author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. KENNETH REILLY
    (AC 33870)
    Gruendel, Robinson and Schaller, Js.

      Argued October 12, 2012
    officially released March 26, 2013

      Matthew K DiVito, with whom, on the brief, was Martin J. Minnella, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Kenneth Reilly, appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly denied his motion for a mistrial. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Prior to his trial, the defendant filed a motion to suppress statements that he had given to Waterbury police officers on the grounds that such statements were obtained in violation of his Miranda rights and consisted of a confession obtained involuntarily. During the defendant’s suppression hearing, Ruda Pratt, a Waterbury police detective, testified that she was assigned to investigate allegations of sexual assault involving the defendant. The defendant agreed to meet with Pratt and arrived at the police department around 10 a.m. on July 19, 2007. After entering the interview room, Pratt read the defendant a form to waive his Miranda rights, and the defendant agreed to waive his rights.

Pratt further testified that she generated a typed statement contemporaneously with the defendant’s disclosure of the incident, in which the defendant admitted in detail that he had touched the minor victim inappropriately. After Pratt completed the defendant’s statement, the defendant reviewed it and agreed that it was correct. Michael Ponzillo, a Waterbury police sergeant, testified that he then entered the interview room. Pon-zillo stated that he verified that the defendant’s statement was accurate, asked the defendant to initial and sign the statement, and notarized the statement after the defendant signed it. The defendant’s printed statement fisted a start time of 11:10 a.m., which was automatically generated by the computer when the program was initiated. The statement also fisted an end time of 11:12 a.m., which was manually entered by the officer completing the form. Pratt stated that the interview lasted approximately forty minutes, and explained that the end time on the statement indicating that the interview lasted only two minutes was the result of a typographical error.

During the suppression hearing, the defendant testified to the contrary. The defendant denied waiving his Miranda rights and specifically stated that he was not given a form to do so. The defendant also denied admitting to any of the allegations contained in the printed statement and testified that Pratt did not type his statement contemporaneously with his disclosures. Instead, Pratt asked the defendant a series of questions, prepared a handwritten statement and then threw that statement away. According to the defendant, Pratt then typed a statement and threatened him with incarceration should he fail to sign it. The defendant testified that after he left the station, Pratt and another officer came to his home and asked him to sign a second statement because the first statement was incomplete. The defendant’s mother corroborated this portion of his testimony. Pratt denied returning to the defendant’s home, and Ponzillo denied having any knowledge of such an occurrence.

The court denied the defendant’s motion to suppress. In so holding, the court found the officers’ testimony more credible than the defendant’s, noting specifically that it found “[t]he defendant’s testimony . . . incredulous.” In crediting the officers’ testimony over the defendant’s, the court concluded that “[the] defendant was not in custody at the time of his statement. ... He was never restrained during the interview, threatened, harmed or denied any necessity or any request during the interview. And critically important, he left the interview after it ended proving that he was, in fact, free to go. . . . Therefore, it was not necessary for the police to advise the defendant of his Miranda rights. . . . [A]s an alternative basis for denying this suppression motion . . . [the court concluded] that there was a valid waiver of [the defendant’s] Miranda rights” because the defendant was of sufficient age and intelligence to understand the nature of his waiver, he was not restrained or threatened in any way and he was not under the influence of drugs or alcohol. Subsequently, the defendant’s statement was admitted as a full exhibit and read to the jury at trial.

During the defendant’s trial, Pratt and Ponzillo changed portions of their testimony that was given during the defendant’s suppression hearing. Specifically, Pratt testified that after reviewing the defendant’s signed statement, she noticed that her name had been omitted. According to her testimony, Pratt informed Ponzillo of the error and he advised her to print a new statement. Pratt also testified inconsistently regarding the error with the statement’s end time. Pratt admitted that the second statement was not taken contemporaneously with the defendant’s disclosures, but, instead, was generated after he had left and the error was discovered. Pratt stated that she opened the program at 11:10 a.m. to correct the omission of her name from the defendant’s first statement; she completed this correction in two minutes and thus entered the end time of 11:12 a.m. The end time of 11:12 a.m. was not the result of a typographical error, but was instead the correct end time for the second statement. Ponzillo then accompanied Pratt to the defendant’s house where the defendant signed the corrected statement. Pratt stated that she shredded the defendant’s first statement, and that she did not disclose this information during the suppression hearing because at that time she did not recall taking more than one statement, destroying the first statement or returning to the defendant’s home to have him sign a second statement. Ponzillo testified similarly, that at the suppression hearing, he did not recall visiting the defendant’s home to have him sign a second statement.

