Maio v. New Haven , 326 Conn. 708 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ANTHONY J. MAIO v. CITY OF NEW HAVEN
(SC 19401)
Rogers, C. J., and Palmer, Eveleigh,
McDonald and Robinson, Js.*
Syllabus
Pursuant to statute (§ 53-39a), a police officer may seek indemnification
from his employing governmental unit for economic loss sustained in
the defense of an unsuccessful prosecution of a crime allegedly commit-
ted by such officer in the course of his duty.
The plaintiff police officer, who was acquitted of certain crimes with which
he was charged in connection with his conduct toward two complainants
that allegedly occurred while he was working an extra duty shift at a
local bar, brought an action against the defendant city pursuant to § 53-
39a, seeking indemnification for the economic losses he incurred in
connection with his criminal trial. At the indemnification trial, the defen-
dant intended to have the complainants testify to rebut the plaintiff’s
contention that he was acting in the course of his duty, as required for a
claim under § 53-39a, when, according to the complainants, he assaulted
them. When the complainants failed to appear at trial, the defendant
sought to offer the complainants’ criminal trial testimony pursuant to
the provision of the Connecticut Code of Evidence (§ 8-6 [1]) allowing
the admission of an unavailable witness’ prior testimony at a subsequent
trial. The trial court excluded the prior testimony of both complainants,
concluding that the complainants were not unavailable witnesses
because, inter alia, the defendant had sufficient opportunity before trial
to depose both complainants. Following a trial, the jury returned a
verdict for the plaintiff, awarding him attorney’s fees, accrued compensa-
tory time and lost overtime. In a postverdict motion, the defendant
claimed, inter alia, that the plaintiff was not acting in the course of his
duty when he entered the bar during his shift in violation of a specific
binding police department order regarding extra duty work and that the
plaintiff had failed to prove that his supervising officers were aware of
and tolerated a consistent pattern of violations of that order and, thus,
had acquiesced in his presence inside the bar. The defendant also
claimed that the trial court improperly excluded the complainants’ prior
criminal trial testimony. The trial court denied the motion and rendered
judgment for the plaintiff, from which the defendant appealed. Held:
1. The defendant could not prevail on its unpreserved claim that the trial
court improperly relied on workers’ compensation principles in
instructing the jury on the meaning of the phrase ‘‘in the course of his
duty’’ under § 53-39a: this court addressed the defendant’s claim because,
even though the record revealed that the defendant failed to object to
the use of workers’ compensation principles at trial or in its postverdict
motion for relief and drew on such principles in its requests to charge,
the issue would necessarily recur on retrial, involved a question of law
briefed by both parties, and the defendant could not prevail; moreover,
this court concluded, after determining that the principles underlying
both workers’ compensation and indemnity statutes were similar, in
that both types of statutes serve the remedial purpose of making an
employee whole after suffering losses closely related to his or her
employment and are in derogation of the common law and governmental
immunity, and that the seminal cases construing § 53-39a simultaneously
borrow definitions from workers’ compensation and observe that § 53-
39a is to be strictly construed, that it was not persuaded that workers’
compensation principles were so incompatible with § 53-39a as to
require overruling those seminal cases; furthermore, the legislature,
having amended § 53-39a on multiple occasions without overruling this
court’s use of workers’ compensation principles in interpreting the mean-
ing of § 53-39a, had acquiesced in the court’s use of that interpretive
approach.
2. The trial court improperly declined to admit the former criminal trial
testimony of the complainants when it failed to find that the complain-
ants were unavailable to testify within the meaning of § 8-6 (1) of the
Connecticut Code of Evidence and, because this court could not con-
clude that the trial court’s error was harmless, the judgment was reversed
and the case was remanded for a new trial: the trial court incorrectly
required that the defendant attempt to depose the complainants as a
precondition to the admission of their prior testimony, and this court,
relying on the definition in the Federal Rules of Evidence of the term
‘‘unavailable,’’ noted that a deposition requirement runs counter to the
federal rules and was inapplicable to prior sworn testimony, as such a
requirement would impose significant burdens on parties without any
corresponding benefit to the reliability of the testimony to be admitted;
furthermore, the trial court improperly declined to give weight to the
representations of the defendant’s counsel regarding his efforts in
attempting to procure the complainants’ presence at trial, a matter that
counsel was competent to explain, and opposing counsel’s objection to
the use of such representations was based solely on the assertion that
the court was not permitted to rely on such representations, rather than
on any claim that the representations were inaccurate; moreover, in
light of the interrelatedness of the trial court’s errors, this court could
not conclude that the exclusion of the complainants’ testimony did not
affect the jury’s verdict, as such testimony was critical to the defendant’s
claim that the plaintiff was not acting in the course of his duty as a
police officer during the relevant time period, even if the plaintiff’s
employer acquiesced in the plaintiff’s presence inside the bar.
Argued October 19, 2016—officially released September 5, 2017
Procedural History
Action for indemnification of economic losses
incurred as a result of an unsuccessful criminal prosecu-
tion against the plaintiff in his capacity as a police
officer employed by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
New Haven and tried to the jury before Wilson, J.;
verdict for the plaintiff; thereafter, the court denied
the defendant’s motion to set aside the verdict and for
judgment notwithstanding the verdict and the plaintiff’s
motion for interest, and rendered judgment for the
plaintiff in accordance with the verdict, from which the
defendant appealed and the plaintiff cross appealed.
Reversed; new trial.
Proloy K. Das, with whom were Christopher M.
Neary, deputy corporation counsel, and, on the brief,
Erin E. Canalia, Craigin B. Howland and Sarah
Gruber, for the appellant-appellee (defendant).
Daniel Scholfield, with whom, on the brief, were
Donn A. Swift and Matthew D. Popilowski, for the
appellee-appellant (plaintiff).
