John McDonough v. Shawn Forrest et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND FOR A NEW TRIAL

The plaintiff in this case requests that the court set aside the verdict entered in this trial that was accepted on July 25, 2012.   The plaintiff specifies two grounds as supporting this motion.   The plaintiff first claims that he was denied a fair trial because he was precluded from impeaching the defendant with evidence of perjury and prior felonies.   Secondly, the plaintiff claims that the defense counsel made several improper statements during closing argument that had the effect of denying the plaintiff a fair trial.   The defense opposes these motions.

The gravamen of the plaintiff's complaint is that on April 21, 2007, the plaintiff was operating his motorcycle in a northerly direction on Route 14A in the town of Sterling near the intersection of Route 14A and Church Street.   The plaintiff claims that the defendant was on Route 14A, ahead of the plaintiff, when the defendant negligently and carelessly stopped his vehicle in the middle of Route 14A which caused the plaintiff to take an evasive action which resulted in his motorcycle going down to the ground and the plaintiff's body striking a guardrail adjacent to the roadway.   The plaintiff has suffered serious life altering injuries.   The defendant filed an answer and asserted by means of a special defense that the plaintiff himself was negligent in causing this accident and the injuries that were sustained in this accident.

The trial in this case commenced in July 2012.   The plaintiff called a number of witnesses including the plaintiff, John McDonough, the defendant, Shawn Forrest and John Averista.   The defendant called witnesses Troopers Donald W. Hill and Scott Stone, a witness to the accident.

In a police accident report that was submitted as a full exhibit to the jury, the police report contains a reported statement of the plaintiff that “he was traveling north on Route 14A, when in the area of the Church Street intersection he observed the noncontact vehicle, but could not tell if he was stopped or moving due to the glare from the sun shining on the rear taillights of the noncontact vehicle.   When he realized that the noncontact vehicle was turning, he applied his brakes simultaneously swerving to the south bound travel portion.”   The police report further contained the following statement from the defendant, Shawn Forrest:  “he was traveling north on Route 14A and had stopped to turn left onto Church Street when all of a sudden he observed a motorcycle sliding past him.   He then observed the motorcycle impact the guardrail and leave the rider behind as the motorcycle slid back into the northbound lane in front of him.”   Finally in the police report, the trooper reported as follows:  “while investigating this scene, the trooper did observe the same sunlight condition observed by operator one (McDonough) prior to swerving around the noncontact vehicle.   The sunlight was shining at the rear lights of the vehicle so that it was impossible to tell if any of the real lights were activated in either a turning or stopping action.   This trooper also noticed that the area prior to impact is a downgrade with a sight line of approximately 100 feet prior to the Church Street intersection.   No skid marks were observed on the roadway surface, however, several gouge marks and sliding marks were observed on the roadway surface showing that vehicle one (McDonough's motorcycle) was on its side prior to and after impact.

The defendant called as a witness Scott Stone, who was traveling southbound on Route 14A and observed the defendant's vehicle with its blinker on indicating an intention to turn near the Church Street intersection.   Mr. Stone then observed the plaintiff and his motorcycle coming over a hill and approaching the rear of the defendant's vehicle before the plaintiff moved into the southbound lane and then lost control of the motorcycle.

The court engages in this brief summary of the evidence, not as a comprehensive summary, but to indicate some of the issues of fact that the jury was called on to resolve while reaching their verdict.

The plaintiff, at trial, testified that he saw the defendant operating his vehicle in an erratic manner and therefore slowed down so as to allow the defendant to get far ahead of him.   He further testified that when he next saw the defendant's vehicle it was sitting in the middle of Route 14A straddling the yellow line, and that the brake lights on the vehicle were visible.   Based upon these observations, the plaintiff testified that he decided to “drop his bike.”

During the course of the trial, the plaintiff attempted to introduce into evidence that fact that the defendant had been convicted of driving while under the influence charge that resulted in a conviction in Vermont in the early 1990s.   There was a fatality in this incident.   The court sustained the defendant's objection to the introduction of evidence of this prior conviction.   The court considered Connecticut Code of Evidence Rule 6.7 and determined that evidence of this particular conviction was remote in time, that it was not a conviction that would indicate on truthfulness on any particular degree and that the level of prejudice that might arise was considerable.   There was no evidence that any alcohol was involved in this particular collision.   The court advised the plaintiff that if he wished to perfect his record, that the evidence open to the purpose of marking for identification some actual evidence of the date of the conviction and the crime of the conviction.

After plaintiff had rested, the defendant had rested and the jury was excused for the purpose of coming back the next morning for the charge to the jury, the plaintiff sought permission to call the defendant back to the stand.   In support of the claim, the plaintiff produced a printout from the State of Vermont indicating that in 1996, the defendant had been convicted of the crime of grand larceny and had been sentenced to one to five years in jail.   The plaintiff also offered evidence that during the course of the deposition, that the defendant had denied having any other felonies other than the driving under the influence conviction that he had discussed at his deposition.   The court excluded this evidence.

The court now turns to the two reasons posited by the plaintiff as supporting his request for a new trial in this case.   The plaintiff claims that he was improperly precluded from impeaching the defendant based upon his deposition testimony and the evidence that he had a conviction for grand larceny in 1995, approximately fifteen years prior to the date of this trial.   The court notes that access to Mr. Forrest's record was at all times available to the plaintiff.   The plaintiff further has not introduced any new arguments that were not raised at the time of trial and that were considered and rejected by the court at the time of trial.

With regard to plaintiff's second grounds for a new trial, namely that the defense counsel made improper arguments, the court felt that both counsel engaged in vigorous advocacy on behalf of their client, the court does not feel that defense counsel exceeded the bounds of aggressive advocacy when he commented on the defendant's lack of liability with regard to this accident, when he mentioned the police report, which was a full exhibit in this accident, when he commented on the physical measurements and description of the accident scene contained in the police report or when he commented that the collision was not his client's fault and perhaps not the fault of the plaintiff.

The court is satisfied that the plaintiff received a fair trial.   Based upon the conflicted state of the evidence, the court cannot say that any of the claimed errors would have resulted in a different verdict.   The motion to set aside the verdict and for a new trial is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.