Minerva Lachira v. Sutton & Sutton et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT (# 188.00) OBJECTION TO THE MOTION TO SET ASIDE THE VERDICT (# 187.00) MOTION FOR ORDER (# 192.00)

This case comes to this court as a civil action wherein the plaintiff sought money damages from the defendants.   The jury, after answering the interrogatories, and the verdict forms found the verdict for the defendants.   That verdict was rendered on November 9, 2011.   On November 10, 2011 the Motion to Set Aside the Verdict was filed and the Objection was filed on November 14, 2011.   The motion for Order is a motion requesting two copies of the video recordings preserved by the court covering the trial on November 4, 8 and 9, 2011.

The motion to set aside the verdict alleges in essence in Paragraph 1 that the physical evidence proves the testimony of the defendant and his worker was false, and that the plaintiff was truthful.   The claim is the false evidence was such that the jury could not have found for the defendants except to find against the physical evidence.   The second allegation is that one juror signaled to the defendant James Sutton “with a salute” to him when they left the courtroom for lunch after the charge and before the deliberations as my attorney noticed.   The same juror was noted by myself signaling positively to James Sutton prior to deliberations.”

“A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence.   A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.”  (Internal quotation marks omitted.)  Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001).   Moreover, “the evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict”;  Ipacs v. Cranford, 65 Conn.App. 441, 443 (2001);  and “the verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice ․ Only under the most compelling circumstances may the court set aside the verdict because to do so interferes with the litigant's constitutional right in appropriate cases to have the issues of fact decided by a jury.”  (Internal quotation marks omitted).   See Hunte v. Amica Insurance Co., supra, 541.

In the case of Wichers v. Hatch, 252 Conn. 174, beginning at page 189 and following the court states as follows:  “As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits.  ‘Because in setting aside a verdict, the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury;  Richert v. Fraser, 152 Conn. 678, 681 A.2d 702 (1965);  the court's action cannot be reviewed in a vacuum.   The evidential underpinnings of the verdict itself must be examined ‘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 difference result should have been reached.’  “ Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).'  Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980).  ‘[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 their will.’  Id. 419.”

In addition, the Wichers court said on page 186:  “In Birgel v. Heintz, 163 Conn. 23, 27–28, 301 A.2d 249 (1972), we held that ‘[i]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict.   The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly ․ The trial judge in considering the verdict must do the same ․ and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict and to grant a new trial ․ The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse ․ A mere doubt of the adequacy of the verdict is an insufficient basis for such action ․ A conclusion that the jury exercised merely poor judgment is likewise insufficient ․ The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influence by partiality, prejudice, mistake or corruption.’ “

The jury rendered its verdict on November 9, 2011 as aforesaid.   The motion sets forth specific grounds that are relied on as a basis for the court to grant the motions.   The court finds that the motion should be denied.   The court finds that the verdict is not contrary to the law, that at best, the issues raised in the motions are issues that may properly be raised on appeal.

The litigants have a right to have factual issues resolved by the jury.   A trial court is not to sit as the 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 it did.   The court finds the jury could reasonably have reached this verdict.

“The setting aside of a verdict can occur for two general reasons.   First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented the jury, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ․ Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality.”  (Citation omitted.)  Novak v. Scalesse, 43 Conn.App. 94, 97–98, 681 A.2d 968, cert. granted on other grounds, 239 Conn. 925, 682 A.2d 1004 (1996) (appeal withdrawn, May 13, 1997).  “[A] motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds ․ Although juror misconduct may provide the substantial grounds necessary to grant such a motion, not every instance of juror misconduct requires a new trial ․ The rule, long ago enunciated by [the Connecticut Supreme Court] is that if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in is behalf;  if it do[es] not indicate any improper bias upon the juror's mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial;  the verdict ought not to be set aside.”  (Citations omitted;  internal quotation marks omitted.)  Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 104, 956 A.2d 1145 (2008).  “The burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial ․ That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party ․ In sum, the test is whether the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror.”  (Internal quotation marks omitted.)   Sawicki v. New Britain General Hospital, 302 Conn. 514, 522, 29 A.3d 453 (2011).  “In reviewing juror misconduct, [Connecticut courts] use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors.”  (Internal quotation marks omitted.)  Harrison v. Hamzi, 77 Conn.App. 510, 523, 823 A.2d 446, cert. denied, 266 Conn. 832 A.2d 69 (2003).

