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Maio v. City of New Haven

Supreme Court of Connecticut

September 5, 2017

ANTHONY J. MAIO
v.
CITY OF NEW HAVEN

          Argued October 19, 2016

          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).

          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 committed 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 defendant 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 compensatory 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 meaning 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 complainants were unavailable to testify within the meaning of § 8-6 (1) of the Connecticut Code of Evidence and, because this court could not conclude 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.

         Procedural History

         Action for indemnification of economic losses incurred as a result of an unsuccessful criminal prosecution 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.

          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 restraint[2] 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 accordance 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 testimony of two key state's witnesses at the plaintiff's criminal trial, namely, A and J, the complainants and alleged victims of the plaintiff's claimed misconduct (complainants). 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, therefore, that the defendant is entitled to a new trial.

         The following facts and procedural history are relevant 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 eventually was acquitted of all charges, however, and, thereafter, he commenced this indemnification action against the defendant pursuant to § 53-39a.

         The case proceeded to a jury trial, at which the plaintiff 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 performing 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 sanction and that high-ranking department officers were aware of such violations.[6] In addition, the plaintiff testified 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 presence 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 encounter with the plaintiff. After finding that neither complainant 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 complainants' prior testimony.

         The jury returned a verdict in favor of the plaintiff, awarding $187, 256.46 in attorney's fees, accrued compensatory time, and lost overtime. Thereafter, the defendant filed a motion seeking judgment notwithstanding 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 consistent 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 constituted a binding workplace rule and regulation, unless the [c]hief of [p]olice and other ranking administration 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 disregard 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 testimony.

         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 presented 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 officers were aware of, and had acquiesced in, similar violations 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 conclude that the defendant's first claim lacks merit, we agree with the defendant's claim under § 8-6, and, therefore, 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 ‘‘acquiesce'' in a particular practice by an employee, thereby making it a permissible ‘‘incident of the employment.'' As the foregoing procedural history demonstrates, however, 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 ...


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