Opinion
PALMER, J. Under General Statutes § 53-39a, a police
officer acquitted of crimes ‘‘allegedly committed by
such officer in the course of his duty’’ is entitled to
indemnification from ‘‘his employing governmental unit
for economic loss sustained by him as a result of such
prosecution . . . .’’1 The plaintiff, Anthony J. Maio, a
police officer with the New Haven Police Department
(department), sought such reimbursement from the
defendant, the city of New Haven, after he was acquitted
of charges of sexual assault in the fourth degree and
unlawful restraint2 for conduct involving two young
women that allegedly occurred while he was working
an ‘‘extra duty’’ shift at a local nightclub. When the
defendant declined to reimburse the plaintiff in accor-
dance with § 53-39a, the plaintiff brought this action
for indemnification. Following a trial, the jury returned
a verdict for the plaintiff, and the defendant appealed,3
claiming that the trial court improperly (1) instructed
the jury on the meaning of the phrase ‘‘in the course
of [the officer’s] duty’’ as that language is used in § 53-
39a,4 and (2) precluded the defendant’s use of the testi-
mony of two key state’s witnesses at the plaintiff’s crimi-
nal trial, namely, A and J, the complainants and alleged
victims of the plaintiff’s claimed misconduct (complain-
ants). Although we disagree with the defendant’s claim
of instructional impropriety, we agree that the trial
court improperly prohibited the defendant from using
the complainants’ prior testimony and, further, that that
evidentiary error was not harmless. We conclude, there-
fore, that the defendant is entitled to a new trial.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On April 18, 2008,
the plaintiff was scheduled to work an ‘‘extra duty’’
shift at Bar, a nightclub located on Crown Street in
New Haven. In the early hours of April 19, 2008, as
patrons were leaving Bar, the complainants approached
Christopher Kelly, then a lieutenant in the department,
in the street outside Bar and reported that they had
been sexually assaulted by the plaintiff. The plaintiff
subsequently was arrested on charges of sexual assault
in the fourth degree and unlawful restraint in the second
degree and placed on administrative leave. He eventu-
ally was acquitted of all charges, however, and, there-
after, he commenced this indemnification action
against the defendant pursuant to § 53-39a.
The case proceeded to a jury trial, at which the plain-
tiff presented testimony from several officers for the
purpose of demonstrating that he was acting ‘‘in the
course of his duty’’ for purposes of § 53-39a while per-
forming his ‘‘extra duty’’ shift at Bar. Specifically, the
plaintiff sought to demonstrate that he was entitled to
indemnification notwithstanding his admission that he
was physically present inside Bar in violation of General
Order 82-1, an order of the department that provides
that an officer assigned to an extra duty shift at a bar
or nightclub may not enter that establishment except
in certain limited circumstances not applicable to the
present case.5 These officers, as well as the plaintiff,
testified that the department’s rules proscribing the
plaintiff’s conduct were routinely violated without sanc-
tion and that high-ranking department officers were
aware of such violations.6 In addition, the plaintiff testi-
fied that his interactions with the complainants on the
night in question were benign and professional.7 The
defendant countered with testimony from ranking
police officers who maintained that the plaintiff’s pres-
ence inside Bar violated the department’s orders and
was not authorized, either explicitly or implicitly, by the
plaintiff’s superior officers. In addition, the defendant
sought to introduce into evidence, under § 8-6 (1) of
the Connecticut Code of Evidence,8 the criminal trial
testimony of the complainants concerning their encoun-
ter with the plaintiff. After finding that neither com-
plainant was ‘‘unavailable’’ within the meaning of § 8-
6, however, the trial court denied the defendant’s
request and barred the defendant’s use of the complain-
ants’ prior testimony.
The jury returned a verdict in favor of the plaintiff,
awarding $187,256.46 in attorney’s fees, accrued com-
pensatory time, and lost overtime. Thereafter, the
defendant filed a motion seeking judgment notwith-
standing the verdict or, in the alternative, a new trial.
In that motion, the defendant conceded that ‘‘[t]he
phrase, ‘in the course of his duty,’ is construed consis-
tent with the meaning of ‘course of employment’ under
workers’ compensation law,’’ and that an employer’s
acquiescence in the otherwise prohibited conduct of
an employee is one consideration in determining
whether an officer is acting ‘‘in the course of his duty’’
under § 53-39a. Specifically, the defendant observed
that, ‘‘[a]s the [c]ourt instructed the jury, General Order
82-1 was in effect at the time of this incident and consti-
tuted a binding workplace rule and regulation, unless
the [c]hief of [p]olice and other ranking administra-
tion officials were aware of and tolerated a consistent
pattern of violations of that order, such that the
[d]epartment acquiesced in a pattern or practice of dis-
regard of the General Order.’’ (Emphasis added.) Thus,
‘‘[a]s a part of his burden of proof in this case, [the
plaintiff] was obligated to establish that violations of
General Order 82-1 were ignored by, not merely lower-
ranking . . . officers [of the department], but by [high-
ranking] officials of the [d]epartment.’’ The defendant
contended that the plaintiff had failed to prove that
his supervising officers had acquiesced in his presence
inside Bar. Finally, the defendant claimed that the court
had improperly excluded the complainants’ prior tes-
timony.
The trial court denied the defendant’s motion.9 In
its memorandum of decision, the court explained that,
contrary to the defendant’s claim, the plaintiff pre-
sented sufficient evidence for a jury to conclude that
the plaintiff remained within ‘‘the course of his duty’’
while inside Bar because the plaintiff’s supervising offi-
cers were aware of, and had acquiesced in, similar viola-
tions of General Order 82-1 in the past. The court also
rejected the defendant’s contention that the court
improperly had declined to admit the complainants’
former testimony.