The defendant filed a motion for a mistrial, arguing that this inconsistent testimony denied him a meaningful suppression hearing and resulted in the admission of improper evidence at trial. In essence, the defendant asserted that the officers’ testimony was so contradictory at the suppression hearing that it rendered the factual findings of the court, Schuman, J., inaccurate. The court, Cremins, J., denied the motion for a mistrial. In so holding, the court acknowledged that a “[h]igh degree of necessity is required before a conclusion may be reached that a mistrial is appropriate.” The court found that although Pratt changed the defendant’s statement to correct the omission of her name, there was no evidence that the substance of the statement was changed. Moreover, the defendant still signed and initialed the second statement. The court further concluded that there was no indication that the defendant requested counsel prior to signing the second statement at his home; thus, the waiver of rights form that the defendant signed at the police station was still in effect. To ameliorate any potential harm to the defendant, the court gave a spoliation instruction, which in essence, instructed the jurors that they may infer that the destroyed statement contained information that would have been damaging to the state. During closing argument, defense counsel argued to the jury about the inconsistencies within Pratt’s and Ponzillo’s testimonies regarding how the defendant’s statement was obtained. This appeal followed.

I

The defendant asserts that the officers’ inconsistent testimony tainted the constitutionality of his trial by denying him a fair suppression hearing, and therefore the court abused its discretion by denying his motion for a mistrial. We are not persuaded.

We first turn to the standard of review that controls our consideration of the defendant’s claim. “Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ” (Internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 270, 49 A.3d 705 (2012).

“[T]he principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In [its] review of the denial of a motion for [a] mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Sewell, 95 Conn. App. 815, 818, 898 A.2d 828, cert. denied, 280 Conn. 905, 907 A.2d 94 (2006).

In making his claim, the defendant invites this court to examine the propriety of the underlying suppression hearing. We respectfully decline to do so, and note that our review is confined to the court’s ruling on the defendant’s motion for a mistrial — the ruling challenged in this appeal. We cannot agree with the defendant that the officers’ inconsistent testimony amounted to a constitutional violation that affected the validity of his trial, and we conclude that the court did not abuse its discretion by denying the defendant’s motion for a mistrial.

Much like the defendant in State v. Owens, 63 Conn. App. 245, 775 A.2d 325, cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001), the defendant’s claim in this case involves an attack on the police officers’ credibility. Defense counsel cross-examined the officers, both of whom acknowledged that they had given inaccurate testimony during the defendant’s suppression hearing, and defense counsel referred to these inconsistencies during closing argument. The officers’ conflicting testimony, in this case, bears on their credibility. It was for the jury to ascertain the effect of the officers’ differing accounts on their credibility and, ultimately, the extent to which the officers’ credibility influenced the weight the jury assigned to the defendant’s statement. See id., 255. In denying the defendant’s motion, the court credited the testimony of the officers, finding that (1) the second statement, which was admitted as evidence in this case, was substantively identical to the first statement, (2) the defendant’s signed waiver of rights form was still in effect when he signed the second statement and (3) the defendant did not request coimsel prior to signing the second statement. In light of these findings, the court was within its discretion when it concluded that the drastic remedy of a mistrial was not appropriate in the case at bar and instead provided a curative spoliation instruction to the jury as an alterative remedy. We therefore conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

II

The defendant finally asserts that the court’s denial of his motion for a mistrial allowed an involuntary confession to be used against him thereby infringing upon his due process rights. We decline to review this unpre-served claim.

In his motion for a mistrial, the defendant argued that the officers’ inconsistent testimony rendered his suppression hearing meaningless. At no time, however, did the defendant argue that a mistrial was appropriate because his confession was involuntary and thus admitted improperly. As a result, the trial court did not have an opportunity to rule on this matter. “[I]t is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path [the party] rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) State v. Fourtin, 307 Conn. 186, 208, 52 A.3d 674, 688 (2012); see also Practice Book § 60-5 (this court “shall not be bound to consider a claim unless it was distinctly raised at the trial”). We therefore decline to review the defendant’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In making this finding, the court concluded that the defendant’s testimony was wholly unbelievable in the following respects: (1) Pratt did not advise the defendant of his rights prior to his statement; (2) Pratt took notes and threw them away; (3) Pratt wrote a false confession and the defendant did not give a detailed account of the incident; (4) Pratt threatened the defendant with incarceration until he signed the statement; (5) Pratt refused the defendant’s request for counsel; (6) the defendant did not initial his statement; (7) Ponzillo did not enter the room after the interview; and (8) the defendant did not read his statement.

       At that time, the court, Cremins, J., advised counsel that these prior inconsistent statements were available to impeach the officers’ credibility.

       Pratt testified that she prepared the substance of the statement while the defendant was present and that after the defendant left, she corrected the error of her name being omitted.

