Petition for Writ of Certiorari — Menon v. Dux

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( FILED

O4 44) SEP2 7 208

QFFICE OF THE CLERK

/) Supreme Court, U.S.

In The

SUPREME COURT OF THE UNITED STATES

HEMA MENON,

Petitioner,

ANN DUX,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Connecticut

PETITION FOR WRIT OF CERTIORARI

HEMA MENON

Petitioner

2 Spitzer Court

Norwalk, CT 06854

(203) 852-8168

QUESTIONS PRESENTED

Does the exclusion of minorities and persons of color

from the jury based upon race, though it gives an

appearance the exclusion was based upon facially neutral

grounds and upon factors apart from race, deprives a

racial minority of equal protection of the laws guaranteed

by the Fourteenth Amendment of the Constitution when it

exerts to discriminate against the minority?

Could a police officer be considered a reliable witness

to the accident and his testimony be given greater weight

over the testimony of a witness to the accident when he

had improperly exercised his authority depriving one of

one’s due process rights and equal rights protection?

. Did the Trial Court, the Appellate Court, and the

Connecticut Supreme Court violate the petitioner’s

guaranteed nights of due process and equal protection by

deviating from the accepted standard of proof, by

disregarding the rules of evidence, by basing the facts

upon no probative value, and by accepting testimony

deficient in any relevant evidence as to the essential

element of the case in the light of the evidence proffered

by the petitioner?

TABLE OF CONTENTS

Page

Questions Prosentel.......::..30:s<sssavsesscaeedaenteetaaea i

Table of AmtROPMRGS. ... 6:<<0:2:0i0ccavisyneussieesenseleeel iV

Table of Appendite0........ ..iccssxsticcncsdnti ae Xil

Petition for Writ of Cestieentl....«:<s000seseserseensbvanaeeaeasanees ]

Opinions and Orders B80W....«'...<:saiccsnrcuenosusaekiactauneeael l

Jurisdiction... ......<0-2sssnvrassesusueseuuenenesaenenaeneenaeeee Fs

Constitutional and Statutory Provisions Involved.............. 2

Statement of the Case. .....::s:ssvsesesussssniaaenan ieee 2

A. Procedural Haghoty.. ... ..<0issssssassswsvackenate ead 2

B. Proceedings in the Trial COWmt....<cxcoecenesssuassssusyussaps a

C. Proceedings in the Appellate Court........................05 6

D. Proceedings in the Connecticut Supreme Court............ 7

E. Factual Backgvount.........0::ssssssessssceuen eee 10

Police Accident Report of 2/20/96.................c0ceeceee 10

Narrative Supplement of 3/7/96.................ceceeeeeeees 12

Reasons for Granting the Petition.......................ceeeeeee 12

I. The exclusion of minorities and persons of color

from the jury based upon race, though it gives an

ili

appearance the exclusion was based upon facially

neutral grounds and upon factors apart from race,

deprives a racial minority of equal protection of the

laws guaranteed by the Fourteenth Amendment of

the Constitution when it exerts to discriminate

ee»

II. A police officer should not be considered a

reliable witness to the accident and his testimony

be given greater weight than the testimony of the

witness to the accident when he had improperly

exercised his authority depriving one of due process

rights and equal rights protection........................... 15

III. The Trial Court, the Appellate Court, and the

Connecticut Supreme Court violated the petitioner’s

guaranteed rights of due process and equal protection

by deviating from the accepted standard of proof, by

disregarding the rules of evidence, by basing the facts

upon no probative value, and by accepting testimony

deficient in any relevant evidence as to the essential

element of the case in the light of the evidence

proffered by the petitioner.............................0.000 19

Tee nea oc cans dconscesanc cost

Appendix A

Orders of the Connecticut Supreme Court.............. App. 1-3

Appendix B

Opinions of the Appellate Court....................... App. 4-13

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Way, 32 Conn. 160 (1864)............... 9, 10, 27, 28

Anderson v. Atchison, T. & S. T. Ry. Co., 333

UNNI satcca thnsahaakiasackemianiecesnennihceacacen 28

Ardoline v. Keegan, 140 Conn. 522 (1954).................048 24

Atchison, Topeka & Santa Fe Ry. Co. v Hicks,

OO Ee I NEW ain shntkncdaces cesdscesseaseeven 20

Avery v. Georgia, 345 U.S. 559 (1953)...........sseeceeeeeeee 14

Barr v. Goldome Realty Credit Corp., 46 P.3d

Pe Ce BER cecncctvcknnnnnsdecsneirnavevisexssteun 8, 10

Barrett v. Hebrew Home & Hospital, Inc., 73

Conn. App. 327, 807 A.2d 1075 (2002)..................... 21

Batson v. Kentucky, 476 U.S. 79 (1986).........222200c00000+ 15

Berndston v. Annino, 177 Conn. 41, 411 A.2d

aictpisstskeraccdahucasuet Tikddanpunsdaveureaed 17

BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986)............... 18

Bush v. Kentucky, 107 U.S. 110 (1883).....................044 13

Cahill v. Board of Education, 187 Conn. 94,

Pe Fe EF CI cb ocainsyirvdunsnscsennkhuneetaennaades 24

Caldwell v. Mississippi, 472 U.S. 320 (1985).............204 29

TABLE OF AUTHORITIES

Page

Cases:

Carter v. State of Texas, 177 U.S. 442 (1990)............+ 13

City of Houston, Texas v. Hill, 482 U.S. 451

CFD ec civcutviscexsnesvancnsavteneontemavsrtsnsaiassentatuactnats 16

Daigle v. United States, 181 F.2d 311

Rt CO, TOT ia cicnee cnt cocascvonenncatdatosacsacnstanvasnsem 25

Daily v. New Britain Machine Co., 200 Conn.

SED, SUZ AB Bs Ci avicsnse ccissccosssacvacrcaxcxacsvencacs 9

DeSena v. Waterbury, 249 Conn. 63, 731 A.2d

FEE ei is ciccissnancudsensssisnestnsvapecersmeener deaapennny 8

Ducan y. Louisiana, 391 U.S. 145, 88 S. Ct. 1444,

mm # FE Gt. | | errr rrr errr 14

Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664,

SE, TE, Be FI a a icneccasctiveunsssncdvoscxanevctes 13, 14

Edmonson vy. Leesville Concrete Co., 500 U.S.

614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991)........... 13

Elliot v. Sears, Roebuck & Co., 30 Conn. App.

GEA CIGTID. oo scciisecciccccccseccacsvesccpeessnnesssecsuncetaas 8, 22

Fonck v. Stratford, 24 Conn. 1, 3, 584 A.2d

SIGS IDG ED vctncncvcasncessesviwnsscncosnestanqassesssansente 23

Fusso v. Russo, 156 Conn. 230 (1968).............-0+20e00 8, 22

TABLE OF AUTHORITIES

Page

Cases:

Gardner v. Florida, 430 U.S. 349

ERS E Fish ciucarenecextuntecuiansesktsinw Ackiskcndeeneaeel eee 23

General Motors Acceptance Corporation v. Capitol

Garage, Inc., 154 Conn. 593, 227 A.2d 548

ERT Bis iscccutcidcticeaveainassre penance ae aan 16

Glasser v. United States, 315 U.S. 60 (1942)................. 14

Gulliford v. Pierce County, 136 F.3d 1345

CRUSE: Ss dcdnkae uavesssackcaes aetna 16

Gutowski v. New Britain, 165 Conn. 50, 327

PDE DOR Ci iokesindndtiiasvanetendsaterdnaensrmenreaann 19

Harris v. United States, 404 U.S. 1232 (1971)................ 19

Hernandez v. Texas, 347 U.S. 475 (1954).............220ceee 14

Hutchinson v. Plante,175 Conn. 1, 392 A.2d

MN GPO Sis seb cccindcuvnstantonstsareussa pice 8, 10, 27

In re Japanese Electronic Products Antitrust

Litigation, 631 F.2d 1069 (3rd Cir. 1980)................... 24

In re Japanese Electronic Products Antitrust

Litigation, 723 F.2d 238 (3rd Cir. 1983),

rev’d on other grounds, Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp.,

BTS OB. FF, FORD. CL DISS Ces ivccsiscrveusnenseses 19

vii

TABLE OF AUTHORITIES

Page

Cases:

Johnson v. Florida, 391 U.S. 596 (1968)..............0cceeeeee 19

Jones v. United States, 175 F.2d 544

SONNY MIO acducuindic beviwasaniicasecdackiaseeaimaicatinenin 25

Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999)................. 17

Lazarov v. United States, 225 F.2d 319

PINs IPI oak dens tanec hovnedbuesbccciasseaendesneecues 25

Lee v. Baltimore Hotel Co., 345 Mo. 458,

Pe eestor unsipsxecescuctvanivenccesseukbaxts 14

Lessee v. Hynson, 1 H. & McH. 84 (Md. Prov. Ct.

EPP tcsssskicentieinch<daenacabensubaneetncte debiniareueins 19

Lewis v. City of New Orleans, 415 U.S. 130

Se unk sxcanavadardindcksicksieseetaleateanseecncitsatoneties 16

Liimatta v. Vest, 45 P.3d 310 (Alaska 2002)........... 8, 10, 28

Machetti v. Linahan, 679 F.2d 236 (1982)............000008 14

Mather v. Griffin Hospital, 207 Conn. 125,

SED RF Ge Cini ves ii vas enracainictetnincterersnatond 9

Menon v. Dux, 81 Conn. App. 167, 838 A.2d

Pe RO scncavskaicinsikbanasanderteniesecmexi 2, 6, 7, 8, 26

Morrissey v. Brewer, 408 U.S. 471 (1972).........0ceeceeceeee 23

TABLE OF AUTHORITIES

Page

Cases:

Neal v. Delaware, 103 U.S. 370 (1881)..............00002 eee 13

Nielsen v. Kezer, 232 Conn. 65, 652 A.2d

NEG Lanacasdudwacandussiuhderscciectscasarsbancbensweds one

Norris v. State of Alabama, 294 U.S. 587 (1935).............14

Novak v. Anderson, 178 Conn. 506, 423 A.2d

SME icc sticacutuneseds Galicsuuaucedagedasaeuisibraianes 30

People v. Trevino, 39 Cal. 3d 667, 704 P.2d 719,

BEF Ces PA I Cech avsnnccncscssccsnscesqstsorenees 13

People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr.

a Oe A FE ec nicaciedéasactsecctcdedesasbeurseses 13

Piehler v. Kansas City Public Service Co., 357 Mo.

ey ek i OE cP COI a ttnccasccuscndaceccesvexssvessete 14

Pierre v. State of Louisiana, 306 U.S. 354 (1939)............ 14

Reboul v. Chalker, 27 Conn. 114 (1858).............2:0ceeeeee 19

Remmer v. United States, 205 F.2d 277

SUMMING WUE sn uaiacunssGndasdawhkousanmncevaucmnyneieesiuaial 25

Riley v. Connecticut Company, 129 Conn.

PETE catcencrdadhcccssensbcbucdssenatsiaatiecabensundeunsns 20

Ristaino v. Ross, 424 U.S. 589, 96 S. Ct. 1017,

Re ooo itescsscactenevbendis

TABLE OF AUTHORITIES

Page

Cases:

Robertson v. United States, 171 F.2d 345

as Ey Be ic nncnctacanssnvasectacsnssbentenindedaiwenntull 25

Salmon v. Dept. of Public Health & Addition

Services, 58 Conn. App. 662, 754 A.2d 828

(2000), rev’d on other grounds, 259 Conn. 288,

Fee ae 8 i idciansenssstsnisnsdesdbeniotnseesien 9,27

Seeley v. Litchfield, 49 Conn. 134 (1881)...........2.-22000 21

Sevigny v. Dibble Hollow Condominium Assn., Inc.,

76 Conn. App. 306, 819 A.2d 844 (2003)............-.-+++ 22

Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988)............. 18

Smith v. Czescel, 12 Conn. App. 558, cert. denied,

Be a Be Ce ik ceesdstrsesecicsasesesestsartnens 8, 22

Smith v. State of Texas, 311 U.S. 128

Society for Savings v. Chestnut Estates, Inc., 176

Ce, SE, SEP BAe Bc nccrnsasedetcccsensssesccsecezesens 8

State v. Dabkowski, 199 Conn. 193, 506 A.2d

PE Geet insevesctcssnneverdccsarssonccsbsaccsvebbsvecensisteens 9

State v. Evans, 165 Conn. 61, 327 A.2d 576

Pi iisnasessncwevcscivbarsdencnceunerevertescnsssbaghnsentacoceian 28

State v. Golding, 213 Conn. 233, 567 A.2d

er CD inkcensddcnnddsnssucdcsicesesvenoshesstunnseees 9, 10, 28

TABLE OF AUTHORITIES

Page

Cases:

State v. Hinckley, 198 Conn. 77, 502 A.2d

IIT ial bine scnasicddnbanadcasbbaseatiubaatneseniiesenl 8, 22

State v. Palozie, 165 Conn. 288, 334 A.2d 468

RUM chenkih ls hevhsesypeotiesnamepentnpaWsaenieaderanteaunnss 16

State v. Ward, 172 Conn. 163, 374 A.2d 168

SP itnthasibenienncssdhkaienitacasaduamnienbaiaeeneneretd 27

Strauder v. West Virginia, 100 U.S. 303

PN diabsausdiianksukaxdinchen sgeherasabebuaxseseeenail 10, 14, 15

Taylor v. Louisiana, 419 U.S. 522 (1975)...........04 9,10, 14,

Terminiello v. Chicago, 337 U.S. 1 (1949)................ 008 16

Thiel v. Southern Pacific Co., 328 U.S. 217

RES cndchavkpidcaubneuenencssntetmeantenencciaemiamebikanenned 15

Thompson vy. Louisville, 362 U.S. 199 (1960)..............06 19

United States v. Cumberland, 200 F.2d 609

Ss Si iaaccancdoncebinsscanstauicadicanssatskaisonneuon 25

United States v. Northside Realty Associates, 659

F.2d 590 (Sth Cir. 1981), rev’d, 510 F. Supp.

Fe PN is i iatincccantsccsenistcscctecnstactessanscans 13

United States v. Ward, 168 F.2d 226

ST AE) UE bnsteentsacensetinaedscevontnaeencunsiuisincieasent 25

Vachon v. New Hampshire, 414 U.S. 478 (1974)............. 19

TABLE OF AUTHORITIES

Page

Cases: ;

Walker, Inc. v. Food Machinery, 328 U.S.

FF Cs hacks cnannnsdninnncnsnkatenaaeehacenasnebenneianeen 24

Weisgram v. Marley Co., 120 S. Ct. 1011

EU Kitna danusencchtnccadedunanneaindaksalaunanncecncbenen 10, 19

Whitus v. Georgia, 385 U.S. 545 (1967)...........ceceeeeeeees ss

Wilkerson v. McCarthy, 336 U.S. 53 (1949)............0ceee 20

Williams v. Superior Court, 49 Cal. 3d 736,

781 P.2d 537, 263 Cal. Rptr. 503 (1989).................08 13

In re Williamson’s Estate, 123 Conn. 424, i96 A.

Fe COE Pidannchinncnncenestntnnunncnaiiastiannstansaanstnsahin 19

Wolfe v. Rehbein, 123 Conn. 110 (1937)............eeeeee eee 30

Constitutional Provisions and Statutes:

PUREE AMRAIIIID, oc.0sconcccssacnsccsarscsnosensressscsocecet passim

Fourteenth Amendment.................cscessesecsesecesees passim ,

BIBL. © TB e vnicvevesccscastaseitcavassneasecsscnenscsintawabakd 2

Be CRA. B ROP acnannesesacccnstseigccericcrecseses eitinianian 2

Rule 13.1 of the Supreme Court of the

RIO BRING. oc csnscescnsseckssasccesscnneccsnssnentsensusveneass 2

TABLE OF APPENDICES

Page

Appendix:

Order of the Connecticut Supreme Court...................208 1

Opinion of the Connecticut Appellate Court.................... 4

Constitutional and Statutory Provisions

PROGID, « «5000 vensesvivernnsvescancehetinhvineeeninen ene 14

State of Connecticut Superior Court

ee Te 15

The Commies. 5 'n sin nny ne bien nid habe cacieien teenie 16

PAROIGING © CORI 6 sass vnicovn ntinescnsennanacaenienenee 18

second Amended Complaint...........sccssssvesscsscesevccsess 19

Answer and Special Defenses. .........0ss1ssceseesecsessareneees 20

RODTY 0S Special TOTMOGG, «0c 0ecnsccvesnanssencaepesneeeeeeeneee 23

Motion to Set Asie VenGict, ....00ceusssensscevesaseiintenenn 24

POO Toe S WW TIM, nen cscsecacnsssetcusenaneessceneeennel 25

Motion in Arrest of Judgment. ......5<00scsssessccunssenesexesem 26

PCAN: SUMO is .5 0 sncnsesinscnseunbanpu scene 27

CI BIUIIEE 3 in. cies vsinsiioscousintinsninnsinpentciaeeieeneee 29

Police Accident Report

OE BI ae csinwniinniandas onsen inmusie nineteen manana

xili

Appendices

Incident Report Narrative Supplement...............

Document given to the driver at the accident

scene of 1990 by the officer....................56.

Plaintiff's Exhibit 8, the respondent’s

cstkesivassstcscsessseccssessccsess

Portion of the petitioner’s

GEPOSITION MFANSCTEPL................scccccreercsceeee

Portion of the trial transcript of the

petitioner indicating her deposition

transcript is inaccurate................ceeceeeeeee ees

Details of the deposition transcript of the

TERE bsactpnacisessebassvessvesssscseces

Issues presented to the Appellate Court.............

Questions presented for review to the

Supreme Court of Connecticut..................