On appeal, the defendant claims that the trial court
improperly instructed the jury on the meaning of the
phrase ‘‘in the course of his duty’’ in accordance with
principles borrowed from workers’ compensation law
and that the court improperly relied on such principles
in rejecting the defendant’s motion for postverdict
relief. The defendant also contends that the trial court
improperly excluded the testimony of the complainants
after declining to find them ‘‘unavailable,’’ as required
by § 8-6 of the Connecticut Code of Evidence for the
introduction of former testimony. Although we con-
clude that the defendant’s first claim lacks merit, we
agree with the defendant’s claim under § 8-6, and, there-
fore, we reverse the trial court’s judgment and remand
the case for a new trial.10
I
The defendant first contends that the trial court
improperly relied on workers’ compensation principles
in instructing the jury on the meaning of the phrase ‘‘in
the course of his duty’’ under § 53-39a and in denying the
defendant’s postverdict motion. The defendant objects
generally to the trial court’s application of workers’
compensation principles to § 53-39a, and specifically to
the use of the principle that an employer may ‘‘acqui-
esce’’ in a particular practice by an employee, thereby
making it a permissible ‘‘incident of the employment.’’
As the foregoing procedural history demonstrates, how-
ever, the defendant failed to object to the use of such
principles at trial, even in its motion for postverdict
relief. Indeed, the record reveals that the defendant
itself drew on workers’ compensation principles in its
request to charge and supplemental request to charge
and, in fact, that it expressly requested that the court
charge the jury in accordance with the principle of
‘‘employer acquiescence.’’11 We therefore conclude that
the defendant’s claims regarding the construction of
the statutory phrase ‘‘in the course of his duty’’ were
not properly preserved for appeal. See Practice Book
§ 60-5 (this court ‘‘shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial’’).12
Although we would not ordinarily address the defen-
dant’s unpreserved statutory interpretation claim, we
do so here because the issue necessarily will recur on
retrial. Doing so is appropriate, moreover, because the
claim involves a question of law briefed by both parties,
and because the defendant cannot prevail on the claim.
See Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 155–58, 84
A.3d 840 (2014) (record must be adequate for review,
review cannot result in unfair prejudice to any party,
and either [1] opposing party does not object to review
or [2] party raising claim cannot prevail).
Section 53-39a provides indemnification for eco-
nomic losses sustained by a police officer when that
officer is prosecuted for, but subsequently acquitted of,
a crime ‘‘allegedly committed by such officer in the
course of his duty as such . . . .’’ See Rawling v. New
Haven, 206 Conn. 100, 106, 537 A.2d 439 (1988) (‘‘[A]ny
person who invokes § 53-39a must sustain a twofold
burden of proof. In order to receive indemnity, a police
officer must prove not only that the charges against
him were dismissed, or that he was acquitted, but also
that the charges arose ‘in the course of his duty’ as a
policeman.’’). In Link v. Shelton, 186 Conn. 623, 627–28,
443 A.2d 902 (1982), after noting that the phrase ‘‘in
the course of his duty’’ was not defined by statute or
explained in the legislative history of § 53-39a, we
turned to the construction of ‘‘ ‘[a]rising out of and in
the course of his employment,’ ’’ a parallel phrase used
in workers’ compensation statutes, to determine its
meaning. See General Statutes § 31-275 (1). We con-
cluded that a police officer who reported late to work
and created a ‘‘disturbance’’ in the waiting area of the
police station remained ‘‘in the course of his duty’’ for
purposes of indemnification following his acquittal of
the charge of breach of the peace. Link v. Shelton,
supra, 628–29.
When we again were called on to consider the mean-
ing of the phrase several years later, we explicitly
acknowledged that ‘‘[Link] instructs us to construe the
phrase ‘in the course of his duty’ by looking to the
meaning of ‘course of employment’ under workers’
compensation law.’’ Rawling v. New Haven, supra, 206
Conn. 106. In Rawling, we determined that whether an
officer was ‘‘in the course of his duty’’ under § 53-39a
could be determined by a three-pronged test, focusing
on whether the relevant conduct occurred ‘‘(a) within
the period of the employment; (b) at a place the
employee may reasonably be; and (c) while the
employee is reasonably fulfilling the duties of the
employment or doing something incidental to it.’’ (Inter-
nal quotation marks omitted.) Id., 107, quoting McNa-
mara v. Hamden, 176 Conn. 547, 550–51, 398 A.2d 1161
(1979); see McNamara v. Hamden, supra, 548, 550–51
(whether table tennis games on employer’s premises
were ‘‘incident of [plaintiff’s] employment’’ for workers’
compensation purposes); footnote 6 of this opinion; see
also Mihalick v. Simsbury, Docket No. 3-95-CV-1822
(WWE), 1997 WL 43111, *2 (D. Conn. January 10, 1997)
(using workers’ compensation principles to determine
whether plaintiff was ‘‘in the course of his duty’’); San-
tana v. Hartford, 94 Conn. App. 445, 452, 894 A.2d 307
(2006) (same), aff’d, 282 Conn. 19, 918 A.2d 267 (2007);
Crotty v. Naugatuck, 25 Conn. App. 599, 603–604, 595
A.2d 928 (1991) (same).
In the present case, the defendant questions the pro-
priety of relying on workers’ compensation principles
for purposes of § 53-39a, contending that workers’ com-
pensation statutes, being remedial in nature and liber-
ally construed, are poorly suited to the interpretation
of § 53-39a, which, as a statute in derogation of the
common law and municipal immunity, must be strictly
construed. The defendant argues that, under a strict
interpretation of the statute, the plaintiff could not be
physically present within Bar in violation of the depart-
ment’s orders while remaining ‘‘in the course of his
duty’’ under § 53-39a, and, indeed, that police officers
working ‘‘extra duty’’ shifts generally would not be cov-
ered by § 53-39a.
