Opinion
No. 73-395
Decided July 30, 1974.
In personal injury action, defendant obtained jury verdict, and plaintiff appealed.
Reversed
1. TRIAL. — Statement by Witness — Plaintiff Arrested — Capacity — Influence Jury — Refusal to Grant — Mistrial — Abuse of Discretion. In personal injury action, although statement by witness that plaintiff had been arrested for rape may not have influenced jury, it had the capacity to do so; and, accordingly, the trial court abused its discretion when it refused to grant plaintiff's resulting motion for mistrial.
Appeal from the District Court of Adams County, Honorable Oyer G. Leary, Judge.
George A. Hinshaw, Irvin M. Kent, for plaintiff-appellant.
Jack D. Henderson, for defendant-appellee.
James Downing, Jr., by his next friend, brought suit against A. A. Lillibridge to recover damages for injuries which he claims to have received when the minibike he was riding crashed into a parked automobile while plaintiff was being chased by defendant's dog. Plaintiff appeals from a judgment entered on the jury verdict in favor of defendant. We reverse.
During the course of the trial, while plaintiff's attorney was cross-examining one of the defendant's witnesses, the witness twice gave unresponsive answers which were derogatory to plaintiff. Upon objection, the court instructed the jury to disregard these unresponsive volunteered remarks. As the examination proceeded, the following discussion occurred:
"Q. I want you to answer what you know, not what your husband says. Do you know if they went skating together through 1973, skating or swimming on Friday nights?
"A. They went skating on Friday nights. My daughters and my son they went and Jamie [plaintiff] they went skating on Friday nights out 'till December when he [plaintiff] was put in jail for rape.
"Mr. Hinshaw: Now, if your Honor please, I don't know what's wrong with this witness. I would like to be heard out of the presence of the jury.
"The Court: Mrs. Brown, we are just interested about this case. We are not interested in everybody's life history and everything else. Let's just try to be responsive to these questions. Don't volunteer anything.
"Mr. Hinshaw: If your Honor please may I approach the bench?
"The Court: You go ahead.
"Mr Hinshaw: May I reserve any motion and have the Court instruct this witness that she is to answer the question and not try to add something. Her hostility is showing so much and I just can't fathom a witness acting like this.
"A. I'm sorry if I answered wrong.
"The Court: You just listen carefully to the question and respond directly to the question and not add anything and we will be all right."
Later plaintiff moved for a mistrial which the court denied. In denying a subsequent motion for new trial, the court took the position that it had told the jury to disregard the rape statement but that even if the jury had not been so instructed, plaintiff's attorney had failed to request that the jury be cautioned and had not tendered a cautioning instruction. We have searched the record and find no statement by the court advising the jury to disregard the rape statement. Moreover, when the statement was first made, the court foreclosed plaintiff from taking the matter up with the court out of the presence of the jury.
As stated in Butters v. Dee Wann, 147 Colo. 352, 363 P.2d 494:
"'It is well settled that the test for determining whether a new trial will be granted because of . . . the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. The stringency of this rule is grounded upon the necessity of keeping the administration of justice pure and free from all suspicion of corrupting practices.'"
[1] The above case deals with misconduct of a jury but its language is equally applicable to the case at bar. Plaintiff is entitled to have his case tried before a jury that is not prejudiced against him because a witness volunteered the statement that plaintiff had been arrested for rape. This statement may not have influenced the jury, but it had the capacity to do so; and, accordingly, the trial court abused its discretion when it refused to grant the motion for mistrial.
We have considered the other grounds of error claimed by plaintiff and find them to be without merit.
Judgment reversed and cause remanded for a new trial.
JUDGE ENOCH and JUDGE RULAND concur.