Opinion
No. CV 99 0430858S
February 24, 2004
MEMORANDUM OF DECISION RE MOTION IN LIMINE
Pursuant to Practice Book § 15-3, the defendant New Haven Board of Education has filed a motion in limine requesting the court to bar any viewing of specific photographs and/or videotapes of the plaintiff in this matter. The defendant anticipates that the plaintiff is planning to show the jury photographs and videotapes of the minor plaintiff in various state of undress and performing sexual activities, as evidence of the defendant Antonio Lasaga's sexual assaults on the plaintiff. The defendant Board of Education argues that the prejudice to the Board of Education if the photographs and videotapes are shown to the jury, far outweighs any probative value of this evidence.
Sec. 15-3. Motion in Limine
The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. If a case has not yet been assigned for trial, a judicial authority may, for good cause shown, entertain the motion. Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. All interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.
The New Haven Board of Education does not deny that the defendant Lasaga sexually assaulted the plaintiff. However, it feels that these videotapes and photographs would unduly arouse the jury's emotions, hostility and sympathy, and that any reasonable person would have undue sympathy for the plaintiff and increased hostility toward the defendant Lasaga. This would distract the jury from the main issue of determining the Board of Education's liability in this matter, as a result of alleged negligence. See State v. Robertson, 254 Conn. 739, 757 (2000).
The matter is a lawsuit involving allegations of sexual abuse of a minor by defendant Lasaga, a former professor at Yale University. It is alleged that Lasaga participated as a volunteer mentor in a program for students run by the New Haven school system. The minor plaintiff alleges that he first met Lasaga, in the early 1990s while the plaintiff was a participant in the mentoring program and Lasaga was providing mentoring services. The plaintiff alleges that in the course of the mentoring program, run by the defendant Board of Education, the plaintiff was subjected to repeated incidents of improper sexual contact by Lasaga. Some of these incidents of improper sexual contact were photographed and videotaped by Lasaga.
As a result of criminal investigations and arrests of Lasaga by both federal and State of Connecticut law enforcement authorities photographs and videotapes of the plaintiff and the defendant Lasaga engaged in sexual activities were seized by law enforcement authorities. The defendant Lasaga was convicted and sentenced to incarceration by federal and state courts and remains incarcerated at present. Lasaga has failed to file an appearance in the present matter and has been defaulted for said failure to appear. Additionally, Lasaga has not filed any notice of his intent to defend or to contradict the allegations of the plaintiff at the hearing in damages to the jury pursuant to Practice Book § 17-34. The court, additionally, has no knowledge of any intent by Lasaga to offer evidence to reduce any damages claimed, pursuant to Practice Book § 17-40. Lastly, there are no motions pending to open or set aside the default for failure to appear, which has previously been filed against defendant Lasaga.
"The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect." (Internal quotation marks omitted.) Ramos v. Ramos, 80 Conn. App. 276, 280-81 (2003); Olkowski v. Dew, 48 Conn. App. 864, 871, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998). "This court has recognized that `[e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging . . . All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.'" (Citation omitted; emphasis in original.) Ramos v. Ramos, supra at 281, quoting, Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990). "In determining whether evidence should be admitted, the primary inquiry is whether it is relevant to a material issue in the case." Id. "While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue . . ." Id. at 281-82; Chouinard v. Marjani, supra, 21 Conn. App. 575.
Our Appellate Court in State v. Gombert, 80 Conn. App. 477, 488-89 (2003) set forth the following regarding the relevancy of proposed evidence and its probative value versus its prejudicial impact:
Connecticut Code of Evidence § 4-1 provides in relevant part that `[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. As it is used in the code, relevance represents two distinct concepts: Probative value and materiality. Conn. Code Evid. § 4-1, commentary. Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence. State v. Gibson, 75 Conn. App. 103, 110, 815 A.2d 172, cert. granted on other grounds, 263 Conn. 906, 819 A.2d 840 (2003). "[I]t is not necessary that the evidence, by itself, conclusively establish the fact for which it is offered or render the fact more probable than not." Conn. Code Evid. § 4-1, commentary. In contrast, materiality "turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law." (Emphasis added.) Id. If evidence is relevant and material, then it may be admissible. See id., § 4-2.
"When determining admissibility, however, relevance and materiality are not the only factors. "Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Id., § 4-3.
