Brown v. Bridgeport Police Dept. ( 2015 )

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DOUGLAS R. BROWN ET AL., COADMINISTRATORS
(ESTATE OF FREDERICK DEVON MCALLISTER)
v. BRIDGEPORT POLICE DEPARTMENT ET AL.
(AC 35304)
Gruendel, Keller and Flynn, Js.
Argued November 12, 2014—officially released January 20, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Antonio Ponvert III, with whom was Preston Tisdale,
for the appellants (plaintiffs).
Daniel J. Krisch, with whom was Betsy A. Edwards,
associate city attorney, for the appellees (defendant
city of Bridgeport et al.).
Opinion
GRUENDEL, J. The plaintiffs, Douglas R. Brown and
Carlonetta McAllister, coadministrators of the estate of
Frederick Devon McAllister, appeal from the judgment
of the trial court, rendered after a jury trial, in favor of
the defendants, the city of Bridgeport and Brian Fitzger-
ald.1 They claim that the court (1) improperly instructed
the jury on General Statutes § 53a-22 (c) (2), and (2)
abused its discretion in denying their motion to set
aside the verdict due to the alleged misconduct of the
defendants’ counsel at trial. We disagree and, accord-
ingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following relevant
facts. During roll call2 on the afternoon of January 31,
2008, officers of the Bridgeport Police Department
(department) received a flyer indicating that a black
male named Justin Ellerbe was a ‘‘wanted’’ and ‘‘armed’’
person. The flyer included a photograph of Ellerbe, his
date of birth, his approximate height and weight, and
his connection to a ‘‘burgundy Suburban’’ sport utility
vehicle (SUV) whose plate marking included ‘‘WOA.’’
Fitzgerald, a sergeant with the department, was present
at roll call and was on patrol from 2:30 p.m. until
10:30 p.m.
That evening, the department received an anonymous
911 call reporting that Ellerbe had just arrived at 185
Hewitt Street in Bridgeport in a maroon SUV. The caller
also stated that the vehicle’s license plate was ‘‘601
WOH’’ and that Ellerbe was brandishing a .50 caliber
handgun in the street outside that residence. Numerous
officers converged at 185 Hewitt Street, including Fitz-
gerald, who was acting as a patrol supervisor at that
time. They observed an SUV matching the general
description provided in the flyer and the 911 call, and
thereafter conducted a consensual search of the prop-
erty, but did not encounter anyone matching Ellerbe’s
description. As a result, all uniformed officers departed
the area. Sergeant Carl Bergquist instructed an under-
cover officer, Detective William Reilly, to maintain sur-
veillance of the SUV from an unmarked vehicle.
Later in the evening, Reilly saw two black males exit
the house at 185 Hewitt Street and head toward the
SUV. When one of those individuals entered the driver’s
side of the vehicle and began to drive away, Reilly
notified Bergquist of this development. Bergquist then
stated over the main police radio channel: ‘‘Be advised
units in the area of Hewitt and Stratford Avenue, I have
an undercover following that vehicle we were watching
on Hewitt, just left the area. I will try and update you.’’
At that time, Fitzgerald’s shift had ended and he was
working ‘‘an extra duty road job’’ on Barnum Avenue,
which required the use of his marked police vehicle.3
When he heard a subsequent police transmission indi-
cating that the SUV was headed in his general direction,
Fitzgerald responded and proceeded down Barnum
Street. As the SUV traveled north on Willow Street
approaching the intersection with Barnum Street, it sud-
denly swerved toward the marked police vehicle, then
accelerated through the intersection without stopping
at the stop sign on Willow Street. At that time, Fitzgerald
made eye contact with the driver and observed that
‘‘there was a black male driving the car and based on
the wanted poster I had seen earlier in the day, the
driver looked like Justin Ellerbe.’’
Fitzgerald thus turned onto Willow Street and acti-
vated his vehicle’s lights behind the SUV to effectuate
a motor vehicle stop. The driver nonetheless refused
to stop the SUV and continued north on Willow Street.
When the SUV approached an intersection with Clare-
mont Street, the driver once again drove through a stop
sign without any attempt to slow or stop the vehicle.
The SUV continued in a northerly direction, then cut
through a pharmacy parking lot, where it jumped the
curb and proceeded onto Carnegie Street. The SUV then
crossed over to Grandfield Avenue, crashed through a
chain-link fence and drove into a field, where it ulti-
mately came to rest after sideswiping a tree. Fitzgerald
followed the SUV into the field and stopped his vehicle
when the SUV struck the tree.
As he was departing his vehicle, Fitzgerald saw the
driver exit the SUV. Fitzgerald drew his weapon from
his holster as the driver advanced toward him. The
driver yelled profanities at Fitzgerald and drew a black
object from his waistband, which Fitzgerald believed
was a handgun. Fitzgerald ordered the driver to ‘‘drop
the gun,’’ but the driver refused. When the driver raised
the object and pointed it in his direction, Fitzgerald
fired three shots. A second later, Fitzgerald saw the
driver turn in a lateral direction and then heard the
sound of a gunshot. In response, Fitzgerald fired three
more shots in the driver’s direction. The driver momen-
tarily fell to a knee. He then stood up, dropped the
black object, and ran away.4 That entire encounter—
from the time that the driver initially approached Fitz-
gerald to the time that he fled—lasted approximately
five seconds.
