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Remitted Damages Award Upheld in Excessive Force Claim

The U.S. Second Circuit Court of Appeals upheld damages awarded to a
prisoner in a 42 U.S.C. §1983 claim against jail guards for using excessive
force. The case was previously reported by PLN (September 1999, page 10).
Facts of the case will not be repeated here.

Kevin King, a Connecticut jail prisoner sued guards Mark E. Verdone, Noel
Brown, Eric Stewart, Peter Murphy, and Captain Baynes for use of excessive
force. Following trial, a jury awarded $2.07 million in damages. The Second
Circuit remitted the damages to the U.S. District Court of Connecticut.

Following retrial on the remittitur, a jury awarded $75,000 in compensatory
damages and $300,000 in punitive damages to King against Verdone and Brown.
During deliberations, the jury sent the court a note asking about King's
ability to subpoena additional witnesses and whether these witnesses could
be compelled to testify. The District Court judge issued supplemental
instructions telling the jury to decide the case on the evidence presented
and on the previously-instructed legal principles. Verdone and Brown
appealed, arguing that the jury instructions were flawed and that the
supplemental instructions were abuse of discretion.

The appeals court noted that supplemental instructions, because they are
freshest in a jury's mind, hold special prominence in deliberations.
Analyzing the jury instructions, the court found them adequate. The
supplemental instructions were written by the district judge specifically
to preserve jury neutrality. Thus, the supplemental instructions were not
abuse of discretion.

The district court judgment and damages award were upheld. This case is
published in the Federal Appendix and is subject to rules governing
unpublished cases. See: King v Verdone, 1 Fed. Appx. 89 (2nd Cir. 2001).

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Related legal case

King v Verdone

KEVIN KING, Plaintiff-Appellee, - v. - MARK E. VERDONE and NOEL BROWN, Defendants-Appellants. ERIC STEWART, PETER MURPHY and CAPTAIN BAYNES, Defendants.

No. 00-7629


1 Fed. Appx. 89; 2001 U.S. App.

January 16, 2001, Decided


SUBSEQUENT HISTORY: Reported in Table Case Format at: 2001 U.S. App. .

PRIOR HISTORY: Appeal from the United States District Court for the District of Connecticut. This cause came on to be heard on the record from the United States District Court for the District of Connecticut, and was argued by counsel.


COUNSEL: Appearing for Appellants: Gregory T. D'Auria, Ass't Att'y Gen., Hartford, Ct.

Appearing for Appellee: Norman A. Pattis, Williams & Pattis, New Haven, Ct.


ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
Defendants Mark E. Verdone and Noel Brown ("defendants") appeal from a final judgment entered in the United States District Court for the District of Connecticut following a jury trial before Dominic J. Squatrito, Judge, awarding plaintiff Kevin King, a Connecticut prisoner, $ 75,000 in compensatory damages and $ 300,000 in punitive [**2] damages on his claim that defendants, state corrections officers ("C/O's"), subjected him to excessive force. On appeal, defendants contend principally that they are entitled to a new trial on the ground that the trial court's failure to answer certain questions sent by the jury during its deliberations perpetuated jury confusion on the matter of which party had the burden of proof. Finding no basis for reversal, we affirm.
"It is the responsibility of the trial judge to provide the jury with sufficient instruction to enable it to assess the evidence within the proper legal framework and to reach a rational verdict." United States v. Parker, 903 F.2d 91, 101 (2d Cir.), cert. denied, 498 U.S. 872, 112 L. Ed. 2d 158, 111 S. Ct. 196 (1990). Supplemental instructions in response to a jury request for clarification require careful consideration because they are likely to have special impact on the jury. See, e.g., Bollenbach v. United States, 326 U.S. 607, 611-12, 90 L. Ed. 350, 66 S. Ct. 402 (1946); Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.) (supplemental instructions "enjoy special prominence in the minds of [**3] jurors" because they are "freshest in their minds," "isolated from the other instructions they have heard," "received by the jurors with heightened alertness," and "generally have been given in response to a question from the jury"), cert. denied, 459 U.S. 1048, 74 L. Ed. 2d 617, 103 S. Ct. 468 (1982). "The trial judge is in the best position to sense whether the jury is able to proceed properly with its deliberations, and he has considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion." United States v. Parker, 903 F.2d at 101; see, [*91] e.g., United States v. Read, 658 F.2d 1225, 1241-42 (7th Cir. 1981).
In the present case, the jury, during its deliberations, sent the court a note asking: "Can plaintiff subpeona [sic] witness [sic] (i.e. state troopers) + other C/O's & do they have to come in & testify? Or can they refuse to come to court." The court properly informed the parties of the jury's note and invited their comments. Defense counsel urged the court to answer the questions, saying they were "clear-cut questions. It goes to establishing burden [**4] of proof, and that is clearly where they're trying to go with this, and the answer is yes, the plaintiff could have subpoenaed anyone he wanted, and, yes, they would have to come and testify and they could not refuse to testify." (Trial Transcript, February 4, 1999, at 92.) King's attorney argued that the answer was not so clear-cut, given imponderables relating to, inter alia, the ability of the corrections officers, if subpoenaed, to refuse to answer questions by invoking the privilege against self-incrimination. The court found that the jury's questions did not bespeak confusion as to the burden of proof, noted that it had previously given the jury adequate instructions as to the burden of proof, and concluded that a direct response to the jury's questions would be inappropriate, given the prominence enjoyed by supplemental instructions. Accordingly, in order not to prejudice the jurors toward either side or invite speculation, the court responded simply that the jury was required to decide the case based on the evidence that had been presented to it and the legal principles on which it had been instructed.
In its initial instructions, the district court had amply and properly [**5] charged the jury on burden of proof, instructing, inter alia, that "in order to prove his cruel and unusual punishment claim, the burden is upon the plaintiff to prove each of the following [elements] by a preponderance of the evidence" (id. at 62). In all the circumstances, the court's response to the jury's question was entirely within the proper bounds of discretion.
We have considered all of defendants' contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.