Barrientos ex rel. Nelson v. Jones

Justice LEE,

dissenting:

1 42 I respectfully dissent from the court's decision to order a new trial in this case. First, although I agree that defense counsel asked objectionable questions at trial, I would defer to the trial court's finding that no substantial prejudice resulted from those questions and affirm its denial of the motion for new trial. Second, as to Ogden City's vehicle pursuit policy, I would find that it complies with Utah Code section 41-6a-212 and that the City accordingly qualifies for a privilege under its terms. That conclusion forecloses plaintiff's remaining arguments on appeal, and I would thus affirm the jury verdict in defendants' favor.

I

1 43 I agree with the majority's conclusion that defense counsel asked questions at trial that ran afoul of the district court's orders in limine and that sought to elicit irrelevant testimony. But the district court likewise agreed and thus sustained plaintiff's counsel's objections at trial. The question before us on appeal, then, is not the propriety of defense counsel's questions, but their prejudicial effect on the jury. On that question, *63the district court found that any prejudice was minor and thus denied plaintiff's motion for new trial.

44 The trial judge's assessment on that point is entitled to substantial deference. See Child v. Gonda, 972 P.2d 425, 429-30 (Utah 1998); Schmidt v. Intermountain Health Care, Inc., 635 P.2d 99, 101 (Utah 1981). We are in no position to make a de novo analysis of the effect of an isolated line of questioning on the fairness of a five-day trial. The trial judge was intimately involved in the trial proceedings from start to finish, He heard defense counsel's questions firsthand and had a personal view of the jury's reaction to them. Having presided over the entire trial, moreover, the trial judge was in a position to assess the relative impact of these questions on the fairness of the proceeding in its entirety.1 We should accordingly defer to his conclusion that any prejudice to plaintiff's case was "relatively minor" given that the court sustained an immediate objection to the defense question about Bob Ellis's "criminal history dealing with prostitution." R

T 45 The majority makes no mention of the appropriate standard of review of this ruling. Instead, after admonishing 'defense counsel for asking inappropriate questions, the court "Itlhus" concludes "that the trial court erred in not granting ... a new trial on the ground that Ogden City had violated the orders in limine in a way that was prejudicial to Plaintiff's case." Supra 128. But the notion of prejudice sufficient to warrant a new trial does not at all follow automatically from the determination of error. If a new trial were required every time an objection was sustained, our justice system would grind to a halt. To justify the expense and delay of a new trial, plaintiff bore the burden of demonstrating that irregularity in the trial proceedings "prevented [her] from having a fair trial."2 And where the trial court finds that that is not the case, we owe substantial deference to that judgment for reasons explained above.

11 46 The applicable standard of review allows us to reverse only upon establishing an abuse of the trial court's discretion. Child, 972 P.2d at 429; Schmidt, 635 P.2d at 101. I see no basis for finding an abuse of discretion here. At trial, the judge took adequate and appropriate action-everything within his power-to limit and control the damage from defense counsel's questions. When counsel vaguely suggested that Jessica Jones and Bob Ellis were involved in something "odd" and "doing who knows what," the court sustained plaintiff's objection and granted a motion to strike the reference to "who knows what," noting the potential for a negative inference from that phrase. And when the defense subsequently asked whether the witness was aware that Ellis "had a criminal history dealing with prostitution," plaintiff's counsel made an immediate objection. That objection was sustained without an answer from the witness. So in context the jury's impression would simply have been that the judge had rebuked defense counsel for asking an improper question.

47 In fact, before the objection was sustained, plaintiff's counsel coupled his objection with an understandable diatribe about the "outrageous" nature of the question given the in limine order from the court. Supra 1 18. In addition, plaintiff's counsel was able to note that "Bob Ellis is dead, and his history has nothing to do with this and she's trying to besmirch Jessica Nelson by using this improperly, and she knows it." Supra 113. Thus, by the time the court sustained plaintiff's objection, the jury had heard plenty about the problems with defense counsel's *64question, such that the decision to sustain the objection must have been perceived as a clear rebuke of the defense's tactic.