In arguing that we should overrule Link and Rawling,
however, the defendant overstates the difference
between workers’ compensation principles and those
principles that underlie indemnity statutes like § 53-
39a. Indemnification, like workers’ compensation,
serves the remedial purpose of making an employee
whole after suffering losses closely related to his or
her employment. See, e.g., Norwich v. Silverberg, 200
Conn. 367, 369, 374, 511 A.2d 336 (1986) (municipal
indemnification statute protecting employee from costs
of action incurred ‘‘while acting in the discharge of his
duties’’; General Statutes § 7-101a [b]; was ‘‘designed to
furnish some relief for injustice that would otherwise
attend our [well established] doctrine of sovereign
municipal immunity’’). Moreover, workers’ compensa-
tion statutes, like indemnity statutes, are in derogation
of the common law and governmental immunity. See,
e.g., DeOliveira v. Liberty Mutual Ins. Co., 273 Conn.
487, 499, 870 A.2d 1066 (2005) (workers’ compensation
scheme ‘‘compromise[s] an employee’s right to a com-
mon law tort action for work related injuries in return
for relatively quick and certain compensation’’ [internal
quotation marks omitted]); Dechio v. Raymark Indus-
tries, Inc., 114 Conn. App. 58, 77, 968 A.2d 450 (2009)
(Lavine, J., dissenting) (noting that workers’ compen-
sation statutes are in derogation of common-law reme-
dies), aff’d, 299 Conn. 376, 10 A.3d 20 (2010).
In light of these similarities, we hesitate to find fault
with cases that import concepts from one of these areas
into the other. We are especially leery of doing so when
the seminal cases construing § 53-39a simultaneously
borrow definitions from workers’ compensation and
observe that § 53-39a is to be strictly construed. See,
e.g., Rawling v. New Haven, supra, 206 Conn. 105, 112.
In such a context, the defendant has not persuaded us
that workers’ compensation principles are so incompat-
ible with § 53-39a as to require overruling Link and
Rawling. See Conway v. Wilton, 238 Conn. 653, 660–61,
680 A.2d 242 (1996) (‘‘[t]he doctrine [of stare decisis]
requires a clear showing that an established rule is
incorrect and harmful before it is abandoned’’ [internal
quotation marks omitted]).13
Finally, we note again that the courts of this state
have for the past thirty-five years relied explicitly and
repeatedly on principles of workers’ compensation law
to interpret § 53-39a. During this time, the legislature
has amended § 53-39a on multiple occasions without
overruling this interpretive approach. See, e.g., Public
Acts 2010, No. 10-68, § 1 (providing for recovery of legal
fees charged in indemnification action); Public Acts
2003, No. 03-97, § 2 (allowing state police officers to
pursue action under statute in Superior Court). As a
result, in the absence of further guidance, we conclude
that the legislature has acquiesced in our use of work-
ers’ compensation principles for interpreting the mean-
ing of the phrase ‘‘in the course of his duty’’ under § 53-
39a. See Commission on Human Rights & Opportuni-
ties v. Sullivan Associates, 250 Conn. 763, 783, 739 A.2d
238 (1999) (‘‘[t]he legislature is presumed to be aware of
the interpretation of a statute and . . . its subsequent
nonaction may be understood as a validation of that
interpretation’’). If the legislature believes we have mis-
taken its silence, it can easily overrule us. In the absence
of such overruling, however, the defendant cannot pre-
vail on its statutory interpretation claims.
II
The defendant also contends that the trial court
improperly excluded the former testimony of the com-
plainants by failing to find that they were ‘‘unavailable’’
for purposes of the former testimony exception to the
hearsay rule, which requires such a finding. We agree
with this claim.
Section 8-6 (1) of the Connecticut Code of Evidence
provides that the prior testimony of an unavailable wit-
ness may be admitted at a subsequent trial if the issues
in the prior proceeding were ‘‘substantially similar’’ to
those in the proceeding at which the testimony is being
offered and the opposing party had an opportunity to
develop that testimony at the earlier proceeding. See
State v. Rodriguez, 68 Conn. App. 303, 311, 791 A.2d
621 (proponent of former testimony must satisfy two
part test: witness is unavailable and prior testimony
was reliable), cert. denied, 260 Conn. 920, 797 A.2d 518
(2002). In this case, there is no challenge to the trial
court’s determination that the prior testimony was reli-
able under § 8-6, and the plaintiff also makes no claim
that the issues at the two trials were not substantially
similar. We therefore review only the court’s conclusion
that the complainants were not unavailable.
We have held that ‘‘[d]ue diligence to procure the
attendance of the absent witness is an essential predi-
cate to unavailability.’’ (Internal quotation marks omit-
ted.) Crochiere v. Board of Education, 227 Conn. 333,
356, 630 A.2d 1027 (1993); see also State v. Rivera, 221
Conn. 58, 62, 602 A.2d 571 (1992) (‘‘[a] proponent [of
former testimony] must exercise due diligence and . . .
make a good faith effort to procure the declarant’s
attendance’’ [internal quotation marks omitted]). At the
same time, in demonstrating the witness’ unavailability,
‘‘[a] proponent’s burden is to demonstrate a diligent
and reasonable effort, not to do everything conceivable,
to secure the witness’ presence.’’ State v. Lopez, 239
Conn. 56, 77–78, 681 A.2d 950 (1996).