Fitzgerald chased the fleeing driver through the field
and into an adjacent parking lot and alley at an apart-
ment complex. As he did so, Fitzgerald repeatedly
ordered the driver to stop, but the driver did not comply.
With Fitzgerald closing ground on him in the alley, the
driver abruptly stopped, turned toward Fitzgerald, and
again reached into his waistband, at which point Fitz-
gerald fired a seventh shot at him. The driver, later
identified as Frederick Devon McAllister, then surrend-
ered, raising his hands to his head. As he did so, Fitzger-
ald observed that McAllister’s white T-shirt was covered
in blood. McAllister was transported to a nearby hospi-
tal, where he was pronounced dead as the result of a
single gunshot wound.
The plaintiffs commenced this wrongful death action
in 2010. Following a trial, the jury returned a verdict
in favor of the defendants on all counts. The court
denied the plaintiffs’ subsequent motion to set aside
the verdict and rendered judgment accordingly. This
appeal followed.
I
Section 53a-22 (c) authorizes the use of deadly force
by peace officers in two instances. See generally State
v. Smith, 73 Conn. App. 173, 196–98, 807 A.2d 500, cert.
denied, 262 Conn. 923, 812 A.2d 865 (2002). The first
instance is when an officer ‘‘reasonably believes such
[force] to be necessary to . . . [d]efend himself or her-
self or a third person from the use or imminent use of
deadly physical force . . . .’’ General Statutes § 53a-
22 (c) (1). The second instance in which an officer
is authorized to use deadly force is when the officer
‘‘reasonably believes such [force] to be necessary to
. . . effect an arrest or prevent the escape from custody
of a person whom he or she reasonably believes has
committed or attempted to commit a felony which
involved the infliction or threatened infliction of serious
physical injury and if, where feasible, he or she has
given warning of his or her intent to use deadly physical
force.’’ General Statutes § 53a-22 (c) (2). On appeal, the
plaintiffs claim that the court improperly instructed the
jury on § 53a-22 (c) (2) because the evidence adduced
at trial did not reasonably support such a charge. In
response, the defendants contend, as a threshold mat-
ter, that the general verdict rule bars review of that
claim. We agree with the defendants.
Following the commencement of this civil action,
the defendants filed an answer and multiple special
defenses. Relevant to this appeal is their third special
defense, which alleged that ‘‘[a]t all times mentioned
herein [Fitzgerald’s] use of force to make an arrest,
prevent an escape or protect himself and other persons
from deadly physical force was reasonable pursuant to
[§] 53a-22 (c).’’ (Emphasis added.) The plaintiffs con-
ceded at trial that they bore the burden of proving that
Fitzgerald’s use of deadly force was not justified under
either subdivisions (1) or (2) of § 53a-22 (c) in establish-
ing their wrongful death case.
It is undisputed that the interrogatories provided to
the jury did not distinguish the two instances in which
peace officers are authorized to use deadly force. Spe-
cifically, the first interrogatory asked: ‘‘Do you find that
the [plaintiffs] have proven that the use of deadly force
by [Fitzgerald] was not justified, pursuant to [§] 53a-22
(c) of the General Statutes?’’ That interrogatory plainly
does not differentiate between deadly force used pursu-
ant to § 53a-22 (c) (1) and (2). As a result, the defendants
submit that review of the plaintiffs’ instructional error
claim is barred by the general verdict rule.
The general verdict rule ‘‘relieves an appellate court
from the necessity of adjudicating claims of error that
may not arise from the actual source of the jury verdict
that is under appellate review. In a typical general ver-
dict rule case, the record is silent regarding whether
the jury verdict resulted from the issue that the appel-
lant seeks to have adjudicated. Declining in such a case
to afford appellate scrutiny of the appellant’s claims
is consistent with the general principle of appellate
jurisprudence that it is the appellant’s responsibility to
provide a record upon which reversible error may be
predicated. . . . In the trial court, the rule relieves the
judicial system from the necessity of affording a second
trial if the result of the first trial potentially did not
depend upon the trial errors claimed by the appellant.
Thus, unless an appellant can provide a record to indi-
cate that the result the appellant wishes to reverse
derives from the trial errors claimed, rather than from
the other, independent issues at trial, there is no reason
to spend the judicial resources to provide a second
trial.’’ (Citation omitted; internal quotation marks omit-
ted.) Dowling v. Finley Associates, Inc., 248 Conn. 364,
371–72, 727 A.2d 1245 (1999).
Accordingly, under the general verdict rule, ‘‘an
appellate court will presume that the jury found every
issue in favor of the prevailing party . . . and decline
further appellate review. . . . Where there was an
error free path available to the jury to reach its verdict,
and no special interrogatories were submitted showing
which road the jury went down, any judgment rendered
on such a verdict must be affirmed.’’ (Citations omitted;
emphasis added.) Jackson v. H.N.S. Management Co.,
109 Conn. App. 371, 372–73, 951 A.2d 701 (2008). ‘‘[I]n
a case in which the general verdict rule operates, if any
ground for the verdict is proper, the verdict must stand;
only if every ground is improper does the verdict fall.’’
Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d
1276 (1994).