1 48 The trial judge obviously thought that was enough to remove any substantial risk of prejudice to the jury. That judgment falls squarely within the range of discretion afforded to trial judges, to whom we assign the monumental task of making the hundreds of snap decisions required to manage the proceedings when things do not go perfectly (as they never do), and to make fact-sensitive judgments about the impact of errors on the overall fairness of the trial. Our deference ought to be enhanced, moreover, given that plaintiff's counsel himself seemed satisfied with the trial judge's action (to sustain the objection) at the time, and that he failed to request a curative instruction or any such remedy.3 And absent a request for such an instruction, we can reverse here only if we find that a curative instruction would not have cured any harm and that the only permissible response was to scrap the whole case and declare a mistrial.4

€49 I do not doubt that some improper questions could be sufficiently poisonous to justify such a sweeping remedy. But neither the plaintiff nor the court has offered any reason to treat the question about Bob Ellis's criminal history as irrevocably tainting the trial, and I cannot agree with the majority's decision to do so. The question under review did not concern a party to the litigation. Nor was there any insinuation as to a party's action in conformity with a prior criminal act. Instead, the question raised the specter of a third party's criminal history in a manner that by implication could cause the jury to question a party's worthiness for a verdict by association. That, of course, was highly inappropriate. But I think we can trust juries to disregard such questionable tactics, especially in the face of a trial court's decision rebuking them. And in any event the trial judge here trusted this jury to do so, and we owe him deference in that judgment. I accordingly dissent from the court's decision ordering a new trial on the basis of defense counsel's improper questions at trial.

II

150 As for the other errors relied on by the majority in ordering a new trial, I would affirm on the ground that the City's pursuit policy satisfied Utah Code section 41-Ga-212 and entitled it to a privilege under that statute. The majority reaches a contrary conclusion on the basis of its assertion that the policy "deseribled] the cireumstances, but not the manner, in which any vehicle pursuit *65should be conducted and terminated." Su-pro I 34. I respectfully disagree.

151 The Ogden City policy expressly states that it is "regulat[ing] the manner in which vehicular pursuit is undertaken and performed." (Emphasis added). And its terms undoubtedly do so. First, the policy directs officers to "conduct pursuits in compliance with U.C.A. Section 41-6-14, sound professional judgement [sic], compliance with other department policies, ie., seat belt use, and the procedures outlined in this policy." The incorporated statute itself says plenty about the manner of initiating and performing the pursuit, as the statute in place at the time of this policy required the operator of the vehicle to conduct the pursuit by sounding an "audible signal" and using a "visual signal ... visible from in front of the vehicle." Utax Cop® $ 41-6a-212(8)(a). The Ogden policy elsewhere adds additional requirements regarding the manner of initiating and performing the pursuit, requiring officers to "clearly indicate their intent to stop the vehicle and arrest the subject by employing the use of both lights and siren" and to "immediately notify communications center personnel that a pursuit is underway." 5

152 The policy likewise prescribes the manner of terminating the pursuit, It does so by prescribing specific circumstances in which pursuit is to be terminated, and by requiring that the termination be "immediate." Those cireumstances are: "a. Weather or traffic conditions substantially increase the danger of pursuit beyond the worth of apprehending the suspect. b. The distance between the pursuit and fleeing vehicles is so great that further pursuit is futile. c. The danger posed by continued pursuit to the public, the officers or the suspect(s) is greater than the value of apprehending the suspect(s)."

1 53 Plaintiff contends that this policy prescribes only the "cireumstances" for terminating the pursuit and not its "manner." That strikes me as a "gotcha" construction that ignores the obvious import of the policy. The requirement that "[plursuit shall be immediately terminated" in certain cireum-stances is an unmistakable directive for police officers to stop pursuing by slowing down and ceasing the pursuit. The obvious way to stop pursuing is to stop pursuing.