       We note that the state correctly asserts that the court’s remedial instruction in this case may not have been proper, as it was adopted from spoliation of evidence jurisprudence that applies only in civil cases. Our Supreme Court has held that in the civil context, the jury may infer “from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996). In the criminal context, however, the trial court must apply a balancing test to decide each case based on its facts, “assess [ing] the materiality of the unpreserved evidence and the degree of prejudice to the accused, and formulat[ing] a remedy that vindicates his or her rights.” State v. Morales, 232 Conn. 707, 729, 657 A.2d 585 (1995). Because the parties do not challenge the propriety of the court’s spoliation instruction on appeal, we decline to address this issue.

       We note that the defendant did not seek review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine set forth in Practice Book § 60-5.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GENERAL ACCIDENT INSURANCE COMPANY v. JASON MORTARA
    (AC 34331)
    DiPentima, C. X, and Robinson and Lavery, Js.
    Argued January 2
    officially released March 26, 2013

      David A. Leff, for the appellant (defendant).

      Michael M. Wilson, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Jason Mortara, appeals from the judgment of the trial court vacating an arbitration award rendered in his favor. The arbitration occurred as a result of an underinsured motorist claim that the defendant had asserted against the plaintiff, General Accident Insurance Company, for compensation for injuries sustained in a motor vehicle accident that took place in New Jersey. In reaching its award, the majority of the divided arbitration panel determined that, pursuant to Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 641 A.2d 783 (1994), New Jersey law applied and, further, that the defendant had complied with the procedural law of that state to receive underinsured motorist benefits. The plaintiff filed an application to vacate the award pursuant to General Statutes § 52-418 (a) (4). In rendering judgment in favor of the plaintiff, the court concluded that Connecticut, rather than New Jersey law, applied and accordingly, granted the plaintiffs application to vacate the award and denied the defendant’s motion to confirm it. This appeal followed.

Our examination of the record and briefs in light of the applicable law along with our consideration of the arguments of the parties persuade us that the judgment should be affirmed. On the facts of this case, the issues properly were resolved in the court’s complete and well reasoned memorandum of decision. See General Accident Ins. Co. v. Mortara, 52 Conn. Sup. 522, 72 A.3d 482 (2012). We therefore adopt it as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See Nestico v. Weyman, 140 Conn. App. 499, 500, 59 A.3d 337 (2013); Green v. DeFrank, 132 Conn. App. 331, 332, 33 A.3d 754 (2011).

The judgment is affirmed.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award ... (4) if the arbitrators have exceeded then-powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


text:
    MARK TUITE v. THE HOSPITAL OF CENTRAL CONNECTICUT
    (AC 34222)
    Lavine, Alvord and Pellegrino, Js.
    Argued February 13
    officially released March 26, 2013

      Cynthia I. Crockett, for the appellant (named plaintiff).

      Albert G. Danker, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal arises from a negligence action brought by the plaintiff Mark Tuite against the defendant, The Hospital of Central Connecticut, concerning an injury the plaintiff purportedly suffered when he allegedly slipped on a drop of oil on the floor of the hospital cafeteria while making a salad at the salad bar. Following a bench trial, the court, Alander, J., rendered judgment in favor of the defendant on the plaintiffs complaint and subsequently denied his motion for reargument and reconsideration. On appeal, the plaintiff (1) claims that the court incorrectly applied the mode of operation doctrine and (2) challenges the court’s evidentiary rulings regarding whether the mode of operation of the defendant’s salad bar created a hazard of spilled oil and whether the defendant took reasonable steps to discover and remove any hazards. The plaintiff further asserts that the court abused its discretion in denying his motion for reargument and reconsideration.

After examining the record and the briefs and considering the arguments of the parties, we are persuaded that the court correctly rendered judgment in favor of the defendant. The issues raised by the plaintiff were resolved properly in the trial court’s thorough and well reasoned memorandum of decision. See Tuite v. Hospital of Central Connecticut, 52 Conn. Sup. 544, 72 A.3d 466 (2011). We therefore adopt the memorandum of decision as the proper statement of the relevant facts, issues and applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Council 4, AFSCME, AFL-CIO v. State Ethics Commission, 304 Conn. 672, 673, 41 A.3d 656 (2012); Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010); Nestico v. Weyman, 140 Conn. App. 499, 500, 59 A.3d 337 (2013); Green v. DeFrank, 132 Conn. App. 331, 332, 33 A.3d 754 (2011).

The plaintiff also challenges the denial of his motion for reargument and reconsideration. Because we conclude that the court properly rendered judgment in favor of the defendant, the court did not abuse its discretion in denying the plaintiffs motion for reargument and reconsideration. See, e.g., Valentine v. LaBow, 95 Conn. App. 436, 452-53, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

The judgment is affirmed.