Our Supreme Court ‘‘has held that the general verdict
rule applies to the following five situations: (1) denial
of separate counts of a complaint; (2) denial of separate
defenses pleaded as such; (3) denial of separate legal
theories of recovery or defense pleaded in one count
or defense, as the case may be; (4) denial of a complaint
and pleading of a special defense; and (5) denial of a
specific defense, raised under a general denial, that had
been asserted as the case was tried but that should
have been specially pleaded.’’ (Internal quotation marks
omitted.) Kalams v. Giacchetto, 268 Conn. 244, 255, 842
A.2d 1100 (2004). The third situation is implicated in
the present case, as the defendants pleaded, in their
third special defense, that Fitzgerald’s use of deadly
force was reasonable both ‘‘to make an arrest, prevent
an escape’’ as well as to ‘‘protect himself . . . from
deadly physical force . . . pursuant to General Stat-
utes § 53a-22 (c).’’ That pleading thus set forth distinct
legal theories on which the jury could find that Fitzger-
ald’s use of deadly force was statutorily authorized.
We conclude that the general verdict rule precludes
review of the plaintiffs’ claim. The record reveals that
the plaintiffs did not request any interrogatories that
would clarify the jury’s findings with respect to those
separate legal theories under § 53a-22 (c) (1) and (2).
They do not argue otherwise in this appeal.
We likewise are not persuaded by the plaintiffs’ claim
that, despite their failure to request such an interroga-
tory, the fact that the defendants allegedly did so ren-
ders the general verdict rule inapplicable. The plaintiffs,
citing Vertex, Inc. v. Waterbury, 278 Conn. 557, 561 n.4,
898 A.2d 178 (2006), claim that as long as either party
requests an interrogatory that addresses the matter in
question, the general verdict rule is inapplicable. But
see Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d
888 (2004) (stating that reviewing court will presume
jury found every issue in favor of prevailing party if
jury renders general verdict for one party and ‘‘the party
raising a claim of error on appeal did not request’’ inter-
rogatories). The plaintiffs’ claim fails because the inter-
rogatory requested by the defendants does not directly
address the matter in question—namely, whether the
jury found that Fitzgerald’s use of deadly force was
authorized under § 53a-22 (c) (1) or (2).
The following additional facts are relevant to that
claim. Toward the close of the defendants’ case, the
court held a charging conference, at which counsel had
an opportunity to participate in the formulation of the
jury charge. The defendants’ counsel requested an inter-
rogatory to ascertain whether the jury found that the
deadly blow was delivered as part of the six shots in
the field or the one shot later fired in the alley. As she
stated: ‘‘Judge, I just have one thought on interrogato-
ries. I think it’s important for purposes of knowing how
this verdict was reached . . . to know whether the jury
found that the shooting was one of the first six shots
in the field or the seventh shot in the alley because
. . . there’s varying things that happened to justify or
not justify . . . those two separate uses of deadly
force. . . . [W]e know that only one bullet hit him. So,
it could only be either the seventh shot or one of the
first six shots in the field. . . . I think the jury should
be asked which one they find that it is, and I think they
know it has to be one of them, so they have to pick
one . . . . I don’t see how it hurts anything to have
them decide . . . and I think it’s important to know
how . . . on what set of facts they were finding the
justification for [the use of deadly] force . . . .’’
Counsel indicated that her primary concern was that,
absent her requested interrogatory, the jury’s delibera-
tions might be complicated in the event that they found
that the use of deadly force was justified in one instance,
but not the other. As she explained: ‘‘[L]et’s say that
they determine it was the seventh shot in the alley that
struck him. If they find that, their only consideration
is whether the use of deadly force at that moment was
justified. They can’t find that [Fitzgerald] was wrong
for taking the first six shots in the field if they didn’t
hit him and, conversely, they can’t find that the use—
for example, let’s say they hate the idea of the seventh
shot, it’s a horrible thing and [they] hate the seventh
shot. However, [they] find that more likely than not, it
was one of the first six in the field that hit him. I don’t
think that they can be allowed to deliberate—I think
they need to be instructed that they have to only choose
one or the other, and that is the one that they determine
is justified, not the other one, and I don’t see how it
hurts anything at all.’’ During a colloquy with counsel,
the court suggested that it could address that concern
in its instruction to the jury on proximate cause:
‘‘The Court: [T]he only statute we have to worry about
. . . is § 53a-22 (c)—do you find that the plaintiff has
proven that the use of deadly force was not justified?
So, if they find, whether it was in the field or whether
it was in the alley—if they find that the use of deadly
force was—if they find that it wasn’t justified for a
shot—and I can charge them on this, and I think you—
you may have a point there. If they find that the use of
deadly force was not justified at one location—
‘‘[The Defendants’ Counsel]: Right.
‘‘The Court: —and find that the fatal shot was not
fired at that location, then that use of deadly force
would not be the proximate—would not be the legal
cause of the decedent’s death.
‘‘[The Defendants’ Counsel]: Yes, that’s exactly—
‘‘The Court: However, if they find that a shot was
fired at a location and that the use of deadly force was
not justified, and that shot caused the death of the
decedent, then they would answer that the plaintiffs
have met their burden of proof and they would answer
yes to this interrogatory.
‘‘[The Defendants’ Counsel]: That addresses my con-
cern; that’s what I was looking for.’’
