The defendant Jeffrey M. Mignone
On January 17, 1997, the jury returned a verdict as to liability only, finding that the defendant, Jeffrey M. Mignone, was the hit-and-run driver who had struck
The defendant first claims that the trial court improperly granted the plaintiffs motion to bifurcate the trial as to liability and damages. The defendant argues that the bifurcation substantially prejudiced his ability to present a defense, including the cross-examination of the plaintiff, and thereby denied him a fair and impartial trial. In response, the plaintiff argues that the trial court's decision to bifurcate was supported by the record, did not prejudice the defendant and, accordingly, that court did not abuse its discretion. We agree with the plaintiff.
Prior to trial, the plaintiff requested that the trial be bifurcated as to liability and damages in an effort to avoid unnecessary costs. The costs that the plaintiff sought to avoid were associated with the plaintiffs treating physician and expert witness; the attendant costs of bringing him to Stamford from Kentucky would be approximately $10,000. The plaintiff argued that if the jury failed to find liability, testimony related to damages would be unnecessary. The plaintiff argued that because liability was a "hotly" contested issue and the expense of the key witness related to damages was great, it would be in the plaintiffs economic interest for the case to be bifurcated as to liability and damages. The trial court denied that motion on December 17, 1996.
The defendant responded, stating that he felt the circumstances had not changed so substantially
The trial court requested that the defendant cite specific facts that he would be precluded from introducing as impeachment evidence if the motion for bifurcation were granted. The defendant stated that he wanted to bring in evidence that tended to show that the plaintiff had made five other unrelated claims of similar injuries, which information would affect his overall credibility. The defendant argued that this information clearly related to damages and not liability; however, the jury was entitled to a complete picture of the plaintiffs veracity.
On Tuesday, January 14, 1997, the trial court granted the plaintiffs renewed motion to bifurcate pursuant to General Statutes § 52-205
The trial court ultimately ruled that bifurcation was appropriate at that stage of the proceedings because it was (1) in the interest of conserving the time and energy of the court and the jury, (2) the plaintiff had been prejudiced financially due to the delay and bifurcation would be economical, and (3) the defendant did not present a cognizable argument to persuade the court that the proper cross-examination of the plaintiff on liability would be prejudiced by bifurcation. The trial court and the parties agreed that, due to the change in course, the jury should be informed of the bifurcation. Accordingly, the trial court instructed the jury, without objection, that it had "decided to separate the issue of liability in this case from the issue of damages."
"Bifurcation of trial proceedings lies solely within the discretion of the trial court; see Day v. General Electric Credit Corp., 15 Conn.App. 677, 689, 546 A.2d 315, cert. denied, 209 Conn. 819 , 551 A.2d 755 (1988); In re Jose C., 11 Conn.App. 507, 508, 527 A.2d 1239 (1987); and appellate review is limited to a determination of whether that discretion has been abused. See Swenson v. Sawoska, 18 Conn.App. 597, 601, 559 A.2d 1153 (1989), affd, 215 Conn. 148, 575 A.2d 206 (1990).
"The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. Vichare v. Ambac, Inc., 106 F.3d 457, 466 (2d Cir. 1996). Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. See Morse/Diesel, Inc. v. Fidelity & Deposit Co. of Maryland, 763 F. Sup. 28, 35 (S.D.N.Y.), modified in part on other grounds, 768 F. Sup. 115 (S.D.N.Y. 1991)." Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243 Conn. 401, 423-24, 703 A.2d 1132 (1997).
We conclude that the trial court acted within its discretion when it determined that under the changed circumstances, judicial efficiency would be best served by bifurcating the trial. A review of the record and arguments of the parties does not lead us to conclude that the ruling of the trial court was made on untenable grounds. To the contrary, the record amply supports the trial court's granting of the motion to bifurcate, and the defendant failed to demonstrate resulting prejudice either at trial or on appeal. Therefore, the trial court did not abuse its discretion in granting the motion to bifurcate the trial.
The defendant next claims that the trial court improperly excluded the testimony of Barbara Farrington and Tracey Mignone. Tracey Mignone, the defendant's fiancee at the time of the accident, and Farrington, her mother, were going to testify that the defendant came to their home on the night of the accident. Upon his arrival, the defendant allegedly told Farrington and Mignone that he had seen an accident in which a woman driving a red car had hit a pedestrian, stopped her car
On January 16, 1997, the trial court heard argument from counsel regarding portions of Farrington's videotaped deposition. The plaintiff objected to Farrington's testimony regarding what the defendant said to her on the ground that it was hearsay. In response, the defendant argued that Farrington's testimony provided a basis for the defendant's actions, that the statement had already been admitted into evidence when the defendant said it, and that it went to his state of mind. The trial court ruled that it was hearsay and therefore inadmissible.
On January 17, 1997, the defendant called Tracey Mignone to the stand, where she was asked what the defendant had told her when he arrived at her home. The plaintiff objected on the ground that the witness' response would constitute hearsay. The defendant argued that it should be admissible just as Farrington's statement should have been and, in the alternative, that the statement should fall within the spontaneous utterance exception to the hearsay rule. The trial court sustained the objection, ruling that the statement was not a spontaneous utterance.
Despite the defendant's claim, the statement offered did not show the defendant's state of mind nor was his state of mind relevant. "[O]ut-of-court statements to a person are admissible to show his state of mind where his mental state is relevant.... State v. Ruffin, 206 Conn. 678, 683, 539 A.2d 144 (1988)." (Emphasis in original; internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 233, 613 A.2d 224 (1992).
