David DiMichele v. Gary F. Perrella et al. (2013)

ORDER RE DEFENDANT PERELLA'S MEMORANDUM OF LAW (# 174)

The primary issue raised by the defendant Gary Perella involves the use of certain deposition testimony taken of the co-defendant Josinete DiMichele and offered by the defendant Gary Perella at trial for impeachment purposes of said witness.   The defendant relies on Practice Book §§ 13–31(a)(1) and (a)(3) and Code of Evidence § 8–5(1) and certain other cases.

The fact that the co-defendant Josinete DiMichele testified at trial and was cross examined by defense counsel leaves this issue open to the court's discretion as to whether such impeachment evidence would be considered cumulative in nature.   The Court looks to the Connecticut Code of Evidence § 4–3 and several other cases in order to decide this limited issue.  Motzer v. Haberli, 300 Conn. 733, 742 (2011);  O'Connell, Flaherty and Attmore, LLC v. Richter, 130 Conn.App. 816, 821 (2011).

The court can review the trial testimony, and assess the credibility of the said co-defendant within the totality of all her testimony and the consistency and/or inconsistency of such testimony with other evidence as presented by defendant.   The trial court's discretion involving the admissibility of such evidence for impeachment purposes is well established.

It is true that, “if the deponent is present at the trial and able to testify, his deposition is inadmissible”;  Nielson v. Hartford Street Railway Co., 67 Conn. 466, 466, 34 A. 820 (1896).   See Diener v. Tiago, 2002 WL 1837911 (Conn.Super.) No. CV97–0348578 (Ballen, J.T.R.) July 9, 2002.

Furthermore, “[t]he admissibility of a deposition into evidence under Practice Book [§ 13–31] is permissive in nature, leaving the ultimate determination to the trial judge ․ The party making the claim of error has the burden of showing that the court clearly abused its discretion.”  (Internal quotation marks omitted.)  Mack v. LaValley, 55 Conn.App. 150, 153, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999).  “Pursuant to Practice Book § 13–31(b)1 ․ objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.”  (Internal quotation marks omitted.)  Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 353, 710 A.2d 788 (1998).  Supra, Diener v. Tiago, pg. 6.

The Court finds that such deposition testimony offered for credibility purposes is cumulative in nature and unnecessary for the Court's evaluation of said witness.

Therefore, the defendant Perrella's above motion relating to such deposition is denied.   Further, the stricken Fourth Count of the complaint has already been ruled upon in Court and remains stricken from the applicable complaint.

BY THE COURT

V. ROCHE, J.

Roche, Vincent E., J.