The plaintiffs’ counsel then articulated his opposition
to such an instruction, stating that he ‘‘would oppose
that on this—on these grounds. That forces a decision
on the jury to decide which shot it was.’’ The plaintiffs’
counsel argued that ‘‘the instruction needs to advise
them that those elements need to co-exist at the time
of the fatal shot . . . without placing a burden on the
plaintiff that appears to or does require the jury to
identify specifically which shot it was. . . . They have
to find that there was no reasonable justification for
the fatal shot.’’ He further stated that he ‘‘would be
worried about an instruction that defined for [the jury]
the two areas where the shooting may have occurred’’
because there was evidence before the jury that ‘‘some
or all of the six shots were taken . . . somewhere in
the field between the patrol car and the SUV and the
entrance to the alley.’’ Next came a noteworthy
exchange between the court and the plaintiffs’ counsel:
‘‘The Court: But there’s an additional justification,
and the expert testimony showed that, there’s an addi-
tional justification for the use of deadly force in the
alley that didn’t apply in the field.
‘‘[The Plaintiffs’ Counsel]: True.’’
When the charging conference continued several
days later, the defendants’ counsel again requested ‘‘a
factual interrogatory about whether it was one of the
first six shots in the field or the seventh shot in the
alley because I do believe that that is an important
factual finding that relates to the rest of their decision
making in this case.’’ The court denied that request.
In the present case, the plaintiffs claim that the court
improperly instructed the jury on the use of deadly
force pursuant to § 53a-22 (c) (2). To avoid application
of the general verdict rule, they therefore must demon-
strate that the requested interrogatory would have indi-
cated whether the jury found that Fitzgerald’s use of
force was authorized under § 53a-22 (c) (1) or (2). They
cannot do so.
Had the court provided the interrogatory requested
by the defendants, the jury simply would have been
asked whether Fitzgerald delivered the deadly blow as
part of the six shots in the field or the one shot fired
in the alley. The answer to that factual question would
not shed light on whether the fatal shot was justified
pursuant to § 53a-22 (c) (2). Although the plaintiffs, in
both their appellate brief and at oral argument, focus
primarily on the shot fired in the alley, it nevertheless
remains, as counsel for the plaintiffs conceded at the
charging conference, that an ‘‘additional justification’’
for the use of deadly force existed for that shot. Put
differently, effecting an arrest or preventing escape pur-
suant to § 53a-22 (c) (2) was—in addition to defending
oneself from deadly physical force pursuant to § 53a-
22 (c) (1)—a justification potentially present in the
alley.5 As such, even if the defendants’ requested inter-
rogatory had been given to the jury, the record still
would be inadequate to ascertain which of the two
justifications set forth in § 53a-22 (c) the jury found
applicable to the present case.
Irrespective of whether it found the fatal shot to have
been fired in the field or the alley, the jury nonetheless
could have found that Fitzgerald reasonably believed
that deadly force was necessary to defend himself from
the imminent use of deadly physical force pursuant to
§ 53a-22 (c) (1). The plaintiffs in this appeal do not
allege any error with respect to the court’s charge on
that subdivision of § 53a-22 (c), nor do they allege evi-
dential insufficiency with respect thereto.6 As a result,
even if the court had provided the interrogatory
requested by the defendants, an error free path would
remain available for the jury to reach its verdict. The
present case thus is ‘‘a typical general verdict rule case’’
because ‘‘the record is silent regarding whether the jury
verdict resulted from the issue that the appellant seeks
to have adjudicated.’’ Curry v. Burns, 225 Conn. 782,
790, 626 A.2d 719 (1993). Accordingly, we conclude
that the general verdict rule precludes review of the
plaintiffs’ claim of instructional error.7
II
The plaintiffs also contend that the court abused its
discretion in denying their motion to set aside the ver-
dict due to the alleged misconduct of the defendants’
counsel at trial. We disagree.
‘‘The proper appellate standard of review when con-
sidering the action of a trial court in granting or denying
a motion to set aside a verdict is the abuse of discretion
standard. . . . In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . Reversal is required only [when] an abuse
of discretion is manifest or [when] injustice appears to
have been done. . . . [T]he role of the trial court on a
motion to set aside the jury’s verdict is not to sit as [an
added] juror . . . but, rather, to decide whether, view-
ing the evidence in the light most favorable to the pre-
vailing party, the jury could reasonably have reached
the verdict that it did. . . . In reviewing the action of
the trial court in denying [or granting a motion] . . .
to set aside the verdict, our primary concern is to deter-
mine whether the court abused its discretion. . . . The
trial court’s decision is significant because the trial
judge has had the same opportunity as the jury to view
the witnesses, to assess their credibility and to deter-
mine the weight that should be given to [the] evidence.
Moreover, the trial judge can gauge the tenor of the
trial, as [this court], on the written record, cannot, and
can detect those factors, if any, that could improperly
have influenced the jury.’’ (Internal quotation marks
omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679,
698–99, 41 A.3d 1013 (2012); see also Palkimas v. Lav-
ine, 71 Conn. App. 537, 542, 803 A.2d 329 (abuse of
discretion standard governs review of motion to set
aside verdict predicated on ‘‘improper remarks of coun-
sel’’), cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).
The plaintiffs’ allegation of misconduct is twofold.
They argue that the defendants’ counsel improperly
elicited testimony at trial regarding McAllister’s crimi-
nal record, in contravention of the court’s order pro-
scribing such evidence. The plaintiffs also claim that
the defendants’ counsel made improper references to
McAllister’s criminal record, his intoxication on the eve-
ning of January 31, 2008, and the possibility of ‘‘a trial
on [his] criminal charges’’ during her closing argument.
