Opinion
No. MMX CV05-5000149 S
October 30, 2008
MEMORANDUM OF DECISION RULING ON PLAINTIFF'S MOTION TO SET ASIDE VERDICT AND ORDER NEW TRIAL
In this matter the plaintiff alleges that the defendant sexually assaulted her. After a four-day trial the jury returned a verdict in favor of the defendant. The plaintiff now moves to set aside the verdict and for a new trial. In support of her motion the plaintiff alleges three evidentiary errors by the Court. First, the plaintiff argues that the Court erroneously granted the defendant's motion in limine prohibiting the plaintiff from introducing evidence of the defendant's "forceful sexual touching" of the plaintiff in the kitchen of the defendant's restaurant, the El Sombrero. Second, the plaintiff claims that the court erred by granting the defendant's motion in limine prohibiting the plaintiff from introducing evidence of threats by the defendant that were communicated to the plaintiff in the parking lot of the Shop-Rite supermarket. Third, the plaintiff asserts that the Court improperly sustained the defendant's objection to the plaintiff's offer of the transcript of her ex-husband's prior testimony.
I. Factual and Procedural Background
This case arises out of the plaintiff's allegations that on two occasions, once in Puerto Rico and once in New London, the defendant sexually assaulted her. This matter was first tried to a jury in 2006. After the jury was unable to reach a unanimous verdict, the court, Aurigemma, J., ordered a mistrial. Subsequently, in May 2008, the case was tried to conclusion before a jury which returned a verdict in favor of the defendant. Prior to the start of the most recent trial the undersigned ruled on a number of pretrial motions directed to the admissibility of certain evidence. Two of those rulings form the basis of the plaintiff's motion to set aside the verdict. A third ruling, made during the course of the trial, is the basis for the plaintiff's third claim.
II. Legal Standard CT Page 17213
Connecticut Practice Book Sec. 16-35 authorizes a party to a civil action to move to set aside a verdict. The legal standard governing a motion to set aside a verdict is well established.
. . . The decision to set aside a verdict is a matter within the broad legal discretions of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion. A trial court has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of a trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict. It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that . . . its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict. (Internal quotations and citations omitted).
Melo v. Spencer, 62 Conn.App. 727, 729-30 (2001).
III. Plaintiff's Claims
As previously noted plaintiff identifies three evidentiary errors that she claims require a new trial. Each will be discussed in turn.
A. Threats at Shop-Rite
Following the claimed sexual assault of October 2004, the plaintiff filed a criminal complaint with the New London Police Department. She alleges that in June 2005, while at the New London Shop-Rite, the defendant told the plaintiff, in substance, that if the plaintiff continued to prosecute the complaint she was going to get hurt. The plaintiff sought to introduce evidence of that threat relying on principles governing the admissibility of threats by a criminally accused. Citing State v. Leecan, 198 Conn. 517, 534 (1986), the plaintiff posits that evidence of threats is "admissible either on the theory that such conduct is inconsistent with the defendant's claim of innocence or on the theory that the conduct exhibits a consciousness of guilt." Assuming, arguendo, that such a rationale would allow for the admissibility of threats in a civil proceeding, the undersigned nevertheless concluded that such evidence was not admissible because the prejudicial effect outweighed its probative value and because it was not relevant to the proof of intent, identity, motive, or common scheme as required by the doctrine of State v. Ibraimov, 187 Conn. 348, 354 (1982), and Connecticut Code of Evidence § 4-5(a). That conclusion was reinforced by the fact that the defendant claimed that such statements referred to a criminal complaint filed against his daughter. Under those circumstances it appeared that the risk of a collateral dispute about the meaning and relevancy of the defendant's statement did not justify its admissibility. Upon further review and consideration the court again concludes that the evidence was not relevant and that prejudice resulting from the admission of such statements outweighs the probative value of the alleged threats.
B. Forceful Sexual Touching of the Plaintiff at El Sombrero Restaurant
The plaintiff unsuccessfully sought to introduce evidence that the defendant groped her while in the kitchen of the El Sombrero Restaurant. This incident was reportedly witnessed by the plaintiff's daughter and friend. The plaintiff's theory of admissibility is uncertain. At the December 4, 2007 hearing in support of the motion in limine to exclude this testimony, the plaintiff seemed to suggest that such evidence was being offered as an independent basis for a finding that the defendant sexually assaulted her. Because such claim was not set forth in the operative complaint, the court concluded that such evidence would not be properly admissible on the eve of trial. Alternatively, to the extent that proof of the restaurant incident was offered to prove a common scheme or propensity, such rationale was also rejected both because the claim of relevancy was far too attenuated and because, alternatively, the prejudicial effect of such evidence would far outweigh its probative value. See State v. Ibraimov, supra. The court has reviewed and reconsidered that ruling and does not believe that it was in error.
C. The Prior Testimony of Angelus DelValle
At the plaintiff's first trial, the jury heard the testimony of the plaintiff's former husband, Angelus DelValle, who testified that following the second alleged assault, she went to bed with a knife under her pillow and that one month earlier, following the first assault, the plaintiff and her husband ceased having sexual relations. At the time of the second trial, Mr. DelValle no longer resided in Connecticut. Plaintiff sought to introduce the transcript of his testimony from the first trial, claiming that Mr. DelValle was unavailable and that his testimony was relevant as it tended to bolster, by inference, the plaintiff's claim that she was sexually assaulted. The court refused to allow the admission of the transcript, concluding that the plaintiff had failed to demonstrate the witness' unavailability; see State v. Leecan, 198 Conn. 517, 580 (1986); and also failed to demonstrate that she had made diligent efforts to locate Mr. DelValle. Tait's Handbook of Connecticut Evidence, Section 8.39.4 (3rd Ed. 2001). After consideration of plaintiff's arguments in her motion to set aside the verdict, the Court reaffirms its ruling.
For the foregoing reasons, the plaintiff's motion to set aside verdict and order new trial is hereby denied.
SO ORDERED.