The defendant intended to have the complainants
testify at trial to rebut the plaintiff’s contention that he
was ‘‘in the course of his duty’’ when, according to the
complainants, he assaulted them. When neither of the
complainants appeared to testify at trial, however, the
defendant moved to have their prior testimony from
the criminal trial admitted into evidence under § 8-6 (1)
of the Connecticut Code of Evidence. At the hearing
on the defendant’s motion, the defendant sought to
demonstrate due diligence, as required for a finding
of unavailability under § 8-6, by detailing its efforts to
procure the complainants’ attendance at trial. Counsel
for the defendant first represented to the court that he
‘‘repeatedly’’ had been in touch by telephone with A,
who lived in Longmeadow, Massachusetts, and that she
had agreed to testify. Counsel further explained, how-
ever, that, on the eve of the trial, A indicated that she
might have other plans, and thereafter stopped
responding to counsel’s calls. Counsel also informed
the court that he had been in contact with J, an East
Haven resident, ‘‘as recently as last week,’’ and stated
that she had also agreed to testify at the indemnification
trial. Thereafter, counsel telephoned J ‘‘repeatedly’’ but
was unable to leave a voice message. ‘‘[I]n an abundance
of caution,’’ he had also sought to have her served with
a subpoena when she first indicated she might not be
willing to attend. A judicial marshal then testified that
he had tried unsuccessfully to serve J with the sub-
poena, going to her house five times during the prior
week and attempting to serve her at work once.
Notwithstanding counsel’s efforts, the trial court con-
cluded, with respect to A, that, even though she was
out of state and not amenable to subpoena in a civil
action, the court could not find her ‘‘unavailable’’ in
view of counsel’s failure to attempt to ‘‘preserve her
testimony’’ by deposition. The court made a similar
finding as to J, the in-state witness, observing that coun-
sel had sufficient time before trial to depose both com-
plainants: ‘‘So what I’m saying is . . . that through the
discovery process, you had an opportunity to notice
. . . the depositions of both young ladies. . . . [Y]ou
[c]ould have . . . secure[d] their . . . testimony by
way of deposition.’’ The court further explained that
‘‘[J] is more compelling against not allowing her former
testimony because she’s right here in East Haven. Her
deposition could have been secured months ago.’’ On
that basis, the court excluded the former testimony of
both complainants.14
In its motion to set aside the verdict, the defendant
argued that the trial court improperly concluded that
the defendant had not exercised due diligence in procur-
ing the complainants’ attendance at trial, in part due
to the imposition of a deposition requirement. The court
denied the defendant’s motion, concluding, once again,
that the defendant ‘‘had ample opportunity to preserve
the testimony of [the complainants] through deposition
and did not do so.’’ The court also determined that it
was not permitted to rely on the representations of
counsel regarding the defendant’s efforts to secure the
complainants’ attendance and, therefore, was required
to disregard the defendant’s explanation of the com-
plainants’ sudden change of plans.
On appeal, the defendant claims that the court incor-
rectly predicated its finding of unavailability on the
defendant’s attempts to procure depositions from the
complainants and that the court also incorrectly
believed that it could not properly rely on defense coun-
sel’s representations regarding the complainants’
unavailability. Because we agree with both of the defen-
dant’s claims, we conclude that the trial court improp-
erly declined to admit the complainants’ former
testimony.
First, the trial court incorrectly required that the
defendant attempt to depose the complainants as a
precondition to the admission of their former testi-
mony. In assessing whether a declarant is ‘‘unavailable’’
for the purpose of admitting evidence under an excep-
tion to the hearsay rule, we have stated that this court
follows the definition of the term ‘‘unavailable’’ in rule
804 (a) of the Federal Rules of Evidence. See, e.g., State
v. Schiappa, 248 Conn. 132, 141–42, 728 A.2d 466 (‘‘[i]n
determining whether the declarant is unavailable, we
employ the definitions set forth in rule 804 [a] of the
Federal Rules of Evidence’’), cert. denied, 528 U.S. 862,
120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). Rule 804 (a)
(5) of the Federal Rules of Evidence provides that a
declarant may be considered ‘‘unavailable’’ if he ‘‘is
absent from the trial or hearing and the statement’s
proponent has not been able, by process or other rea-
sonable means, to procure: (A) the declarant’s atten-
dance, in the case of a hearsay exception under [r]ule
804 (b) (1) [former testimony] or (6); or (B) the declar-
ant’s attendance or testimony, in the case of a hearsay
exception under [r]ule 804 (b) (2), (3), or (4).’’ (Empha-
sis added.) Thus, as the Judiciary Committee’s notes
on rule 804 explain: ‘‘The [c]ommittee amended the
[r]ule to insert after the word attendance the parentheti-
cal expression (or, in the case of a hearsay exception
under subdivision (b) (2), (3), or (4), his attendance or
testimony). The amendment is designed primarily to
require that an attempt be made to depose a witness
(as well as to seek his attendance) as a precondition
to the witness being deemed unavailable. The [c]ommit-
tee, however, recognized the propriety of an exception
to this additional requirement when it is the declar-
ant’s former testimony that is sought to be admitted
under subdivision (b) (1) [concerning former testi-
mony].’’ (Emphasis added; internal quotation marks
omitted.) Fed. R. Evid. 804, judiciary committee notes,
House Report No. 93-650, 28 U.S.C. app., p. 1080 (2012).
In excluding the complainants’ former testimony, the
trial court relied primarily on Schaffer v. Lindy, 8 Conn.
App. 96, 101, 511 A.2d 1022 (1986), overruled on other
grounds by Stuart v. Stuart, 297 Conn. 26, 44, 996 A.2d
259 (2010), for the proposition that ‘‘an attempt [must]
be made to depose a witness . . . as a precondition
to the witness being deemed unavailable.’’ (Internal
quotation marks omitted.) That case, which involved
the admissibility of a statement against penal interest,
does indeed stand for the proposition that, in certain
situations, the proponent of hearsay must attempt to
depose the declarant. As the federal rules make clear,
however, the deposition requirement discussed in
Schaffer applies only to certain exceptions to the rule
against hearsay, such as statements against penal inter-
est under rule 804 (b) (3) of the Federal Rules of Evi-
dence, and it does not apply to prior sworn testimony
under rule 804 (b) (1) of the Federal Rules of Evidence.