We address each claim in turn.
A
The plaintiffs first argue that the defendants’ counsel
wilfully violated the court’s order proscribing the intro-
duction of evidence regarding McAllister’s criminal his-
tory.8 The following additional facts are relevant to that
claim. Prior to trial, the plaintiffs filed a motion in limine
to preclude, inter alia, evidence of McAllister’s criminal
history. The court partially granted that motion, stating
that ‘‘I think the jury should have a full picture of the
decedent [so, I will] allow some of that, but I may . . .
limit the testimony of that to specific instances, so that
this does not turn into a trial of the criminal history of
[McAllister].’’ The court also stated that the defense
could present such evidence ‘‘for [the] limited purpose’’
of establishing wrongful death damages. For that rea-
son, the court concluded that such evidence was ‘‘rele-
vant only on the issue of noneconomic damages and
for no other purpose.’’
The defense largely complied with those orders, sub-
mitting no documentary evidence or questions to wit-
nesses regarding McAllister’s criminal history. As part
of their case-in-chief, the defendants called Tanisha
Benjamin as a witness. Benjamin testified that she was
McAllister’s girlfriend and was living with him at the
time of his death. Benjamin also testified that she had
found crack cocaine packaged for sale in a closet, which
led her to confront McAllister over her suspicion that
he was dealing drugs out of their home. Notably, the
defense did not ask her any questions about McAllister’s
criminal record.
On cross-examination, the plaintiffs’ counsel asked
Benjamin if she was ‘‘in love’’ with McAllister; she
answered, ‘‘[y]es.’’ Counsel then asked, ‘‘And did you
think he was in love with you?’’ Benjamin answered,
‘‘[n]o.’’
Soon after that testimony, the defendants’ counsel
began her redirect examination by asking Benjamin if
she was okay. At that moment, the court then asked
Benjamin if she wanted ‘‘to take a minute; why don’t
we just suspend for . . . just a minute.’’ The court then
instructed Benjamin to ‘‘[h]ave some water there. Just
take your time. You take your time and don’t—you tell
us when you’re ready.’’
When Benjamin indicated that she was ready to pro-
ceed, she engaged in the following colloquy with the
defendants’ counsel:
‘‘[The Defendants’ Counsel]: And we’ve . . . talked
about this many times before.
‘‘[Benjamin]: Yes.
‘‘[The Defendants’ Counsel]: And . . . you’re willing
to talk to me about that, right?
‘‘[Benjamin]: Yes.
‘‘[The Defendants’ Counsel]: And I know this is hard.
Why didn’t you believe that [McAllister] was in love
with you?
‘‘[Benjamin]: Because at the end, I felt like I didn’t
know why he lied to me, and he didn’t tell me he had
more children and about his criminal record. I felt that if
he loved me enough, he would have told me everything
instead of lying to me.
‘‘[The Defendants’ Counsel]: You felt like he wasn’t
the person that he represented himself to be to you?
‘‘[Benjamin]: Yes.
‘‘[The Defendants’ Counsel]: And you found out after
he died about his criminal record?
‘‘[Benjamin]: Yes.
‘‘[The Defendants’ Counsel]: What did you find out
about that?
‘‘[Benjamin]: He—
‘‘[The Plaintiffs’ Counsel]: Object.
‘‘The Court: Sustained.
‘‘[The Defendants’ Counsel]: Nothing further.
Thank you.
‘‘The Court: All right.’’
The plaintiffs did not move to strike Benjamin’s refer-
ence to McAllister’s criminal history, nor did they move
for a mistrial or seek a curative instruction from the
court. To the contrary, they asked a follow-up question
during their recross-examination of Benjamin:
‘‘[The Plaintiffs’ Counsel]: . . . [T]his alleged record
that we’re talking about; is that something that Attorney
Edwards told you?
‘‘[Benjamin]: Yes.
‘‘[The Plaintiffs’ Counsel]: Okay. Thank you.’’
On appeal, the plaintiffs now contend that the defen-
dants’ counsel committed ‘‘blatant misconduct’’ marked
by ‘‘unconscionable behavior.’’ For several reasons, we
do not agree.
First, the record indicates that the defendants’ coun-
sel did not raise the subject of McAllister’s criminal
history with any witness at trial. Second, with respect
to Benjamin’s testimony, counsel did not discuss that
criminal history during her direct examination of Benja-
min. Rather, it was Benjamin who broached the subject
during redirect examination, and in response to the
question of why she believed that McAllister did not
love her—which was in direct response to the plaintiffs’
query, ‘‘[D]id you think he was in love with you?’’ Third,
at no time did the plaintiffs move to strike Benjamin’s
reference to McAllister’s criminal history, nor did they
move for a mistrial or seek a curative instruction from
the court.9 See State v. Luster, 279 Conn. 414, 428, 902
A.2d 636 (2006) (when opposing counsel ‘‘does not
object, request a curative instruction or move for a
mistrial, he presumably does not view the alleged
impropriety as prejudicial enough to seriously jeopar-
dize [his client’s] right to a fair trial’’ [internal quotation
marks omitted]). Rather, their sole objection came in
response to a subsequent question as to precise details
of what Benjamin learned about that criminal record.