Portion of the Trial transcript of the

Court’s charge about contradictory

testimony and credibility....................eeseee:

Trial Judge’s comments about the

availability Of revieW.............csceeeeeeeeeeeeeees

Persons Killed or Injured and Fatality

and Injury rates per population,

licensed drivers, registered vehicles,

XiV

Appendices

Page

and vehicle miles traveled, 1966-2002...................... 70

Persons Killed or Injured by person

type and vebacic type, 1975-ZO0Z.........cccesecccssveseeess 71

Drivers involved in crashes and

involvement rates per licensed

driver by sex and crash severity, 1975-2002............... 72

Person Killed or Injured, __

by person type and injury severity....................eeeeeeee 73

ee Se I sxkaess uts:araiennseaneubacancnarhinbins 74

Details about motor vehicle crashes..................eceeeee ee 75

Prejudicial comments by opposing

counsel during the Trial

NN I IID skid enknackbanavveanesameuenesnaaeanciie 78

Comments made by the petitioner’s

counsel during the Tnal in response to

the opposing counsel’s closing comments................ 86

Strauder v. West Virginia, 100 U.S. 303

(1880) — portions of the citation. ...7.................e eee 87

Taylor v. Louisiana, 419 U.S. 522

(1975) — portions of the citation.....................eceeeeee 87

Smith v. State of Texas, 311 U.S. 128

(1940) — portions of the citation....................ceeeee ees 91

Appendices

Page

Batson v. Kentucky, 476 U.S. 79

(1986) — portions of the citation..................seseeeeeeees 92

Thiel v. Southern Pacific Co., 328 U.S.

217 (1946) — portions of the citation....................60+ 93

Carter v. State of Texas, 177 U.S. 442

(1900) — portions of the citation...............:.seeeeee eee 94

Hernandez v. Texas, 347 U.S. 475

(1954) — portions of the citation. ...............:eeeeeeeee eee 94

Glasser v. United States, 315 U.S. 60

(1942) — portions of the citation...............:.0eeeeeeeeees 97

Gulliford v. Pierce County, 136 F.3d 1345

(9th Cir. 1998) — portions of the citation.................+. 98

Japanese Electronic Products Antitrust

Litigation v. Zenith Radio Corp. and

National Union Electric Corp., 631 F.2d

1069 (1980) — portions of the citation...............:.:eeees 98

Caldwell v. Mississippi, 472 U.S. 320

(1985) — portions of the citation.................eceeeeeeeeeee 99

Fonck v. Stratford, 24 Conn. App. 1,

584 A.2d 1198 (1991) — portions of the citation.......... 101

Hutchinson v. Plante, 175 Conn. 1,

392 A.2d 488 (1978) — portions of the citation........... 102

PETITION FOR WRIT OF CERTIORARI

The petitioner, Hema Menon, respectfully petitions for a

Writ of Certiorari to review the Order of the Connecticut

Supreme Court. This Petition raises important constitutional

issues and issues which are unresolved, including whether a

juror panel could be racially diverse, a representation of the

community, so it would be reflective of the views of the

community, whether there is any justification to remove

prospective jurors by peremptory challenges when inherent

motive is unknown, and whether a jury verdict should be

respected when the jurors do not take their job seriously and

do not show any respect for the Court (See Footnote 32),

whether a police officer’s testimony should be given greater

weight than the ordinary people and whether the police report

should be considered as a reliable document and be honored

when it is subject to speculation and hearsay, and whether the

damage estimate or repair cost of a vehicle should be limited

to the damage phase when it could provide circumstantial

evidence and whether bifurcation is beneficial in such cases.

OPINIONS AND ORDERS BELOW

There are three Orders of the Connecticut Supreme Court

which are relevant to this Petition. They are the Order

granting the Motion to file late Certification for Petition by

Supreme Court and the Order denying Petition for

Certification to Appeal which are dated June 9, 2004 and the

Order denying the Motion for Reconsideration of the denial

of Petition for Certification which is dated June 30, 2004. All

these Orders are without opinion and were reported to the

Reporter of Judicial Decisions. The three Orders are printed

as Appendix A to this Petition at App. 1-3.

The Appellate Court rendered its decision affirming the

decision of the Trial Court (Stamford Superior Court of

Connecticut) on January 20, 2004. The opinion of the

Appellate Court was published at Menon v. Dux, 81 Conn.

App. 167, 838 A.2d 1038 (2004). It is printed as Appendix B

to this Petition at App. 4-13.

JURISDICTION

The Order denying the Motion for Reconsideration filed

on June 21, 2004 at the Supreme Court is dated June 30,

2004. This Petition is timely filed within ninety days of that

Order. 28 U.S.C. § 2101(c); Sup. Ct. R. 13.1. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This Petition involves U.S.C.A. Const. Amends. | and 14

which are printed at App. 14.

STATEMENT OF THE CASE

A. Procedural History

The petitioner was given a summons for “following too

close” by the police officer at the accident scene. On June 17,

1996, the prosecuting authority for the Danbury Superior

Court of the state of Connecticut nolled the false charge the

officer brought against the petitioner. (App. 15).

In January 15, 1998, a civil action was filed by the

petitioner, Hema Menon, against the respondent, Ann Dux, at

the Stamford Superior Court of the state of Connecticut,

asserting negligence in the operation of the motor vehicle,

causing an accident and injuries. (App. 16-17). An amended

complaint was filed on March 13, 1998 and a second

amended complaint on April 2, 1998. (App. 18-19). The case

is lengthy as it spanned about eight and half years from the

time of the accident till the present. (App. 15-36)

The discovery process was not completed at the time of

the trial as the respondent improperly withheld information.

For example, she provided only a page of her repair invoice,

Plaintiff's Exhibit 8, and the copy is unclear. (App. 37).

The deposition of the petitioner was held on April 28,

1999, and the transcript was sent to her counsel on June 17,

1999. There are many inconsistencies in the transcript, and

the Court and the respondent’s counsel was informed. (App.

38-55). The Court ordered another deposition to be taken on

or before September 4, 2002, but no deposition was taken.

Her counsel threatened to impose sanction and motion

against her if the transcript was suppressed. On November 9,

2000 and November 28, 2000, her counsel filed a motion to

“sustain her objection and levy any such sanctions against the

plaintiff that the Court deems appropriate.”

B. Proceedings in the Trial Court

The jury selection was held on September 13, 2002. After

the jury selection, the trial was bifurcated with the first phase

devoted to the determination of liability. (9/17/02 Tr.' p. 3,

29; 9/18/02 Tr. p. 98-99, 186-187).

On February 20, 1996, the petitioner was driving along

Lake Avenue Extension with her mother, the passenger, in

the vehicle. (9/17/02 Tr. p. 30-31, 42-43). At the time of the

accident, she lived in Danbury (Id. p. 43) and drove on Lake

Avenue road every day. It was a rainy day and somewhat

foggy, and the roads were slippery. (Id. p. 42-43). The

respondent’s vehicle, suddenly, came from left, from the

opposite side of the street, turned in front of her, and

slammed into her vehicle at a high rate of speed.” (Id. 30-31,

' Tr. refers to the trial transcript. The pages in the transcript volumes

are not numbered consecutively, so each volume is assigned with the date

when the testimony took place at the trial.

58-59, 77). When her vehicle was struck, she, quickly, turned

around and saw the direction from which the respondent was

coming. (Id. p. 88-90). The impact of the collision pushed the

vehicle, partially, to the shoulder of the road about a yard

from the curb. (Id. p. 61. 74, 100-101). She made a wide turn

and overshot the driveway. (Id. p. 78, line 20-22). Had she

turned directly into the driveway though she came from the

opposite side of the street and even at a high speed, she could

have avoided the collision. (Id. p. 78).

Three days after the accident, the petitioner felt pain all

around the body. Later, she had swelling all over her body,

especially her wrists and ankles. (9/17/02 Tr. p. 80-81).

The respondent was called as a hostile witness during the

trial. (9/18/02 Tr. p. 9). She claimed, she was driving

westbound along Lake Avenue Extension (Id. p. 58), and as

she was making a night turn into the driveway for the parking

lot, the petitioner driving on her right in the shoulder area,”

struck her vehicle. (Id. p. 13-14, 33-34, 37-38).

The petitioner’s mother testified, she was riding as a

passenger in the petitioner’s vehicle on the day of the

accident. She testified, the police officer talked to the

2 The responden: violated all the traffic rules — she was speeding, she

did not have her lights on though it was a rainy and somewhat foggy day,

she did not have her left-turn signal light on, she was driving with a

broken windshield, she did not wear her glasses, she failed to grant the

right of way, she made an abrupt turn, she failed to apply her brakes and

failed to slow down or turn her vehicle to avoid striking the other vehicle,

aad she overshot the criveway and slammed into the other vehicle and

continued turning into the vehicle to get to the other side of the street.

The shoulder cannot be traversed by a vehicle as it is blocked by a

cement curb. The petitioner testified, there was a curb at the driveway and

therefore, it was impossible for her to have been driving on the shoulder

and strike the respondent’s vehicle as she was making a right turn into the

driveway because the curb is an “obstruction” preventing anyone from ~

entering the driveway and striking another vehicle. (9/17/02 Tr. p. 75-77).

respondent, privately, for “long time”, about “15 to 20

minutes” in the parking lot. (9/18/02 Tr. p. 85, line 20-21).

She testified, she was ignored by the officer and was not

interviewed by him. (Id. p. 84, 86).* The petitioner’s mother

testified, she saw the respondent driving down the road

toward them, coming in the opposite direction prior to the

impact. (Id. p. 78-79, 97). She also testified, the vehicle was

struck twice by the respondent. (Id. p. 78, line 8-9).

The defense called as a witness to the accident, Officer

Lawrence Frinton of the Danbury Police Department.

(9/18/02 Tr. p. 102-103). He testified, the damage to the

petitioner’s vehicle was “the left front, driver’s side front”

and the damage to the respondent’s vehicle was on the right

side of her vehicle. (Id. p. 109).

The petitioner testified, she had damage on the left front

side fender, left-mounting panel, left headlight, left signal

light, and front bumper. (9/17/02 Tr. p. 60, 78-79). She

testified, the respondent had damage on her right front door.

(Id. p. 60, 78-79). Her mother testified, the respondent had

damage on the “passenger seat door”. (9/18/02 Tr. p. 86). The

respondent testified, her damage was at the right rear quarter

panel of her vehicle. (Id. p. 40). On direct examination, she

admitted, her right front door was also damaged. (Id. p. 49-

50). See Plaintiff's Exhibit 8. (App. 37).°

The accident report introduced into evidence as a defense exhibit did

not list the passenger as having been present. (9/18/02 Tr. p. 147).

° Plaintiff's Exhibit 8, the respondent’s damage estimate, show that the

vehicle was a “borderline total loss” and “[a]ny supplemental may result

in total loss status”. However, she claimed, it was only because it was an

old car and not because the damage was extensive. (9/18/02 Tr. p. 49-51).

However, Defendant’s Exhibit B1 and B2 (photographs depicting the

damage on the respondent’s vehicle) show only a slight damage and do

not qualify for a “borderline total loss.”

The petitioner’s letter from an Expert about the damage on

her vehicle was caused by one coming from the opposite

direction, was claimed as hearsay by the respondent’s

counsel on September 13, 2002 and the Court dismissed this

evidence as hearsay without giving the Expert in vehicle

crashes and body estimating, the chance to testify.

The jury rendered a verdict finding no negligence on the

part the respondent. (9/18/02 Tr. p. 96). Thereafter, the jury

returned a respondent’s verdict. (Id. p. 199-200).

On September 30, 2002, timely motions to set aside the

verdict, for a new trial, and in arrest of judgment were filed,

stating that the verdict was contrary to the evidence, the jury

was selected in a manner which improperly excluded

minorities and persons of color, and the evidentiary rulings

during the trial were erroneous. (App. 24-28). These motions

were denied on October 3, 2002 by the Court and judgment

was rendered in accordance with the verdict.

C. Proceedings in the Appellate Court

On October 16, 2002, an appeal to the Appellate Court

was filed with the supporting documents. On January 20,

2004, the Appellate Court affirmed the Superior Court’s

decision. Menon v. Dux, 81 Conn. App. 167, 838 A.2d 1038

(2004). App. 4-13 (App. B).

The Appellate Court declined to review the plaintiff's

claim for her repair cost, holding that it was raised for the

first time on appeal. The Court would not consider whether a

review would be warranted under the plain error doctrine as

the Court held, she did not seek review under the rubric of

plain error. The Appellate Court held, her unpreserved

challenge of the Trial Court’s jury charge in which she

requested for a plain error review did not warrant plain error

review, and the Court ruled on this issue without considering

the other charge raised in the brief. The Court in holding, the

Trial Court did not abused its discretion in denying her

motion to set aside the verdict, overlooked and did not

address the issues raised -- it was impossible at the time of

the accident for a vehicle to travel in the right shoulder, and

the defendant presented evidence which made her version a

physical impossibility, and the officer’s testimony that

“[p]hysically, a car couldn’t travel on this shoulder if it’s

very wide.” (9/18/02 Tr. p. 121). The Court found, the

defendant’s version was “not supported by the entire record.”

(/d. at 174). The Court found, the “plaintiff's testimony

roundly contradicted that of the defendant, and the jury

reasonably could have elected to believe the plaintiff and not

the defendant.” (/d. at 174).

D. Proceedings in the Connecticut Supreme Court

The Petition raised issues that th Appellate Court

overlooked and did not rule or did not address. (App. 59-64).

The appeal brought out, the Appellate Court overlooked and

did not rule on the issue raised in the brief that the mere

evidence that the shoulder cannot be traversed by a vehicle

shows that the respondent’s version was not supported by

facts. The appeal brought out, the charging conference

conducted by the Trial Court was raised and the statutory

provisions involved were included in the brief, but the

Appellate Court overlooked this issue and did not address it.

The appeal brought out, the inability of the respondent to

recall a number of the details of the accident and her

evasiveness about them both at the trial and at her deposition,

but the Appellate Court did not address it. The appeal

brought out, the Appellate Court overlooked and did not rule

on one of the charges of the Trial Court that was raised in the

brief. The appeal brought out, it is of a great public

importance, both parties be similarly situated in terms of

jurors to ensure the issues are considered seriously and the

verdict is rendered fairly. The appeal brought out, it is of

great public importance, the testimony of everyone be treated

alike as the Appellate Court found, the respondent’s version

was “bolstered by Frinton’s testimony”, so her version was

credible. Menon v. Dux, 81 Conn. App. 167, 174 (2004). She

brought up cases comparable cases to her case in which the

Supreme Court vacated the findings of fact and law, reversed

the Trial Court ruling and remanded the case for further

proceedings or a new trial, such as the Barr v. Goldome

Realty Credit Corp., 46 P.3d 1009 (Alaska 2002), where the

Supreme Court vacated the findings of fact and law of the

Trial Court and remanded as there remained factual disputes

between the two parties; the Hutchinson v. Plante, 175 Conn.

1, 392 A.2d 488 (1978) in which the case involves the same

issue as her case with virtually identical facts to this case, in

that the police officer accepted and reported the respondent’s

version; the Liimatta v. Vest, 45 P.3d 310, 312-313, 317-319

(Alaska 2002) where the Supreme Court reversed the Trial

Court ruling and remanded for a new trial because the

exclusion of certain evidence was an abuse of discretion; the

Foss v. Russo, 156 Conn. 230, 232-233 (1968) in which the

Supreme Court reversed on appeal, holding that the facts of

the case warranted the charges excepted to, even in the

absence of the charge; the State v. Hinckley, 198 Conn. 77,

88, 502 A.2d 388 (1985) where the error in the charge

“resulted in an unreliable verdict or a miscarriage of justice”;

the Elliot v. Sears, Roebuck & Co., 30 Conn. App. 664, 674

(1993) in which the Court held that it is important for the

Trial Court in its instruction to the jury to refer to the

evidence; the Smith v. Czescel, 12 Conn. App. 558, cert.

denied, 206 Conn. 803 (1987) in which the plaintiff's

unpreserved claims qualified for review under the plain error

doctrine without filing a request to charge and without taking

an exception to the charge about their claims of error; the

DeSena v. Waterbury, 249 Conn. 63, 72, note 10, 731 A.2d

733, 737, note 10 (1999) and Society for Savings v. Chestnut

Estates, Inc., 176 Conn. 563, 568, note 2, 409 A.2d 1020,

1022, note 2 (1979) in which the Trial Court considered the

issue that was not raised by the counsel in the Trial Court; the

State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118, 121

(1986) in which the Court held that the claim was

“functionally made” at the trial though articulated in a

different manner, so review would be warranted; the Daily v.

New Britain Machine Co., 200 Conn. 562, 576, note 11, 512

A.2d 893, 901, note 11 (1986) in which the plaintiffs “did not

articulate” their claims as “fully or as clearly as required”,

but the Court held that the issues were “raised sufficiently to

warrant review on appeal”; the Mather v. Griffin Hospital,

207 Conn. 125, 138, 540 A.2d 666, 673 (1988) in which the

Court held that the claim was “distinctly raised” though it

was “not well articulated”; the Salmon v. Dept. of Public

Health & Addiction Services, 58 Conn. App. 662-663, 754

A.2d 828 (2000) in which the Appellate Court held that the

plaintiff failed to raise her claim at the trial, but the Supreme

Court held that the claim was “functionally raised” though

she “did not articulate her claim” precisely. Jd. at 288, 305,

788 A.2d at 1199, 1210; the Adams v. Way, 32 Conn. 160

(1864) in which the defendant objected to the plaintiff's

evidence offered to support his claim and the Court excluded

it, but the Supreme Court held that “the ptaintiff had a night

to prove every material allegation of his declaration” and the

plaintiff was entitled to a new trial; the State v. Golding, 213

Conn. 233, 567 A.2d 823 (1989) in which the plaintiff

requested for a plain error review as it interfered with her

fundamental right to a fair trial; the Smith v. State of Texas,

311 U.S. 128 (1940) in which the Supreme Court held, the

conviction could not stand if there has been discrimination in

the jury selection; the Taylor v. Louisiana, 419 U.S. 522

(1975) in which the Supreme Court held, it was

unconstitutional as it violated the right to an impartial jury.

