Opinion
C.A. No. 04C-02-041-FSS (E-FILED).
Submitted: February 14, 2006.
Decided: June 30, 2006.
Upon Defendant's Motion for Mistrial or New Trial — DENIED.
Gary S. Nitsche, Esquire Weik, Nitsche, Dougherty Componovo Wilmington, DE.
Michael A. Pedicone, Esquire Michael A. Pedicone, P.A. Wilmington, DE.
Dear Counsel:
As you recall, the jury returned a $500,000 Plaintiffs' verdict, including $225,000 in punitive damages, on January 11, 2006. Defendant then filed a timely motion for mistrial or, alternatively, a new trial. The post-trial motion stems from a comment made by Plaintiffs' counsel during his opening statement.
Plaintiffs' counsel told the jury that Defendant crashed his vehicle into Mrs. Crawford's parked automobile while Defendant was running from the police, after trying to buy drugs. In pretrial discussions the court had instructed Plaintiffs' counsel that he could tell the jury that Defendant was running from the police, but he was to avoid mentioning drugs until the court had an opportunity to hear testimony.
As soon as Plaintiffs' counsel mentioned drugs to the jury, Defendant moved for a mistrial and the court instructed Plaintiffs' counsel not to mention drugs again. Nevertheless, according to Defendant, the damage was done. In effect, Defendant's premise is the jury was so inflamed by counsel's reference to drugs that it was overcome by sympathy, passion or prejudice. That, according to Defendant, accounts for the large Plaintiffs' verdict.
I.
Defendant relies heavily on the court's pretrial conference discussion concerning whether Plaintiffs were allowed to mention Defendant's alleged motive for running from the police. Defendant's recapitulation of the court's comments is largely accurate. The court does not recall telling Plaintiffs' counsel flatly that he was not to mention drugs in his opening statement. Defendant's recapitulation, however, does not offer enough about the comments' context.
In the pretrial stipulation, Plaintiffs alleged that the collision occurred "after [Defendant attempted] to purchase drugs and was being chased by the Wilmington police." In response, Defendant indicated, without elaborating, that he "does not stipulate to Plaintiffs' statement." Similarly, instead of offering a counter-statement, Defendant merely provided, "Defendant does not understand Plaintiffs' statement and does not admit any facts." Defendant raised his concern during the December 8, 2005 pretrial conference and, during the informal give-and-take, the court tentatively addressed the issue.
A few days after the conference, Defendant submitted a letter "to object to all of plaintiffs['] trial exhibits as untimely." Among other things, Defendant objected to "any reference to police chase or running from the police." Defendant's letter did not memorialize the cautious approach mentioned by the court at the pretrial conference. In response, by letter dated December 30, 2005, Plaintiffs reiterated their view that "references to speed, how the collision occurred and running from the police are extremely relevant to the facts of this case and the issue of punitive damages. . . ."
The point is that Defendant did not approach the pretrial stipulation in good faith. Until the moment of trial, Defendant conceded nothing. This was despite overwhelming evidence that he caused a serious, personal injury collision while recklessly fleeing from the police. Thus, the court agrees that it expected Plaintiffs to approach the issue more cautiously. Defendant's pretrial posturing, however, was confusing and it helps account for what happened during Plaintiffs' opening statement.
II.
Assuming, without deciding, that Plaintiffs went too far in their opening, the court finds it harmless. As mentioned, the evidence left no reasonable doubt that Defendant was fleeing from the police, at high speed, on a city street. He was a terrible crash about to happen. Fearing a disaster, the pursuing officer broke-off the chase. But Defendant barreled on, losing control moments later and slamming into Mrs. Crawford. The jury heard the pursuing officer identify himself as a vice officer, and it heard that the officer was on-duty the day of the accident. Nevertheless, no one testified that Defendant actually was trying to buy drugs before the chase.
The fact is, the jury heard that the crash happened because Defendant ran from the police while he was on probation and without a driver's license. The jury also heard that the crash occurred after the police had given up the chase, frightened by Defendant's dangerous driving. Those facts easily explain the verdict and they overwhelm the innuendo about Defendant's drug activity. It is most likely that the jury hardly cared why Defendant behaved so wantonly. Plaintiffs' unproved allegation about drugs was merely incidental to the damning evidence. The court is satisfied that another jury would reach a similar verdict to the one here, even if the court sterilized the record as Defendant would prefer.
III.
For the foregoing reasons, Defendant's Motion for Mistrial or New Trial is DENIED. By separate order, the court will grant Plaintiffs' unopposed, amended Motion for Costs.