Opinion
(AC 18305)
The plaintiff, who had been injured in a motor vehicle accident while riding as a passenger in a vehicle driven by her husband, sought damages from the defendant, the operator of the other vehicle. The jury returned a verdict for the defendant, and the trial court rendered judgment thereon, from which the plaintiff appealed to this court. Held that the trial court improperly overruled the plaintiff's objection to the defendant's closing argument and denied her request for a curative instruction after defense counsel referred to the plaintiff's failure to call her husband as a witness despite that court's denial of the defendant's request for a missing witness instruction; accordingly, because liability was contested and the jury may have improperly drawn an adverse inference, the judgment of the trial court was reversed.
Submitted on briefs September 15, 1999
Officially released December 28, 1999
Action to recover damages for personal injuries sustained as a result of the defendant's alleged negligence, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Moran, J.; verdict and judgment for the defendant, from which the plaintiff appealed and the defendant cross appealed to this court. Reversed; new trial.
William S. Palmieri filed a brief for the appellant-appellee (plaintiff).
Cynthia A. Watts filed a brief for the appellee-appellant (defendant).
Opinion
The plaintiff, Jane Krupien, appeals from the trial court's judgment rendered for the defendant, Pryia Rai, after a jury trial. The plaintiff brought this action alleging that she sustained personal injuries when the car in which she was a passenger was struck by a car operated by the defendant. On appeal, the plaintiff claims that the court improperly overruled her objection to a portion of the defendant's closing argument and failed to give a curative instruction to the jury concerning the argument. We reverse the judgment of the trial court.
The defendant filed a cross appeal in this case, arguing that the trial court should have given a missing witness charge to the jury under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). Technically, however, his claim is not properly part of a cross appeal because he was not aggrieved by the judgment of the trial court. See Practice Book § 61-8. Further, the defendant's claim cannot be treated as an adverse ruling in the event that a new trial is awarded pursuant to Practice Book § 63-4(a)(1)(B) because the legislature has abolished the use of the missing witness charge in civil cases. See Public Acts 1998, No. 98-50. See footnote 2 of this opinion. We therefore address only the plaintiff's claim on appeal and dismiss the defendant's cross appeal.
The following facts are relevant to this appeal. On August 3, 1991, the plaintiff was a passenger in a vehicle driven by her husband on Route 5 in North Haven. The plaintiff's vehicle was struck by a vehicle driven by the defendant. The plaintiff alleged that the defendant was stopped at a stop sign on an intersecting street and then entered the stream of traffic on Route 5 and struck the front passenger side of the Krupien vehicle. The plaintiff contended that her injuries were caused by the defendant's negligence.
The plaintiff and the defendant testified at trial. The plaintiff, however, the did not call her husband to testify. The defendant requested that the court give the jury a missing witness charge under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court denied the request.
The rule set forth in Secondino provides: "The 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 have been unfavorable to the party's cause." (Internal quotation marks omitted.) Secondino v. New Haven Gas Co., supra, 147 Conn. 675. The trial underlying this appeal was held in March, 1998. The legislature abolished the Secondino rule in civil cases, effective October 1, 1998. See Public Acts 1998, No. 98-50. This legislation, however, does not affect our decision in this appeal.
During closing argument, the defendant's counsel made express reference to the plaintiff's failure to call her husband to testify despite the trial court's denial of the Secondino charge. The plaintiff immediately objected and requested that the court give the jury a curative instruction. The court, however, overruled the objection and denied the plaintiff's request. The jury returned a verdict for the defendant. This appeal followed.
Counsel for the defendant stated: "Mrs. Krupien also stated that she did not make a claim against her husband, which would make you think that . . . she considered that he had no fault in this, yet, she chose not to put him on the stand."
The trial court judge stated, "I will, in my instructions to the jury, indicate to the jury that these are closing remarks only, they are not evidence, nor are they testimony."
It is well established that the party seeking a Secondino charge must prove that the witness is available and is a witness that the opposing party would naturally produce. Secondino v. New Haven Gas Co., supra, 147 Conn. 675. A party must seek and obtain an advance ruling from the trial court before arguing to the jury that an unfavorable inference should be drawn from the absence of a witness at trial. See State v. Clark, 48 Conn. App. 812, 831, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998). "Unless [a] party fulfills the requirements of a Secondino charge . . . he will not be allowed to argue it to the jury in any form, full or `watered down.'" (Citation omitted.) State v. Charlton, 30 Conn. App. 359, 370-71, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). The defendant's request for a missing witness charge was denied by the trial court. Defense counsel's remarks in closing argument were therefore clearly improper.
The defendant contends that even if the defense counsel's remarks were improper and should have been stricken, the error was harmless. We do not agree.
In this case, liability was not conceded. Both the plaintiff and the defendant testified, and they disagreed about how the accident happened. No other witnesses to the accident testified. We conclude that in rendering a verdict for the defendant, the jury may have drawn an adverse inference from the plaintiff's failure to call her husband to testify as a result of defense counsel's improper remarks. Thus, we cannot say that the error in this case was harmless.