The defendant, however, failed to present any of these grounds for admission to the trial court. As a preliminary matter, we remind the defendant that "[o]ur rules already provide that we are not required to consider any claim that was not properly preserved in the
The defendant states in his reply brief that "[s]ince everyone understood that Mr. Mignone's credibility was at issue, this exception also provides a basis for reversal." The defendant has failed to point to that portion of the record where the testimony of Farrington and Mignone was offered as a means of rehabilitating the credibility of the defendant. We agree that "[r]eviewability under [§ 60-5] is preserved `without a further objection or exception provided that the grounds for such objection and exception, and the ruling thereon as previously articulated remain the same.'" Borkowski v. Sacheti, 43 Conn.App. 294, 319, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). Under these circumstances, however, we decline to equate the spontaneous utterance exception to the hearsay rule with offering the statements to rehabilitate the credibility of the defendant.
Furthermore, neither the trial court nor the plaintiff was alerted to the possibility that the ground of the defendant's objection was anything other than state of mind or spontaneous utterance. The plaintiff, therefore, did not have the opportunity to address, nor did the court rule on, other grounds. To review the defendant's claim, articulated for the first time on appeal, would result in a trial by ambuscade of the trial judge. See State v. Newsome, 238 Conn. 588, 597, 682 A.2d 972 (1996); State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995). Therefore, we decline to review the exclusion of the statements on the alternative grounds proposed by the defendant in his reply brief.
The final claim of the defendant is that this court should reconsider its decision in O'Shea v. Mignone, 35 Conn.App. 828, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994). We decline to do so.
To understand the claims of the parties concerning this issue, the additional information contained in O'Shea v. Mignone, supra, 35 Conn.App. 828, is necessary. At the first trial of this matter, "[w]hile cross-examining Sergeant Richard Taracka, the defendants attempted to enter into evidence the police report of the Greenwich police department as an exhibit. The plaintiff objected to two statements contained in the police report on the ground that they were inadmissible hearsay not within an exception. Both statements subsequently were admitted into evidence...." Id., 831-32.
"During Taracka's testimony, the defendants attempted to introduce this statement by reading the portion of the police report that contained the statement. Taracka testified that William P. Connors, a special lieutenant with the Greenwich police department, was the unidentified witness. Outside the presence of the jury, Connors testified that he was not present at the scene of the accident nor had he given any statement to the police regarding the accident. Taracka then testified that he was not 100 percent positive that Connors was in fact the unidentified witness. He said that two days after the accident, at 7:30 a.m., he went to State Line Tire Company to inquire about a red car parked in front of the building. While there, he spoke with the
The first trial court admitted the statement, ruling that "Connors was under a duty to relate information to the police." Id., 836. This court reversed that ruling, finding that "Connors testified that he was certain he had never given such a statement to the police, and Taracka conceded that he wasn't certain that it was in fact Connors who gave him the statement. Because the identity of the witness could not be determined, the trial court should not have found that the witness had a duty to report such information." Id., 837. Absent identification, the statement could not be admitted as a business record exception or under the catch-all exception to the hearsay rule. Id. The first trial resulted in a defendant's verdict; however, it was reversed and the case remanded for a new trial. Thereafter, the defendant's motion for reargument was denied by this court on October 5, 1994, and the defendant's petition for certification to appeal from our decision in O'Shea v. Mignone, supra, 35 Conn.App. 828, to the Supreme Court was also denied.
In the second trial, the defendant called Connors to the stand, outside the presence of the jury, to make an offer of proof as to Connors' testimony. During the offer of proof, the defendant asked if Connors had given a statement to Taracka to which he replied: "Not to my knowledge, no." On cross-examination, Connors testified that on the date of the accident, he was working in West Haven. Thereafter, the defendant called Richard
The trial court ruled that the statement was inadmissible because Taracka could not testify with certainty that the statement was given to him by Connors and because Connors' own testimony indicated that not only had he not given the statement, but because of his employment he could not have witnessed the accident.
On appeal, the defendant agrees that this court's decision in O'Shea v. Mignone, supra, 35 Conn.App. 828, was binding on the trial court in the second trial, but he argues that the prior decision is not res judicata concerning the same issue presented on appeal.
"[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917); 5 Am. Jur. 2d, Appeal and Error § 744." Dacey
We hold that the trial court, relying on the prior decision of this court, as well as the circumstances currently before it, properly ruled that the statement in the police report was inadmissible hearsay. We find that this ruling was correct, and because there was no new or overriding circumstance that would cause us to reconsider our opinion as expressed in O'Shea v. Mignone, supra, 35 Conn.App. 828, we affirm the judgment of the trial court.
The judgment is affirmed.
In this opinion the other judges concurred.
"[Defendant's Attorney]: Well, I make the same argument, that it was so close in time to the accident and I think it's part of the res gestae, and it's so close in time, I think, for reliability it would be admissible.
"[Plaintiffs Attorney]: Your Honor, I don't think it falls in the res gestae exception to the hearsay rule. Mr. Mignone by his own testimony said it took at least ten minutes to get from the Chinese restaurant to his fiancee's home, and presumably they had a conversation that lasted several minutes thereafter. A res gestae utterance is a spontaneous utterance which occurs within moments of witnessing something. It is not a prolonged type of conversation, which is what presumably Mr. and Mrs. Mignone had. What he's trying to do is bootstrap the defendant's credibility to this witness, which is not something he can do. The testimony is clearly hearsay. Your Honor properly excluded it concerning Mrs. Farrington's testimony, and I respectfully submit that the same ruling should apply with respect to the testimony of Mrs. Mignone.
"The Court: I don't think it is in the res gestae of the incident. I'm going to sustain the objection.
"[Defendant's Attorney]: Very well, Your Honor."