For the reconsideration appeal, the petitioner elaborated

on the cases comparable to her case which were addressed in

the Petition and a few cases comparable to her case which

were not brought out in which the Supreme Court vacated the

findings of fact and law, reversed the Trial Court ruling, and

remanded the case for further proceeding or a new trial and

also many other cases which were reconsidered by the

Supreme Court based upon its decision on another case. The

petitioner requested for reconsideration as the Order is in

conflict with the cases comparable to her case in terms of

issues, such as Hutchinson v. Plante, 175 Conn. 1, 392 A.2d

488 (1978); Barr v. Goldome Realty Credit Corp., 46 P.3d

1004-1009 (Alaska 2002); Liimatta v. Vest, 45 P.3d 310

(Alaska 2002); Adams v. Way, 32 Conn. 160 (1864); State v.

Golding, 213 Conn. 233, 567 A.2d 823 (1989); Smith v. State

of Texas, 311 U.S. 128 (1940); Taylor v. Louisiana, 419 U.S.

522 (1975); Strauder v. West Virginia, 100 U.S. 303 (1880);

Weisgram v. Marley Co., 120 S. Ct. 1011 (2000).

E. Factual Background

The accident report dated 2/20/96 and the narrative

supplement dated 3/7/96 contain several inconsistencies and

cannot be used as a guide as to how the accident occurred.

(App. 33-35). Though the report date was dated 2/20/96, the

police report was not ready until a few days after the

accident, and though the narrative supplement was dated

3/7/96, the report was not ready until several days after

3/7/96. This shows the officer had enough time to ponder

about the accident and to clarify the information.

Police Accident Report of 2/20/96

The officer found the petitioner at fault for the accident

without looking at the damage of both vehicles. App. 36

shows the document given to both the drivers at the scene

which indicates he did not look at the damage of the vehicles

when he found her at fault. In App. 33, the part that was

damaged of both vehicles was noted down which proves he

only looked at the damage of both vehicles after finding her

at fault. The officer also did not write all the parts of the

vehicles which were damaged which shows he did not look at

the damage of the vehicles carefully. (App. 33).

The respondent made a left turn and slammed into her

vehicle, damaging the driver’s front and side — the vehicle

damage clearly indicates the respondent is at fault. He drew

the diagram and wrote the reports based upon her brief

statements against the petitioner and not based on his

personal observation at the scene as she moved her vehicle to

the parking lot. The accident report does not show anyone

was hurt based solely upon the other driver’s opinion.

For the accident report dated 2/20/96, the petitioner told

the officer at the scene, the respondent took a left turn and

turned in front of her striking her vehicle. He, then, asked

her, “Who was behind?” and she said, she was behind as she

had already explained to him before he asked this question

that the respondent turned in front of her striking her vehicle.

He ignored the sequence of the accident as explained to him

and took her words out-of-context when she had already

explained to him why she was behind before he asked her

the question, “Who was behind?”. She told him, repeatedly,

she was not driving in the shoulder and the impact pushed

the vehicle to the shoulder. (App. 35). She told him,

repeatedly, the respondent struck her vehicle. He did not

interview the passenger who had rode with the petitioner

though she stood near him at the scene. After his brief

interview with both drivers, he went to the parking lot where

the other driver left her vehicle and improperly obtained

information. He spent more time talking with her in the

parking lot than interviewing both drivers at the scene.

The inconsistencies in the report was brought to the

attention of the officer and his superior and the Mayor of

Danbury. He was told to write an objective report with her

statement of how the accident occurred without making a

judgment call on who was at fault. In the 3/7/96 report, he did

not put the inconsistencies to rest, but he accentuated them.

Narrative Supplement of 3/7/96

In this report, he wrote the damage to the vehicles,

incorrectly. He omitted the details from the report --

suddenly, the other driver came from the left across the other

side of the street and hit the front of her vehicle; this vehicle

did not stop and continuing turning into her vehicle to the

parking lot on the nght where she parked her vehicle; and the

passenger and the petitioner saw the other driver come from

the opposite side of the street. He added his words and

opinions to assist the other driver. He, again, failed to

interview the passenger though the petitioner told him about

her and that she had witnessed the accident. He said, the

passenger could not be used as a witness as she is my mother.

The petitioner told him about the inaccuracy in police reports

and that she did not stnke the other vehicle, and he said,

“You didn’t hit her car. She hit your car.”, and that, “She just

said that.” This shows he was aware, she was not following

the other driver, but he did not indicate this in his reports.

REASONS FOR GRANTING THE WRIT

I. The exclusion of minorities and persons of color from

the jury based upon race, though it gives an appearance

the exclusion was based upon facially neutral grounds

and upon factors apart from race, deprives a racial

minority of equal protection of the laws guaranteed by

the Fourteenth Amendment of the Constitution when it

exerts to discriminate against the minority.

During the jury selection, the opposing counsel requested

® The regular jurors were Sarah Nelson, Addison Smith, John Wick,

Josephine Lane, Dolores Spitzer, and Katherine Lobella. The alternates

the Court that two minority jurors, an Asian and a Hispanic,

to be excluded from the jury panel, claiming that they were

leaning toward the petitioner and they were excluded from

the panel.’ The counsel’s selection of the jury was racially

biased ®and he subjected the minorities to more searching

questioning about the case than those who are not minorities.

Specifically, in the case of the Asian juror, the petitioner’s

counsel stated to the Judge, the petitioner wanted the Asian

juror, but the Judge excluded the juror from the panel,

however. The respondent’s counsel wanted the Asian juror to

be excluded from the jury panel only because the petitioner is

an Asian.” The petitioner was deprived of the equal

were Carol Pacella and William Cook. (9/17/02 Tr. p. 7-8). The jury

selection was held on 9/13/02.

7 The Court held, peremptory challenges to remove potential jurors

based solely on presumed group bias may not be used in People v.

Wheeler, 22 Cal. 3d 258, 272, 148 Cal. Rptr. 890, 583 P.2d 748 (1978);

People v. Trevino, 39 Cal. 3d 667, 704 P.2d 719, 217 Cal. Rptr. 652

(1985). In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct.

2077, 114 L. Ed. 2d 660 (1991), the Court held, peremptory challenges

based solely on discriminatory factors are barred. In Williams v. Superior

Court, 49 Cal. 3d 736, 781 P.2d 537, 263 Cal. Rptr. 503 (1989), it was

found, the Trial Court failed to apply correctly the test developed in

People v. Wheeler. In United States v. Northside Realty Associates, 659

F.2d 590 (Sth Cir. 1981), rev’d, 510 F. Supp. 668 (N.D. Ga. 1981), the

Court dismissed the judgment of the grand jury as there was a substantial

failure in the method by which the grand jury was selected.

® Excluding a juror because of race or color is unconstitutional. See

Neal v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107 U.S. 110

(1883). See also Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L.

Ed. 2d 579 (1979) (the under representation is due to the systematic

exclusion of the group (women) from the jury; People v. Trevino, 39 Cal.

3d 667, 704 P.2d 719, 217 Cal. Rptr. 652 (1985) (the under representation

is due to the systematic exclusion of a cognizable group).

° In Carter v. State of Texas, 177 U.S. 442 (1990), the Court reversed

the judgment and remanded the case for further proceedings because

Carter was denied the equal protection of law in the jury selection

process as persons of his race were excluded from the jury. See Whitus v.

protection of the laws entitled by the Constitution because

the minority jurors were excluded when they were qualified

to serve as jurors apart from their race.'° The Court held, one

is entitled to a fair and an impartial jury drawn from a

representative cross-section of the community in Duncan v.

Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d

491 (1968); Ristaino v. Ross, 424 U.S. 589, 96 S. Ct. 1017,

47 L. Ed. 2d 258 (1976); Piehler v. Kansas City Public

Service Co., 357 Mo. 866, 211 S.W.2d 459 (1948); Lee v.

Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695 (1939).

(App. 87-97). In Duren v. Missouri, 439 U.S. 357, 99 S. Ct.

664, 58 L. Ed. 2d 579 (1979), the Court held, the jury must

be selected arbitrary from a true cross-section of the

population “of the area served by the court.” The area where

the trial was conducted and in the county, there were many

minorities, but they were under represented for the trial.

The Court held, the law was unconstitutional (App. 87)

as it violated the night to an impartial jury in Taylor v.

Louisiana, 419 U.S. 522 (1975); Machetti v. Linahan, 679

F.2d 236 (1982). In Strauder v. West Virginia, 100 U.S. 303

Georgia, 385 U.S. 545 (1967); Norris v. State of Alabama, 294 U.S. 587,

589-590 (1935); Hernandez v. Texas, 347 U.S. 475 (1954); Avery v.

Georgia, 345 U.S. 559, 561 n. 2 (1953); Glasser, v. United States, 315

U.S. 60 (1942) (it was reversed and remanded in part and affirmed in

part) (App. 97); See also Pierre v. State of Louisiana, 306 U.S. 354

(1939) (there was discrimination in the jury selection with the exclusion

of people of the petitioner’s race from the Grand Jury Venire and Panel

and the case was remanded to the Supreme Court of Louisiana).

'0 The respondent showed she was one among the jurors when she

turned to the jurors several times during her testimony and smiled at them

to, further, sway the verdict in her favor. She was not present in the Court

on the first day of the trial, but the petitioner and her mother were present.

Yet, the verdict was rendered in favor of her, which indicates the jury

could identify with her. The opposing counsel also smiled at one of the

jurors when she handed over the accident report to him after all the jurors

looked at the report to, further, sway the verdict in their favor, and his

action toward the juror showed that he could identify with them.

(1880), the Court held, Strauder was entitled to an impartial

jury and the selection of the jurors based on their color “is an

impediment to securing to individuals of the race that equal

justice which the law aims to secure to all others.” Jd. at 303.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Court

reaffirmed the principle declared in Strauder v. West

Virginia, 100 U.S. 303 (1880), that a defendant is denied

equal protection when “members of his race have been

purposefully excluded.” (App. 87). In Smith v. State of Texas,

311 U.S. 128 (1940), there was racial discrimination in the

jury selection and the judgment was reversed. (App. 91-92).

In Thiel v. Southern Pacific Co., 328 U.S. 217 (1946), “a new

trial by a jury drawn from a panel properly and fairly chosen”

was required. Jd. at 225. (App. 93-94).

II. A police officer should not be considered a reliable

witness to the accident and his testimony be given

greater weight than the testimony of the witness to the

accident when he had improperly exercised his

authority depriving one of due process rights and

equal rights protection.

Some of the statements made in the accident report

showing as the petitioner made the statements were actually

said by the respondent and made by the officer, himself, and

some of the statements in the narrative supplement were

actually made by the officer. The opinions in the accident

report and the narrative supplement are that of the officer.

After his private conversation in the parking lot with the

respondent, he gave the petitioner a summons when she

waited for him to finish -his long conversation with the other

driver to explain her version as the officer did not give her an

opportunity to explain as he was interfering and arguing with

her in support of the other driver.'' He said when he gave the

'! Though a report is generally admissible under the General Statutes §

52-180, everything contained in the report do not have to be admitted

summons to her it was because she was arguing with him

when she was merely explaining her version -- the summons

does not show it was for arguing, it shows for “following too

close”. The First Amendment protects challenges directed at

the police officer. Gulliford v. Pierce County, 136 F.3d 1345

(9th Cir. 1998); City of Houston, Texas v. Hill, 482 U.S. 451,

461-463 (1987); Terminiello v. Chicago, 337 U.S. 1, 4 1949);

Lewis v. City of New Orleans, 415 U.S. 130, 132-134 (1974).

(App. 98). “The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one

of the principal characteristics by which we distinguish a free

nation from a police state.” City of Houston, Texas v. Hill,

482 U.S. 451, 462-463 (1987).

The officer spoke to the respondent, first, and got her

version. (9/17/02 Tr. p. 71-72). He testified, the respondent’s

vehicle was not in the entrance of the driveway when he

arrived at the scene. (9/18/02 Tr. p. 114). He admitted, his

diagram was based upon what the respondent had told him.

(Id. p. 114, line 11). He admitted, his diagram was not based

on what he saw at the scene. (Id. p. 115-1 16).!? He admitted,

he made an error about the damage of both vehicles in the

narrative supplement. (Id. p. 117-118). She admitted, he did

not spend time getting the details of the accident from the

petitioner -- “I wouldn’t call it an interview. He spoke to

her. I don’t know.” (Id. 36, line 14-15). She testified, the

petitioner and her mother were interviewed “just briefly.

That wasn’t an interview per se.” (Id. p. 37, line 13-16). The

respondent admitted, he had further discussion with her in

the parking lot (9/18/02 Tr. p. 36, line 20-27 and p. 37, line

into evidence. General Motors Acceptance Corporation v. Capitol

Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548 (1967). The statements

contained in the police accident report may not be admitted for truth of

matters unless the statements qualify as admissions under § 52-180. State

v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).

'2 The respondent moved her vehicle to the parking lot. Hence, the

officer took the respondent’s word for granted without corroboration.

1-2), but she “don’t see that as a private conversation”

though the petitioner and her mother were not there with her.

(Dep. Tr.’ p. 24). Both for the accident report and the

narrative supplement, he omitted the details which the

petitioner told him, and he ignored exculpatory evidence at

the scene. An officer is required to conduct a reasonably

thorough investigation and may not ignore exculpatory

evidence. Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999). He

could have cited the respondent for driving with a broken

wind-shield and for not wearing her glasses, but he did not

that. The accident report does not state all parts of both

vehicles that were damaged like he was concealing the

extent of the damage to be helpful to only one party.

He testified, the petitioner told him the she was driving in

the right-hand lane”, so he got the impression that she was

driving in the shoulder.’ (9/18/02 Tr. p. 107-108). He

testified, the respondent said, “[s]he was traveling down the

road, attempted to make a right-hand turn into the Ethan

Allen driveway, and was struck by another vehicle.”

(9/18/02 Tr. p. 108). '* He testified, the petitioner told him,

'3 Dep. Tr. refers to the deposition transcript.

'* This statement is false. He omitted from the police accident report that

the petitioner told him, the respondent took a left-turn. However, the

report also does not show the petitioner stating, she was driving in the

right-hand lane. In fact, the report clearly shows the petitioner could not

have made such a statement when she used the word “left” and the impact

pushed the vehicle to the shoulder of the road. “Any testimony in a case

that tends of itself or in connection with other testimony to influence the

result on a fact in issue is material. If the testimony would tend to affect

the verdict of the jury, it meets the test of materiality.” Berndston v.

Annino, 177 Conn. 41, 45, 411 A.2d 36 (1979).

'S This statement is false. The petitioner, repeatedly, told him at the

accident scene, she was not driving in the shoulder and the impact pushed

her vehicle to the shoulder. This fact was omitted from the accident

report, and in fact, the report shows her as not understanding that she was

she saw the respondent’s vehicle only upon impact. (Id.

p.108).'° He testified, nobody at the scene told him, the

respondent came from the opposite direction. (Id.).'’ He

said, the narrative supplement was done after the petitioner

contacted the police department about the initial report. (Id.

p. 111). In Sevigny v. Dicksey, 846 F.2d 953, 957-959 (4th

Cir. 1988), the Court held, the officer should have done

further investigation to uncover the true course of the events.

In BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986), the

Court held, “A police officer may not close his or her eyes to

facts that would help clarify the circumstances of an arrest.”

In 2002, the economic cost of traffic crashes was

estimated to be $230.6 billion. (App. 74). Motor vehicle

accident affects all people. (App. 70-77). People should

be able to depend upon the police to do a fair account of the

accident. Hence, the accident report should be reliable, and it

is important that the police do the work properly.

driving in the shoulder, which shows he accepted the respondent’s

version and wrote what she had told him. He admitted, “Physically, a car

couldn’t travel on this shoulder if it is very wide.” (9/18/02 Tr. p. 121).

The respondent testified, she had used her right-hand turn signal, but she

did not. The petitioner told him, repeatedly, the other driver struck her

vehicle, but the report shows the petitioner insisting her vehicle was

struck and not that the other driver struck her vehicle. (App. 35).

'© This statement is false. The respondent told the officer, repeatedly, she

did not see the petitioner’s vehicle and she saw the vehicle only upon

impact. However, the report, incorrectly, shows the petitioner as not

knowing the other driver was present until the impact. The respondent

testified, she could see through the broken wind-shield, but the broken

windshield would have obscured her view on a rainy and somewhat foggy

day. She was also not wearing her glasses at the time of the accident

though she testified she was wearing that.

'7 This statement is false. On the other hand, he said, the petitioner told

him, the respondent turned in front of her vehicle, striking her vehicle and

also testified that a vehicle cannot travel in the shoulder if is very wide

and that there was only a single lane of traffic at the location in question.

Ill. The Trial Court, the Appellate Court, and the

Connecticut Supreme Court violated the petitioner’s

guaranteed rights of due process and equal protection

by deviating from the accepted standard of proof, by

disregarding the rules of evidence, by basing the facts

upon no probative value, and by accepting testimony

deficient in any relevant evidence as to the essential

element of the case in the light of the evidence

proffered by the petitioner.

During the trial, the issue was raised, the shoulder of the

road in that area could not be traversed by a vehicle as it was

blocked by a cement curb at the driveway which prevents the

petitioner from the entering the driveway and striking the

respondent’s vehicle.’* (9/17/02 Tr. p. 75-77). The Trial

Judge overlooked this fact or did not find it. Gutowski v. New

Britain, 165 Conn. 50, 56-57, 327 A.2d 552, 556 (1973).

(App. 60). The outcome of the trial was affected by

improperly admitted evidence on the crucial points. Hence,

the admission constituted harmful error’? In Weisgram v.