       The trial court granted the motion filed by Affiliated Computer Services to intervene as a plaintiff, but it is not a party to this appeal. References in this opinion to the plaintiff are to Tuite.

       Under the mode of operation rule, “a business invitee who is figured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business’ chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it.” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 769-70, 918 A.2d 249 (2007).


text:
    IN RE DOMINICO M. ET AL.

    (AC 35047)
    Beach, Robinson and Bishop, Js.
    Argued February 4
    officially released March 13, 2013

      Albert J. Oneto TV, with whom, on the brief, was Albert J. Oneto III, for the appellant (respondent father).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       March 13,2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father, Kenneth M., appeals from the judgments of the trial court terminating his parental rights with respect to his minor children, D, L and N. On appeal, the respondent claims that the court erred in finding that the department of children and families (department) made reasonable efforts to reunify him with his children and that he was unable or unwilling to benefit from reunification services. We affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. In January, 2010, the petitioner, the commissioner of children and families, filed an ex parte motion for order of temporary custody for D, L and N; the court granted the motion. During the department’s involvement with the respondent, he lived in North Carolina. Specific steps were ordered for the respondent to follow. The petitioner filed a neglect petition for each child, and all three children were adjudicated neglected and committed to the care and custody of the petitioner. The petitioner filed a motion to terminate the respondent’s parental rights of D, L and N. In August, 2012, the court, Bentivegna, J., terminated the respondent’s parental rights with respect to D, L and N.

The court found both that the department made reasonable efforts to reunite the respondent with his children and that the respondent was unable or unwilling to benefit from the reunification efforts. The court, after reciting at length the subordinate facts, summarized the following facts to support these findings. “The department’s efforts were focused on addressing [the respondent’s] child protection issues: domestic violence, substance abuse and mental health. [The respondent] was offered and provided with the services to address the child protection concerns including domestic violence assessment and treatment, [Interstate Compact on the Placement of Children, General Statutes § 17a-175 (compact)] home study referrals, substance abuse and mental health assessment referrals, supervised visitation and case management services. The department made efforts to determine the availability of appropriate services for [the respondent] in North Carolina to address the child protection issues and provided the respondent with contact information for the services. Despite the department’s reasonable efforts, [the respondent] failed to pursue the recommended services. In March, 2010, the department requested apriority [compact] home study. However, [the respondent] refused to cooperate, and the application was denied on May, 13, 2010. On April 7, 2010, the department provided [the respondent] with [a] domestic violence evaluation in Connecticut that was conducted by James Midgley, who recommended that [the respondent] engage in a family violence assessment and counseling near his residence in North Carolina. [The respondent] was notified of the recommendation as well as provided with information on local family violence, mental health and substance abuse resources. He failed to follow through with any of the domestic violence services. In 2010, [the respondent] refused to cooperate with a mental health or substance abuse evaluation. Although he participated in some counseling services ... in North Carolina, he did not disclose his past history of substance abuse and domestic violence and was later discharged.” This appeal followed.

On appeal, the respondent raises numerous challenges to the court’s factual findings that the department made reasonable efforts to reunify him with his children and that he was unable or unwilling to benefit from reunification services. General Statutes § 17a-112 (j) (1) provides in relevant part that the court must find by clear and convincing evidence that the department “has made reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing . . . that such efforts are not required. . . .” Accordingly, “the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not [required]. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Jonathan C., 86 Conn. App. 169, 173, 860 A.2d 305 (2004).

Accordingly, the department was required to prove in the trial court “either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis omitted; internal quotation marks omitted.) In re Anvahnay S., 128 Conn. App. 186, 191, 16 A.3d 1244 (2011). The specific steps, which the respondent signed on January 22, 2010, required that he participate in counseling, undergo mental health and substance abuse evaluations, follow recommendations for treatment, undergo a domestic violence evaluation and cooperate with service providers. The record reflects that the respondent failed to follow through with recommended domestic violence services and refused to cooperate with a mental health or substance abuse evaluation. The court found credible evidence that the respondent repeatedly denied that there was any domestic violence in his relationship with the children’s mother and refused to comply with recommended counseling. He also claimed that he had not used drugs for fifteen years and refused to comply with the substance abuse assessment and testing. Although he participated in some counseling services in North Carolina, he did not disclose relevant information to his counselor such as his past history of substance abuse or domestic violence; he was discharged from counseling. He also refused to cooperate with a home study under the compact. Such evidence sufficiently supports both of the court’s conclusions regarding reunification. We conclude, therefore, that the court did not err in finding that the respondent was unable or unwilling to benefit from reunification efforts and that the department made reasonable efforts to reunify. The court, therefore, did not err in terminating the respondent’s parental rights.

The judgments are affirmed.