Thus, the trial court’s insistence that the defendant
should have attempted to depose the complainants runs
counter to the clear guidance provided by the federal
rules and our established reliance on their provisions
for assessing unavailability.15 Indeed, imposing the addi-
tional hurdle of a deposition makes little sense in the
context of prior sworn testimony. A deposition require-
ment applies to statements against penal interest
because those statements do not necessarily provide
the same indicia of reliability as sworn testimony, which
is virtually identical to in-court testimony for purposes
of reliability. See Atwood v. Atwood, 86 Conn. 579, 583,
86 A. 29 (1913) (noting that deposition testimony and
prior in-court testimony are indistinguishable in terms
of their reliability). In contrast, no deposition require-
ment exists for former testimony for the simple reason
that it would impose significant burdens on parties with-
out any corresponding benefit to the reliability of the
testimony to be admitted.
The trial court also improperly declined to give
weight to the defendant’s ‘‘unsupported representa-
tions’’ regarding its efforts to procure the complainants’
presence at trial, which the court determined were inad-
equate to support a claim of unavailability under State
v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987). As
the defendant maintains on appeal, however, Aillon
does not stand for the proposition that the court may
never rely on counsel’s representations in determining
the availability of witnesses once those representations
are challenged by opposing counsel. In Aillon, defense
counsel represented that ‘‘he had been advised that [the
witness] was not presently willing to hold himself out
as an expert on hair ‘because he doesn’t do that any
longer.’ ’’ State v. Aillon, supra, 202 Conn. 389. However,
counsel made ‘‘no attempt whatsoever to secure [the
witness’] physical presence so that he might personally
advise the court as to his present inability, or unwilling-
ness, to testify as an expert hair analyst.’’ Id., 391. As
a result, this court held that, ‘‘[i]n the face of an objec-
tion by the state, the defendant did not satisfy his burden
of proof through the unsupported representations of
defense counsel that [the witness] was no longer quali-
fied as an expert’’; id.; because those representations
provided no evidence as to whether the declarant was
still qualified to testify as an expert, or whether he was
‘‘merely recalcitrant.’’ Id., 392.
In the present case, by contrast, counsel’s representa-
tions concerned the extent of the defendant’s own
efforts to procure the complainants’ attendance, a mat-
ter that counsel was perfectly competent to explain.
Indeed, ‘‘[i]t long has been the practice that a trial court
may rely upon certain representations made to it by
attorneys, who are officers of the court and bound to
make truthful statements of fact or law to the court.’’
(Internal quotation marks omitted.) State v. Chambers,
296 Conn. 397, 419, 994 A.2d 1248 (2010); see also State
v. Lopez, supra, 239 Conn. 79 (‘‘it is within the discretion
of the trial court to accept or to reject the proponent’s
representations regarding the unavailability of a declar-
ant’’). Accordingly, the court was not required to disre-
gard the defendant’s representations on the issue of its
diligence in procuring the complainants’ attendance—
the sine qua non of unavailability under our case law—
even in the face of opposing counsel’s objection to
the use of such representations. Our conclusion in this
regard is buttressed by the fact that the plaintiff’s objec-
tion to defense counsel’s representations was based
solely on the assertion that the trial court was not per-
mitted to rely on such representations in determining
the reasonableness of counsel’s efforts to secure the
complainants’ attendance at trial, and not on any claim
that the representations were inaccurate.
In light of the interrelatedness of these errors, we
cannot tell whether the trial court would have reached
the same conclusion had its opinion been grounded in
an accurate reading of the law. Nor can we view these
errors as harmless, because, as the trial court repeatedly
acknowledged and the plaintiff effectively conceded at
trial, the complainants’ testimony was critical to the
defendant’s claim that the plaintiff was not acting in
the course of his duty during the relevant time period,
even assuming that his employer acquiesced in his pres-
ence inside Bar.16 See Klein v. Norwalk Hospital, 299
Conn. 241, 254–55, 9 A.3d 364 (2010) (‘‘[A]n evidentiary
impropriety in a civil case is harmless only if we have
a fair assurance that it did not affect the jury’s verdict.
. . . A determination of harm requires us to evaluate
the effect of the evidentiary impropriety in the context
of the totality of the evidence adduced at trial.’’ [Internal
quotation marks omitted.]). Indeed, both the trial court
and the plaintiff acknowledged that the complainants
were the only two witnesses who could contradict the
plaintiff’s testimony regarding the details of their inter-
action at Bar. Although several other witnesses at the
indemnification trial questioned the plaintiff’s version
of events, their testimony was not an adequate substi-
tute for the complainants’ firsthand account of the plain-
tiff’s allegedly unlawful conduct inside Bar, testimony
that could have provided strong support for the defen-
dant’s contention that the plaintiff’s conduct was under-
taken outside the course of his duty as a police officer.
In this context, it cannot be said with any reasonable
assurance that the exclusion of the complainants’ for-
mer testimony did not affect the jury’s verdict.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald
and Robinson. Thereafter, Justice Zarella retired from this court and did
not participate in the consideration of this decision.
1
General Statutes § 53-39a provides in relevant part: ‘‘Whenever, in any
prosecution of an officer of the Division of State Police . . . or a local
police department for a crime allegedly committed by such officer in the
course of his duty as such, the charge is dismissed or the officer found not
guilty, such officer shall be indemnified by his employing governmental unit
for economic loss sustained by him as a result of such prosecution, including
the payment of attorney’s fees and costs incurred during the prosecution
and the enforcement of this section. . . .’’
2
The plaintiff was charged with two counts of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (2) and two counts of
unlawful restraint in the second degree in violation of General Statutes
§ 53a-96.
