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Tucker v. Pepin
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 116
Docket:	Fra-96-274
Submitted
on Briefs:	May 16, 1997
Decided:	May 28, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ.





YOLANDE ANNE TUCKER v. PATRICK PEPIN

ROBERTS, J.

	[¶1]  Yolande Anne Tucker appeals from the judgment entered in the
Superior Court (Franklin County, Alexander, J.) that dismissed with
prejudice her complaint against Patrick Pepin for personal injuries she
sustained when struck by Pepin's truck.  Tucker accuses the court of being
prejudiced by a prior ruling that ordered a new trial, and challenges the
failure of the court to provide her with necessary assistance.  We affirm the
judgment.  
	[¶2]  In December 1992 Tucker filed her complaint against Pepin
alleging that she suffered personal injuries when Pepin struck her while
backing his vehicle in the parking lot of Pine's Market in Eustis.  In July
1994 a second attorney entered an appearance and Tucker's original
attorney withdrew.  In October 1995 Tucker's second attorney was granted
leave to withdraw without objection, and Tucker appeared pro se thereafter. 
After a four-day trial in November 1995 and a jury verdict in favor of Tucker,
the court (Marden, J.) vacated the verdict, declared a mistrial, and ordered
a new trial.  
	[¶3]  The court's nine-page decision stated in detail the difficulties
created by Tucker's conduct during the trial.  Extraneous and prejudicial
information was injected during the trial by Tucker's unsolicited comments. 
Although her sworn testimony was somewhat limited, Tucker insisted on
making statements, allegedly as background to questioning the witness. 
This conduct continued despite specific instructions from the court to
desist.  The court concluded that Tucker's conduct resulted "not from
ignorance, misunderstanding or inability to hear, but was [conduct]
reasonably calculated to present the evidence she wished to bring forth in
the manner she deemed most appropriate."  The court found that "periods
of honest and sincere efforts to ... conduct herself in an appropriate
manner" would be followed "minutes later" with violations of the rules or
orders and continued complaints "of her ignorance, her defect in hearing,
and the 'abandonment' by her attorney."  The court reasoned that Tucker's
conduct deprived Pepin of a fair trial and induced jury bias and sympathy
toward Tucker.  We do not have a complete trial transcript, but the record
we have supports the court's findings.  
	[¶4]  In March 1996, after a discussion on the record with the parties,
the court (Alexander, J.) entered a written order on trial preparation. 
Among other things, the court ordered that Tucker submit her opening
statement in writing for review by the court and included the following
warning:
 
Considering the problems with compliance with the express
direction of the court indicated in Justice Marden's order
vacating the prior judgment, the plaintiff is notified that if at any
time she ignores the directions of the court or does not comply
with prior orders of the court in her conduct presenting the
matter to the jury or in front of the jury, the court may, on
motion, or on its initiative, grant a mistrial and dismiss the case
with prejudice.  

	[¶5]  After the court resolved a discovery dispute by excluding the
testimony of a medical doctor, the second jury trial began in April 1996. 
The court had liberally edited Tucker's written opening statement and, in
the absence of the jury, reviewed exactly what Tucker was to say.  Minutes
later, however, Tucker departed from her prepared opening in addressing
the jury.  As the court stated, her opening statement "included a number of
prejudicial things either totally irrelevant to the case, things that would be
inadmissible in evidence, like having to take your dogs to have them put
down, for example."  Once again, the court found that Tucker was
deliberately disobedient of its instructions and concluded "you just don't
want to comply with the rules that assure that people get justice in this
case."  
	[¶6]  Because the record supports the court's findings and because the
court gave Tucker ample warning of the consequences, we are satisfied the
court acted within the sound exercise of discretion.  Moreover, any special
assistance that Tucker now claims she was entitled to would not have
avoided the necessity of a mistrial.  
	The entry is:  
				Judgment affirmed.

For plaintiff: Yolande Ann Tucker Mount View Road Stratton, ME 04982 Attorney for defendant: John C. Nivison, Esq. Pierce Atwood 77 Winthrop Street Augusta, ME 04330-5552