       The petitioner, the commissioner of children and families, instituted this termination proceeding against both the mother and the father of the children, naming both as respondents. Only the father has filed this appeal and, for simplicity, all references to the respondent are to the father.

       If the department proves that it made reasonable efforts, it need not prove that a parent was unable or unwilling to benefit from services. General Statutes § 17a-112 (j) (1); In re Jonathan C., 86 Conn. App. 169, 173, 860 A.2d 306 (2004). In this case, the trial court found both.

       “In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j) (1); (2) termination is in the best interest of the child; General Statutes § 17a-112 Q) (2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j) (3).” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009). This appeal focuses on the first element; the respondent does not claim, for example, that the finding that he failed to achieve personal rehabilitation was erroneous.

       The respondent argues that it was improper for the petitioner to rely on the compact because not all of the provisions of the compact are applicable to nonresident natural parents. See In re Emoni W., 305 Conn. 723, 48 A.3d 1 (2012). In this case, however, the department requested the assistance of North Carolina authorities in providing services in North Carolina, and it did not defer to any determination regarding placement by North Carolina authorities.

       We have carefully reviewed all the remaining claims of the respondent. They allege primarily factual errors. We have examined the record and find that the court’s conclusions are supported by more than sufficient evidence.


text:
    NATALIE SIGULAR v. WILLIAM E. GILSON
    (AC 33703)
    Beach, Espinosa and Schaller, Js.

      Argued September 25, 2012
    officially released April 2, 2013

      John F. Buckley, Jr., with whom was John M. Párese, for the appellant (plaintiff).

      Julie Harris, with whom was Yelena Akim, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SCHALLER, J.

In this negligence action, the plaintiff, Natalie Sigular, appeals from the judgment rendered in accordance with the jury’s verdict. On appeal, she claims that the trial court abused its discretion in denying her motion to set aside the verdict and order a new trial because the verdict was (1) inherently ambiguous and contrary to the law and evidence and (2) wholly inadequate, shocked the conscience and was governed by mistake, prejudice or corruption. We affirm the judgment of the trial court.

The following procedural history and facts, which the jury could have reasonably found, axe relevant to the plaintiffs claims. On or about April 19, 2008, the decedent, William Gilson, entered an intersection in violation of a stop sign and struck the front end of the plaintiffs vehicle. The plaintiff initiated this action seeking damages from the defendant and alleging that, as a result of the decedent’s negligence and violation of motor vehicle laws, she suffered abrasions, a head injury, cervical and lumbar spine sprains and injuries to the tissues surrounding the aforementioned areas, as well as pain and anguish. The plaintiff alleges that, as a result of the automobile accident, she sustained physical injuries and incurred financial obligations due to medical care. The plaintiff did not allege any damage to property, and, although alleged in the operative complaint, the plaintiff made no claim at trial for lost wages or earning capacity.

After the accident, plaintiff sought treatment at the emergency room for head pain, bums and abrasions. The next day, the plaintiff began experiencing lower back pain and stiffness, and sought treatment from Phillip Luchini, an orthopedic surgeon, shortly thereafter. Luchini initially examined the plaintiff in April, 2008. The plaintiffs exam revealed stiffness and muscle spasm in her lower back, but there was no evidence of nerve damage or pain radiating to the her legs and her X ray was normal. Luchini diagnosed the plaintiff with a soft tissue lumbar sprain and prescribed physical therapy as well as an anti-inflammatory medication. The plaintiff underwent physical therapy, which improved the pain and stiffness. After completing physical therapy, the plaintiff was able to engage in all desired activities, but, at times, she remained hesitant to do so. The plaintiff had occasional spasms, which would subside when taking her prescribed anti-inflammatory medication and engaging in the exercises prescribed by her physician.

The plaintiff returned to Luchini for another exam in May, 2008, during which she indicated that stiffness and pain in her lower back were less severe. The plaintiff saw Luchini again in June, 2008, at which time her symptoms had resolved and she reported no discomfort in her lower back area. Luchini told the plaintiff that she could resume her regular activities and to return if she had any recurring problems. The plaintiff returned to Luchini for another follow up examination in February, 2009. Upon finding that the plaintiffs lower back symptoms had resolved, and that she had no spasms and excellent range of motion, Luchini discharged the plaintiff.

The plaintiff returned to see Luchini in October, 2009, with recurring spasm and stiffness in her lower back; Luchini suggested that the plaintiff take anti-inflammatory medication and indicated that she might require additional physical therapy should her symptoms become more severe, but did not prescribe physical therapy during her visit. At this time, Luchini diagnosed the plaintiff with a 5 percent impairment of her lumbar sacral spine. About one year later, in November, 2010, the plaintiff again presented to Luchini with complaints of back stiffness. Luchini ordered new X rays, which he testified were normal, and he again prescribed anti-inflammatory medication and another course of physical therapy. The plaintiff made her final visit to Luchini in February, 2011, indicating that she still experienced lower back pain, that the pain was less severe and that it tended to recur with strenuous activity.

