Leniart v. Bundy et al

Filing 260

MEMORANDUM OF DECISION re: plaintiff's request for leave to present rebuttal testimony. This memorandum of decision memorializes and supplements the Court's February 12, 2015 ruling announced on the record. Signed by Judge Holly B. Fitzsimmons on 2/17/2015.(Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE LENIART
v.
SGT. WILLIAM BUNDY, ET AL.

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CIV. NO. 3:09CV9 (HBF)

MEMORANDUM OF DECISION RE: PLAINTIFF’S MOTION FOR LEAVE TO
PRESENT REBUTTAL TESTIMONY
Plaintiff George Leniart brought this civil rights action
under 42 U.S.C. § 1983, alleging that defendants Michael
Hoagland, William Bundy, Wilfred Blanchette, Larry Bransford,
and Eric Ellison violated his constitutional rights by
conducting warrantless searches of his residence on two separate
occasions. A jury trial was held on February 10 through February
13, 2015.1 At the anticipated close of defendants‟ evidence,
plaintiff moved for leave to present the rebuttal testimony of
Phyllis Leniart, plaintiff‟s ninety year old mother, who lives
in eastern Connecticut. The Court denied plaintiff‟s motion.
This memorandum of decision memorializes and supplements the
Court‟s February 12, 2015 ruling announced on the record.
Plaintiff‟s case in chief consisted only of his testimony
concerning the events at issue. In pertinent part, he testified
at length concerning the October 5, 2006 search of his
residence. Plaintiff testified that during this search, his
mother descended the residence‟s stairs into the basement where

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The jury returned a defense verdict on February 13, 2015. [Doc. #256].

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the search was occurring, sat on the stairs, and witnessed the
October 5, 2006 search. Defendants presented the testimony of
all five defendants, and two non-party parole officers involved
in the October 5, 2006 search. Notably, none of these witnesses
was asked about Mrs. Leniart‟s presence at the October 5, 2006
search.
Plaintiff proffered that Mrs. Leniart‟s testimony would
corroborate his account of the October 5, 2006 search. He
further “hoped” that she could identify the defendants who
conducted the 2006 search. When the Court inquired why Mrs.
Leniart was not presented during plaintiff‟s case in chief,
plaintiff responded that her age, health, and weather
conditions2, prompted the decision not to call her. Defendants
objected to the use of the proffered rebuttal testimony, arguing
that if this testimony were allowed, defendants would be
deprived of their opportunity to rebut Mrs. Leniart‟s testimony.
“[T]he orderly presentation of evidence confines a case in
rebuttal to evidence adduced to „meet the new facts put in by
the opponent in his case in reply,‟ a rule which excludes „all
evidence which has not been made necessary by the opponent's
case in reply.‟” Silkroad Associates, Ltd. v. Junior Gallery
Grp., Inc., No. 88 CIV. 7082 (CSH), 1991 WL 51103, at *4
(S.D.N.Y. Apr. 3, 1991)(quoting 6 Wigmore on Evidence, §1873 at

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Jury selection and the start of evidence, originally scheduled to begin on
February 9, 2015, was postponed one day in light of inclement winter weather.
The Court notes that road and sidewalk conditions in certain areas of the
state were not much improved on the morning of February 10, 2015.

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p. 672 (Rev. ed. 1976)). The Court further notes the “practical
disadvantages that would result from abandoning the natural
order of evidence[,] [including] the possible unfairness to an
opponent who has justly supposed that the case in chief was the
entire case which he had to meet, and [], the interminable
confusion that would be created by an unending alternation of
successive fragments of each case which could have been put in
at once in the beginning.” Gartner v. Doctors Hosp., No. 81 CIV.
2571-CSH, 1984 WL 1188, at *1-2 (S.D.N.Y. Oct. 24, 1984)(quoting
6 Wigmore on Evidence, §1873 at p. 672 (Rev. ed. 1976)).
In the Court‟s sound discretion, and in light of the proper
nature of rebuttal evidence, the Court denied plaintiff‟s motion
for leave to present rebuttal evidence for several reasons.
First, if the Court were to allow Mrs. Leniart‟s proffered
testimony, the defendants would be entitled to sur-rebuttal
testimony, which would have disrupted the “natural order of
evidence.” Second, the proffered testimony is uncertain,
cumulative, and more akin to corroborative evidence versus
proper rebuttal. Third, an issue arose concerning Mr. Leniart‟s
possible influence on his mother‟s testimony. It was brought to
the Court‟s attention that Mr. Leniart contacted his mother and
requested that she testify on rebuttal. This contact violated
the Court‟s oral sequestration order for all non-party
witnesses. The Court further denied plaintiff‟s motion in light
of Mrs. Leniart‟s age, physical condition, distance from the
courthouse, and the uncertain nature of her testimony.

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Accordingly, for the reasons stated, the Court DENIED
plaintiff‟s motion for leave to present rebuttal evidence.
This is not a recommended ruling. The parties consented to
proceed before a United States Magistrate Judge [Doc. #136] on
September 28, 2012 with appeal to the Court of Appeals.

Entered at Bridgeport, Connecticut on the 17th of February 2015.

/s/
_
Holly B. Fitzsimmons
United States Magistrate Judge

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