'8 The petitioner had not reached the driveway yet (9/17/02 Tr. p. 66)

and she testified, the accident did not take place at the driveway, but away

from the driveway, well before the respondent began to turn into the

driveway. (9/17/02 Tr. p. 66, 78).

'9 A record having “no evidence” or lacking in evidence, or any

evidence, or any relevant evidence in support of the charge violates due

process -- Johnson v. Florida, 391 U.S. 596, 598 (1968); Thompson v.

Louisville, 362 U.S. 199, 200, 204, 206 (1960); Vachon v. New

Hampshire, 414 U.S. 478, 480 (1974); Harris v. United States, 404 U.S.

1232 (1971). The Supreme Court had corrected the findings of facts in re

Williamson's Estate, 123 Conn. 424, 429-434, 196 A. 770, 772-774

(1937), Reboul v. Chalker, 27 Conn. 114 (1858). In Lessee v. Hynson, 1

H. & McH. 84 (Md. Prov. Ct. 1734), the Court set aside the verdict and

ordered a new trial as the verdict was based on an erroneous conclusion

of law to its factual findings. In re Japanese Electronic Products

Antitrust Litigation, 723 F.2d 238, 304 (3rd Cir. 1983), rev’d on other

grounds, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 106 S. Ct. 1348 (1986), the Court held, the “Court of

Appeals did not apply the proper standards in evaluating the District

Marley Co., 120 S. Ct. 1011 (2000), the Eight Circuit panel

held, Marley's motion for judgment should be granted as a

matter of law because the testimony of Weisgram’s eye

witnesses was speculative and therefore was ineffectual to

prove the plaintiff's case. The Court, next, considered the

other evidence in the light most favorable to Weisgram and

found it inadequate to support the jury verdict and directed

judgment as a matter of law for Marley. In Wilkerson v.

McCarthy, 336 U.S. 53 (1949), the Suoreme Court reversed

the judgment of the Supreme Court of Utah which affirmed

the jury verdict in favor of the respondent at the Trial Court

in “its finding of an absence of negligence on the part of the

railroad” (/d. at 55) for the injuries the petitioner sustained as

an employee of the respondent and remanded the case for

further action. The Trial Judge questioned the petitioner

about the shoulder (Id. p. 97, line 17-27, p. 98, linel-17). On

recross examination, the Trial Judge questioned the officer

about the shoulder, but the Judge did not question him about

the curb at the driveway. (9/18/02 Tr. p. 121). Similarly, the

Trial Judge did not question the respondent about the curb at

the driveway. At the charging conference, the Trial Judge

stated about the shoulder, but there was no mention about the

curb at the driveway. (9/18/02 Tr. p. 134). Even for the

charge, the Trial Judge stated about the shoulder marking on

the road, “[t]he shoulder marking, at least we had

evidence....” (9/18/02 Tr. p. 166, line 14-16), but there was

no mention about the curb at the driveway which prevents

one from entering the driveway.”

Court’s decision to grant petitioners’ motion for summary judgment.” Jd.

at 574. The Court noted, a judgment supported by an ambiguous

evidence as to an essential element violates due process.

In Atchison, Topeka & Santa Fe Ry. Co. v. Hicks, 258 P.2d 672

(Okla. 1953), the Court held, “It is the duty of the trial court on its own

motion to properly instruct the jury upon decisive issues made by the

pleadings and the evidence introduced at the trial and the failure so to do

constitutes fundamental error.” Hence, the Court reversed the case “with

directions to grant the defendant a new trial”. In Riley v. Connecticut

The petitioner stated at the Trial when she was questioned

about the responses that she gave at the deposition that it was

not what she said though the transcript shows otherwise when

she did not make such responses at the deposition (9/17/02

Tr. p. 91-92), and this position affected her when she said

that the transcript was not transcribed in the manner she said

at her deposition. The Trial Court in its charge to the jury

stated, if any witness had testified contrary to what was said

before, that party’s credibility would be affected adversely.

This charge to the jury affected her case. (App. 65-66). The

petitioner’s counsel brought up about the transcript to the

Trial Judge. (9/17/02 Tr. p. 94). The Trial Court was aware of

the complaints about the transcript as another deposition was

ordered to be taken.

The brief raised two charges for a plain error review. “So,

you folks never have to worry about doing the right thing. If

your verdict is accepted by the Court, it is the correct verdict

and it can never be over put — changed. The verdict is never

changed.” (9/17/02 Tr. p. 9-10). In its final charge, the Court

restated this erroneous instruction. “As I said to you when

you were first sworn in, you always do the right thing. You

don’t worry about whether you did the wrong thing, so don’t

Company, 129 Conn. 554 (1943), the Court held, when the omitted

instructions are critical for a complete and proper decision of the case, the

failure to include them is an error, even though the point was not called to

the Court’s aitention by a written request to charge. In Elliot v. Sears,

Roebuck & Co., 30 Conn. App. 664, 674 (1993), the Court held, it is very

important for the Trial Court in its instruction to the jury to refer to the

evidence so that they can apply the law correctly to the facts they might

find to be established. It is the clear duty of the Court to instruct the jury

on material and important features of the case, even in the absence of a

request. Seeley v. Litchfield, 49 Conn. 134, 138 (1881). “The test of a

court’s charge... [is] whether it fairly presents the case to the jury in a

such a way that injustice is not done to either party under the established

rules of law.... [T]he trial court must correctly adapt the law to the case in

question and must provide the jury with sufficient guidance in reaching a

correct verdict.” Barrett v. Hebrew Home & Hospital, Inc., 73 Conn.

App. 327, 332, 807 A.2d 1075 (2002).

worry about that.” (9/18/02 Tr. p. 158). No exception was

taken to the two charges which are plain and prejudicial

error, but only one of them was ruled by the Appellate Court.

Further, the Court overlooked each charge is to be read as a

whole in the context of the 32 pages (not 31 pages, p. 157-

188) of the Court’s entire charge to the jury as printed in a

separate appendix to the brief. There is not anything in that

charge which cures the manifest error, noted above, of telling

the jurors, they could do whatever they wanted with the

assurance, they did not have to worry about the effect.”’ The

brief also raised the issue, the Trial Court Judge held at the

charging conference, the failure to yield right of way and the

failure to have the turn signal activated at least 100 feet

before the point at which a turn would be made would not be

charged to the jury. (9/18/02 Tr. p. 126-141). The facts of her

case warranted these charges to be included. In Foss v.

Russo, 156 Conn. 230, 232-233 (1968), the Court reversed on

appeal, holding that the facts of the case warranted the

charges excepted to, even in the absence of a request to

charge. Her counsel pointed out that the accident report,

which was offered as evidence by the respondent, contained

evidence about the distance from the red light to the Ethan

Allen driveway, which would warrant giving the charge for

the turn signal, but the Court adhered to its prior ruling. The

brief also raised. the statutory provisions involved. The brief

raised the issue about the respondent’s inability to recall

many details of the accident and her evasiveness about them,

and that this shows she was an unreliable witness and might

*! The error in the charge “resulted in an unreliable verdict or a

miscarriage of justice.” State v. Hinckley, 198 Conn. 77, 88, 502 A.2d 388

(1985). In Smith v. Czescel, 12 Conn. App. 558, 562-563, cert. denied,

206 Conn. 803 (1987), the plaintiffs’ unpreserved claims qualified for

review under the plain error doctrine without filing a request to charge

and without taking an exception to the charge about their claims of error.

“The whole charge must be considered from the standpoint of its effect on

the jurors in guiding them to a proper verdict.” Sevigny v. Dibble Hollow

Condominium Assn., Inc., 76 Conn. App. 306, 311, 819 A.2d 844 (2003).

have improper motive and intent. These issues were raised in

the Petition that the Appellate Court overlooked these issues

and did not address them. (App. 59-64).

Throughout the case from the jury selection till the end of

the trial, the opposing counsel made prejudicial comments

against the petitioner which affected the verdict. (App. 101).

His introductory comments to the jurors during the

selection process was prejudicial in that he said, they were

denying his client caused the accident, they were denying the

petitioner was hurt, and they were denying the petitioner,

payment, and these comments affected the verdict. He also

made improper closing comment, “And on behalf of Ms.

Dux, I suggest and request that you render a verdict in favor

of her of zero percent negligence.” (9/18/02 Tr. p. 155, line

16-19), and the jury did exactly as he requested. (See App.

78-85). The respondent’s version was inconsistent with the

photographs (Defendant’s Exhibit B1 and B2) that was

produced at the Trial, which shows only a very slight

damage at the lower part of the right rear of her vehicle.”

The -respondent’s counsel produced a photograph of the

damage on her vehicle, which was not a depiction of the

actual damage. He handed this photograph to the jury to

view, but her counsel did not show this photograph to the

petitioner at the Trial. Hence, she was not given the

Opportunity to comment about the accuracy of the

photograph depicting the damage on the vehicle. The

*2 Only a vehicle making a turn could strike another vehicle traveling

straight down the road. See Fonck v. Stratford, 24 Conn App. 1, 3, 584

A.2d 1198 (1991). (App. 101).

* In Gardner v. Florida, 430 U.S. 349 (1977), the Supreme Court

vacated and remanded the case as the Court found the due process of law

was violated, at least in part, when the petitioner had no opportunity to

deny or explain the portions of information which were not disclosed to

or requested by counsels for the parties. In Morrissey v. Brewer, 408 U.S.

471 (1972), the Supreme Court reversed the decision and remanded the

case to the Court of Appeals for further proceedings as the Court found,

photograph also did not show the prior damage of the

windshield that she had at the time of the accident. Such

omission was done to with the intent to misrepresent and

mislead the jury to conceal the extent of damage on her

vehicle. The respondent’s version was also inconsistent with

the damage sustained by the petitioner’s vehicle. The

respondent’s counsel presented the accident report”* and the

narrative supplement to the jury, which prejudiced the

petitioner’s case. The Trial Court and the jury accepted these

reports and the officer’s testimony when it constituted

inadmissible hearsay, being speculative. The Trial Court

erred in admitting into evidence these reports.”°

The Petition of Certification raised the issue, the Appellate

Court would not consider the review of the petitioner’s claim

of the cost to repair her vehicle when the issue was

sufficiently raised on the record to warrant review on

appeal,”° and the Court would not consider whether the plain

error review would be warranted when the issue was

sufficiently raised in the brief, the Trial Court “erred” in

the petitioners were deprived of due process as the parole revocation

required “an informal hearing to give assurance that the finding of a

parole violation is based on verified facts to support the revocation.” Jd. at

471. In Walker, Inc. v. Food Machinery, 328 U.S. 172 (1965), the

Supreme Court reversed the decision and remanded the case to the Trial

Court to “allow petitioner to clarify and offer proof on the alleged

violations of 2.” Jd. at 172.

4 It has been about six and a half years from the time of the accident to

the trial and the respondent was unable to provide a single accident

diagram, and she relied upon the police accident diagram like it is the true

rendition of the accident when the officer was not there when the collision

occurred and she moved her vehicle to the perking lot, and the officer did

not observe the location of the petitioner’s vehicle carefully.

*> A verdict should set aside if a harmful error was made in admitting or

excluding evidence -- Ardoline v. Keegan, 140 Conn. 522 (1954); In re

Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069 (1980).

excluding this claim as it was an essential element to prove

her stand of the speed the respondent was traveling. (App. 59,

question II).”’ The Petition raised the issue, her claim of the

repair cost for the damage was relevant to the liability phase

because the evidence was not presented on the issue of

damages as it is a personal injury case and not a property

damage case and she was not attempting tu bring up the

extent of her injuries and cost related to her injuries, but only

that relating to her vehicle. Therefore, the Court’s ruling was

erroneous as the claim would have provided circumstantial

evidence to show the respondent was speeding — the extent of

the physical damage on the vehicle and the repair cost for it

would provide circumstantial evidence of the speed the

respondent was traveling.”* The Petition raised the issue,

6 In Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907

(1982), the Court considered a claim, not raised in the Trial Court.

27 In Nielsen v. Kezer, 232 Conn. 65, 73, note 15, 652 A.2d 1013, 1012,

note 15 (1995), the Court reversed the issue, not properly preserved with

a plain error review. The Court noticed the plain error in instruction, not

brought to the Court’s attention at the Trial in United States v. Ward, 168

F.2d 226, 228 (2d Cir. 1948); Robertson v. United States, 171 F.2d 345

(D.C. Cir. 1948). In Jones v. United States, 175 F.2d 544 (9th Cir. 1949),

the Court of Appeals held, it was the duty of the Court to notice a plain

error “though not assigned as error.” /d. at 544. “Err” is “To make an

error; to be incorrect or mistaken.” Black's Law Dictionary, p. 562 (7th

ed. 1999). “Plain error” is “An error that is so obvious and prejudicial that

an appellate court should address it despite the parties’ failure to raise a

proper objection. A plain error is often said to be so obvious and

substantial that failure to correct it would infringe a party’s due-process

rights and damage the integrity of the judicial process.” Jd. at 563.

8 In Daigle v. United States, 181 F.2d 311, 313 (1st Cir. 1950), the

Appellate Court considered the instruction not objected to below. In

United States v. Cumberland, 200 F.2d 609 (3rd Cir. 1952), the Court

reversed the judgment for errors not objected to at the Trial. In Lazarov v.

United States, 225 F.2d 319, 329 (6th Cir. 1955), the Court held, “No

exception was taken to the instruction but, of course, an appellate court

will consider an error in the charge which is seriously prejudicial or

amounts to a grave miscarriage of justice even though no objection was

made in the trial court.” In Remmer v. United States, 205 F.2d 277, 290,

during the Trial, she was asked by her counsel, “Do you

recall what the damage estimate was to repair these areas?” to

which she responded, “Yes.”. Menon v. Dux, 81 Conn. App.

167, 175 (2004). The Appellate Court held, the petitioner did

not articulate any evidentiary rule on which such testimony

was admissible (Id. at 171) when her counsel’s question did

not require an articulation which would have an evidentiary

rule. If she was expected to articulate any evidentiary rule on

which such testimony was admissible, the petitioner’s

counsel should have asked a question like, “What was the

damage estimate to repair these areas?” or “What do you

recall of the damage estimate to repair these areas?” and to

which she would have articulated more than a “yes”. It

should be noted, the respondent’s counsel raised an objection

only after she had responded to the question asked and not

after her counsel asked the question. The fact that he had

raised his objection after she responded in the affirmative

suggests, he might have improper motive or intent.

The Petition raised the issue, the Appellate Court used the

accident report and the narrative supplement and the diagram

as a guide as to how the accident occurred when the

credibility of those materials should have been questioned

though the police reports are admissible under the business

records exception to hearsay. Rule 803(6) of the Uniform

Rules of Evidence Act, Cf. Federal Rules of Evidence §

803(6), states such reports are hearsay exceptions “unless the

source of information or the method or circumstances of

preparation indicate lack of trustworthiness.” In the reports,

the petitioner’s mother’s presence was not noted (9/18/02 Tr.

p. 147) and she was not interviewed (9/18/02 Tr. p. 84), and

the respondent admitted, she was alone with the officer in

the parking lot (Dep. Tr. p. 24). Hence, he reconstructed the

note 16 (9th Cir.1953), the Court held, “Plain error in instructions should

of course be noticed regardless of whether the matter was properly

brought to the attention of the trial court.”

rte

accident considering only the respondent’s version.”” The

Petition raised the issue, the Appellate Court overlooked and

did not rule that the shoulder could not be traversed by a

vehicle as there was a cement curb which blocked the

driveway and prevents a driver from entering the driveway.

“In sum, relevant evidence is evidence that in some degree

advances the inquiry. It is material and probative.”

McCormick on Evidence, § 185, p. 544 (3d ed. 1984). It is

axiomatic that “[e]vidence is admissible only to prove

material facts, that is to say, those facts directly in issue or

those probative of matters in issue; evidence offered to prove

other facts is ‘immaterial.’” C. Tait, Connecticut Evidence, §

4.1.3, p. 200 (3d ed. 2001), citing Adams v. Way, 32 Conn.

160, 167-69 (1864). Salmon v. Dept. of Public Health &

Addiction Services, 788 A.2d 1199, 1216, 259 Conn. 288

(2002). For the Petition, some of the cases that she brought

out was the Hutchinson v. Plante, 175 Conn. 1, 392 A.2d

488 (1978) which is it is an automobile negligence issue like

her case in which both drivers offered conflicting versions of

the accident. The Court found error in the case and set aside

the judgment and ordered a new trial. The Court held, the

officer’s testimony was inadmissible in its entirety as the

“trooper accepted and reported the defendant’s operator’s

version of the event.” Jd. at 6-7, 392 A.2d at 491. The Court

also held, the narrative and diagram contained in the report

were inadmissible as business entries as they were self-

serving hearsay as to respondent’s version. (App. 102).

For the Motion for Reconsideration, the petitioner brought

out cases, such as the Adams v. Way, 32 Conn 160 (1864),

where the evidence was excluded and the plaintiff was

entitled to a new trial. The Motion raised the issue, her claim

29 Business records may not be admitted for truth of matters stated. Such

records bear no presumption of accuracy even when properly admitted

and their credibility is a question for the trier of fact. State v. Ward, 172

Conn. 163, 170, 374 A.2d 168 (1976).

of the repair cost was excluded when it is a personal injury

case and not solely a property damage case and therefore, her

claim for the repair cost was relevant to the liability phase as

it was related to her vehicle and would have provided

circumstantial evidence to show the speed at which the

respondent’s vehicle was traveling. The Motion raised the

issue, just like the Liimatta v. Vest case and Adams v. Way

case, her claim of the repair costs was critical in proving her

version that the respondent came from the opposite direction

when she made a sudden and unexpected left turn directly in

front of her as the respondent’s version did not explain the

extent of physical damage to the petitioner’s vehicle and by

excluding this claim from the liability phase, she would not

be able to prove her version or to substantiate her position

that the respondent came from the opposite side of the street.

