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Firey v. State7/14/2002
onably knew might lead a defense attorney to preempt him. In addition, the transcript of the jury selection shows that when Judge Card first introduced the prospective jurors to the concept of "involved in litigation," the judge told them that this phrase meant "involved actual litigants":
The Court: [Have] any of you . . . been involved in a litigation or court matters where you are either on the same side or the other side [from] . . . the attorneys in this case? In other words, actual litigants?
Judge Card made this remark only a few minutes before Pierce answered "no" when he was asked whether he or a member of his family had been "involved in litigation."
Having reviewed the record, we find that it supports Judge Card's factual conclusion that Pierce did not engage in deception during jury selection. Because this finding is not clearly erroneous, we uphold Judge Card's denial of Firey's motion for a new trial.
Judge Card's instructions to the jury on causation and proximate cause
Firey makes several interrelated arguments challenging Judge Card's jury instructions on causation and proximate cause. His essential argument is that, based on the instructions Judge Card gave the jury, the jury was never required to find that Firey's recklessness caused the injury to Dr. Aarons. He argues that in his case, the jury conceivably could have found that he acted recklessly (by driving while intoxicated) and that he was a substantial cause of the accident (by hitting Dr. Aarons's truck). But he points out that even if the jury made these two findings, Firey would not be guilty of assault unless the jury also found that Firey's recklessness was a substantial cause of the collision. He argues that Judge Card's instructions did not require the jury to make this latter finding.
Our review of Judge Card's instructions convinces us that the instructions, when read as a whole, adequately communicated the requirement that the jury had to find that Firey recklessly caused Dr. Aarons's injuries to convict him.
Furthermore, our review of the parties' closing arguments convinces us that the jury was fully informed that unless Firey's recklessness was a substantial cause of Dr. Aarons's injuries, the jury was not to convict Firey of assault. We have previously held that ambiguities in jury instructions can be cured by arguments of counsel. Firey's summation generally focused on Martha Aarons's and Dr. Aarons's conduct and his contention that their failure to yield and to use emergency flashers caused the accident. Firey argued that he had not caused the accident but had acted reasonably. Moreover, several times during the state's rebuttal, the prosecutor emphasized the necessary linkage between Firey's recklessness and Dr. Aarons's injury:
Charles Firey drove while he was impaired and because he was impaired, he drove badly. And because he was not aware of the risks . . . he is guilty of recklessly causing the injury to Dr. Aarons.
We conclude that both the jury instructions and the arguments of the parties clearly focused the jury's attention on the necessity of a nexus between Firey's recklessness and Dr. Aarons's injury for Firey to be guilty of assault. Firey argues that Judge Card should have given additional instructions relating to causation and proximate cause. We believe the instructions Judge Card gave were sufficiently clear; he did not abuse his discretion in refusing to give the additional instructions.
Judge Card's refusal to dismiss the indictment for the prosecution's alleged failure to present exculpatory evidence to the grand jury
Dr. Aarons apparently did not use hi
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