KEVIN FARRELL v. SCOTT KNOEDLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5451-06T15451-06T1

KEVIN FARRELL,

Plaintiff-Respondent,

v.

SCOTT KNOEDLER,

Defendant-Appellant,

and

TREVOR SHEPPARD, ROBERT P.

BRAUN and THE BORGATA RESORT

SPA & CASINO, jointly,

severally and in the

alternative,

Defendants.

TREVOR SHEPPARD,

Plaintiff,

v.

ROBERT P. BRAUN, KEVIN

FARRELL,

Defendants.

ROBERT P. BRAUN,

Plaintiff,

v.

KEVIN FARRELL, SCOTT

KNOEDLER, TREVOR SHEPPARD,

BORGATA HOTEL & CASINO,

Defendants.

 
 

Argued May 13, 2008 - Decided

 
Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1900-05.

Michael D. Fitzgerald argued the cause for appellant.

Susan L. Moreinis argued the cause for respondent.

PER CURIAM

Following a jury trial, defendant Scott Knoedler appeals from a May 17, 2007 judgment for plaintiff Kevin Farrell. The sole issue at trial was whether Knoedler or Farrell was the driver of an automobile that was involved in an accident on August 4, 2003, when Farrell was seriously injured. The jury concluded that Knoedler was the driver of the automobile, and the court entered judgment in favor of Farrell in the stipulated sum of $150,000.

On appeal, Knoedler claims he is entitled to a new trial because (1) Farrell's counsel made improper closing arguments; (2) the police officer who responded to the accident scene was barred from giving his opinion as to who was driving the vehicle; (3) Knoedler was not permitted to cross-examine Farrell regarding his municipal court plea; (4) the judge precluded the jury from being informed of the parties' insurance liability limits; and (5) the testimony of Dr. Anmuth, a doctor who examined Knoedler at the hospital after the accident, should have been barred because he was called by Farrell as a fact witness without being properly named in Farrell's answers to interrogatories. We conclude that these arguments are without merit and affirm.

The trial produced the following evidence. On August 3, 2003, at approximately 11:30 p.m., Trevor Sheppard, Farrell, and Knoedler left their home in Farrell's truck. Knoedler was the driver. They went to a bar, where they stayed and were drinking until closing at 2:00 a.m. Knoedler drove the men back to their house. During the ride, Sheppard sat on the passenger side because he is deaf in his right ear. Farrell sat in the middle of the truck's bench seat.

At the house, the men continued to drink. After about an hour, Knoedler drove the men to the Borgata in Atlantic City. He drove because he was the "most sober." Again, Farrell sat in the middle and Sheppard sat on the right.

At approximately 4 or 5 a.m., after drinking additional alcoholic beverages, they left the Borgata. They do not remember whether Farrell or Knoedler was driving.

Their truck ran a red light and collided with another vehicle. The driver-side airbag deployed. Farrell was ejected from the truck and was pinned under the passenger side front tire. He was in a coma for several weeks, suffered head trauma, broken ribs and a broken leg. Sheppard and Knoedler suffered less serious injuries. The parties filed claims for damages against each other and against the Borgata.

Farrell was issued a citation for driving under the influence (DWI). On the November 24, 2003 municipal court trial date, the prosecutor conceded that he likely could not prove that Farrell was operating the vehicle. Farrell agreed to plead guilty to reckless driving with a civil reservation and the DWI charge was dismissed. In the civil case, the motion court granted Farrell's motion to bar the admission of his municipal court guilty plea, except for impeachment purposes.

On May 1, 2007, the day before trial, the court granted Farrell's motion to preclude the police officer who responded to the accident scene, Michael O'Hala, from giving an opinion as to who was the driver of the vehicle. The court also denied Knoedler's motion to bar the testimony of Dr. Anmuth, the doctor who examined Knoedler at the hospital following the accident, to prevent the jury from learning of a statement Knoedler made to Anmuth during the examination. Finally, the court denied Knoedler's motion to have the jury told of the parties' insurance policy limits.

The trial began May 2, 2007. On May 7, 2007, at the conclusion of Farrell's counsel's closing argument, the court denied Knoedler's motion for a mistrial. That same day, the jury returned a verdict that Knoedler was the driver of the vehicle.

We first address Knoedler's claim that the court erred by excluding the opinion testimony of Officer O'Hala as to who was driving the truck at the time of the accident. We agree with the court that the officer's opinion was inadmissible.

Knoedler sought to elicit the officer's opinion, not as an expert, but as a lay witness. N.J.R.E. 701 provides that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Here, the issue was whether O'Hala's opinion satisfied subsection (a). The trial court concluded that it did not, and we agree.

The opinion of a lay witness may not be based on hearsay. Neno v. Clinton, 167 N.J. 573, 585 (2001). "A lay witness's opinion cannot rely on the inadequate support of inadmissible hearsay without the benefit of an exception. Consequently, a police officer cannot advance an opinion when it is primarily based on the hearsay statements of an eyewitness." Ibid.

O'Hala did not witness the accident. He had no personal knowledge of who was driving the truck. His opinion would have been based solely on the hearsay statements of the witnesses to the accident. The court therefore properly precluded that testimony.

Knoedler next asserts that the trial court erred in barring Farrell's municipal court plea, and the factual basis for his plea. Farrell pleaded guilty in municipal court to reckless driving. Knoedler claims that the factual basis Farrell provided for that plea was inconsistent with his trial testimony, and therefore it should have been admitted. We agree with the trial court, which determined that the plea and the factual basis for the plea were inadmissible.