54 In fact, the policy says so explicitly through its express definition of "Vehicular Pursuit" as "(aln active attempt by one or more officers operating a department motor vehicle to apprehend a fleeing suspect operating a motor vehicle while trying to avoid apprehension by using high speed driving or other evasive tactics." In light of that definition, the requirement to "immediately terminate[ ]" a vehicular pursuit is an express requirement for the officer to immediately stop the "active attempt" to apprehend a suspect who is fleeing by evasive tactics. The policy undoubtedly could have said more about the "manner" of terminating the pursuit. But the statute does not require elaborate detail about the manner of termination; it requires only a mere description of "the manner and cireumstances in which any vehicle pursuit should be conducted and terminated." Urax Cop® § 41-62a-212(4)(b). The Ogden City policy easily meets that standard, and Ogden City is accordingly entitled to claim a privilege under the Utah Code.

155 That conclusion forecloses plaintiff's claim that she was entitled to a directed verdict on the basis of Ogden City's per se negligence. I would reject that claim on the ground that Ogden City qualified for a privilege under Utah Code section 41-Ga-212. That privilege, moreover, renders irrelevant any authentication issues regarding Exhibit D-101. If Ogden City complied with the priv-flege statute, then it is irrelevant whether a purported model policy may have tricked the jury into thinking that because the City's *66policy was like the model, it satisfied the statute.

. See Child v. Gonda, 972 P.2d 425, 430 (Utah 1998) (explaining that "great deference" is given to the trial court in decisions denying motions for new trial given that it "is in a much better position than this court to evaluate the parties' conduct, the context in which the irregularity occurred, and the jury's reaction to the statement); Schmidt v. Intermountain Health Care, Inc., 635 P.2d 99, 102 (Utah 1981) (noting that deference is due because the trial court's "position allows him to hear the remarks of the attorneys and the witnesses, view the jury, and observe the general mood in the courtroom," so that "the trial judge is the one especially well-suited to evaluate" the impact of an evidentiary error on the jury).

. Utag R. Civ. P. 59(a)(1) (providing that "[i}rreg-ularity in the proceedings" does not warrant a new trial unless a "party was prevented from having a fair trial").

. See Romert J. Martineau et ar, Appercate Practice & Procepure, Cases & MatEriats 101 (2d ed. 2005) ("[The cases are legion in holding that if an appellant objects and the objection is sustained but he does not move for a curative instruction or request a mistrial, he has received what he asked for and cannot be heard to complain on appeal."); see also, eg., Cassim v. Allstate Ins. Co., 33 Cal.4th 780, 16 Cal.Rptr.3d 374, 94 P.3d 513, 520 (2004) ("[To preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial,. In addition to objecting, a litigant faced with opposing counsel's misconduct must also move for a mistrial or seek a curative admonition unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice. This is so because [oJne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial." (second alteration in original) (internal quotation marks and citations omitted); Stolte v. Fagan, 311 Ga.App. 123, 714 S.E.2d 339, 340 (2011) (refusing to "reverse a trial court for not taking an action that was not requested at trial," and explaining that the appellant had "acquiesced in the trial court's response" to her objection "by failing to [further] complain when the court sustained her objection" and to ask for a rebuke of counsel or for a curative instruction (internal quotation marks omitted)), cert. granted, No. S11G1871 (Mar. 19, 2012)); Beverly Enterp., Inc. v. Spragg, 695 N.E.2d 1019, 1022 (Ind.Ct.App.1998) ("Had [the appellant] believed itself to be prejudiced, its remedy would have been to ask for a mistrial, or even for an admonition, neither of which it requested. A party may not, by action or inaction, await the verdict and then seek to set it aside for error that could have been averted or corrected." (internal quotation marks omitted)).

. See Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 707 (Tex.Ct.App.2008) (requiring litigant who objected to improper jury argument but did not request a curative instruction to "show that the argument by its nature, degree, and extent constituted such error that an instruction from the court or retraction of the argument could not [have] remove{[d] its effects" (internal quotation marks omitted)).

. The responsibilities of other employees in the manner of the pursuit are also described in detail in the policy. Communications personnel, for example, are required to "immediately advise a field supervisor of essential information regarding the pursuit" and to perform a list of specific responsibilities set forth in the policy. The field supervisor's responsibility is also prescribed in the policy. He is to "assume responsibility for the monitoring and control of the pursuit" by, among other things, "continuously review[ing] the incoming data to determine whether the pursuit should be continued or terminated."