3
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
4
As we discuss more fully hereinafter, the defendant also contends that
the trial court relied on an incorrect interpretation of the phrase in denying
the defendant’s motion for postverdict relief. This contention is in all material
respects identical to the defendant’s claim of instructional impropriety.
5
Dept. of Police Service, New Haven Police Dept., General Order 82-1
(effective January 25, 1982) provides in relevant part: ‘‘The purpose of this
General Order is to restate the . . . [d]epartment policy regarding extra
duty work at nightclubs and bars. . . .
‘‘A police officer will not be assigned on an extra duty assignment at a
nightclub or bar unless the following regulations promulgated under this
directive are adhered to:
‘‘1. The officer assigned to the extra duty shall work only in a recognized
parking lot with the main responsibility being to protect vehicles from thefts,
acts of vandalism, and to prevent any disturbances that might take place
in said parking lot . . .
‘‘3. The officer assigned shall not enter the premises of the nightclub or
bar itself, except in response to a criminal complaint or other emergency;
‘‘4. When the officer is required to enter the nightclub or bar, the officer
will immediately contact the radio dispatcher; inform the dispatcher of the
action being taken, and request a complaint number;
‘‘5. Whenever the officer has been required to enter a nightclub or bar,
the officer shall prepare a case incident report and shall request that a radio
car be dispatched to take the report to headquarters; and
‘‘6. If the person requesting the hiring of a police officer for work at a
nightclub or bar agrees to all the conditions set forth in this General Order,
a letter will be directed to the Commander Officer of the Traffic and License
Unit making such request and indicating the officer hired will only perform
the duties listed above. . . .’’ (Emphasis in original.)
6
As we explain more fully hereinafter, this court previously has held that
the meaning of the phrase ‘‘in the course of his duty’’ under § 53-39a is
guided by our construction of the phrase ‘‘course of employment’’ as that
phrase is used in our workers’ compensation statutes, General Statutes § 31-
275 et seq. See, e.g., Rawling v. New Haven, 206 Conn. 100, 106, 537 A.2d
439 (1988). Whether an employee’s conduct falls within the ‘‘course of [his]
employment’’ for workers’ compensation purposes is typically a fact-based
determination that requires consideration of a variety of factors, including
the ‘‘time, place and extent of [any] deviation [from the duties of his employ-
ment] . . . as well as what duties were required of the employee and the
conditions surrounding the performance of his work . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 107.
7
The plaintiff testified that, at closing time, he was approached by the
complainants, who began to flirt with him in the vestibule of Bar, where
he was stationed. After speaking to the complainants for a period of time,
the plaintiff excused himself and went upstairs to the office to check in
with the manager. While there, he heard what sounded like a bottle breaking,
and when he stepped out of the office onto the landing to investigate, he
heard ‘‘laughing and giggling’’ emanating from a private staff bathroom on
the second floor and noticed that the weighted ‘‘European style’’ doors
had not been properly closed. Upon pushing the door open, he saw the
complainants. The plaintiff told them that they were not permitted to be
there, but the complainants simply dismissed him, grabbing his notepad and
writing, ‘‘Officer Maio, I [heart] you.’’ One complainant tried to put her hand
to his mouth. The complainants eventually left, squeezing by him in the
narrow hallway, and the plaintiff saw them just once more that night, laugh-
ing and joking with each other as he investigated a separate altercation
outside.
8
Section 8-6 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness: (1) Former testimony. Testimony given as a
witness at another hearing of the same or a different proceeding, provided
(A) the issues in the former hearing are the same or substantially similar
to those in the hearing in which the testimony is being offered, and (B) the
party against whom the testimony is now offered had an opportunity to
develop the testimony in the former hearing. . . .’’
9
In support of its posttrial motion, the defendant also claimed that the
trial court improperly had declined to instruct the jury that the plaintiff’s
prior acquittal, standing alone, did not demonstrate that he had acted prop-
erly with the complainants. The trial court rejected this claim, however,
and the defendant does not challenge that ruling on appeal.
10
Following judgment, the trial court also denied the plaintiff’s postjudg-
ment motion for offer of compromise interest under General Statutes § 52-
192a. The plaintiff cross appeals from that judgment, claiming that the trial
court incorrectly determined that municipalities are immune to liability for
such interest. Because this issue will arise on retrial only if the plaintiff
prevails, we do not consider the plaintiff’s cross appeal.
11
At oral argument before this court, the defendant asserted that it had
preserved its statutory claims by objecting to one of the workers’ compensa-
tion principles imported from Kish v. Nursing & Home Care, Inc., 248
Conn. 379, 386, 727 A.2d 1253 (1999), namely, the notion that there is ‘‘no
bright line test distinguish[ing] activities that are incidental to employment
from those that constitute a substantial deviation therefrom.’’ (Internal quo-
tation marks omitted.) The related colloquy reveals, however, that the defen-
dant did not object to the use of workers’ compensation principles as such,
but to the relevance of the specific language from Kish in the context
of an alleged sexual assault—conduct that it claimed was necessarily a
substantial deviation from the plaintiff’s employment activities.