The jury heard conflicting testimony regarding the nature and extent of the plaintiffs claimed injuries. During cross-examination the plaintiff admitted that in previous depositions she reported pain radiating from her back to her legs. These symptoms, however, were not reported to Luchini during any of the plaintiffs visits. The defendant also asked the plaintiff, on cross-examination, about her responses to interrogatories in which she stated that she suffered a neck injury. The plaintiff had previously testified during trial to the contrary that she did not experience any pain or injury to her neck. The plaintiff was also questioned regarding the extent to which her injury limited her ability to participate in various activities. The plaintiff had testified that she was not incapable of performing any activities, but performed some with caution.

The court instructed the jury regarding the plaintiffs claims of negligence and negligence per se. The jury was provided with a defendant’s general verdict form and a plaintiffs verdict interrogatory form. The plaintiffs form posed three questions. The first question asked whether the negligence of the decedent proximately caused the plaintiffs injuries and directed that, if answered affirmatively, the jury proceed with question two. Question two then asked whether the plaintiff suffered damages as a result of the decedent’s negligence, and instructed that, if answered affirmatively, the jury should continue on to question three, but if answered negatively, the jury should report that it had reached a defendant’s verdict. Question three asked the jury to determine the amount of damages suffered by the plaintiff, by specifically listing the relevant economic and noneconomic damages.

The jury first returned a verdict for the plaintiff and awarded zero economic damages and $5000 noneco-nomic damages to the plaintiff. The court accepted the verdict, and the plaintiff objected on the ground that the verdict was inconsistent as a matter of law. The court vacated its order accepting and recording the verdict and instructed the jury that the jury must review its verdict, but need not change it, and repeated its instructions pertaining to economic damages. The jury again returned a verdict for the plaintiff, answering yes to interrogatories one and two on the plaintiffs verdict form, but awarding zero economic and zero noneco-nomic damages.

The plaintiff filed a motion to set aside the verdict and order a new trial. The trial court denied the plaintiffs motion, concluding that the jury’s failure to award damages was not inherently ambiguous. Specifically, the court stated that the evidence was such that “the jury could [have drawn] a reasonable conclusion that the plaintiff did not sufficiently establish the amount of injuries and damages she received as a result of the accident . . . The trial court further held that “[t]he plaintiff did not present, nor did the court see, any factors that could have improperly influenced the jury such that the verdict would shock the conscience.” This appeal followed.

I

The plaintiff first claims that the court should have set aside the verdict on the grounds that it was (1) inherently ambiguous for the jury to return a verdict in favor of the plaintiff but to award zero damages and (2) contrary to the evidence and the law. We are not persuaded.

As a preliminary matter, we set forth the standard of review that will guide our analysis. “[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear. . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury. . . . [T]he amount of a damage award is a matter peculiarly within the province of the trier of fact . . . and [i]f, on the evidence, the jury could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict .... In reviewing the action of the trial court in denying the motions ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did. The trial court’s decision is significant because 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. 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. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Citations omitted; internal quotation marks omitted.) Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 632, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).

The plaintiff first asserts that the jury’s verdict was inherently ambiguous. We disagree. In support of her argument, the plaintiff cites Hall v. Bergman, 296 Conn. 169, 994 A.2d 666 (2010), Ginsberg v. Fusaro, 225 Conn. 420, 623 A.2d 1014 (1993), and Malmberg v. Lopez, 208 Conn. 675, 546 A.2d 264 (1988). In each of these cases, our Supreme Court held that a verdict in favor of the party seeking damages, but failing to award damages, was inherently ambiguous. The present case, however, is easily distinguishable from the aforementioned cases in that here, the nature and extent of the plaintiffs injuries were contested and the plaintiff raised claims of negligence as well as negligence per se. Accordingly, we conclude that this case more closely resembles Froom Development Corp. v. Developers Realty, Inc., supra, 114 Conn. App. 618, and Hughes v. Lamay, 89 Conn. App. 378, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005).

In Hughes, the plaintiffs alleged injuries were speculative in nature, and in that context, this court held that “the- award of zero damages fell within the necessarily uncertain limits of fair and reasonable compensation.” (Internal quotation marks omitted.) Hughes v. Lamay, supra, 89 Conn. App. 386. Likewise, in Froom Development Corp., the jury was presented with conflicting evidence regarding the amount of damages the plaintiff suffered as a result of a lost business opportunity. Froom Development Corp. v. Developers Realty, Inc., supra, 114 Conn. App. 635. In fact, the defendants’ expert testified that the value of the lost opportunity was zero. Id.