As a result, Benjamin’s earlier references to McAllister’s
criminal history were in evidence before the jury.
Fourth, the plaintiffs’ counsel proceeded to ask his own
follow-up question on McAllister’s criminal history to
Benjamin during his recross-examination. Having
declined to object to Benjamin’s testimony that McAllis-
ter had a criminal record and having subjected that
testimony to the crucible of cross-examination at trial,
it appears somewhat disingenuous to now claim on
appeal that the court abused its discretion in denying
the plaintiffs’ motion to set aside the verdict due to the
admission of that testimony into evidence.
Fifth, and perhaps most significantly, we are mindful
that a determination as to whether an attorney commit-
ted impropriety is a question of fact. See, e.g., Palkimas
v. Lavine, supra, 71 Conn. App. 546 (in cases alleging
improper argument by counsel, preliminary issue to be
resolved is whether the remarks were improper); see
also State v. Gibson, 302 Conn. 653, 659, 31 A.3d 346
(2011) (explaining that first step of prosecutorial impro-
priety analysis entails factual determination of whether
any impropriety occurred). In resolving that factual
inquiry, the court did not find that any impropriety had
transpired. During argument on the plaintiffs’ motion
to set aside the verdict, the court specifically noted that
‘‘as far as the motion in limine . . . I indicated very
clearly all the time that I couldn’t rule in a vacuum,
that there could be situations where the door might
be open to certain evidence, and I wasn’t going to be
precluded from making that determination based upon
a factual predicate.’’
The plaintiffs portray the isolated colloquy during
redirect examination of Benjamin as part of a cleverly
concocted and brilliantly executed plan by the defen-
dants’ counsel to circumvent the court’s general preclu-
sion of testimony regarding McAllister’s criminal
history.10 We decline to venture down that trail of specu-
lation and conjecture, which ‘‘have no place in appellate
review.’’11 (Internal quotation marks omitted.) New
Hartford v. Connecticut Resources Recovery Authority,
291 Conn. 502, 510, 970 A.2d 578 (2009). Instead, we
view the cold record before us, cognizant of the trial
court’s superior vantage point and the deference
accorded thereto. We therefore conclude that the defen-
dants’ counsel did not improperly elicit testimony from
Benjamin regarding McAllister’s criminal record.
B
We next consider the plaintiffs’ claim that the defen-
dants’ counsel engaged in improper argument in her
closing remarks. ‘‘[T]he trial court is invested with a
large discretion with regard to the arguments of counsel
. . . . [W]hile its action is subject to review and con-
trol, we can interfere only where the discretion was
clearly exceeded or abused to the manifest injury of
some party. . . . In fact, the court must allow [c]ounsel
. . . a generous latitude in argument, as the limits of
legitimate argument and fair comment cannot be deter-
mined precisely by rule and line, and something must
be allowed for the zeal of counsel . . . .’’ (Citations
omitted; internal quotation marks omitted.) Skrzypiec
v. Noonan, 228 Conn. 1, 15–16, 633 A.2d 716 (1993).
Closing argument by the defendants’ counsel extends
over thirty pages of the October 17, 2012 transcript. At
issue is one paragraph therefrom, in which counsel
argued: ‘‘[I]f [McAllister] had pulled over in response
to [Fitzgerald’s] light and sirens, none of this ever would
have happened. It would not have happened. And one
of the things that you are going to be asked to address
by the judge in your deliberations is something called
causation. And causation is what it sounds like; it’s
what’s the cause. What caused this? And you have to
determine, what caused this? Was it any bad act by
[Fitzgerald] or the Bridgeport Police Department? Was
it caused by [McAllister’s] illegal actions? And I told you
at the beginning of this case, everything that happened
happened because of what [McAllister] did. This never
would have happened if he pulled over and allowed
himself to be identified. This never would have hap-
pened if he didn’t crash through a fence and hit a tree.
It never would have happened if he hadn’t gotten out
of his car and disobeyed [Fitzgerald], threatened him,
yelled at him, tried to escape, that never would have
happened. And you might . . . wonder, well, why
would [McAllister] do this? Why would he act this way?
And I think we all know why he would act this way.
He’s got a criminal record. He is a drug dealer. He’s
got someone in the car who has a gun. He doesn’t have
a driver’s license. He is intoxicated. He is trying to
avoid the police. He has every reason to avoid the police,
but he can’t do that. That is not how it works. If you
don’t believe you should be . . . pulled over, you don’t
believe you should be arrested; we have a court for
that. That is why we are here. We could have had a
trial on [McAllister’s] criminal charges. You would be
the jury. We could have had a trial if he had a false
arrest claim, if he thought for some reason he was
unjustly arrested. We could have had a trial about that.
He would have been here. But instead we are having
a trial about his death, and we didn’t need to have that
trial. We have courts so that we can address issues like
this. [McAllister] didn’t want to be in that system. He
didn’t want to obey the police. He didn’t want to go
through the court system. He wanted to run and hope
he got away.’’ (Emphasis added.)
The plaintiffs claim that the defendants’ counsel
improperly argued that McAllister had ‘‘a criminal
record’’ and was ‘‘intoxicated’’ on the night of January
31, 2008. Those claims require little discussion. Her
single reference to the criminal record simply mirrored
the aforementioned testimony from Benjamin at trial.
