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Walker v. Ferguson11/2/2004
Plaintiffs sued the defendants by petition filed March 12, 2001 in which they alleged that the defendant Ferguson was negligently operating his vehicle in failing to stop for a stop sign, and that he was impaired or intoxicated at the time of the collision. Plaintiffs alleged that the defendant K & A, Inc. d/b/a Henry Hudson's Pub, was negligent by selling intoxicating beverages to a noticeably intoxicated person. The date of the accident was March 12, 1999.
Plaintiffs discovered that Ferguson was subsequently arrested for DUI, on July 29, 2000, and obtained a copy of the Cleveland County criminal case file in the matter. Plaintiffs' witness and exhibit list included witnesses and exhibits relating to defendant Ferguson's subsequent arrest and guilty plea. Ferguson received a deferred sentence in that matter.
No transcript was made of the opening statements at the trial - a court reporter had not been requested for opening statements. During the plaintiffs' attorney's opening statement, both defendants moved for a mistrial and the mistrial was granted. The parties dispute exactly what was said in the opening statement. Appellee says that plaintiffs' attorney, Mr. Berry, told the jury he would present evidence that Ferguson had a second DUI felony conviction. Appellants' brief states that Berry "observed that Defendant Ferguson had pled guilty to a second-offense felony DUI." The trial judge granted a mistrial on the grounds that the information offered was not admissible in the first stage of the trial and was prejudicial to the defendants.
A transcript was made of proceedings had before Judge Owens on September 25, 2002, after mistrial was declared. Judge Owens ruled that counsel's statement was improper because the guilty plea was an offense subsequent to the automobile accident that was the subject of the trial. Judge Owens ruled that a subsequent offense was admissible only in the second stage of the trial. The trial judge stated:
"THE COURT: Let the record reflect that after going through the voir dire process in this case, seating a jury, opening statements commenced in this case. Plaintiff was making an opening statement and during the course of that opening statement plaintiff offered information to this jury that was not admissible in the first stage of the case prejudicial to the defendants in this case. Based upon that the defendants have each moved for a mistrial and the mistrial has been granted."
The trial judge ruled:
"The judicial affect (sic) substantially outweighs the probative value due to the fact that you're asking this jury to determine because he got convicted after this accident that meant he was drinking on that day. That's the issue and that's what it puts the jury in the position of doing."
Berry argued that the second DUI was relevant for impeachment of the witness. The judge responded:
"I told you yesterday - no sir, it's not relevant to this accident. The prejudicial effect substantially outweighs the probative value. It would never have come in this record. Never. That's why we had a discussion off the record yesterday when I told you if you had evidence to go in second stage as to why this man ought to be punished, why Henry Hudson's ought to be punished, that's the place to put it in."
DISCUSSION
On appeal, Berry argues that the trial court erred in imposing an attorney-fee sanction against him because the court did not establish the authority for the sanction by stating the grounds for error on Berry's part. Berry's contention is correct, based on the record presented for our review. The trial judge's order, filed December 5, 2002, recites only that on the 1st day of
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