The Motion raised the issue, in this case where both drivers

had conflicting versions, her claim of the repair cost was a

critical element of her version and she would almost never be

able to prove her case by excluding this claim *° -- the extent

of the property damage would shed light on the question of

the respondent’s speed. In State v. Golding, 213 Conn. 233,

567 A.2d 823 (1989), the Court held, the “amount obtained

by the defendant was essential element of crime of general

assistance” and the “failure to inform jury that it had to find

proven, beyond a reasonable doubt, amount defendant

obtained by fraud was constitutional error.” The Motion

raised the issue, the Supreme Court reviewed State v.

Golding, 567 A.2d 823 (1989) under State v. Evans, 165

Conn. 61, 327 A.2d 576 (1973). It raised the issue that like

the State v. Golding case where the “amount obtained by

judgment was reversed and the case, remanded for further proceedings.

The Supreme Court found, “had petitioner been permitted to introduce all

evidence relevant under her allegations, the facts would have revealed a

situation as to which a jury under appropriate instructions” would have

rendered a decision in favor of the petitioner. /d. at 823.

defendant was essential element of crime of general

assistance,” her claim of the extent of the physical damage

and the repair cost for it was an essential element in order to

support her version, the other driver was speeding.

The Trial Court Judge conveyed to the jury, there was an

opportunity for an Appellate Court review and a review by

the Supreme Court of Connecticut and, finally, “everybody in

certain instances” (9/17/02 Tr. p. 10), could be reviewed by

the Supreme Court in Washington or the Congress can make

changes to the laws. (App. 67-69).*' Though the Trial Judge,

then, stated that the jury’s verdict was final and an error

could not be made, and the fact pattern could not be

reviewed, and if the decision was accepted by the Court, it

was the correct verdict and the verdict would never be

changed, the Judge’s comments about the reviews of the

various Courts had given the jurors the impression, they did

not have to be correct in their decision or sure of their

decision as their decision and their responsibility for

determining the case correctly and impartially was not

important as it would be subjected to review by another to

ensure its correctness and at the same time, the jurors might

not be aware that the nature of review is a difficult and

review is limited in nature as the determination is accepted

with the presumption it is correct. (App. 99-101). For the

Trial on September 17 and 18, 2002, the Judge stated several

times about the Appellate Court and Hartford. (App. 67-69).

The Judge also stated about mistrial and the Trial had to be

started all over. (9/17/02 Tr. p. 16). (App. 67). It is should

pointed out, though the respondent and petitioner presented

3! In Caldwell v. Mississippi, 472 U.S. 320 (1985), “the prosecutor urged

the jury not to view itself as finally determining whether petitioner would

die, because a death sentence would be reviewed for correctness by the

Mississippi Supreme Court.” Jd. at 320. The petitioner failed to raise

about the prosecutor’s comments on appeal, but the Supreme Court

reviewed it. The prosecutor’s comments minimize the jurors’ sense of

duty as the “responsibility for determining the appropriateness of the

defendant's death rests elsewhere.” Jd. at 320.

conflicting versions, the jurors reached a verdict in a short

time when they should have given more thought to the case.”

The Trial Court stated in its the charge, “[t]he defendant

need not offer any evidence on the issue for the plaintiff’

(9/18/02 Tr. p. 165) -- she need not have to offer evidence, so

there should not have been two competing versions for the

jury to determine which one was accurate as it is a violation

of the due process of law and equal protection to the other.

The Trial Court should submit no issue to the jury where no

evidence was offered, or issue which was foreign to the facts

in evidence, or issue where there was no support of the

evidence. Wolfe v. Rehbein, 123 Conn. 110, 115 (1937). “It is

established law that it is error for a court to submit to the jury

an issue which is wholly unsupported by the evidence....”

Novak v. Anderson, 178 Conn. 506, 423 A.2d 147 (1979).

CONCLUSION

For these reasons, the petitioner respectfully requests this

Court to grant the Petition for Writ of Certiorari.

Respectfully submitted,

HEMA MENON

Petitioner

2 Spitzer Court

Norwalk, CT 06854

(203) 852-8168

The jurors were an unusual group of people who were unable to

handle the case seriously, and they found the case and the situation

amusing. Toward the end of the trial, some of the jurors had amusing

expression on their faces and some of them were laughing as they were

walking in and out of jury booth to the chamber and the foreperson who

handed over the paper with the verdict had an amusing expression on his

face like he was trying to control himself from laughing. Overall, the

demeanor showed that the jurors did not have any respect for the Court.

App. 1

APPENDIX A

SUPREME COURT

STATE OF CONNECTICUT

NO. AC 23563

HEMA MENON _

VY.

ANN DUX : JUNE 9, 2004

ORDER

THE MOTION OF THE PLAINTIFF, FILED MAY

11, 2004, TO FILE LATE CERTIFICATION FOR

PETITION BY SUPREME COURT, HAVING BEEN

PRESENTED TO THE COURT, IT 1S HEREBY

ORDERED GRANTED.

BY THE COURT,

/s/ Michele T. Angers

CHIEF CLERK

NOTICE SENT: JUNE 10, 2004

HEMA MENON, PRO SE

CASSIDY, MAZZA & LEBLANC

CLERK, STAMFORD J.D. (CV98-0163276)

REPORTER OF JUDICIAL DECISIONS

439/031445

App. 2

SUPREME COURT

STATE OF CONNECTICUT

NO. PSC-03-0389

Hema Menon

Ann Dux

ORDER ON PETITION FOR CERTIFICATION

TO APPEAL

On consideration of the petition by the plaintiff for

certification to appeal from the Appellate Court (81 Conn.

App. 167 [AC 23563}), it is hereby ordered that said petition

be, and the same is hereby denied.

BY THE COURT,

/s/ Alan M. Gannuscio

ASSISTANT CLERK-APPELLATE

Dated:6/9/04

Notice sent: June 10, 2004

Clerk, Superior Court, Stamford/Norwalk,

CV98 163276

Clerk, Appellate Court

Reporter of Judicial Decisions

SAO

Hema Menon, pro se

Cassidy, Mazza & Leblanc

Hema Menon, pro se, in support of petition.

mkm

App. 3

SUPREME COURT

STATE OF CONNECTICUT

NO. AC 23563

HEMA MENON

ANN DUX : JUNE 30, 2004

ORDER

THE MOTION OF THE PLAINTIFF, FILED JUNE

21, 2004, FOR RECONSIDERATION OF THE DENIAL

OF PETITION FOR CERTIFICATION, HAVING BEEN

PRESENTED TO THE COURT, IT IS HEREBY

ORDERED DENIED.

BY THE COURT,

/s/ Michele T. Angers

CHIEF CLERK

NOTICE SENT: JUNE 30, 2004

HEMA MENON, PRO SE

CASSIDY, MAZZA & LEBLANC

HON. JOHN P. RYAN

CLERK, STAMFORD SUPERIOR COURT,

(CV98-0163276S)

REPORTER OF JUDICIAL DECISIONS

484/031491

App. 4

APPENDIX B

Connecticut Appellate Decisions

Menon v. Dux, 81 Conn. App. 167 (2004)

838 A.2d 1038

HEMA MENON v. ANN DUX

(AC 23563)

Appellate Court of Connecticut

Schaller, McLachlan and Berdon, Js.

Syllabus

The plaintiff sought to recover damages for personal

injuries she sustained as a result of the defendant’s alleged

negligence in connection with an automobile accident. The

jury returned a verdict in favor of the defendant and the trial

court rendered judgment rendered thereon, from which the

plaintiff appealed to this court. Held:

This court declined to review the plaintiff's claim, raised

for the first time on appeal, that the trial court, which had

concluded that certain evidence concerning the cost of

repairing the damage to the plaintiffs vehicle caused by the

accident was relevant only to the damages phase of the

trial, improperly excluded the evidence in the liability

phase although it constituted circumstantial evidence of the

speed at which the defendant’s vehicle was traveling at the

time of the accident; at trial, the plaintiff's counsel did not

articulate any basis for permitting the evidence to be

introduced in the liability phase, and he expressly

acquiesced in that court’s ruling excluding it.

2. The plaintiff's unpreserved challenge to the trial court’s

jury instructions concerning the jury’s discretion in

App. 5

reaching a verdict was unavailing and did not warrant plain

error review, the plaintiff having failed to demonstrate that

the alleged error in the instruction was so obvious that it

affected the fairness and integrity of and public confidence

in the judicial proceedings or that the failure to grant the

requested relief would result in manifest injustice.

3. The trial court did not abuse its discretion in denying

the plaintiff's motion to set aside the jury’s verdict, which

was supported by the evidence presented; the jury

reasonably could have believed the defendant’s version of

the circumstances that led to the accident, which was

consistent with the damage sustained by both vehicles and

was supported by the testimony of the police officer who

had responded to the scene.

Argued October 22, 2003

Officially released January 20, 2004

Procedural History

Action to recover damages for personal injuries sustained

by the plaintiff as a result of the defendant’s alleged

negligence, brought to the Superior Court in the judicial

district of Stamford-Norwalk and tried to the jury before

Ryan, J.; verdict for the defendant; thereafter, the court

denied the plaintiff's motion to

Page 168

set aside the verdict, for a new trial and in arrest of judgment,

and rendered judgment in accordance with the verdict, from

which the plaintiff appealed to this court. Affirmed.

John R. Williams, for the appellant (plaintiff).

Kieran S. Cassidy, for the appellee (defendant).

App. 6

Opinion

McLACHLAN, J.

This appeal rises out of a negligence action brought by the

plaintiff, Hema Menon, for the alleged liability of the

defendant, Ann Dux, in causing an automobile collision. The

plaintiff challenges both the trial court’s judgment in favor of

the defendant, rendered after a jury verdict, and the court’s

subsequent denial of her motion to set aside the verdict. On

appeal, the plaintiff claims that the court improperly (1)

excluded certain testimony relating to the cost of repairing

the damage to her vehicle as a result of the collision, (2)

instructed the jury concerning its discretion in determining

the verdict and (3) denied her motion to set aside the verdict.

We affirm the judgment of the trial court.

Following the jury selection, the court bifurcated the trial

into two phases, liability and damages. During their

testimony in the liability phase, the plaintiff and defendant

provided conflicting versions of the events leading to the

accident, essentially offering competing accounts of the

directions in which the vehicles were traveling and the

manner in which the collision occurred. Officer Lawrence

Frinton of the Danbury police department, who investigated

the accident scene, also testified. In his original accident

report, Frinton provided a diagram of the accident based on

his conversations with the plaintiff and the defendant

immediately following the accident, and on his observations

of the scene. This diagram was consistent with the version of

events ;

Page 169

advanced by the defendant. Frinton’s report also contained a

narrative, however, which contained certain statements that

contradicted the diagram and, in fact, supported the plaintiff's

version of events. Frinton later filed a narrative supplement

to the accident report in which he indicated that in his

App. 7

original report, he mistakenly described the position and

directional movement of the defendant’s vehicle. He clarified

that this description was in error and that in his opinion, the

collision had occurred in the manner described by the

defendant. [fn1]

Following the conclusion of evidence in the liability

phase, the jury returned a verdict in favor of the defendant.

The plaintiff subsequently filed a motion to set aside the

verdict, pursuant to Practice Book § 16-35, on the ground,

inter alia, that verdict was contrary to the evidence. The

motion was denied, and judgment was rendered in favor of

the defendant. The plaintiff now appeals.

The plaintiff first claims that the court improperly

excluded evidence concerning the cost of repairing the

damage to her vehicle as a result of the collision. The court

excluded that evidence on the ground that although it would

be appropriate in the damages phase of the trial, it was

irrelevant to the liability phase. The plaintiff asserts for the

first time on appeal that this testimony should have been

permitted as circumstantial evidence showing that at the time

of the collision, the defendant’s vehicle was traveling at a

high rate of speed. We decline to review the claim.

The record reveals that on redirect examination, the

plaintiff's counsel questioned the plaintiff about the

Page 170

damage to her vehicle. After the plaintiff explained the

nature of the damage, counsel inquired as to the cost of

repairing such damage. The defendant’s counsel objected to

that question on relevancy grounds and, in sustaining the

objection, the court reasoned that because the testimony was

relevant only to the issue of damages, it should be postponed

until the damages phase of the trial. In response to the

App. 8

court’s determination, the plaintiff's counsel articulated no

rationale for permitting the testimony or any objection to the

court’s ruling and, quite to the contrary, expressly acquiesced

to the ruling.[fn2]

The plaintiff now asserts that the testimony should have

been permitted because the extent of damage to her vehicle

comprised circumstantial evidence of the speed at which the

defendant’s vehicle was traveling at the time of the collision.

The plaintiff now maintains that because such testimony

would have supported her argument that the defendant was

speeding prior to the collision, the testimony was relevant to

the issue of liability and, therefore, should have been

permitted.

Page 171

It is well established that “[t]his court will not review

issues of law that are raised for the first time on appeal....We

have repeatedly held that this court will not consider claimed

errors on the part of the trial court unless it appears on the

record that the question was distinctly raised at trial and was

ruled upon and decided by the court adversely to the

appellant’s claim.” (Internal quotation marks omitted.)

Strouth v. Pools By Murphy & Sons, Inc., 79 Conn. App. 55,

62, 829 A.2d 102 (2003).

Although the plaintiff attempted to introduce testimony of

the extent of the damage to her vehicle, she did not articulate

any evidentiary rule on which such testimony was

admissible. For this court now to consider her claim on the

basis of a specific legal ground not raised during trial would

“amount to trial by ambuscade, unfair both to the trial court

and to the opposing party.” (Internal quotation marks

omitted.) State v. Westberry, 68 Conn. App. 622, 628 n. 3,

792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519

(2002). Accordingly, we will not afford review to that

unpreserved claim.[fn3]

The plaintiff next claims that the court improperly

instructed the jury concerning its discretion in determining a

verdict. Specifically, the plaintiff claims that the court’s

charge conveyed to the jury that it had unbridled discretion to

disregard the law in reaching a verdict. The plaintiff

concedes that she did rot take exception to the jury charge at

trial, and our review of the record reveals that she did not

submit a written recuest to charge. Accordingly, the

plaintiff's claim was

Page 172

not preserved for appellate review. See Practice Book § 16-

20; Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d

496 (2002). [fn4] Nevertheless, a party may prevail on an

unpreserved claim under the plain error doctrine if such

review is affirmatively requested. See Practice Book § 60-5;

State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002).

[fn5] As the plaintiff has requested plain error review, we

must consider whether such review is warranted.

As we often have stated, “[p]lain error review is reserved

for truly extraordinary situations where the existence of the

error is so obvious that it affects the fairness and integrity of

and public confidence in the judicial proceedings.... Plain

error is a doctrine that should be invoked sparingly.... A

party cannot prevail under plain error unless it has

demonstrated that the failure to grant relief will result in

manifest injustice.... Furthermore, even if the error is so

apparent and review is afforded, the defendant cannot prevail

on the basis of an error that lacks constitutional dimension

unless he demonstrates that it likely affected the result of the

trial.” (Citation omitted; internal quotation marks omitted.)

State v. Thompson, 71 Conn. App. 8, 12 n. 4, 799 A.2d 1126

(2002).

The plaintiff has failed to demonstrate that the court’s

App.10

instruction was so obviously erroneous that it affected the

fairness and integrity of and public confidence in the judicial

proceedings or that failure to grant the

Page 173

requested relief will result in manifest injustice. [fn6] See id.

We accordingly conclude that plain error review is

unwarranted.

The plaintiff last claims that the court improperly denied

her motion to set aside the jury’s verdict. Specifically, the

plaintiff claims that the evidence adduced at tnal

demonstrated that the collision could not have occurred in the

manner alleged by the defendant and subsequently accepted

by the jury. We disagree.

“(T]he proper appellate standard of review when

considering the action of a trial court granting or denying a

motion to set aside a verdict and motion for a new trial... [is]

the abuse of discretion standard.... In determining whether

there has been an abuse of discretion, every reasonable

presumption should be given in favor of the correctness of

the court’s ruling.... Reversal is required only where an

abuse of discretion is manifest or where injustice appears to

have been done....

“A court is empowered to set aside a jury verdict when, in

the court’s opinion, the verdict is contrary to the law or

unsupported by the evidence.... A verdict should not be set

aside, however, where it is apparent that there was some

evidence on which the jury might reasonably have reached its

conclusion.... In analyzing a sufficiency of the evidence

claim, the test that we employ is whether, on the basis of the

evidence before the jury, a reasonable and properly motivated

jury could return the verdict that it did.... On appellate

review, ;

App.11 :

Page 174 . ‘

therefore, we will give the evidence the most favorable

reasonable construction in support of the verdict to which it is

entitled.” (Internal quotation marks omitted.) Carusillo v.

Associated Women’s Health Specialists, P.C., 79 Conn. App.

649, 653, 831 A.2d 255 (2003). “We do not... determine

whether a conclusion different from the one reached could

have been reached.... A verdict must stand if it is one that a

jury reasonably could have returned and the trial court has

accepted.” (Internal quotation marks omitted.) Arnone v.

Enfield, 79 Conn. App. 501, 506, 831 A.2d 260, cert. denied,

266 Conn. 932, A.2d (2003).

The pivotal issue in the plaintiff's claim is the conflicting

testimony offered by the plaintiff and the defendant as to the

circumstances leading to the collision. Although the

plaintiff's testimony roundly contradicted that of the

defendant, and the jury reasonably could have elected to

believe the plaintiff and not the defendant, our task is not to

determine whether a conclusion different from the one

arrived at could have been reached, but rather to determine if

there was some evidence on which the jury might reasonably

have reached its conclusion. See Carusillo v. Associated

Women’s Health Specialists, P.C., supra 79 Conn. App. 653.