When an issue of potential juror misconduct comes to the attention of the court, it is required to conduct a preliminary inquiry on the record to determine the scope of the potential misconduct.  “[T]he form and scope of such an inquiry lie within a trial court's discretion ․ That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between.   Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court's sound discretion with respect thereto.”   (Internal quotation marks omitted.).  Harrison v. Hamzi, supra, 77 Conn.App. 522.

In State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994), our Supreme Court rejected a claim of juror misconduct based on the allegation that a juror “smiled broadly” at the father of one of the defendant's victims at the time that the verdict was rendered.   When ruling against the defendant, the Supreme Court stated that “[t]he limited postverdict contacts between the jurors and the victims' parents ․ do not establish that there were any impermissible communications to or by the jurors during the course of the trial or during their deliberations.   In response to the trial court's inquiry, the defendant acknowledged that he had no other information relevant to its allegations of juror prejudice.   On this record, the defendant has offered insufficient allegations of actual bias to require the trial court either to hold an evidentiary hearing or to set aside the jury's verdict.”  Id. 228.

Similarly, Judge Corradino rejected a claim of juror misconduct when the losing party complained that a juror had “displayed a negative attitude toward the plaintiff's case and its presentation.   He rolled his eyes and even uttered what was apparently profanity in court.   He complained about being on the case during the trial, scoffed, shook his head, expressed disbelief, expressed boredom, indicated testimony was repetitive and generally showed hostility.”   (Internal quotation marks omitted.)   Denniston v. Cash Home Center, Inc., Superior Court, judicial district of New London, Docket No. CV 98 0548288 (October 10, 2001, Corradino, J.), aff'd, 76 Conn.App. 906, 819 A.2d 943 (2003).   Judge Corradino found that this conduct was insufficient to overturn a jury verdict because the plaintiff failed to bring it to the court's attention during the course of the trial.

An unreported case from the Minnesota Court of appeals is also instructive on the issue of alleged juror misconduct that is presently before the court.   In O'Leary v. State, Minnesota Court of appeals, Docket No. CX 91 972 (April 7, 1992), review denied, May 15, 1992, the defendant alleged misconduct because a juror “made certain signals to spectators at the trial which indicated favoritism toward complainant.   Appellant's counsel originally was informed that the juror had made an ‘okay’ sign at the spectators, who appellant claimed were clearly identified with the victim.   Appellant's counsel informed the trial judge, however, that the juror actually gave a sort of wave or salute to one of the spectators and a wink a bit earlier.”  Id. When ruling that these activities on the part of the juror were not sufficient to force the trial court to hold a hearing on the claimed misconduct, the Minnesota court stated that “[t]he ‘signals' were at best ambiguous and not sufficient evidence to demonstrate bias.   Additionally, any such signals were made at the conclusion of the evidence presented, and thus would not indicate any predisposition on the part of the juror.   Therefore, even if these ‘signals' could be said to indicate that the juror had decided on a guilty verdict, the juror had heard all the evidence and was justified in having so decided.”  Id.

It should also be noted that Connecticut courts are hesitant to grant motions to set aside a verdict when counsel for a party had a chance to question the juror on potential bias but failed to do so, and the moving party has failed to provide any substantial basis for its claim of bias.   In O'Briskie v. Berry, 95 Conn.App. 300, 897 A.2d 605 (2006), a juror was excused during the course of a trial because she indicated that she may have encountered the defendant at the home of a relative.   The plaintiff claimed that there might have been bias on the part of the jury because there was a possibility that this excused juror may have discussed the defendant with the remaining jurors, but the plaintiff's attorney did not question the excused juror on this issue.   Following a motion to set aside the verdict that was denied by the trial court, the plaintiff appealed.   When affirming the trial court, the Appellate Court stated that “[t]o succeed on a claim of bias the [moving party] must raise his contention of bias from the realm of speculation to the realm of fact ․ The plaintiff has failed to raise his contention to the realm of fact.   The plaintiff's counsel made the tactical decision not to question the two excused jurors regarding their conversations with the remaining jury members, to determine whether the jury had been tainted before they officially were discharged ․ We conclude that the court did not abuse its discretion in denying the plaintiff's motions for a mistrial and to set aside the verdict and for a new trial on the plaintiff's ․ claim of juror bias.”  (Citation omitted;  internal quotation marks omitted.)  Id., 306–08.