In the present case, the damages were similarly contested. Although the plaintiffs physician opined that the plaintiff suffered from a 5 percent impairment, the plaintiffs own testimony served as the primary source of evidence regarding the chronic pain and limitations she suffered. During cross-examination the defendant pointed to various inconsistencies within the plaintiffs testimony regarding the nature of her symptoms and her limitations, such as (1) the plaintiffs deposition testimony stating complaints of pain radiating to her legs when no such complaint was made to her physician or appeared in his reports, (2) Luchini’s reports indicating that the plaintiffs symptoms had completely resolved on two separate occasions, July, 2008, and February, 2009, respectively, and (3) the plaintiffs interrogatory responses stating that she suffered from neck as well as back injuries, although the plaintiff testified during trial that she did not experience any neck pain or injury. Furthermore, the plaintiff testified that despite her restricted range of motion, she still engaged in many activities such as bowling and tennis, and any pain would resolve after performing the prescribed exercises and using an anti-inflammatory medication.

In light of the contested nature of the plaintiffs damages, the intent of the jury was not unclear. The jury, as the trier of fact, was free to accept or reject the testimony offered by either party. Froom Development Corp. v. Developers Realty, Inc., supra, 114 Conn. App. 635. It is the jury’s task to determine the credibility of the evidence, and as such “[t]he jury was not compelled to accept the plaintiffs claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court.” (Internal quotation marks omitted.) Smith v. Lefebre, 92 Conn. App. 417, 426-27, 885 A.2d 1232 (2005). The jury reasonably could have concluded that the plaintiff did not sufficiently establish the amount of damages she incurred as a result of the decedent’s negligence.

Furthermore, as in Hughes, the jury in the present case was provided statutory bases for finding liability and was charged accordingly regarding the plaintiffs claims of negligence per se. Hughes v. Lamay, supra, 89 Conn. App. 386. Here, the court specifically instructed that pursuant to the doctrine of negligence per se, “[a statute] provides a minimum standard of conduct for operators of motor vehicles. In Connecticut, the violation of a statute relating to the operation of a motor vehicle is negligence per se or negligence as a matter of law. . . . [I]f you find that the [decedent] violated one of the statutes cited in this case, then you must find him negligent.” (Emphasis added.) The jury also heard evidence that the decedent “darted forward” in violation of a stop sign. If the jury concluded that the decedent violated the relevant statute, it properly returned a plaintiffs verdict. Although the return of a plaintiffs verdict establishes a technical legal injury, thereby entitling the plaintiff to nominal damages, this court has held that we will not reverse a judgment and grant a new trial for a jury’s mere failure to award nominal damages in such circumstances. Hughes v. Lamay, supra, 386 n.7. In light of the contested nature of the plaintiffs claimed injuries and damages, the jury could have found the defendant liable pursuant to the doctrine of negligence per se and reasonably could have awarded zero damages. Accordingly, we conclude that the jury’s award of zero damages in this case was not inherently ambiguous.

The plaintiffs assertion that the verdict was contrary to the law and evidence is equally unconvincing. As we have previously stated in this opinion, the jury had evidence before it that the plaintiff suffered minor injuries (i.e. bums and abrasions) that resolved shortly after the accident; that the plaintiff had reported to her doctor on two prior occasions that her lower back symptoms had resolved; that when the plaintiffs symptoms returned they would again resolve when she performed the prescribed exercises and took anti-inflammatory medication; that the plaintiff still participated in various desired activities; and that the plaintiff had given inconsistent statements regarding the nature and extent of her injuries. “[T]he determination of the amount of damages to be awarded, if any, is solely the jury’s function.” (Internal quotation marks omitted.) Santa Maria v. Klevecz, 70 Conn. App. 10, 17, 800 A.2d 1186 (2002). Accordingly, we cannot say that the jury’s award of zero damages was contrary to the law and evidence. We therefore conclude that the trial court did not abuse is discretion in denying the plaintiffs motion to set aside the verdict.

II

The plaintiff finally asserts that the court erred in failing to set aside the verdict because it (1) shocked the conscience, was wholly inadequate and manifestly unjust and (2) was governed by mistake, ignorance, prejudice, corruption or partiality. We conclude that these claims are without merit.

Our standard of review is well settled. “[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption. ... [A] court’s decision to set aside a verdict ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself ....

“Although the court has broad discretion in setting aside a verdict, its discretion is not boundless. . . . Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will. . . . [T]he court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do.” (Citations omitted; internal quotation marks omitted.) Schettino v. Labarba, 82 Conn. App. 445, 448-49, 844 A.2d 923 (2004).

