Opinion
This is an appeal from a judgment in an assault and battery case, awarding respondent $27,500 in compensatory damages and $75,000 in punitive damages. The verdict of the jury was for $27,500 in compensatory damages and $150,000 in punitive damages, but the court granted a motion for a new trial unless respondent would remit $75,000 of the punitive damage award. Respondent then filed a remittitur consenting to the reduction.
Respоndent’s testimony concerning his injuries was augmented by testimony of his doctor, who testified that he performed a series of operations on plaintiffs nose consisting of a rhinoplasty for reconstruction of nasal structures, a septoplasty, and a reconstruction of the inferior turbinates. It took six weeks for a complete healing from the effects of the surgery.
Appellant testified that he struck respondent because he was in fear. He also testified that respondent threatened him with a hammer, but later admitted that respondent had replaced his hammer in a box on his motorcycle at the time of appellant’s attack. The greater part of appellant’s testimony concerned his wealth which was relevant on the punitive damage issue. Such testimony was conflicting, inconsistent, and lacked any semblance of crеdibility.
On appeal appellant does not contend that the evidence is insufficient to support the judgment nor that the judgment is excessive. He does, however, raisе the following points on appeal:
(1) Appellant is entitled to a new trial because he had inadequate counsel in a punitive damage case.
(2) Appellant is entitled to a new trial because of the admission of highly prejudicial evidence concerning appellant’s conviction of a felony when he was 15 yeаrs of age.
Appellant appeared in this case in propria persona from the filing of the answer in 1975 until the date of trial on March 29, 1978. On that
In his brief, appellant сharges his trial counsel with incompetence, lack of preparation, lack of knowledge of the facts, and ignorance of the law and procedure. We need not assess the validity of these charges, for we are aware of no authority, and counsel has cited us none, which would permit a trial or appellate court to grant a retrial to an unsuccessful litigant in a civil case, with or without punitive damages, on the grounds of incompetency of counsel.
The right to effective counsel in a criminal case is well established.
(Powell
v.
State of Alabama
(1932)
One of the numerous rights to effective counsel cases based upon the right to counsel concept was the сase of
In re Williams
(1969)
It should be noted that the right to counsel constitutiоnal provisions refer specifically to criminal prosecutions, and hence do not apply to
Under due process constitutional provisions, however, аn indigent person, under certain circumstances, is entitled to appointment of counsel at state expense in civil as well as criminal cases.
(Salas
v.
Cortez
(1979)
In the Salas case, the Supreme Court held, in a paternity action brought by a district attorney, that an indigent defendant was entitled to appointment of counsel at public expense. In so doing, the court stated that, under certain circumstances, a person is entitled to appointed counsel regardless of whether the action is labelled criminal or сivil. The court also noted that an adjudication of paternity involved more than a monetary judgment, since it could profoundly affect a person’s life, disrupt an established family, and expose a person to deprivation of property, and, potentially, liberty. The court concluded that the appointment of counsel would not only advance substantial state interest, but would serve the child’s interest as well.
Although Salas was a right to counsel case, it can be expected that the right to effective counsel will also be available to defendants in similar cases. The fact that the right of effective counsél is available to a defendant in a paternity case dоes not mean that it is also available to a defendant in a punitive damage case, merely because both are civil actions. Unlike a paternity case, a punitive damage case involves only a monetary judgment. Unlike a paternity case, a punitive damage case cannot expose a defendant to a possible deprivation of his liberty. Unlike a paternity case, a punitive damage case does not involve state participation nor a substantial statе interest.
We are of the opinion that the considerations present in the
Salas
case favoring the extension of the right to counsel and hence the right of effectivе counsel to defendants in paternity cases are absent in punitive damage cases. Moreover, civil suits involving punitive damages are essentially private mattеrs between the litigants. Each litigant selects his own counsel, for better or for worse. As Mr. Justice Minton once said: “A lawyer might well wonder, as we do, why counsel put that confession in evidence. Maybe it was a mistake; maybe not. Are we to second guess a competent lawyer into incompetency?.. . There are competent, more competent, and most competent lawyers.”
(United States
v.
Ragen
(7th Cir. 1949)
Appellant also contends that he is entitled to a new trial becаuse of the prejudicial admission of testimony concerning his conviction of a felony in 1926 when he was 15 years old and his conviction of forgery in 1944.
Whenever a party in a сriminal or civil case moves for the exclusion of a witness’ prior felony conviction, the trial court is under an obligation to exercise its discretion in balancing the possibility of prejudice and the probative value of the evidence. (Evid. Code, § 352;
People
v.
Woodard
(1979)
In the present case, however, there was neither a motion to exclude nor аn objection to the testimony, and hence the trial court was never asked to exercise its discretion.
Since neither ground urged by appellant has merit, the judgment is affirmed.
Files, P. J., and Kingsley, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied June 18, 1980.
Notes
Assigned by the Chairperson of the Judicial Council.