AC 18044 | Conn. App. Ct. | Nov 23, 1999
Opinion
The named plaintiff, Susan M. Marshall, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants William J. O’Keefe and Jason J. O’Keefe.
The jury reasonably could have found the following facts. On August 1, 1992, the plaintiff attended a wedding reception at Walko’s Talk of the Town Restaurant
At about 10 p.m., William O’Keefe and his wife, who are the bride’s parents, were dancing when they exchanged words with the Berrys.1 **
I
The plaintiffs first claim is that the trial court improperly gave the Secondino, or missing witness, charge because it did not sufficiently emphasize the requirement that a missing witness must have had knowledge that was favorable to the plaintiff. We do not agree.
The following additional facts are necessary for our review of this claim. The plaintiff filed a request to charge, which included in part, instructions addressing her failure to call her husband, Fasci or McDougall to testify.
“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial. . . .
“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . .
On appeal, no claim is made that the witnesses were unavailable. The plaintiff seems to argue that the court’s charge improperly omitted or failed to emphasize a reference to the requirement that the missing witness must have “peculiar or superior information . . . .” Secondino v. New Haven Gas Co., 147 Conn. 672" court="Conn." date_filed="1960-11-15" href="https://app.midpage.ai/document/secondino-v-new-haven-gas-co-2201168?utm_source=webapp" opinion_id="2201168">147 Conn. 672, 675, 165 A.2d 598 (1960). The court’s charge, however, did include a statement that “[a] witness who would naturally be produced by a party is one who is known by that party and who, by reason of his or her relationship to the party or to the issues or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.”
The plaintiffs claim that the language requested should have been on one page rather than on the following page of the charge is without merit. The communication by the court was contained in the Secondino section of the charge and was legally correct. “We will not: examine a jury charge ‘with [a] legal microscope.’ Borsoi v. Sparico, 141 Conn. 366" court="Conn." date_filed="1954-06-16" href="https://app.midpage.ai/document/borsoi-v-sparico-2157459?utm_source=webapp" opinion_id="2157459">141 Conn. 366, 371, 106 A.2d 170 (1954). The day has long passed when reviewing courts are to be considered ‘citadels of technicality. ’ Kolleakos v. United States, 328 U.S. 750" court="SCOTUS" date_filed="1946-06-10" href="https://app.midpage.ai/document/kotteakos-v-united-states-104321?utm_source=webapp" opinion_id="104321">328 U.S. 750, 759, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).” Lemonious v. Burns, 27 Conn. App.
II
The plaintiff next claims that the trial court abused its discretion in excluding a prior inconsistent statement by Jason O’Keefe when it ruled that there was no inconsistency between his testimony at trial and his deposition testimony. We disagree.
The plaintiff alleged that Jason O’Keefe caused Gregory Berry to overturn a table and the chair on which the plaintiff was sitting. During trial, the plaintiff questioned Jason O’Keefe as to whether he pushed Berry and what happened as a result. The plaintiff believed that Jason O’Keefe’s testimony at trial contradicted his deposition testimony and sought to impeach him. The court disagreed and declined to permit the use of the deposition testimony. The plaintiff failed to have the deposition testimony marked for identification or to make it part of the record at trial.
This court will set aside evidentiary rulings only when there is a showing of a clear abuse of discretion. See Hall v. Burns, 213 Conn. 446" court="Conn." date_filed="1990-01-23" href="https://app.midpage.ai/document/hall-v-burns-7841134?utm_source=webapp" opinion_id="7841134">213 Conn. 446, 451, 569 A.2d 10 (1990). It is the province of the trial court to determine whether a prior statement is in fact inconsistent with statements advanced at trial. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866" court="Conn." date_filed="1979-06-19" href="https://app.midpage.ai/document/state-v-piskorski-2338879?utm_source=webapp" opinion_id="2338879">419 A.2d 866, cert. denied, 444 U.S. 935" court="SCOTUS" date_filed="1979-10-29" href="https://app.midpage.ai/document/mcculley-v-california-9017415?utm_source=webapp" opinion_id="9017415">444 U.S. 935, 100 S. Ct. 283" court="SCOTUS" date_filed="1979-10-29" href="https://app.midpage.ai/document/johnson-v-ohio-9017409?utm_source=webapp" opinion_id="9017409">100 S. Ct. 283, 62 L. Ed. 2d 194" court="SCOTUS" date_filed="1979-10-29" href="https://app.midpage.ai/document/holmes-v-south-carolina-9017414?utm_source=webapp" opinion_id="9017414">62 L. Ed. 2d 194 (1979).