This court reviewed the video of the proceedings taken by the security cameras.   It appears to this court that the juror was adjusting his glasses, and there does not appear to be a smile on his face as was conceded to by his attorney Cunningham.   The view toward the defendant was after he has passed him.

What is clear is that this tape does not confirm any juror misconduct based on his actions.   This tape is preserved as court's Exhibit 5.

This is a security tape not intended to be an accurate depiction of what went on in the courtroom.   There is no sound.   No authority has been cited for it being discoverable in a civil action.   There is no foundation laid for its admission.   There are no good reasons to produce the security tape.   It is a fishing expedition.   The old saying is that where there is smoke, there is fire.   In this situation, there is not even a hint of smoke.   The actions of the juror do not express favoritism or predetermination.   The defense counsel agrees that the quality of the tape is not good.

The court addresses the issue of timeliness.   Judge Corradino's decision addressed the issue of timeliness.   The court notes that this incident took place after the jury had been charged.   The jury was then leaving the courtroom when this action took place.   The approximate time is 1:05 p.m. The court reconvened after lunch after 2:05 p.m. in order to give all the parties a one-hour break.   The exhibits were then put together and sent into the jury deliberation room.   The jury deliberated for approximately 2 hours.   Thereafter, the jury came back out and rendered its verdict.   After the jury rendered the verdict, the court commented as set forth on the attached page 1 of the transcript of November 9, 2011 (Exhibit A).   The court specifically asked whether anyone had anything to address to me concerning the jury at this particular time, defense counsel Ms. Cocomo:  “no your honor,” Mr. Cunningham:  “no your honor.”   This was the time to have raised that issue since I specifically asked about the jury.

In summation, the court notes that there was luncheon break for an hour and this issue could have been raised when we returned.   This issue could have been raised when the jury began their deliberations.   This issue could have been raised when the jury was in deliberations.   This issue could have been raised before the verdict was accepted and recorded.   And, this issue certainly should have been raised before I dismissed the jury, and specifically raised the issue concerning issues with the jury.

Applying the law to the facts in this case, and for all of the foregoing reasons, the Motion to Set Aside the Verdict # 188 is denied.   The Objection to the Motion to Set Aside the Verdict # 187 is sustained.   The Motion for Order concerning two copies of the video recording # 192 is denied.   SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

EXHIBIT A

THE COURT:  Upon the final response of the jurors it becomes a final verdict under the authority of Ferris versus North Pick 147 Conn 72.   Okay. Have a seat, folks, and thank you very much for your good work.   Does anyone have anything to address to me concerning the jury at this particular time, defense counsel?

MS. COCCOMO:  No, Your Honor.

MR. CUNNINGHAM:  No, Your Honor.

THE COURT:  I don't think you were there when I oriented the jury, but when I orient the jury I always say if you sit through a trial and come to your unanimous verdict you will find it had been a wonderful and worthwhile experience.

You have helped us fulfill our constitutional requirements in Connecticut to allow litigants to have a civil jury trial, and you've done it well.   The record should indicate, by the way, that the plaintiff's verdict form is blank as is required when only one verdict form was filled out.

Jurors often ask me, I'll see someone at Stop & Shop or someplace, and did we do the right thing?   If you are comfortable with it then you did the right thing.   So, don't worry about it;  you did what you believe was the appropriate verdict under all the circumstances.

Note:  This court has quoted the language of the higher courts in this decision.   The court notes that some of these quotes fail to be gender neutral.

Karazin, Edward R., J.T.R.