Farrell entered his guilty plea subject to a reservation of his rights in a civil trial. See R. 7:6-2(a)(1). The immunity offered by that reservation may be waived, however, if the party's testimony in the civil trial is inconsistent with the testimony the party gave to support the plea. Stone v. Police Dep't of Keyport, 191 N.J. Super. 554, 558 (App. Div. 1983). Here, Farrell's testimony at trial was not inconsistent with the factual basis he placed on the record to support his guilty plea. At the time he entered his plea, the municipal prosecutor told the court that the State would have a difficult time establishing that Farrell was operating the vehicle for purposes of the DWI charge. Consequently, the State agreed to accept a plea to reckless driving. The factual basis for the plea was as follows:

Counsel: [Farrell], were you present in Atlantic City on August the 4th of 2003?

Farrell: Yes.

Counsel: Were you present in a motor vehicle in Atlantic City at that time?

Farrell: Yes.

Counsel: And was that motor vehicle involved in an accident?

Farrell: Yes.

Counsel: . . . And as you stand here today . . . you're not entirely sure of the events leading up to that accident? Is that fair to say?

Farrell: Yes.

Counsel: . . . And you and I have had an extensive opportunity to go through the State's discovery in this matter?

Farrell: Yes.

Counsel: And what the evidence would tend to indicate?

Farrell: Yes.

Counsel: Are you satisfied that the evidence might lead to a conviction for drunk driving in this case?

Farrell: Yes.

Counsel: And given that factual scenario, that the evidence might tend to indicate that, are you willing to take a plea for . . . reckless driving in this matter?

Farrell: Yes.

Farrell's trial testimony shed no more light on whether he was driving the truck than did his municipal court testimony. He testified that he was "very drunk" at the Borgata; he did not recall leaving the Borgata or asking Knoedler for his truck keys; and that he, Knoedler, and Sheppard had a custom of having Knoedler drive after they had been drinking because Knoedler was a sheriff's officer. This testimony is not inconsistent with the factual basis of Farrell's municipal court plea. Put simply, in establishing a factual basis for the plea, Farrell never admitted that he was driving the vehicle and he was, in fact, uncertain of the events leading up to the accident. All that he admitted was "the evidence might lead to a conviction for drunk driving." His testimony at trial was not inconsistent with the factual basis for his plea.

We next address Knoedler's claim that the trial court erred in allowing Dr. Anmuth to testify. Knoedler claims that the doctor's testimony should be barred because he was "not named as a witness in [Farrell's] answers to interrogatories." This argument lacks merit.

In response to a question asking for the names of trial witnesses, Farrell's interrogatory answers referred to all hospital personnel in the medical records. This answer would include Dr. Anmuth, who examined Knoedler at the hospital after the accident. In addition, on November 9, 2006, Farrell's counsel sent a letter to Knoedler's counsel stating, "[e]nclosed please find medical records of Scott Knoedler. We amend answers to interrogatories to include the information and statements of Mr. Knoedler contained therein." Attached to the letter were three-pages of medical consultation records completed by Dr. Anmuth, which included a statement on the first line that defendant "was [an] unrestrained driver." This amendment to the interrogatory answer put Knoedler on notice that Dr. Anmuth could be called as a witness.

Knoedler asserts that the court should have granted his motion for a mistrial because Farrell's counsel made improper comments during her closing argument. The trial court found that counsel's closing remarks were fair comment based on the evidence. We agree.

Counsel is permitted "'broad latitude in summation [and] counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous, or even absurd.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)), certif. denied, 163 N.J. 395 (2000). Nevertheless, the summation "must be based in truth, and counsel may not 'misstate the evidence nor distort the factual picture.'" Ibid. (quoting Colucci, supra, 326 N.J. Super. at 177).

Here, Farrell's counsel asked the jury to infer that Knoedler was the driver of the truck based on the physical evidence presented at trial, and the parties' injuries. She stated:

We have physical evidence that the windshield, the rear window, and the driver's side window were all intact after the accident. What does that mean? The only way somebody could have been ejected, thrown from this vehicle is from the passenger side of the vehicle. And when you look at this photograph . . . you will see that that is open, the passenger side is damaged by the impact, it appears, and open. So the only way somebody got out of this vehicle if they were ejected is through the passenger side.

Now the last photograph I want to show you is this. This is PF-2 and it shows that the driver's side airbag deployed. Whoever was sitting in the driver's seat had the protection of an airbag . . .

Now what does that mean? I would suggest to you that the person who was the least injured was in the driver's seat, and that person by all accounts is Mr. Knoedler. The person who was the worst injured was the one that went flying out the passenger side and ended up under the front right wheel of this vehicle, and that person was Kevin Farrell.

Based on the physical evidence and the injuries the parties suffered in the accident, Farrell's counsel was free to suggest to the jury that Knoedler was the driver of the vehicle. Counsel's argument asked the jury to draw a reasonable inference from the evidence. Knoedler's arguments as to this issue are not of sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).

Defendant next claims that the trial court erred in barring the parties' insurance coverage limits from admission into evidence. That argument too is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

All of the claims with the exception of who was driving the vehicle have been resolved.

(continued)

(continued)

11

A-5451-06T1

 

June 10, 2008