In State v. Ferraiuolo, 80 Conn. App. 521, 527 (2003), the Appellate Court addressed the issue of disturbing photographic evidence, declaring that Connecticut courts have consistently held that photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. The court also stated that there is no requirement that a potentially inflammatory photograph be essential to a case in order for it to be admissible. "[T]he test for determining the admissibility of the challenged evidence is relevancy and not necessity." The court in State v. Ferraiuolo, supra, continued further, declaring the principle that a party having the burden of proof is not to be denied the right to prove every essential element of its case by the most convincing evidence it is able to produce, even if the evidence is of a "gruesome character." See also, State v. Satchwell, 244 Conn. 547, 574-75, 710 A.2d 1348 (1998); C. Tait, Connecticut Evidence (3d Ed. 2001) § 11.17.1, p. 816; see generally annot., 37 A.L.R.5th 515 (1996). "A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury . . . The determination of the trial court will not be disturbed unless the trial court has abused its discretion." (Citations omitted.) State v. Ferraiuolo, supra, 80 Conn. App. 527; State v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993); see also State v. Walker, 206 Conn. 300, 314-15, 537 A.2d 1021 (1988); State v. Sanchez, 69 Conn. App. 576, 594, 795 A.2d 597 (2002). With the foregoing legal principles and standard of review in mind, this court now address the specifics of the defendant's claim.
The defendant Board of Education originally sought bifurcation of the issues of liability and damages because of the sensitive nature of the lawsuit; the likelihood that the plaintiff will seek to introduce videotapes and photographs of the sexual misconduct by Lasaga; and that if some of the photographs and videotapes are admitted into evidence for purposes of the damages phase of evidence, it is not probative and is otherwise unduly prejudicial regarding the issue of the Board of Education's liability. The Board of Education perceives a strong possibility that the jury may find sympathy for the minor plaintiff and "the fact that the defendant has deep pockets," rather than base its decision on the probative evidence. The court denied bifurcation in a written memorandum of decision filed February 23, 2004.
The plaintiff's allegations as to the defendant Board of Education are that the Board was required to screen Lasaga before accepting him as a volunteer mentor and that the Board failed to adequately do so. Further, that after an improper relationship developed between the minor plaintiff and Lasaga, a school social worker was advised of some disagreement between the plaintiff's mother and Lasaga. Nonetheless, the social worker encouraged the mother to allow continued mentoring of the plaintiff by Lasaga and failed to report alleged suspicions of misconduct to authorities.
The defendant Board of Education has filed special defenses of sovereign immunity, common-law immunity, statutory immunity and contributory-comparative negligence.
The plaintiff in opposing the motion in limine argues that any prejudicial effect of videotape and photographic evidence of sexual misconduct taken by Lasaga is outweighed by the jury's need to view the sexual conduct in light of the defendant Board of Education's special defense of contributory and/or comparative negligence by the plaintiff. The plaintiff claims that the videotapes will show the minor plaintiff posturing himself in pornographic positions at the direction of defendant Lasaga, and that a review of this evidence by the jury will show that there was no consent by the plaintiff which can be inferred from such conduct. The videotape and photographs are direct evidence of the plaintiff's lack of consent and counter the Board of Education's claim of contributory and/or comparative negligence. In addition, the plaintiff claims that this evidence assists in establishing the Board of Education's duty to the minor plaintiff and the level of reasonable care required by the Board of Education in assigning volunteer mentors to minor students, plaintiff among them. In situations of great danger, a larger amount of care is required to constitute reasonable care. The court agrees with the arguments of the plaintiff.
It is noted that during jury voir dire, counsel for both the defendant Board of Education and the plaintiff have had the opportunity to ask prospective jurors about the role sympathy may play in the prospective juror's deliberations, and whether the prospective juror would be willing to sit as a juror. During the voir dire process counsel for the plaintiff and the Board of Education agreed to a joint introduction statement, wherein the voir dire panel members were informed that the plaintiff was claiming that the defendant Lasaga sexually assaulted the plaintiff and that the Board of Education failed to adequately perform a background check of Lasaga before introducing him to the plaintiff. They also informed the panel that the plaintiff additionally claims that the Board of Education encouraged the plaintiff's mother to continue her son under Lasaga's mentoring. Counsel for the plaintiff and the defendant also sought the advice of the court during voir dire to allow questions relating to the possibility of graphic and disturbing evidence relating to the sexual misconduct, so as to inquire whether this type of evidence would lead any juror to be uncomfortable to the point where it would effect their ability to be fair and impartial.
The court finds that the possible prejudice to the defendant in having the photographs and videotapes shown to the jury is outweighed by the need to allow the plaintiff to present evidence to counter the defendant Board of Education's special defense of contributory and/or comparative negligence and to allow the plaintiff to establish the Board's duty to the plaintiff, as well as the requisite level of reasonable care. The defendant has the opportunity to present the court with requests to charge regarding the addressing the issues relating to the photographs and videotapes and their potential for having any effect upon the jury's sympathy and bias. Accordingly, for the foregoing reasons the motion to defendant New Haven Board of Education's motion in limine dated February 19, 2004, is denied.
THE COURT
By: Arnold, J.