Although it was not supported by the entire record, the

version of events advanced by the defendant and accepted by

the jury was adequately supported by the record. Not only

was the defendant’s version consistent with the damage

sustained by both vehicles, it also was bolstered by Frinton’s

testimony that in his opinion, the accident occurred in the

manner described by the defendant. We accordingly

conclude that the jury’s verdict was not contrary to the

evidence and the court did not abuse its discretion in denying

the plaintiff's motion to set aside the verdict.

Page 175

App.12

The judgment is affirmed.

In this opinion the other judges concurred.

{fnl] Also testifying at trial was the plaintiff's mother, a

passenger in the plaintiff's vehicle. With respect to the

circumstances surrounding the collisiion, her testimony

essentially mirrored that of the plaintiff.

[fn2] The following colloquy occurred during redirect

examination of the plaintiff:

“(Plaintiff's Counsel]: Do your recalll what the damage

estimate was to repair these areas?

“{ Witness]: Yes.

“[Defendant’s Counsel]: Objection. That’s irrelevant, Your

Honor.

“The Court: At the present time in the sttatus of the record, I

have to sustain the objection.

“[Plaintiff's Counsel]: I’m merely offerimg it —

“The Court: It would be relevant to the question of the force

of the collision —

“(Plaintiff's Counsel]: Yes.

“The Court: -- which, that may become a question relevant as

to the nature and extent of the damages. But seeing that

we’re in a bifurcated trial, I don’t think it’s really relevant

now as to the extent of the damage. It’s conceded that both

vehicles came into contact, and, of course, there was a picture

that showed damage to the front of the car.

App.13

“(Plaintiffs Counsel]: Okay.

“The Court: So, for right now, why don’t we just postpone

that?

“(Plaintiff's Counsel]: All right.”

[fn3] We note that the plaintiff did not seek review of the

unpreserved ground under the rubric of plain error. As we

have consistently stated, “it is not appropriate to engage in a

level of review that is not requested.” State v. Hermann, 38

Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn.

903, 665 A.2d 904 (1995). We therefore do not consider

whether review of the claim is warranted under the plain

error doctrine.

{fn4] Practice Book § 42-16 provides in relevant part: “An

appellate court shall not be bound to consider error as to the

giving of, or the failure to give, an instruction unless the

matter is covered by a written request to charge or exception

has been taken by the party appealing immediately after the

charge is delivered....”

[fn5] Practice Book § 60-5 provides in relevant part: “The

court shall not be bound to consider a claim unless it was

distinctly raised at the trial or arose subsequent to the trial.

The court may in the interests of justice notice plain error not

brought to the attention of the trial court....”

[fn6] The specific portion of the jury instruction to which the

plaintiff objects states: “As I said to you when you were first

sworn in, you always do the right thing. You don’t have to

worry about whether you did the wrong thing, so don’t worry

about that.” That one sentence, considered in the context of

the court’s thirty-one pages of instruction, does mot rise to the

level of the truly extraordinary situation for wicn we reserve

plain error review.

App. 14

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. Amend. 1:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press, or the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.

U.S. Const. Amend. 14:

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

App.15

STATE OF CONNECTICUT

OFFICE OF THE CLERK

SUPERIOR COURT

GA 03 COURTHOUSE June 19, 1996

146 WHITE STREET

DANBURY, CT 06810 6853

HEMA MENON

29 JUDITH DR

DANBURY, CT

Docket Number: | D03D-MI96-3742861-S

Summons Number: 374286

Date of Summons: 02/20/1996

STATE OF CONNECTICUT

V. .

HEMA MENON

YOU ARE HEREBY NOTIFIED THAT: On 06/17/1996,

A NOLLE PROSEQUI WAS ENTERED BY THE

PROSECUTING AUTHORITY (Pr. Bk. 724)

This notice means that the case shown above pending

against you has been disposed. You are NOT REQUIRED to

appear in court or pay any fines, fees, costs, or surcharges

which may have been applicable if you had been found guilty

of this offense. The Department of Motor Vehicles or the

appropriate Arresting Agency will be notified of this

disposition by the court.

Office of the Clerk

App. 16

Ret. Date: February 3, 1998 : Superior Court

Hema Menon : J.D. of Stamford/Norwalk

Vv. : at Stamford

Ann Dux : January 5, 1998

COMPLAINT

1. On or about February 20, 1996, the plaintiff, Hema

Menon was the owner and operator of a 1991 Ford Escort

which was proceeding in an easterly direction on Lake

Avenue Extension, a public highway in Danbury,

Connecticut.

2. The defendant, Ann Dux was the owner and operator of a

1989 Ford, traveling in a westerly direction on Lake Avenue

Extension, a public highway in Danbury, Connecticut.

3. On said date the defendant, Ann Dux drove her vehicle so

as to collide with the vehicle of the plaintiff thereby greatly

damaging the vehicle of the plaintiff and causing her painful

and permanent injuries.

4. Said collision was caused by the carelessness and

negligence of the defendant, Ann Dux, in that she:

a) operated said vehicle at too fast and excessive a rate of

speed for the time and place and the circumstances then and

there existing.

b) failed to maintain a proper lookout

c) failed to yield right of way in violation of CGS §14-247

d) failed to keep said vehicle under reasonable and proper

control

e) made an improper turn in violation of CGS §14-242

App. 17

f) operated said vehicle as to endanger the life, limb and

property of persons lawfully on the highway.

Wherefore, the plaintiff claims damages.

The Plaintiff

By /s/ Christine B. O’Sullivan

Christine B. O’Sullivan

Her Attorney

Amount in Demand

The amount in demand is greater than $15,000.00.

By /s/ Christine B. O’ Sullivan

Christine B. O’Sullivan

Plaintiff's Attorney

App. 18

D.N. CV-98-0163276-S : SUPERIOR COURT

HEMA MENON $ ae

STAMFORD/NORWALK

VS. : AT STAMFORD

ANN DUX : MARCH 11, 1998

AMENDED COMPLAINT

The Plaintiff, Hema Menon, amends Paragraph 3 of her

Complaint as follows:

3. On said date the defendant, Ann Dux drove her vehicle so

as to collide with the vehicle of the plaintiff thereby greatly

damaging the vehicle of the plaintiff and causing her painful

and permanent injuries, including the injuries to her neck,

spine, shoulder, arms and back, as well as internal injuries

and nerve damage.

THE PLAINTIFF

By /s/ Christine B. O’ Sullivan

Christine B. O’Sullivan

Her Attorney

CERTIFICATION

This is to certify that a copy of the foregoing was mailed on

March 11, 1998, to:

Brendan P. Donahue, Esquire, Schwartz & Cassidy, 1375

Kings Highway East, Suite 475, Fairfield, CT 06430

/s/ Christine B. O’Sullivan

Christine B. O’Sullivan

Commissioner of the

Superior Court

ae oe

App. 19

D.N: CV-98-0163276-S : SUPERIOR COURT

HEMA MENON : J.D.

STAMFORD/NORWALK

VS. : AT STAMFORD

ANN DUX : MARCH 31, 1998

SECOND AMENDED COMPLAINT

The Plaintiff, Hema Menon, amends Paragraph 3 of her

Complaint as follows:

3. On said date the defendant, Ann Dux drove her vehicle so

as to collide with the vehicle of the plaintiff thereby greatly

damaging the vehicle of the plaintiff and causing her painful

and permanent injuries, including the injuries to her neck,

spine, shoulder, arms, back and legs, as well as internal

injuries and nerve damage.

THE PLAINTIFF

By /s/ Christine B. O’ Sullivan

Christine B. O’ Sullivan

Her Attorney

CERTIFICATION

This is to certify that a copy of the foregoing was mailed on

March 31, 1998, to:

Brendan P. Donahue, Esquire, Schwartz & Cassidy, 1375

Kings Highway East, Suite 475, Fairfield, CT 06430

/s/ Christine B. O’Sullivan

Christine B. O’ Sullivan

Commissioner of the

Superior Court

App. 20

D.N. CV 98 0163276S : SUPERIOR COURT

HEMA MENON : J.D. OF

STAMFORD/NORWALK

VS. : AT STAMFORD

ANN DUX : MARCH 20, 1998

ANSWER AND SPECIAL DEFENSES

1-2. With respect to the ‘allegations referred to in

Paragraphs 1 and 2, the Defendant has_ insufficient

knowledge to form a belief as to the truth and, therefore,

leaves the Plaintiff to her proof.

_3-4. Paragraphs 3 and 4 are denied.

BY WAY OF SPECIAL DEFENSE:

Any damages to the plaintiff in this action were actually

and proximately caused by her own negligence in one or

more of the following ways:

a. in that the plaintiff failed to keep a proper and

reasonable lookout for other motor vehicles upon the

highway;

b. in that the plaintiff failed to keep proper and

reasonable control of her vehicle;

c. in that the plaintiff failed to act as a reasonable and

prudent person under all circumstances and conditions then

and there existing;

App. 21

d. in that the plaintiff failed to apply her brakes in a

timely manner so as to avoid the accident from occurring

although by a proper and reasonable exercise of her faculties,

she could and should have done so;

e. in that the plaintiff failed to turn her motor vehicle to

the left or right so as to avoid a collision, although by a

proper and reasonable exercise of her faculties she could and

should have done so;

f. in that the plaintiff operated her vehicle at an

unreasonable rate of speed in violation of Connecticut

General Statutes § 14-218a;

g. in that the plaintiff failed to comply with Connecticut

General Statutes § 14-236 by failing to remain in her

designated lane of travel;

h. in that the plaintiff failed to yield the right of way as

required by Connecticut General Statutes § 14-242 (e), § 14-

245 and § 14-246a;

i. in that the plaintiff was operating her vehicle at an

excessive rate of speed with regard to the weather conditions

that existed on the highway;

j. in that the plaintiff operated her vehicle at an

unreasonable and excessive rate of speed having due regard

for the traffic, weather, width and use of the highway and

intersection of streets.

THE DEFENDANT

ANN DUX

By /s/ Brendan P. Donahue

Brendan P. Donahue

SCHWARTZ & CASSIDY

1375 Kings Highway East

Suite 475

Fairfield, CT 06430

Juris No. 408555

(203) 331-1505

CERTIFICATION

This is to certify that a copy of the foregoing was mailed on

March 20, 1998 to:

Christine B. O’Sullivan, Esq., 13 Hermit Lane, Westport, CT

/s/ Brendan P. Donahue

Brendan P. Donahue

App. 23

D.N. CV-98-0163276-S |: SUPERIOR COURT

HEMA MENON : J.D.

STAMFORD/NORWALK

VS. : AT STAMFORD

ANN DUX : APRIL 20, 1999

REPLY TO SPECIAL DEFENSES

The allegations contained in the Defendant’s Special Defense

a. thru j. are denied.

THE PLAINTIFF

By /s/ Christine B. O’ Sullivan

Christine B. O’Sullivan

Her Attorney

CERTIFICATION

This is to certify that a copy of the foregoing was mailed,

postage prepaid on April 10, 1999, to:

Brendan P. Donahue, Esquire

Schwartz & Cassidy

1375 Kings Highway East — Suite 475

Fairfield, CT 064306

/s/ Christine B. O’ Sullivan

Christine B. O’Sullivan

App. 24

NO. CV-98-0163276-S =: SUPERIOR COURT

HEMA MENON : J.D. DIST. OF STAMFORD

VS. : AT STAMFORD

ANN DUX : SEPTEMBER 28, 2002

The plaintiff respectfully moves, pursuant to Section 16-

35 of the Practice Book, to set aside the verdict in this case

for the following reasons:

1. The verdict was contrary to the evidence.

2. The jury was selected in a manner which improperly

excluded minorities and persons of color.

3. Evidentiary rulings during the trial were erroneous.

THE PLAINTIFF

BY: /s/ John R. Williams

John R. Williams (#67962)

51 Elm Street

New Haven, CT 06510

203.562.9931

Fax: 203.776.9494

E-Mail: jrw@johnrwilliams.com

Plaintiff's Attorney

ORAL ARGUMENT NOT REQUESTED

TESTIMONY NOT REQUIRED

App. 25

NO. CV-98-0163276-S : SUPERIOR COURT

HEMA MENON : J.D. DIST. OF STAMFORD

VS. : AT STAMFORD

ANN DUX : SEPTEMBER 28, 2002

MOTION FOR NEW TRIAL

The plaintiff respectfully moves, pursuant to Section16-35

of the Practice Book, to set aside the verdict in this case for

the following reasons:

1. The verdict was contrary to the evidence.

2. The jury was selected in a manner which improperly

excluded minorities and persons of color.

3. Evidentiary rulings during the trial were erroneous.

THE PLAINTIFF

BY: /s/ John R. Williams

John R. Williams (#67962)

51 Elm Street

New Haven, CT 06510

203.562.9931

Fax: 203.776.9494

E-Mail: jrw@johnrwilliams.com

Plaintiff's Attorney

ORAL ARGUMENT NOT REQUESTED

TESTIMONY NOT REQUIRED

App. 26

NO. CV-98-0163276-S : SUPERIOR COURT

HEMA MENON : J.D. DIST. OF STAMFORD

VS. : AT STAMFORD

ANN DUX : SEPTEMBER 28, 2002

MOTION IN ARREST OF JUDGMENT

The plaintiff respectfully moves, pursuant to Section 16-

35 of the Practice Book, to set aside the verdict in this case

for the following reasons:

1. The verdict was contrary to the evidence.

2. The jury was selected in a manner which improperly

excluded minorities and persons of color.

3. Evidentiary rulings during the trial were erroneous.

THE PLAINTIFF

BY: /s/ John R. Williams

John R. Williams (#67962)

51 Elm Street

New Haven, CT 06510

203.562.9931

Fax: 203.776.9494

E-Mail: jrw@johnrwilliams.com

Plaintiff's Attorney

ORAL ARGUMENT NOT REQUESTED

TESTIMONY NOT REQUIRED

App. 27

NO. CV-98-0163276-S : SUPERIOR COURT

HEMA MENON : J.D. DIST. OF STAMFORD

VS. : AT STAMFORD

ANN DUX : OCTOBER 12, 2002

DOCKETING STATEMENT

I. NAMES AND ADDRESSES OF ALL PARTIES,

COUNSEL AND PERSONS HAVING A LEGAL

INTEREST IN THE CAUSE SUFFICIENT TO

RAISE A SUBSTANTIAL QUESTION WHETHER

A JUDGE SHOULD BE DISQUALIFIED

The plaintiff is Hema Menon of 2 Spitzer Court,

Norwalk, CT 06854.

The attorney for the plaintiff is John R. William, 51

Elm Street, New Haven, CT 06510.

The defendant is Ann Dux of 62 Bridge Street,

New Milford, CT 06776.

The attorneys for the defendant are Cassidy, Mazza &

LeBlanc, 1375 Kings Highway East, Fairfield, CT 06430.

II. CASE NAMES AND DOCKET NUMBERS OF

ALL PENDING APPEALS WHICH ARISE FROM

SUBSTANTIALLY THE SAME CONTROVERSY

AS THIS OR INVOLVE CLOSELY RELATED

ISSUES

None.

App. 28

EXHIBITS IN TRIAL COURT

Yes.

INCARCERATION STATUS OF APPELLANT

This is a civil case and the appellant is not incarcerated.

THE PLAINTIFF

BY: /s/ John R. Williams

John R. Williams (#67962)

51 Elm Street

New Haven, CT 06510

203.562.9931

Fax: 203.776.9494

E-Mail: jrw@johnrwilliams.com

Her Attorney

CERTIFICATION OF SERVICE

A copy hereof was mailed on the date above stated to

Cassidy, Mazza & LeBlanc, 1375 Kings Highway East, Suite

475, Fairfield, CT 06430 (Fax: 203.331.1505).

