Jacqueline O. Juma v. Tom M. Aomo (2012)

MEMORANDUM OF DECISION PETITION FOR A NEW TRIAL (POST–TRIAL) (171)

The defendant filed the above referenced petition for a new trial wherein he avers the discovery of new information “which despite the due diligence performed was not found during the trial” which, if introduced, would have lead the court to find the plaintiff had been duly served in connection with a divorce proceeding instituted by the defendant in Kenya and to then dismiss the action in this court.   He requests a new trial under the provisions of General Statutes § 52–270.

STANDARD FOR REVIEW

General Statute § 52–270 provides in pertinent part:  “The Superior Court may grant a new trial of any action that may come before it, for ․ the discovery of new evidence ․” Our Supreme Court had an opportunity to reiterate well-established criteria for evaluating a petition for a new trial based upon newly discovered evidence.

A trial court's decision on that ground is governed by the standard set forth in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), and further refined in Shabazz v. State, 259 Conn. 811, 827–28, 792 A.2d 797 (2002).   Under the Asherman standard, a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof:  (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence;  (2) would be material to the issues on a new trial;  (3) is not cumulative;  and (4) is likely to produce a different result in the event of a new trial.  Asherman v. State, supra, 434.  “This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by post trial motions except for a compelling reason.”  (Internal quotation marks omitted.)  Id.

Skakel v. State, 295 Conn. 447, 466–67 (2010).   A “new trial will not be granted if the newly discovered evidence could have been known before the trial, by great diligence or if the evidence is merely cumulative.”  Id. at 467.  (Citation omitted.)   Even if evidence is newly discovered, it must be material.   That is, “if a new trial were granted a different result would be produced.”  Id. A “different result,” means that the new evidence would be likely to result in acquittal of the petitioner, not merely that it might cause one or more jurors to have a reasonable doubt about the petitioner's guilt.   Id. at 468, citing, Shabazz v. State, 259 Conn. 811, 823 (2002).

The petition for a new trial under § 52–270 is essentially an equitable proceeding.  Black v. Universal C.I.T. Credit Corporation, 150 Conn. 188, 192 (1962).   It is authorized and its scope limited by the statute.   Milestone v. Tisi, 140 Conn. 464, 469 (1953).   The petitioner has the burden of proving facts which would, “in conformity with our settled equitable construction of the statute, entitled him to a new trial on the grounds claimed.”  Black v. Universal C.I.T. Credit Corporation, supra, 150 Conn. 193.   The petition is addressed to the legal discretion of the trial court and “will never be granted except on substantial grounds.”  Id.

FACTS

The marriage of the parties was dissolved by a judgment of the court dated July 1, 2011.   The court issued a memorandum of decision on the same date after a fully contested trial during which both parties were represented by counsel (163).   The facts as found therein are incorporated by reference thereto.

The defendant filed five motions seeking the stoppage, discontinuance or dismissal of the complaint.   All of the motions were denied.   Reference is made to the memorandum of decision for a fuller description of the motions and the decisions rendered thereon.

In his petition the defendant, who is now self-represented, claims that he recently came across the plaintiff's telephone bill which if introduced as evidence would attack the plaintiff's credibility and establish that she did not receive and make calls relating to the service (or lack thereof) of process in connection with the Kenyan divorce proceeding.   The defendant also claims the plaintiff's testimony as to her whereabouts on the days in question (when service was made or not made) was inaccurate.   He avers that the plaintiff was “dishonest in her pleading and claims in this action and thus providing a misplead.”

This evidence, such as it is, could have been discovered prior to the commencement of the trial.

The defendant further seeks a new trial for the “mispleading in this action as the Connecticut court attempted to terminate a contract with provisions that were set in a foreign country and for which the Connecticut judges do not have the expertise to understand or interpret.”

He claims, once again, that Connecticut is not the proper forum.

This argument, such as it is, is cumulative of the arguments made in the five motions earlier made by the defendant and denied by the court.

The Petition for a New Trial is DENIED.

BY THE COURT

Olear, J.

Olear, Leslie I., J.