In this аssault and battery and outrageous conduct action, judgment was entered on a jury verdict awarding compensatory and exemplary damages to plaintiffs, Jennifer Asplin and Donald J. Leidy. Contending that the trial court deprived him of his constitutional privilege agаinst self-incrimination, defendant, Daniel T. Mueller, appeals. We affirm.
Most of the pertinent facts were stipulated, and the evidеnce as to facts not stipulated was uncontroverted. Defendant was a Denver police officer. He was required tо be armed at all times, whether on
On June 23, 1978, defendant attended a luncheon meeting with his lawyer and another police officer. He had two drinks. At that time he was off duty, out of uniform, casually dressed, and armed. At about 2:30 p.m., he was driven by the other policeman to a downtown lot where his car was parked.
Shortly after 5 p.m. on that day, while attempting to exit from Interstate 25, both plaintiffs were struck and injured by a single bullet fired from a passing automоbile owned by defendant. The only occupant of that car was a casually dressed man. The gun used had a long shiny barrel.
After the shоoting, the plaintiffs followed the car, obtained the license number, and reported to the police. Defendant’s Smith & Wesson rеvolver was seized by investigating officers. After viewing both photographic and in-person lineups, neither plaintiff was able to makе a positive identification of defendant as the person who had fired the shot.
Plaintiffs commenced this action, seeking damаges from defendant as the alleged assailant. Defendant refused to respond to a number of plaintiffs’ interrogatories, requests for admissions, and requests for production of documents, basing his refusal on a claim of privilege against self-incrimination. In an original proceeding, our Supreme Court upheld his right to decline to answer inquiries that might incriminate him.
Mueller v. District Court,
Shortly before trial, defendant filed a mоtion in limine, seeking orders (1) prohibiting plaintiffs from calling him to the witness stand, (2) preventing them from requiring him to assert his Fifth Amendment privileges on the stand, аnd (3) preventing them from commenting in any way on his assertion of his Fifth Amendment rights. The motion was denied.
At trial, over objection of defense сounsel, defendant was called by plaintiffs as an adverse witness for cross-examination. In response to questions regarding the shоoting incident, defendant declined to answer on the basis of his Fifth Amendment privilege. At the end of the trial, over objection, the following instructions were submitted to the jury:
“The jury is not to decide liability or non-liability of defendant Mueller based solely on his assertion of his Fifth Amendment rights.”
“Thе jury may draw any reasonable inferences from the defendant’s refusal to answer any questions on the claim of privilege against self-incrimination (Fifth Amendment).” ■
“The privilege against self incrimination, whether claimed under the Federal or Colorado Constitutions is a рersonal privilege. It cannot be claimed for the purpose of protecting, or refusing to give testimony against, any othеr person.”
I.
Defendant contends that, since he had previously made known his intention to decline to answer any questions involving purported criminal acts he is alleged to have committed against either or both plaintiffs, the trial court erred in allowing plaintiffs to call him to the stand. He further claims the court erred in requiring him to assert his Fifth Amendment privilege in the presence of the jury as his reason for refusing to answer questions concerning his involvement in the shooting incident. And he argues that the above-quoted instructions should not havе been submitted to the jury and plaintiffs should not have been allowed to comment on his assertion of that privilege. We do not agrеe.
It is reversible error
in a criminal case
to instruct a jury that it may draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case.
Griffin v. California,
However, “the Fifth Amendment does not forbid adverse inferences against parties to
civil actions
when they refuse to testify in response to probative evidence offered against them.”
Baxter v. Palmigiano,
Since
Baxter,
it has been clear that a party in a civil proceeding may be called for testimony even if he will be claiming the privilege.
Brinks, Inc. v. City of New York,
Defendant relies on
State v. District Court,
The fact that exemplary damages were sought here does not change the analysis. A penalty is not being imрosed solely because defendant was silent, as prohibited in
Lefkowitz v. Cunningham,
There were no errors in the procedures followed in this case or in the rulings and jury instructions of the trial court with regard to the privilege.
II.
Defendant’s other contention is that the trial court erred in not granting his motion for a directed verdict of dismissal because no one, including plaintiffs, was able to identify him as being involved in the shooting incident. This argument is without merit.
Eyewitness identification is not required; circumstantial evidence is sufficient.
Irish v. Mountain States Telephone & Telegraph Co.,
Judgment affirmed.