/s/ John R. Williams

John R. Williams

State of Connecticut

Judicial Branch

Case Detail

Plaintiff Name VS Defendant Name

MENON,HEMA - v. DUX,ANN

: CV-98-0163276-S Court Location: Stamford

File Date: Jan 15 1998 Return Date: Feb 03 1998

* Last Action Date: Jun 16 2004 ADR Status: Not Applicable

Case Type: VEHICLE - MOTOR VEH* DVR AND/OR PSG V DVR

List Type: JURY

Disposition Date: Oct 03 2002

Judge/Magistrate: J. RYAN Trial List Claim: Apr 22 1999

Disposition: JUDGMENT ON VERDICT-DFDT

*'Last Action Date’ is a data entry date, not actual date

Parties / Attorneys

Pty Pitf /

No. Def

HEMA MENON 01 P

2 PITZER COURT NORWALK, CT 06854

Attorney: ALLAN FRIEDMAN (Juris No. 407029)

700 CANAL STREET

STAMFORD , CT 06902

Attorney: JOHN WILLIAMS (Juris No. 067962)

LLC

51 ELM ST STE 409

NEW HAVEN , CT 06510

ANN DUX 50

Party Name & Address

Attorney: MAZZA & LEBLANC (Juris No. 408555)

SUITE 475

1375 KINGS HIGHWAY EAST

FAIRFIELD , CT 06430

Motions / Pleadings / Objections

Entry

Date

|Description

Initiated

Argu

able

Result

Result {Ordered

Date

101.00

Feb 23

1998

REQUEST TO REVISE

102.00}

Mar 13

1998

AMENDED COMPLAINT

103.00

1998

|Mar 23 JANS AND SPECIAL

DEFENSE

104.00

Mar 23

1998

CLAIM FOR JURY OF 6

105.00

Apr 02

1998

[AMENDED COMPLAINT

106.00

May 12

1998

NOTICE OF

INTERROGATORIE

107.00

May 14

1998

REQ EXTND

DISCOVERY TIME

108.00

May 29

1998

OBJ TO

INTERROGATORIES

109.00

Jun 08

1998

MOT FILE ADDED

QUESTIONS

110.00

Jun 11

1998

REQ EXTND

DISCOVERY TIME

111.00

Jun 17

1998

OBJECTION TO MOTION

112.00

Jun 17

1998

OBJ TO EXTENSION OF

TIME

113.09

Jun 22

1998

AFFIDAVIT RE

OBJECTION

114.00}

Jun 29

1998

MOT FILE ADDED

DISCOVERY

Granted

Hon. EDWARD

KARAZIN

115.00

Oct 01

1998

ORDER

116.00

Nov 09

1998

AFFIDAVIT

117.00

Jan 28

1999

IMOT FOR ORDER-PB 13-

117.70

Feb 19

1999

DOCKET MANAGEMT-

PLEADING

118,00/4PF 22

1999

REPLY TO SPECIAL

DEFENSE

118.55

Apr 22

1999

TRIAL LIST

119.00

Jun 09

1999

NOT OF FILING REQ

DMISS

120.00

Jul 14

DISCLOSE EXPERT

1999 jWITNESS

NOTICE

MOT WITHDRAW

APPEARANCE

MOTION FOR ORDER

OBJECTION TO MOTION

WITHDRAW MOTION

MOTION FOR ORDER

Dec 04 fHon. FRANK D

2000 IANDREA

OBJECTION TO MOTION

Hon. DOUGLAS

MINTZ

ORDER

JUDGMENT OF

DISMISSAL

Dec 21 jHon. EXDWARD

2000 KARAZIN

MOT OPEN DISMISSAL

JOGMT

Granted

Feb 11 jHon. DOUGLAS

2002 MINTZ

CASE Af TRL LIST

STATUS

MOT WITHDRAW

APPEARANCE

May 06 fHon. DOUGLAS

2002 MINTZ

ORDER

MOT WITHDRAW

APPEARANCE

SUPPLEMENTAL

RETURN

RETURN OF SERVICE

COMPLIANCE

REQ EXTND

DISCOVERY TIME

DISCLOSE EXPERT

WITNESS

OBJECTION

Overruled

Hon. EDWARD

KARAZIN

DISCLOSE EXPERT

WITNESS

ORDER

MOT PROTECTIVE

ORDER

BRIEF

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App. 38

DEPOSITION TRANSCRIPT OF THE PETITIONER

The following are some portions selected from the

petitioner’s deposition transcript and asked by the

respondent’s counsel at the tnal. The responses which the

petitioner gave at the time of the deposition were not

transcribed as articulated verbatim by the petitioner at her

deposition.

As transcribed in the transcript of the deposition of the

petitioner.

Page 34, line 12-20.

As soon as my vehicle was struck, I stopped my

car.

Okay. And where was your car?

It was on the shoulder, you know.

the white line?

It was -- yeah.

Okay.

Q Okay. And that would have been to the right of

A Within the white line.

Should Read. (What the petitioner actually said at the

deposition.)

A As soon as my car was struck, I stopped my

car.

Okay. And where was your car?

It was on the shoulder.

Okay. And that would have been to the nght of

the white line?

Yes.

App. 39

Please note, the petitioner did not say, “Within the white

line.” at the time of the deposition because it is incorrect and

completely contradicts the petitioner's version of the

accident. The petitioner would not say, “Within the white

line” because her car was not “within the white line”. The

petitioner’s car was not within the shoulder, but it was partly

within the shoulder and partly outside the shoulder.

As transcribed in the transcript of the deposition of the

petitioner.

Page 37, line 12-13.

A When the police arrive, I was sitting in my car.

And, uhm, she ran up to the police officer.

Should Read. (What the petitioner actually said at the

deposition.)

A_ I was sitting in my car waiting for the police to arrive.

When the police arrived, she ran up to the police officer.

Please note, how the actual response of the petitioner was

altered deliberately to contradict the petitioner’s version of

the accident and her situation.

As transcribed in the transcript of the deposition of the

petitioner.

Page 51, line 22-25 to Page 52, line 1.

Q Allright. Were you hurt at all immediately

after the accident?

A Uh, I was -- I was -- I had -- I was following --

immediately after the accident, | guess, I had a

Page 52, line 1.

blackout during the accident.

Should Read. (What the petitioner actually said at the

deposition.)

Q_ Iwas foggy immediately after the accident. I had a

blackout.

Please note, how the actual response of the petitioner was

altered deliberately to make it incoherent and to discredit her

version in favor of the respondent. Many redundant words

were put in to ridicule and humiliate the petitioner and to

show she has limited skills in speaking and understanding

English and has problems organizing her thoughts.

Page 52, line 2-5.

Q When you say had a blackout, did you actually

lose consciousness?

A You know, you see, uhm, I was not rea!ly

conscious at the time. That’s what I can say.

Should Read. (What the petitioner actually said at the

deposition.)

Q When you say had a blackout, did you actually

lose consciousness?

A What do you mean by lose consciousness? I do not

understand.

Please note, how different the petitioner’s actual response

is from the fabricated response. The petitioner’s response was

altered completely to undermine her credibility and to

disparage her injuries and sufferings.

App. 41

TRIAL TRANSCRIPT OF THE PETITIONER

Trial Transcript of September 17, 2002

In the following dialogue, the respondent’s counsel

questioned the petitioner about the facts relating to the

accident and pointed out to the petitioner, the discrepancies in

what the petitioner had stated below at the trial to that of the

transcript of the petitioner’s deposition.

Page 90, line 10-27.

Q Now, as soon as the accident happened, you stopped

your car; is that nght?

A Yes.

Q_ And when you came to a stop, when your car

stopped, it was in the shoulder to the nght of the white

line; isn’t that nght?

A_ No, that’s not really nght. Because part of --

like I mentioned before, part of my car was in shoulder,

part of my car was outside the shoulder.

Q Do you remember a couple of years back you gave

deposition testimony in my office?

A Y¥¢.-

Q_ At your deposition, didn’t you tell us that the

vehicle came to a stop to the right of the white line?

A Yes. It depends on which way you look which is

the night.

Q_ Okay. So, you did say that, you did tell me that

in your deposition --

Page 91, line 1-27.

A Yes. I did say that it was nght.

Q And didn’t you also tell us that it was within the

white line when your vehicle came to a stop? Isn’t that

night?

A No, I didn’t say that. I did not say that. But

App. 42

it was in my transcript of deposition, that’s all I can

Say.

Q_ Do you recall a deposition back on April -.

1999? Is that right?

A Yes.

Q And at this deposition, you were asked to swear to

tell the truth, the whole truth and nothing but the truth;

is that nght?

A Yes.

Q_ I will ask if you remember this question and

giving these answers.

A THE COURT: Who was there? Was your lawyer

there with you?

THE WITNESS: Yes.

THE COURT: Okay.

MS. ENGSTROM: Excuse me --

MR CASSIDY: And at the time, I believe

that was Christine O’ Sullivan.

MS. ENGSTROM: Could you please specify what

page you’re on?

MR. CASSIDY: Sure. This is page 34 --

MS. ENGSTROM: Okay.

Page 92, line 1-27

MR. CASSIDY: -- line 16. Actually, I'll

move up to line 12. Okay?

BY MR. CASSIDY:

Q “Immediately after the two vehicles made contact, what

did you do?”

Answer: “As soon as my vehicle was struck, I

stopped my car.”

That’s what you said earlier; right?

A Yes.

Q Okay. Then question: “Okay. And where was your

car?”

Answer: “It was on the shoulder, you know.”

App. 43

And that’s what you told us earlier; Is that

right?

A Yes.

Q Okay. Question: “And would that have been to the

right of the white line?”

Answer: “It was -- yeah.”

Question: “Okay.”

Answer: “Within the white line.”

So, do you remember telling Attorney Donahue from my

office at the time that your car was within the white

line when it came to a stop?

A No.

Q You don’t remember saying that?

A I never said that, because the car was not

within the shoulder of the road.

Page 93, line 1-27.

Q Okay. Did you understand the question --

A I understand the question --

Q_ -- that Attorney Donahue was asking you?

A_ -- but at the time of the deposition, that

question was not asked.

Q Are you saying --

THE COURT: Wait a minute, now. I’m getting

a little confused. Why don’t you show her the

page?

MR. CASSIDY: Sure.

THE COURT: The question, madame, is if you

were in the room at that time and they were

questioning you, do you recall that? And they

claim that this is a transcript of what was said,

that the questions were asked to you and these

were your answers.

Do you want to read it and see whether or

not you agree or disagree with that --

THE WITNESS: I disagree with that, because

App. 44

I didn’t say that.

THE COURT: So, you’re saying what is

printed there is not what you said --

THE WITNESS: Yes.

THE COURT: not whether it’s right or

wrong. It might have been your opinion at this

time. It might be that you were wrong, and then

you’re right now. You might be night then and

Page 94, line 1-27.

wrong now. We’re not asking you that.

I’m just asking you basically: You’re

saying that which you have in front of you

was not actually said and answered?

THE WITNESS: Yes. I never said that at the

deposition, between the white line, because it’s

absolutely incorrect. I would never say that.

THE COURT: But, I mean, you might have said

it and you might have been incorrect at that time,

and you can correct the mistake and tell the jury

now. I just want to make sure, because we -- is

this signed by her? I don’t know where the

signatures are.

MS. ENGSTROM: May we approach, Your Honor?

THE COURT: Yes.

Excuse me a minute.

(Side bar discussion off the record.)

(End of discussion at the side bar.)

THE COURT: Ladies and gentlemen, we think

there are other papers in this file that may help

to straighten out what the inconsistencies or what

the problems developing are. ! thought we might

be able to get it straightened out right now.

What I'd suggest is that we either stop the

cross examination and we work it out; or, counsel,

if you want to release that issue and proceed

App. 45

further and we'll straighten that out tomorrow.

Page 95, line 1-27.

Because we’re now running out of time. So, I

don’t know whether you want to go on further.

MR. CASSIDY: Why don’t we release the issue

for now and then --

THE COURT: All nght. We’ll get back to

that later --

MR CASSIDY: -- we’ll work it out tomorrow?

THE COURT: -- and straighten it out.

Because what we’re doing now seems to be

indicating that she is saying that there might be

an error in the transcript itself, and that’s

incorrect. And there are remedies or other

situations and paperwork that might straighten

that out or it might not straighten it out. So,

we'll just leave that open for a little while and

straighten it out, what’s going on.

But you can get into situations where they

made the statement, but now they realize that they

-- at least their testimony now would be that that

statement is incorrect and the testimony they’re

giving you now is correct. And, of course, you’ve

got to figure out what weight and credibility you

give to it.

So, that could be the situation. But at the

present time, she seems to be denying to the

effect that the question was actually asked and

answered by her. So, we’ve got to straighten that

Page 96, line 1-27.

point out and see what’s going on.

You may proceed, counsel.

MR. CASSIDY: Thank-you, Your Honor.

App. 46

BY MR. CASSIDY:

Q_ The police arrived; is that right?

A Yes.

Q__ And you spoke with the police officer who arrived;

is that nght?

A Yes.

Q_ When the police officer arrived, your vehicle

was in the same position that it was immediately after

the accident; isn’t that right?

A Yes.

Q And when the police officer arrived, you had the

opportunity to speak to the police officer; is that right?

A Yes. But I wasn’t able to explain to him fully my

version of the accident.

Q Okay. You were upset at the time when the police

officer arrived because of the fact that you were involved

in an accident; is that fair to say?

A Yes.

Q_ Okay. And did you tell the police officer --

well, isn’t it true that you told the police officer that

you were driving in the shoulder of the roadway and you

thought that was a moving lane for traffic?

A No. I never told the police officer such a thing

like that.

Page 97, line 1-27.

Q _Isn’t it true that you told Ms. Dux that you

thought that that was your lane for traffic in the shoulder

area, and that’s the lane you were proceeding in at the

time of the accident?

A No, I never made such a comment to Ms. Dux at all.

Q_ So, when the police officer arrived, you were in

your car?

A When the police arrived, I was not in my

car. I was getting out of my car and walking towards him.

THE COURT: Let me come on the record, Mr.

App. 47

Cassidy.

If I understand correctly -- and you correct

me if I’m wrong -- but right after the collision,

you brought your car to a stop, and it wasn’t

moved?

THE WITNESS: Yes.

THE COURT: And you were driving westerly,

so when you got out of the door of the car, where

was the white line in relationship when you

stepped out of the door? Did you observe where

the white line was? When you stepped out, did you

step on the nght or the left of that white line,

if you can recall?

THE WITNESS: On the left-hand side.

THE COURT: You're saying you were on the

left-hand side when you --

THE WITNESS: Well, I had to step on the

Page 98, line 1-27.

left-hand side --

THE COURT: Well, you’re getting out of your

car, so your car -- if I have it nght now, I

don’t want to get on the wrong side of the road --

but I think I’m going westerly, on the westerly

shoulder or in the westerly lane here, whatever

I’m in, I stop. My car is there, some portion.

You'll pick up the diagram. When I open the door,

I think I’m either going to be over the white line

to my nght, or on the white line, or to the left,

somewhere in there.

I think if counsel can develop that, it

might give you a better idea of where that margin

line is.

THE WITNESS: Well, when I got out of my

car, I was on the left-hand side.

THE COURT: Okay.

App. 48

BY MR. CASSDY:

Q_ So, your car was to the right of the shoulder, is

that fair to say, as you indicated earlier?

A_ I don’t recall seeing the right-hand side part of

the car outside on the left-hand side.

Q. Okay.

THE COURT: Okay. That’s what I was looking

for.

BY MR. CASSIDY:

Q_ Now, when the police arrived, you were in your car

Page 99, line 1-27.

or you weren’t in your car?

A_ I was walking towards the police officer.

Q_ Well, do you recall, again in that deposition,

that you had told Attorney Donahue that when the police

officer arrived, you were sitting in your car?

A No, I did not say that I was sitting in the car.

Q_ Let me just show you page 37, line 11. If you

could just read it.

THE COURT: You can read it to yourself,

ma’am.

BY CASSIDY:

Q. That’s fine. Read it to yourself. Let me just

show you where the lines are. It’s those lines. Read it

to yourself first.

A (Witness examined document.)

Q Now, does that refresh your memory -- are you

finished reading it?

A Yes.

Q. Does that refresh your memory that you told

Attorney Donahue that you were in your car at the time that

the police arrived?

A_ Let me mention the deposition is incorrect. What

exactly I told Attorney Donahue at that time was that when

the police arrived, I was walking -- let me think a minute.

App. 49

I was sitting in the car waiting for the police to arrive.

And when the police arrived, she ran out to the police

officer.

Page 100, line 1-27.

Q_ Are you telling me that the transcript is

incorrect, that you did not tell Attorney Donahue that you

were in the car at the time the police arrived?

A That transcript is incorrectly done.

Q_ That’s what you’re telling me? Okay.

Now, you told the police officer there at the

scene that you were hit by a car that was coming from the

left; is that nght? Is that correct?

A Yes.

Q_ And he asked you which car was behind, and you

told him that your car was behind the Dux’s vehicle; is that

night?

A Yes.

Q_ And when your car was hit, the Dux vehicle was in

front of your vehicle; is that right?

A Yes.

Q_ And when the impact occurred, your car stopped

immediately; is that right?

A Yes. It was stopped immediately and was pushed to

the shoulder of the road.

Q Well, when the impact occurred, did you stop your

car immediately?

A Everything happened in such a flash, so I don’t

know what exactly happened. So, I stopped my car, but my

car was pushed to the shoulder because of the impact.

Q. Again referring to the deposition transcript with

Attorney Donahue, page 34, line 10, question: “Immediately

Page 101, line 1-27.

after the two vehicles made contact, what did you do?”

App. 50

Answer: “As soon as my vehicle was struck, I

stopped my car.”

Do you recall --

A Yes. I said that, yes.

Q_ -- answering that question?

A Yes, that’s what I said. And that’s what

happened. I stopped my car.

Q Okay. So, immediately after the vehicle made

contact, you stopped your car?

A Yes, that’s right. That part of the deposition is

right.

Q_ And when your car stopped, it was in the shoulder

lane; isn’t that right?

A_ Not exactly in the shoulder. Partly in the

shoulder --

THE COURT: She said a portion was in the

shoulder lane, counsel.

BY MR. CASSIDY:

Q_ Now, let me take you back away from the accident

scene a moment. Before the place where the accident

happened, there is a traffic light you have to pass on Lake

Avenue Extension; is that right?

A Yes.

Q Okay. How many lanes for moving traffic are there

at the place where the traffic light is?

A There are two lanes at first, and then they merged

Page 102, line 1-27.

into one.

Q Okay. So, there are two lanes at the intersection

before the place where the accident happened; is that

right?

A Yes.

Q_ Then after that intersection, it turns into one

lane, is that right?

A Yes.

App. 51

Q_ And then there’s a shoulder on the nght? -

A Yes.

Q So, there’s one lane for moving traffic, and

there's a shoulder on the nght; is that nght?

A Yes.

Q Okay. Now, when the impact occurred, isn’t it

your claim that you blacked out to some degree?

A Yes. I had a blackout at the time of the

accident.

Q Okay. And isn’t it your claim that you lost

consciousness for a period of time? Isn’t that true?

A No. I did not lose consciousness at all.

Q_ Referring to the deposition transcript, page 52,

line 2, “When you say you had a blackout, did you actually

lose consciousness?”

Answer: “You know -- you see -- um -- I was not

really conscious at the time, that’s all I can say.”

Do you remember giving that answer to that

question?

Page 103, line 1-27.

A No, I didn’t give that answer. What I was saying

was that -- I mentioned at the time of the deposition,

‘What do you mean by ‘lose consciousness’? I do not

understand what you mean by that.”

Something else was put in there. And I’m not

going to admit something that was put there, someone put in

there for me.

Q So, you’re saying the transcript is not correct

when it states, “I was not really conscious at the time”?

A Yes. Because I was conscious at the time. I just

had a blackout. A blackout doesn’t mean that I lost

consciousness.