Her reference to McAllister being intoxicated at the
time of his encounter with Fitzgerald likewise finds
evidentiary support in the record before us. The toxicol-
ogy report filed as part of the autopsy performed by
the Office of the Chief Medical Examiner, which was
introduced into evidence at trial, confirmed that
McAllister had a blood alcohol level between 0.08 and
0.09 at the time of his death. In ruling on the plaintiffs’
pretrial motion in limine, the court held that although
such evidence was not ‘‘an objective standard of intoxi-
cation . . . it is relevant to show that there was some
use of a substance of this nature, which the jury might
be able to consider for whatever it wishes . . . .’’ The
court also clarified that ‘‘just the mere fact that he had
been drinking is something that maybe the trier of fact
can consider.’’ In light of the toxicology report admitted
at trial, we conclude that the defendants’ counsel’s sin-
gle reference to the fact that McAllister was ‘‘intoxi-
cated’’ at the time of the encounter with Fitzgerald fell
within the bounds of fair argument on the evidence.
Last, the plaintiffs assail the reference by the defen-
dants’ counsel to the possibility of having ‘‘a trial on
[McAllister’s] criminal charges . . . .’’ They argue that
this statement both improperly referenced McAllister’s
criminal history and was ‘‘factually false and intention-
ally misleading.’’12 The plaintiffs misconstrue that state-
ment. Read in the context of the full statement by the
defendants’ counsel, it appears plain to us that she
was not referencing McAllister’s criminal history or any
charges that were pending prior to his encounter with
Fitzgerald. Rather, she was noting that McAllister could
have opted to pull his vehicle over instead of fleeing
when Fitzgerald attempted to effectuate a motor vehicle
stop. McAllister then could have challenged the propri-
ety of that police stop and any criminal charges stem-
ming therefrom in a court of law. For that reason, we
perceive no impropriety with the statement to that
effect by the defendants’ counsel.
C
Even if we were to conclude that any statements by
the defendants’ counsel were improper, the plaintiffs
still could not prevail. To obtain a reversal of the court’s
decision to deny their motion to set aside the verdict,
the plaintiffs must demonstrate that they suffered mani-
fest injury. Sturgeon v. Sturgeon, 114 Conn. App. 682,
690, 971 A.2d 691 (harmed party seeking to set aside
judgment in civil case must show manifest injury), cert.
denied, 293 Conn. 903, 975 A.2d 1278 (2009).
In denying the motion to set aside, the court aptly
noted: ‘‘[A]s to the criminal record, there was some
testimony from one witness, the girlfriend of the dece-
dent, who testified that she learned from the city attor-
ney’s office that the decedent had a criminal record,
that both the source of the information and the state-
ment were before the jury in evidence; that’s all the
jury had heard. I think the jury was properly informed
and followed the instruction that closing arguments are
not evidence, they are merely argument and designed
to help the jury interpret the evidence, but it’s the jury’s
recollection of the evidence that controls. The fact that
that one piece of evidence was before the jury, I don’t
believe affected or impacted the jury’s verdict in any
way in determining the use of deadly force, the negli-
gence of the officers of the city of Bridgeport, other
than [Fitzgerald], and whether or not that negligence
was a substantial factor in causing injury. It might have
provided a motive to flee, but . . . there was no real
contest or real issue over the fact that he did flee or
did try to evade apprehension by a police officer whose
lights and sirens were in operation at the time. So, the
jury had, I think, ample evidence to find as it did . . . .’’
We concur with that assessment, and emphasize that
the ‘‘action of the trial court is entitled to weight
because of the vantage point from which it can observe
and evaluate the circumstances of the trial. The trial
court is in a better position to determine the propriety
of the remarks of counsel and whether or not they are
harmful.’’ State v. Glenn, 194 Conn. 483, 493, 481 A.2d
741 (1984). In Yeske v. Avon Old Farms School, Inc., 1
Conn. App. 195, 205, 470 A.2d 705 (1984), this court held
that, in the context of civil cases, ‘‘[a] verdict should be
set aside if there has been manifest injury to a litigant,
and it is singularly the trial court’s function to assess
when such injury has been done since it is only that
court which can appraise the atmosphere prevailing
in the courtroom.’’ We decline to disturb the court’s
determination that the allegedly improper conduct by
the defendants’ counsel did not cause manifest injury
to the plaintiffs. We therefore cannot say that the court
abused its discretion in denying their motion to set
aside the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiffs initially named the Bridgeport Police Department
as an additional defendant, they withdrew all claims against that entity
at trial.
2
Detective William Reilly testified that roll call occurs at the beginning
of an officer’s shift and that the most important information conveyed at
that time is information about wanted persons.
3
Fitzgerald testified that an officer working an extra duty road job was
considered to be on duty by the department.
4
No weapon was recovered from the field. Officers did find a cell phone
in the field near the SUV.
5
In their reply brief, the plaintiffs contend that counsel for the defendants
conceded during the charging conference that—in the plaintiffs’ words—
’’the only possibly applicable statutory justification for Fitzgerald’s use of
deadly force’’ for the seventh shot in the alley was to effect an arrest or
prevent escape pursuant to § 53a-22 (c) (2). The plaintiffs characterize that
statement as a ‘‘binding judicial admission.’’ (Emphasis omitted.) A review of
the transcripts reveals that the defendants’ counsel made no such sweeping
concession. Rather, she repeatedly noted that the justification for the use
of deadly force in the field differed from that with respect to the seventh
shot in the alley. After the court clarified that ‘‘there’s an additional justifica-
tion for the use of deadly force in the alley that didn’t apply in the field,’’
the court stated that ‘‘the second justification [pursuant to subdivision (2)]
is inapplicable to the first six shots. It might be, based on what the trier of
fact might find, applicable to the seventh.’’ The defendants’ counsel then
indicated her agreement with those propositions by responding, ‘‘Right.’’