The plaintiffs assertions that the verdict was so inadequate as to shock the conscience and was governed by mistake or partiality are unavailing. As previously noted, the plaintiff suffered minor bums and abrasions, which resolved shortly after the accident with no residual effects. Although the plaintiff complained of chronic back pain and limitations regarding her ability to participate in various activities, the plaintiff also testified that her symptoms would resolve when engaging in the treatment prescribed by her physician. Moreover, the plaintiffs own testimony served as the primary source of evidence regarding her pain and limitations. Finally, in argument before the jury, the defendant pointed to several inconsistencies within the plaintiffs testimony, including those related to the nature and extent of her injuries and limitations. The jury was not required to believe the testimony of the plaintiff or her physician. See Froom Development Corp. v. Developers Realty, Inc., supra, 114 Conn. App. 635. In light of the highly contested nature of the plaintiffs injuries, we cannot say that the trial court erred in holding that there was a reasonable basis in the evidence for the jury’s verdict. See id., 632 (trial judge is uniquely situated to evaluate jury’s verdict having observed witnesses and gauged tenor of trial). We therefore conclude that the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lorraine Gilson, administratrix of the estate of William Gilson, was substituted for the named defendant on June 7, 2011. Thus, William Gilson will be referred to as the decedent and Lorraine Gilson will be referred to as the defendant.

       A muscle spasm is an involuntary contraction of the muscle, which can restrict the range of motion.

       Specifically, Luchini testified that in his opinion the plaintiffhas a“permanent or chronic muscular ligament sprain of the lumbar sacral spine.” Such a condition may result in limiting activities that put stress on the lower back such as sports, lifting and bending. “[T]he patient is not necessarily symptomatic every day in day out. They have periods where they feel better or periods when they feel worse.”

       Specifically, the plaintiff testified that as a result of her back injury, housework and recreational activities, such as bowling or tennis, were more difficult.

       We note that like the trial court, we may not consult the jury’s original verdict form in conducting our analysis. “It is well established that evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict is excludable in postverdict proceedings as immaterial.” (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 179-80, 994 A.2d 666 (2010). Considering the original verdict forms is effectively considering an aspect of jury deliberations. Id. Accordingly, we address the plaintiffs claims only as they pertain to the jury’s second verdict form.

       In so concluding, we note the following distinctions. In Hall, as w. Malm-berg, our Supreme Court, applying the general verdict rule, presumed that the plaintiff established actual injury, and thus established damages stemming from that injury. Hall v. Bergman, supra, 296 Conn. 182-83, 185; Malmberg v. Lopez, supra, 208 Conn. 681-83. “Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error on appeal did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. ... A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury . . . [or] may seek separate verdicts on each of the [separate] counts.” (Citation omitted; internal quotation marks omitted.) Hall v. Bergman, supra, 180-81. In the present case, however, the jury returned a verdict for the plaintiff by way of the plaintiff’s interrogatory form.
      We further observe that, unlike the wrongful death action in Malmberg, the injuries in this case were highly contested. Malmberg v. Lopez, supra, 208 Conn. 682 (‘‘[t]he jury’s intent in rendering a plaintiffs verdict with zero damages in a wrongful death action is . . . less clear” [emphasis added]). A general verdict, while presumed by an appellate court to reflect a jury’s intent to find all issues in favor of the prevailing party, does not as clearly indicate a jury’s intent as when it has been explained, as in the present case, by its responses to specific interrogatories. The sine qua non for reversal of an award of zero damages is ambiguity in the jury’s verdict. The jury’s responses to the interrogatories in the present case belie any such ambiguity and instead evince the jury’s conclusion that the plaintiff did not sufficiently establish the amount of damages she incurred. Accordingly, by virtue of the jury’s responses to these interrogatories, the verdict in this case was less ambiguous than the general verdicts rendered in both Hall and Malmberg.

      Finally, in Ginsberg, the jury was specifically instructed that a finding on the issue of liability included the issues of negligence, causation and damages. Ginsberg v. Fusaro, supra, 225 Conn. 425. Conversely, the jury in the present case was charged as to the doctrine of negligence per se, and thus could have properly found liability on the basis of the decedent’s violation of one or more statutes regardless of its determinations pertaining to causation and damages. For these reasons, we find the aforementioned cases inapposite to the case at bar.

       We conclude that the plaintiffs assertion that the trial court improperly articulated a new test for determining whether an award is inherently ambiguous is without merit. The court did not articulate a new test, but rather synthesized the principles of diverging jurisprudence on this particular issue. Moreover, the court properly applied the appropriate case specific analysis set forth by our Supreme Court in Wichers v. Hatch, 252 Conn. 174, 181, 745 A.2d 789 (2000).