Q Okay. Well, I’m just asking about the transcript.

You’re saying the transcript is not accurate?

A Yes.

App. 52

Q_ And you also claim that you were foggy when the

accident occurred as well; isn’t that right?

A Yes, I was little foggy.

Q_ Okay. So, you saw the Dux vehicle on impact for

the first time. You say you blacked out and were foggy?

A Yes.

Q And you --

A That was immediately after the accident, not at

the time of the accident. It was after the collision

occurred that I was a little foggy, and I had a blackout --

Q Okay. But you said you blacked out immediately

after -- when the -- immediately after the accident

Page 104, line 1-27.

occurred, you blacked out. That’s what you said; right?

A Yes.

Q__ So, even though you saw the other car on impact

for the first time and you said you blacked out immediately

after the accident --

A Excuse me. Can I say one thing? It was not at

the time of the collision, it was after the collision as I

have testified.

THE COURT: But you were still sitting in

the car, right?

THE WITNESS: Yes.

THE COURT: And that was a few minutes or a

few seconds after the accident that this started

developing, you blacked out and you felt a little

fuzzy or foggy?

THE WITNESS: After the collision.

THE COURT: You had no problem before the

accident?

THE WITNESS: Yes. I did not have any

problem before the accident.

BY MR. CASSIDY:

Q_ But immediately after the collision, you have this

App. 53

blackout ; is that mght?

A I would like to explain the word “immediately.”

When I say immediately after the collision, it’s when

everything has occurred, all of the collision and

everything has all occurred. Like my car was pushed to the

Page 105, line 1-27.

shoulder, and her car was parked in the parking lot.

That's the time that it happened, not at the time when I

was driving. I did not have a blackout, I was conscious at

the time when I was driving.

MR. CASSIDY: I would just move to strike

the unresponsive portions, Your Honor.

THE COURT: I’m going to overrule that.

BY MR. CASSIDY: ;

Q Well, do you remember this question at the

deposition and giving this answer? Page 51, line 22.

“All mght. You were hurt? Were you hurt at all

immediately after the accident?”

“T was, I was. I had -- I was following -- immediately

after the accident, I guess I had a blackout during the

accident.”

Do you remember giving that answer to that question

back in the deposition?

A Yes, I do.

Q Okay. So, you had a blackout during the accident,

that’s when you said during the deposition; is that right?

A Yes.

Q Okay. So, you saw the other vehicle on impact for

the first time, and you had a blackout during the accident.

But you are still able to tell us the speed of the Dux

vehicle at the time of the accident; is that night?

A Yes.

Q. Okay. And you’re still able to tell us that it

App. 54

Page 106, line 1-10

was proceeding in a westerly -- oh, I’m sorry -- in an

easterly direction on Lake Avenue Extension?

A Yes.

Q_ Even though you saw it on impact; is that right?

A Yes.

Q_ And you’re saying that the Dux vehicle was going

55 miles an hour at the time of the accident --

A Yes, she was.

Q_ -- is that what your estimate was?

A Yes. She was traveling at a very high speed.

App. 55

The transcript of the petitioner’s deposition is false and

inaccurate and was tampered with and falsified as it did not

reflect the actual proceedings that took place at the

deposition, and the transcript was used against the petitioner.

At the tnal, the respondent’s counsel, especially brought out

those statements which the petitioner did not make at her

deposition, but they were put in the transcript just to discredit

the petitioner’s version of the accident in favor of the

respondent and to discredit her injuries and sufferings. The

responses of the petitioner were rearranged, altered,

rephrased, rehashed, and contorted and words were added to

the petitioner’s statements to make the petitioner sound like

an unreliable and unintelligible witness to the accident and to

give a poor impression of the petitioner.

The dialogue or parts of the dialogue that were put in the

transcript of the deposition include incorrect facts which

completely contradict the petitioner’s version of the accident

and her situation. Many redundant words were put in the

deposition transcript in the responses of the petitioner to

make the petitioner seem like a person who has limited skills

in speaking and understanding English and who has problems

organizing her thoughts while she speaks to explain away the

incorrect police accident report. The deposition transcript

shows words, intentionally and deliberately, used to ridicule

and humiliate the petitioner. Some of the responses of the

petitioner were altered or rephrased, so they completely

contradict the petitioner’s version of the accident and her

situation in favor of the respondent’s version. Significant

details of the accident which were brought out by the

petitioner were omitted from the deposition transcript to

undermine the credibility of the petitioner and to discredit her

version of the accident in favor of the respondent.

Expressions which she did not use at the deposition have

been added in the deposition transcript and made to seem like

she actually said them. In many of the altered responses of

the petitioner for the deposition transcript, her expression of

App. 56

stating her responses or using certain words were selected to

make it seem like she actually gave the responses, herself.

This was done to ridicule her and to create a poor impression

of her. Statements, not mentioned by her during the

deposition were included in the deposition transcript along

with the statements that she made during the deposition.

Fabricated words were added to the deposition transcript to

make it seem like she was trying to make her version of the

accident seem reliable.

Overall, the deposition transcript was craftily done, it was

very difficult to detect the inaccuracies and defects as it

required numerous readings to detect them.

All the errors, omissions, additions, and alterations in the

petitioner’s deposition transcript were done intentionally and

deliberately in an effort to assist the respondent and to create

a poor impression of the petitioner and that she does not have

the ability to speak and understand English, well, and to

ridicule and humiliate her with the sole purpose to discredit

her version of the accident and to undermine and disparage

her injuries and sufferings in favor of the respondent.

The respondent’s counsel as well as the Stamford Superior

Court and Trial Court of Connecticut were aware that the

petitioner did not agree with the manner the deposition

transcript was transcribed as the petitioner’s counsel

informed the respondent’s counsel and the Court about the

inconsistencies in the petitioner’s deposition transcript well

in advance even before the trial was scheduled to take place.

The respondent’s counsel mentioned at the tral, the

petitioner stated her car was within the shoulder at the

deposition and read that portion. (9/17/02 Tr. p. 92-94; Dep.

Tr. p. 34, line 12-20). The petitioner mentioned at the tnal,

her car was not within the shoulder and she would never say

her car was within the shoulder, and that the statement was

App. 57

put in the transcript. The respondent’s counsel had the words

“within the white line” (Dep. Tr. p. 34, line 12-20) put in her

deposition transcnpt to discredit her version. This was done

to show she had indeed been traveling in the shoulder and the

respondent was in the intended lane next to her.

The respondent’s counsel read a portion from the

deposition which states, the petitioner had a blackout. In the

petitioner’s deposition, it shows the petitioner stating that she

had a blackout after the accident in terms of what she said at

the deposition. (Dep. Tr. p. 51, line 22-25 to page 52, line 1).

However, the respondent’s counsel wanted the petitioner to

admit, she actually had a blackout at the time of the accident

by harassing her over and over again to confuse the

petitioner, so she would give the incorrect response, claiming

she said at the deposition she had a blackout at the time of the

accident to show it is not possible for her to determine the

respondent came from_the left, across the other side of the

street as she was not in the proper frame of mind or physical

condition to witness the respondent coming from the opposite

side of the street. (9/17/02 Tr. p. 102-106)

The respondent’s counsel read a portion from the

deposition transcript which states the petitioner lost

consciousness. (Dr. Tr. p 52, line 2-5). The petitioner

mentioned at the trial, she did not lose consciousness and that

was not what the petitioner stated at her deposition. (9/17/02

Tr. p. 102-106). At her deposition, the petitioner only asked a

question seeking for clarification of the term “lose

consciousness”. However, the respondent’s counsel had the

transcript altered to read as the petitioner stating that she

“was not really conscious at the time”. (Dep. Tr. line 2-5).

This was done to show since the petitioner said at the

deposition that she lost consciousness, she could not have

witnessed the respondent coming from the left across the

other side of the street, and it was only her imagination that

the respondent came from the opposite side of the street and

App. 58

that the petitioner was not in control of her car and herself

because she lost consciousness thereby causing the collision.

The respondent’s counsel tried to show the petitioner was

not interested in speaking to the police officer about the

accident by reading a portion of the transcript which states

when the officer arrived, the petitioner was sitting in her car.

The petitioner said at the trial, she did not say that and she

actually said at the deposition, she was sitting in the car,

waiting for the police to arrive. The respondent’s counsel had

the petitioner’s response altered to discredit the petitioner’s

version of the accident in favor of the respondent. The

respondent’s counsel may be trying to show the reason why

the police officer did not take any interest in the petitioner’s

version was because she was not keen in meeting the officer,

quickly, unlike the respondent who ran to meet the officer.

The respondent’s counsel did not have to bring out the

inconsistencies in the deposition transcript to show that it was

contrary to what the petitioner said at the trial as he was fully

aware of the complaints that she made about that transcript.

However, since the respondent’s counsel being fully aware

that the deposition transcript is false and inaccurate and yet,

he set out with the intent to ridicule, and humiliate, and

intimidate the petitioner and he set out with malice to

discredit her version in favor of the respondent, the petitioner

is left with no choice but to highlight the inconsistencies in

her deposition transcript and to explain her version.

In short, the respondent’s counsel was trying to show the

petitioner as a very inconsistent person — she said something

at the deposition and another thing at the trial and to add to

that she denied what she had said at the deposition and

accused others. Hence, the respondent’s attorney was

showing at the trial, the petitioner could not be believed and

she is an unreliable witness to the accident and to discredit

her version of the accident in favor of the respondent.

App. 59

ISSUES PRESENTED

ARGUMENT

The Court erred in denying the plaintiff's motion to set

aside the verdict, since the evidence proved the accident

could not have occurred in the manner alleged by the

defendant, it being at the time impossible for an

automobile to travel in the right shoulder of the roadway.

The Court erred in prohibiting the plaintiff from

presenting evidence relevant to the speed at which the

defendant’s vehicle was traveling.

III. The Court committed plain error in charging the jury that

they had unbridled discretion in determining their

verdict.

II.

III.

App. 60

QUESTIONS PRESENTED

FOR REVIEW

DID THE TRIAL COURT ABUSE ITS

DISCRETION IN DENYING THE PLAINTIFF’S

MOTION TO SET ASIDE THE JURY VERDICT

WHEN EVIDENCE PRESENTED BY HER

SHOWED THE ACCIDENT COULD NOT HAVE

OCCURRED IN THE MANNER ALLEGED BY

THE DEFENDANT AND THAT A REASONABLE

AND AN IMPARTIAL JURY COULD NOT HAVE

BELIEVED THE DEFENDANT’S VERSION

SINCE HER VERSION DID NOT EXPLAIN THE

DAMAGE CAUSED TO THE PLAINTIFF’S

VEHICLE AND THE DAMAGE SUSTAINED BY

BOTH VEHICLES IS INCONSISTENT WITH THE

VERSION ADVANCED BY THE DEFENDANT?

THE APPELLATE COURT OVERLOOKED AND

DID NOT RULE ON THE ISSUE RAISED IN THE

OPENING BRIEF THAT THE MERE EVIDENCE

THAT THE SHOULDER OF THE ROAD IN THE

AREA CANNOT BE TRAVERSED BY A

VEHICLE SHOWS THAT THE DEFENDANT’S

VERSION OF THE ACCIDENT WAS NOT

SUPPORTED BY FACTS.

“NOT ONLY WAS THE DEFENDANT’S

VERSION CONSISTENT WITH THE DAMAGE

SUSTAINED BY BOTH VEHICLES, IT ALSO

WAS BOLSTERED BY FRINTON’S TESTIMONY

THAT IN HIS OPINION, THE ACCIDENT

OCCURRED IN THE MANNER DESCRIBED BY

THE DEFENDANT.” MENON V. DUX, 81 CONN.

IV.

App. 61

APP. 174 (2004). IS IT FAIR, THE TESTIMONY

OF A POLICE OFFICER WAS GIVEN A

GREATER WEIGHT THAN A TESTIMONY OF

THE PLAINTIFF’S MOTHER WHEN THE

OFFICER WAS NOT PRESENT WHEN THE

COLLISION OCCURRED IN CONTRAST TO

THE MOTHER WHO OBSERVED HOW THE

ACCIDENT OCCURRED AND HER VERSION

“ESSENTIALLY MIRRORED THAT OF THE

PLAINTIFF”? ID. P. 175.

WHEN THE POLICE OFFICER’S TESTIMONY

SHOWED HE HAD NOT BEEN AN IMPARTIAL

PARTY TO THE ACCIDENT, AS HE WAS

SUPPOSED TO BE AS A POLICE OFFICER, AND

AND HE HAD TAKEN THE SIDE OF THE

DEFENDANT AS HIS TESTIMONY SHOWED

THAT HE MADE STATEMENTS CONTRARY

TO WHAT THE PLAINTIFF CONVEYED TO HIM

AT THE ACCIDENT SCENE AND FROM THE

THE ISSUES THE PLAINTIFF RAISED AT THE

TRIAL AND ALSO IN HIS POLICE ACCIDENT

REPORT, HE OMITTED DETAILS THE

PLAINTIFF SAID AND EXCUPLATORY

EVIDENCE AND HE ADMITTED HE MADE

ERRORS IN HIS REPORT AND HE ADMITTED

HE RELIED UPON THE DEFEDANT’S WORDS, IS

IT FAIR TO CONSIDER THE OFFICER A

RELIABLE WITNESS TO THE ACCIDENT?

“(T]HE PLAINTIFF’S TESTIMONY ROUNDLY

CONTRADICTED THAT OF THE DEFENDANT,

AND THE JURY REASONABLY COULD HAVE

ELECTED TO BELIEVE THE PLAINTIFF AND

NOT THE DEFENDANT.” MENON V. DUX, 81

VI.

VIL.

VII.

App. 62

CONN. APP. 174 (2004). IS IT FAIR, IN THIS

CASE, WHEN ONE OF THE PARTIES, THE

PLAINTIFF, IS A MINORITY TO HAVE NOT A

SINGLE MINORITY JUROR FOR THE TRIAL

THOUGH HAVING MINORITY JURORS MAY

NOT GUARANTEE A VERDICT IN FAVOR OF

THE PLAINTIFF AS BOTH PARTIES SHOULD BE

SIMILARILY SITUATED TO ENSURE A VERDICT

COULD BE REACHED IN A FAIR MANNER?

IN REFERENCE TO THE CHARGING

CONFERENCE CONDUCTED BY THE TRIAL

COURT, DID THE TRIAL COURT ERR IN

HOLDING THAT IT WOULD NOT CHARGE THE

JURY ON SOME OF THE STATUTORY

PROVISIONS INVOLVED IN THE COMPLAINT?

THE OPENING BRIEF RAISED TWO CHARGES

GIVEN BY THE TRIAL COURT JUDGE, WHICH

ARE PLAIN AND PREJUDICAL ERRORS.

HOWEVER, THE APPELLATE COURT

OVERLOOKED AND DID NOT RULE ON ONE

OF THE CHARGES THAT WAS RAISED IN THE

BRIEF.

DID THE PLAINTIFF’S UNPRESERVED

CHALLENGE REGARDING’ THE TRIAL

COURT’S JURY INSTRUCTIONS WARRANT A

PLAIN ERROR REVIEW WHEN ~~ THE

INSTRUCTIONS GAVE THE JURY UNBRIDLED

DISCRETION TO DO WHATEVER’ THEY

WANTED IN THE CASE WITH’ THE

ASSURANCE THAT THEY NEED NOT HAVE TO

WORRY ABOUT THE VERDICT?

XI.

App. 63

SHOULD THE PLAINTIFF BE PENALIZED FOR

HER COUNSEL’S ACTION WHEN THE

PLAINTIFF’S COUNSEL ACQUIESCED TO THE

TRIAL COURT’S RULING ABOUT THE COST TO

REPAIR THE DAMAGE OF THE PLAINTIFF’S

VEHICLE AS THE PLAINTIFF RESPONDED,

“YES” IN RESPONSE TO HER COUNSEL’S

QUESTION AND NOT “NO”, OR “I CAN’T

RECALL,” OR “I’M NOT SURE” ....?

DID THE APPELLATE COURT ERR IN

DECLINING TO REVIEW THE PLAINTIFF’S

CLAIM ABOUT THE COST TO REPAIR HER

VEHICLE, STATING THAT THE CLAIM WAS

RAISED FOR THE FIRST TIME ON APPEAL

WHEN THE ISSUE WAS ADEQUATELY RAISED

ON THE RECORD TO WARRANT REVIEW ON

APPEAL?

IS IT FAIR TO STATE, “ALTHOUGH THE

PLAINTIFF ATTEMPTED TO INTRODUCE

TESTIMONY OF THE EXTENT OF THE

DAMAGE TO HER VEHICLE, SHE DID NOT

ARTICULATE ANY EVIDENTIARY RULE ON

WHICH SUCH TESTIMONY WAS ADMISSIBLE”

(MENON _V. DUX, 81 CONN. APP. 171 (2004))

AND “THE PLAINTIFF DID NOT SEEK REVIEW

OF THE UNPRESERVED GROUND UNDER THE

RUBRIC OF PLAIN ERROR’”’ (ID. P. 175) AND

“(WJE THEREFORE DO NOT CONSIDER

WHETHER REVIEW OF THE CLAIM IS

WARRANTED UNDER THE PLAIN ERROR

DOCTRINE”? (ID. P.175).

XII.

App. 64

IS IT FAIR TO STATE, “THE VERSION OF

EVENTS ADVANCED BY THE DEFENDANT

AND ACCEPTED BY THE JURY WAS

ADEQUATELY SUPPORTED BY THE RECORD,”

(MENON _ V. DUX, 81 CONN. APP. 174 (2004))

WHEN THE DEFENDANT HAD PROFESSED AN

INABILITY TO RECALL A NUMBER OF

DETAILS PERTAINING TO THE ACCIDENT

AND AN EVASIVENESS ABOUT THEM?

App. 65

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