The defendant also claims that the evidentiary insufficiency claim
advanced at trial preserved questions of statutory interpretation for purposes
of appeal because ‘‘a statutory construction analysis of . . . § 53-39a . . .
is necessary to determine whether the evidence below was sufficient.’’ In
support of this contention, the defendant cites three cases, none of which
supports the proposition that statutory construction claims may be ignored
at trial and then raised for the first time on appeal. At most, these cases
reflect the fact that, at times, we do undertake a statutory construction
analysis for the purpose of resolving a sufficiency of the evidence claim
presented on appeal. See State v. Moreno-Hernandez, 317 Conn. 292, 294,
296, 299, 118 A.3d 26 (2015) (statutory claim on appeal, that certain subdivi-
sion of attempt to commit murder statute was inapplicable to defendant,
had been considered by trial court); State v. Drupals, 306 Conn. 149, 156–59,
49 A.3d 962 (2012) (statutory claim on appeal, that trial court improperly
determined that defendant had failed to register his new residence, as
required by sex offender statute, ‘‘without undue delay’’; General Statutes
§ 54-251 [a]; corresponded to defendant’s testimony at trial that ‘‘on the
basis of his understanding of the statutes, he had five days in which to
notify the [sex offender registry] unit of a change of residence address, and
that he was not required to provide notice of temporary or transient overnight
visits’’); Bratz v. Harry Maring, Jr., Inc., 116 Conn. 186, 188–90, 164 A. 388
(1933) (plaintiff’s claim on appeal was based on interpretation of proximate
cause under statute that plaintiff had advanced in trial court and which that
court rejected). None of these cases addresses the issue of preservation. In
any event, adopting the defendant’s view of preservation, whereby statutory
construction claims are preserved simply by arguing at trial that the evidence
is insufficient, would be inconsistent with the requirement that claims be
raised ‘‘distinctly’’ at trial.
12
Alternatively, the defendant contends that it is entitled to prevail on
this issue under the plain error doctrine. See Practice Book § 60-5. This
claim lacks merit because, as explained hereinafter, both this court and the
Appellate Court have stated that the phrase ‘‘in the course of his duty’’
under § 53-39a may be interpreted with reference to analogous language
found in the workers’ compensation statutes, and the legislature has given
no indication that it disagrees with that interpretive approach. In such
circumstances, it can hardly be said that the trial court’s alleged error
was so obviously and egregiously improper as to implicate the plain error
doctrine. See State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (‘‘Plain
error is a doctrine that should be invoked sparingly. . . . Implicit in this
very demanding standard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the reversal of the judg-
ment under review. . . . [Thus, an appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse the judgment would
result in manifest injustice.’’ [Citations omitted; internal quotation marks
omitted.]).
13
We also reject the defendant’s argument that the presence of the qualifier
‘‘as such’’ in the phrase ‘‘in the course of his duty as such’’ necessarily
distinguishes between ‘‘on-duty’’ police officers and police officers working
‘‘extra-duty’’ shifts. We agree with the plaintiff that Plainfield v. Commis-
sioner of Revenue Services, 213 Conn. 269, 567 A.2d 379 (1989), and Berlin
v. Commissioner of Revenue Services, 207 Conn. 289, 540 A.2d 1051 (1988),
cases involving the tax implications of ‘‘extra duty’’ police work, shed little
light on this inquiry. In Plainfield, for instance, we held that the police
department rendered a ‘‘private,’’ taxable service when it provided officers
for ‘‘extra duty’’ work at a racetrack. Plainfield v. Commissioner of Revenue
Services, supra, 274–76. We expressly determined, however, that the issue
was ‘‘not the relationship of the officers to the [t]own, but whether the
[t]own [was] rendering services to the [d]og [t]rack.’’ (Internal quotation
marks omitted.) Id., 276. Thus, ‘‘the ‘duty’ status of the officers working at
the dog track was irrelevant.’’ Id., 275. In the present case, by contrast, it
is precisely the relationship between the officer and the city that we must
examine, and without more, we cannot say that the words ‘‘as such’’ lead
unambiguously to the conclusion that a uniformed police officer employed
for safety reasons by a nightclub, in coordination with the city, is not acting
as a police officer under § 53-39a. Thus, it is appropriate to look to other
similarly worded statutes for guidance in interpreting the phrase.
14
We note that in deciding whether J was unavailable, the trial court also
considered the defendant’s efforts to secure her presence at trial by way
of a subpoena and ultimately found those efforts ‘‘lacking.’’ Ordinarily, such
a finding, if supported by the record, would be sufficient to sustain the trial
court’s ruling excluding J’s former testimony. In the present case, however,
the court’s analysis is so clearly shaped by its belief that the defendant had
a duty to attempt to depose J that it is impossible to separate the other,
valid metrics of diligence from the alleged deposition requirement. For
example, even as the court declared its willingness to listen to the marshal’s
testimony, it stated that it would do so ‘‘keeping in mind that [J’s] deposition
should [have]—could have been secured . . . because the case law refers
to other process and specifically refers to the taking of the deposition.’’ As
a consequence, we must treat the defendant’s failure to comply with the
purported deposition requirement as central to the trial court’s reasoning.
15
To be sure, we have not previously had occasion to consider whether
the federal rules apply to the specific subsection of our evidence code
pertaining to former sworn testimony like that at issue here. See Conn.
Code Evid. § 8-6, commentary (‘‘[I]n State v. Frye, 182 Conn. 476, 438 A.2d
735 (1980), the court adopted the federal rule’s definition of unavailability
for the statement against penal interest exception; id., 481–82 . . . . The
court has yet to determine whether the definition of unavailability recognized
in Frye applies to other hearsay exceptions requiring the unavailability of
the declarant.’’ [Citations omitted.]); see also, e.g., State v. Rivera, supra,
221 Conn. 61–62 and n.2 (explaining that proponent of former testimony
must ‘‘make a good faith effort to procure the declarant’s attendance,’’ rather
than ‘‘attendance [or testimony],’’ but distinction was immaterial because
proponent was unable to locate witness for either purpose). Neither the
plaintiff nor the trial court, however, has provided any justification for
departing from the well-reasoned approach of the federal rules or our estab-
lished reliance on them for purposes of assessing ‘‘unavailability.’’
16
Notably, the plaintiff himself does not argue on appeal that the trial
court’s errors were harmless; he merely contends that the trial court did
not abuse its discretion in deeming the former testimony inadmissible.