTI, JJ.

FOTI, Judge.

The plaintiff appeals from the trial court's denial of his motion to set aside the verdict and for a new trial. The plaintiff claims that the trial court erred (1) in depriving him of a fair trial, (2) in permitting the defendants to cross-examine him with respect to two prior misdemeanor convictions, (3) in refusing to permit him to amend his complaint during the trial, (4) in failing to instruct the jury as requested, and (5) in other evidentiary rulings regarding damages. We find no error. ¹ On November 5, 1985, the plaintiff instituted the present action for malicious prosecution against the three defendants, Debra M. Young, Lori Golab and Kim Billian, who are siblings. The court, with the consent of the parties, referred the matter to a state trial referee for a jury trial. On November 26, 1986, the jury returned a verdict in favor of the defendants, which was accepted by the trial court.

The jury could reasonably have found the following facts. The plaintiff and the defendant Young have joint custody of their son who was five years old on April 14, 1984. On that date, while his son was visiting the plaintiff, the defendants went to the plaintiff's home. A dispute arose among the parties and, as a result, the defendants claimed that the plaintiff assaulted the defendant Billian. In response to a telephone call made by one of the defendants, the police arrived, took statements from the parties, and arrested the plaintiff for assault in the third degree in violation of General Statutes § 53a-61. In October, 1984, after a three day jury trial, at which the defendants testified, the plaintiff was found not guilty. Thereafter, the plaintiff brought the present action to recover damages against the defendants for malicious prosecution.

I

The plaintiff's first claim is that he was deprived of a fair trial by comments made to him by the trial court in the jury's presence. He claims that these comments demonstrate that the trial court was biased against him because of his status as a pro se litigant.

We note initially that the plaintiff did not properly preserve this claim of judicial bias in that he did not move for a mistrial or disqualification of the trial judge. "As a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. Practice Book § 4185; Cameron v. Cameron, [187 Conn. 163, 168, 444 A.2d 915 (1982) ]; Trapp v. Trapp, 6 Conn.App. 143, 145, 503 A.2d 1187 (1986); Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn.App. 669, 670, 496 A.2d 239 (1985)." Barca v. Barca, 15 Conn.App. 604, 607, 546 A.2d 887 (1988). Failure to request recusal or move for a mistrial can be construed as the functional equivalent of consenting to the judge's presiding over the trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985).

Although the plaintiff did not properly preserve his claim, because he represented himself during the trial and on appeal, we have reviewed the record to determine whether the plaintiff's claim has any merit. See Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). We conclude that it does not. "Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn.App. 330, 336, 537 A.2d 157 (1988)." Cugini v. Cugini, 13 Conn.App. 632, 634, 538 A.2d 1060 (1988).

In support of his claim that the trial court's conduct was biased against him and denied him a right to a fair trial, the plaintiff points to a number of instances in the transcript where the trial court made comments or "admonished" him in the presence of the jury in a manner that, he maintains, unjustly prejudiced him in the jury's eyes because of his status as a pro se litigant. ² In addition, he claims that the court never advised the jury to disregard such admonishments made by the court to the plaintiff with regard to any procedural rulings or other conduct. ³

A trial judge, as a minister of justice, should be both cautious and circumspect in his language and conduct and should conduct a trial with the highest degree of impartiality. Barca v. Barca, supra, 15 Conn.App. at 606, 546 A.2d 887. ⁴ " 'A judge ... should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.' ... The trial judge should be the exemplar of dignity and impartiality. United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972)." Swenson v. Dittner, 183 Conn. 289, 297, 439 A.2d 334 (1981). The trial court is responsible for maintaining a calm demeanor and the decorum of the courtroom. State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985). In this vein, the court should not make comments indicative of favor; LaBow v. LaBow, supra, 13 Conn.App. at 334, 537 A.2d 157; and should " 'refrain at all times from indulging in any improper remarks that may injure a litigant in the eyes of the jury.' Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (1953)." Stone v. Bastarache, 188 Conn. 201, 206, 449 A.2d 142 (1982). " 'Not every departure from the norm, however, is reversible error. Prejudice to the unsuccessful party, or at least the possibility of it, must appear to have occurred before this court will be justified in depriving the successful party of the result of the litigation which, so far as it was affected by his actions, he has obtained by fair means.' " Loda v. H.K. Sargeant & Associates, Inc., 188 Conn. 69, 86, 448 A.2d 812 (1982), quoting Felix v. Hall-Brooke Sanitarium, supra, 140 Conn. at 502, 101 A.2d 500. "The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge's impartiality." LaBow v. LaBow, supra.

The plaintiff's claim of judicial bias relates to his status as a pro se litigant. Where a party appears pro se, as he has every right to do, his rights and claim should " 'receive the same consideration as if he had been represented by an attorney.' Martin v. Martin, 188 Neb. 393, 397, 197 N.W.2d 388 (1972)." Cersosimo v. Cersosimo, supra, 188 Conn. at 394, 449 A.2d 1026. Our courts attempt to be "solicitous of the rights of pro se litigants and ... will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard...." Conservation Commission v. Price, 193 Conn. 414, 421 n. 4, 479 A.2d 187 (1984). Although we are lenient to parties who represent themselves, such leniency should not be invoked as to affect adversely the other parties' rights. LaBow v. LaBow, supra, 13 Conn.App. at 336, 537 A.2d 157. Furthermore, we will not wholly disregard our rules of practice, "adherence to which is necessary in order that the parties may know their rights and in order that the real issues in controversy may be presented and determined." Rodriguez v. Mallory Battery Co., supra, 188 Conn. at 150 n. 8, 448 A.2d 829.

Our review of the record indicates that although the trial court was mindful of the plaintiff's status as a pro se litigant, its action and rulings did not demonstrate bias. Rather, the transcript indicates the court's attempt to conduct the trial in a fair manner in order to protect the rights of all parties.

The trial court is permitted to take those steps necessary to ensure the orderly progress of the trial. LaBow v. LaBow, supra, at 334, 537 A.2d 157. The transcript reveals that most of the comments by the court that the plaintiff finds objectionable related to proper procedure and the relevancy of certain evidence, or were made in response to objections. The trial court's comments did not indicate a personal negative view of the plaintiff's claim; Stone v. Bastarache, supra; or its opinion as to the plaintiff's truthfulness; id.; nor did it show any "actual animosity" toward the merits of the plaintiff's case. State v. Gordon, supra, 197 Conn. at 426, 504 A.2d 1020. In addition, the court cautioned the jury not to penalize the parties for its rulings and comments. Although the trial court at times demonstrated frustration and impatience with the plaintiff, we conclude that its statements were not adversarial but rather, were consistent with its role as an impartial arbiter, and did not deprive the plaintiff of a fair trial.

II

The plaintiff's second claim is that the trial court erred in permitting the defendants to question him during cross-examination about two criminal misdemeanor convictions. The following facts are relevant to this issue. During cross-examination, the defendants asked the plaintiff about his work history. The plaintiff responded that he had "hardly worked at all" since April, 1982, and he voluntarily explained that he was unable to work as a result of two other arrests "precipitated" by the defendants. When the defendants queried further into this matter, the plaintiff explained that on two prior occasions involving the defendants he was falsely arrested but that those arrests did not result in convictions. ⁵ When the defendants proceeded to question the plaintiff further, the plaintiff objected. After a brief recess, the trial court permitted the defendants to impeach the plaintiff by questioning him about the two prior misdemeanor convictions. The scope of the defendants' inquiry was limited to the fact that the plaintiff was convicted and the defendants did...