Two concessions emerge from those statements. First, the defendants
acknowledged that the second justification pursuant to subdivision (2) did
not apply to the shots fired in the field. Second, the potential justification
for the use of deadly force in the alley differed from that in the field. The
latter concession is entirely consistent with the defendants’ argument at
trial that both justifications under § 53a-22 (c) (1) and (2) were implicated
by the seventh shot fired in the alley.
6
During cross-examination by the plaintiffs’ counsel, Fitzgerald testified
in relevant part:
‘‘[The Plaintiffs’ Counsel]: . . . [A]t the time that you took your seven
shots at [McAllister], you believed you were at risk of bodily harm or
death, correct?
‘‘[Fitzgerald]: Yes.
‘‘[The Plaintiffs’ Counsel]: And it’s that alleged or that perceived threat
to you that in your view . . . justified you taking the seven shots at him?
‘‘[Fitzgerald]: Not just in my view, I believe I have the right by state
law. . . .
‘‘[The Plaintiffs’ Counsel]: . . . And your purpose in shooting [McAllister]
seven times was to protect yourself from the alleged threat that he posed
to you?
‘‘[Fitzgerald]: On the threat, yes. . . .
‘‘[The Plaintiffs’ Counsel]: . . . [T]he reason that you took the seventh
shot was because you believed [McAllister] posed a risk of harm to you?
‘‘[Fitzgerald]: I thought he was about to turn around and kill me.’’
7
We further note the unique procedural posture of this case. Not only
did the plaintiffs fail to submit any interrogatories pertaining to the issue
they now seek to have adjudicated, they also opposed the interrogatory
requested by the defendants. Moreover, when the court—after a lengthy
discussion of proposed interrogatories—stated that ‘‘[w]e’re getting very
close to a general verdict in this case, and I don’t know who that helps,’’
the plaintiffs’ counsel responded that ‘‘[a] general verdict is looking pretty
good.’’ The court then suggested that it could simply provide the jury with
both a plaintiffs’ verdict form and a defendants’ verdict form for each count.
The plaintiffs’ counsel responded, ‘‘I agree.’’ When counsel for the defendants
then restated her view that ‘‘a general verdict form would be inappropriate’’
under the circumstances, the plaintiffs’ counsel replied, ‘‘I argue the
opposite.’’
Permitting an appellant, who, when before the trial court, argued against
the inclusion of a interrogatory request by the opposing party, to now rely
on that very interrogatory strikes this court as inequitable and contrary to
well established law regarding induced error. ‘‘[T]he term induced error, or
invited error, has been defined as [a]n error that a party cannot complain
of on appeal because the party, through conduct, encouraged or prompted
the trial court to make the erroneous ruling. . . . It is well established that
a party who induces an error cannot be heard to later complain about that
error.’’ (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39,
59 n.32, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167
L. Ed. 2d 85 (2007). Indeed, the defendants in their appellate brief argue,
inter alia, that ‘‘the plaintiffs told the trial court that they agreed with the
language of the interrogatory, which waived their right to disagree with
it now.’’
We already have determined that the interrogatory requested by the defen-
dants would not have resolved the inadequacy of the record with respect
to the basis of the jury’s finding that Fitzgerald’s use of deadly force was
authorized under § 53a-22 (c). We therefore need not consider whether any
induced error on the part of the plaintiffs provides an independent basis
for determining that the general verdict rule applies in this case.
8
The plaintiffs aver that ‘‘[d]efense counsel’s calculated violation of the
court’s preclusion order also ran afoul of the Rules of Professional Conduct.
See, e.g., Rule 3.4 . . . .’’ We decline to address that bald assertion set forth
in a footnote to their principal appellate brief.
9
To be clear, the plaintiffs objected to a follow-up question by the defen-
dants’ counsel, by which she sought to ascertain what Benjamin learned
about McAllister’s criminal record. The court sustained the objection to that
line of inquiry, and the defendants’ counsel immediately concluded her
redirect examination.
10
During argument on the plaintiffs’ motion to set aside the verdict, the
defendants’ counsel expressed her incredulity with that allegation, noting
that if the plaintiffs’ counsel ‘‘had sat down without asking [Benjamin] any
questions at all, this never would have happened.’’
11
During argument on their motion to set aside the verdict, the plaintiffs’
counsel argued that Benjamin’s reference to McAllister’s criminal history
was ‘‘the most manufactured piece of colloquy of examination of a witness
I believe I’ve ever seen . . . . I mean, it was just a setup . . . .’’ The trial
court, having observed that colloquy at trial and the context in which it
arose, nevertheless rejected that argument.
12
On that point, the plaintiffs argue that ‘‘as defense counsel well knew,
we could not have a trial on [McAllister’s] criminal charges because there
were no criminal charges pending against him anywhere in or near this
jurisdiction.’’ (Emphasis omitted.)