The judgment is affirmed.
In this opinion the other judges concurred.
Prior to trial, the plaintiff Kirk Marshall withdrew his cause of action and the plaintiff Susan M. Marshall withdrew her claims against the defendants Gary O’Keefe, Barry J. Walko and Walko’s Restaurant, Inc. We refer in this opinion to Susan M. Marshall as the plaintiff and to the defendants William J. O’Keefe and Jason J. O’Keefe as the defendants.
Secondino v. New Haven Gas Co., 147 Conn. 672" court="Conn." date_filed="1960-11-15" href="https://app.midpage.ai/document/secondino-v-new-haven-gas-co-2201168?utm_source=webapp" opinion_id="2201168">147 Conn. 672, 675, 165 A.2d 598 (1960), enunciated the rule that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) The trial in this case occurred in December, 1997, and this appeal was filed on January 20, 1998. The legislature abolished the Secondino rule in civil actions, effective October 1, 1998. See Public Acts 1998, No. 98-50, codified at General Statutes § 52-216c. In State v. Malave, 250 Conn. 722" court="Conn." date_filed="1999-09-21" href="https://app.midpage.ai/document/state-v-malave-7846314?utm_source=webapp" opinion_id="7846314">250 Conn. 722, 738, 737 A.2d 442 (1999), our Supreme Court abandoned the rule in criminal cases. Neither the legislation nor the Supreme Court’s action affects our decision in this appeal.
The plaintiff also requests that we overrule Supreme Court precedent that established the missing witness rule. “Whether our Supreme Court precedent should be reexamined, discarded or changed is not for this court to decide.” State v. Panella, 43 Conn. App. 76" court="Conn. App. Ct." date_filed="1996-09-10" href="https://app.midpage.ai/document/state-v-panella-7857002?utm_source=webapp" opinion_id="7857002">43 Conn. App. 76, 83, 682 A.2d 532, cert. denied, 239 Conn. 937" court="Conn." date_filed="1996-10-29" href="https://app.midpage.ai/document/abed-v-commissioner-of-correction-7844651?utm_source=webapp" opinion_id="7844651">239 Conn. 937, 684 A.2d 710" court="Conn." date_filed="1996-11-07" href="https://app.midpage.ai/document/beach-v-regional-school-district-no-13-7844656?utm_source=webapp" opinion_id="7844656">684 A.2d 710 (1996); see footnote 2.
Apparently, Kathy Berry, the groom’s sister, felt slighted that she was not asked to be a member of the wedding party.
The plaintiffs request to charge stated in part: “Before you can even consider any inference from [the plaintiff’s not having called Kirk Marshall to testify], these defendants must demonstrate by evidence . . . that Kirk Marshall has superior information material to 1he issues [as to] what happened to his wife ... as she sa.t at the table alone as she was injured, or
The court instructed the jury in part: “Whether each of these witnesses [was] available is a question of fact for you to determine as a condition precedent to drawing any adverse inference from his or her absence. Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship [and] usefulness in nature of the expected testimony. And this means only that the witness is in such relationship with the party that it is likely that his or her presence could be procured.”
The plaintiff also argues that, in the circumstances of this case, her failure to call her husband as a witness should not be subject to the missing witness rule. After failing to point out in her brief that a court’s decision whether to give a missing witness charge is an evidentiary matter; State v. Anderson, 212 Conn. 31" court="Conn." date_filed="1989-07-04" href="https://app.midpage.ai/document/state-v-anderson-7840961?utm_source=webapp" opinion_id="7840961">212 Conn. 31, 41-42, 561 A.2d 897 (1989); that is reviewed on appeal under the abuse of discretion standard; see State v. Grant, 221 Conn. 93" court="Conn." date_filed="1992-02-04" href="https://app.midpage.ai/document/state-v-grant-7842107?utm_source=webapp" opinion_id="7842107">221 Conn. 93, 106, 602 A.2d 581 (1992); the plaintiff failed to brief her claim adequately. Accordingly, we decline to afford review. See Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).
Because we affirm the judgment, we will not consider the alternative ground put forth by the defendants.