Burke v. Mesniaeff

          Argued December 19, 2018

         Procedural History

         Action to recover damages for, inter alia, intentional assault and battery, and for other relief, brought to the Superior Court in the judicial district of Litchfield and transferred to the judicial district of Stamford-Norwalk, where the case was tried to the jury before Lee, J.; verdict and judgment for the defendant, from which the plaintiff appealed to the Appellate Court, Lavine, Keller and Bishop, Js., which affirmed the trial court's judgment, and the plaintiff, on the granting of certification, appealed to this court. Affirmed.

          Gregory Jacob, pro hac vice, with whom were Mishima Alam, pro hac vice, and Anne C. Dranginis, for the appellant (plaintiff).

          Charles S. Harris, with whom was Stephanie C. Laska, for the appellee (defendant).

          Joseph D. Jean filed a brief for the Connecticut Coalition Against Domestic Violence as amicus curiae.

          Robinson, C. J., and Palmer, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.

          OPINION

          ECKER, J.

         The plaintiff, Elizabeth Burke, appeals from the Appellate Court's affirmance of the trial court's judgment rendered in favor of the defendant, Gregory Mesniaeff, after a jury returned a verdict finding that, although the defendant had perpetrated an intentional assault and battery on the plaintiff, his use of physical force was justified because, first, the plaintiff was trespassing at the time of the incident, and, second, he was acting in the defense of others. The plaintiff claims on appeal that (1) the jury should not have been instructed on the special defense of criminal trespass because the parties were married at the time of the assault and battery, and a spouse cannot, as a matter of law, trespass on marital property, and (2) the evidence was insufficient to support the jury's finding that the defendant was acting in defense of others. We conclude that the trial court improperly instructed the jury on criminal trespass and defense of premises as part of the jury charge on justification but that the instructional impropriety was harmless because the evidence was sufficient to support the jury's independent finding with respect to the special defense of defense of others. We therefore affirm the judgment of the Appellate Court.

         I

         The evidence regarding virtually every material aspect of the underlying events was the subject of vigorous dispute at trial. Construing the evidence in the light most favorable to sustaining the verdict, as we must; see, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119 (2003); the jury reasonably could have found the following facts relevant to this appeal. The plaintiff and the defendant were married in 1989. In 1998, the defendant, who is interested in the historic preservation of old homes, purchased a historic house in Sharon (Sharon house), which he titled solely in his name. Although the Sharon house was not the parties' primary marital residence, they both had Connecticut drivers' licenses listing the Sharon house as their residential address. The defendant spent more time at the Sharon house than the plaintiff, but the plaintiff had keys to the home, spent two weeks there in 2002 with the defendant, stayed there occasionally at other times, and stored personal possessions on the premises.

         The Sharon house is subject to a historic preservation easement, which requires the home occasionally to be opened to the public for viewing. To fulfill this requirement, the defendant invited members of The Questers, a historical preservation organization, to tour the Sharon house on December 5, 2009, between the hours of 2 and 4:30 p.m. The defendant did not invite the plaintiff to attend the tour because she was not a member of The Questers, they were not ‘‘on the best of terms at that time, '' and he was ‘‘afraid that there could be some problems if she was there.''

         On the morning of December 5, 2009, the plaintiff went online to find out the date and time of the annual Christmas tree lighting ceremony in Sharon, only to discover that a tour of the Sharon house was scheduled for that afternoon. The plaintiff was ‘‘shocked and puzzled'' because the defendant had not mentioned the tour, and she believed that he was at work that day. She called the defendant at his office but was unable to reach him. The plaintiff decided to go to the Sharon house and talk to the defendant because she was convinced that he would deny the existence of the historic house tour, and she ‘‘couldn't take the lying anymore . . . .''

         Due to the snowy weather that afternoon, only three members of The Questers other than the defendant were present for the tour: Anne Teasdale, Suzanne Chase Osborne, and Lauren Silberman. When the plaintiff arrived at the Sharon house, the defendant was in the kitchen, Osborne was in the television room, and Teasdale and Silberman were in the living room. Rather than park her car in the driveway of the Sharon house, the plaintiff parked at an adjacent guest cottage and entered the house through the back door that leads into the television room. Osborne walked midway across the television room to greet the plaintiff, whom she believed was another guest arriving for the tour. The defendant entered the television room from the kitchen to greet the new arrival but, upon realizing it was the plaintiff, immediately instructed Osborne to go into the living room.

         When the plaintiff opened the door and saw the defendant and Osborne alone together in the television room, she flew into a rage, screaming, ‘‘Who is that woman?'' and ‘‘What are you doing in my house?'' Osborne testified^[1] that she was afraid of the plaintiff, who ‘‘came in like a raging bull, screaming, '' and who ‘‘was aggressively attempting to enter the house.'' The defendant testified that the plaintiff was ‘‘angry, '' ‘‘enraged'' and ‘‘shrieking . . . hysterically high.'' The defendant stated: ‘‘There was body language that I recognized from previous such incidents, where I was terrified. . . . I was scared. I was scared of her demeanor and what she was saying and what I thought she could do, given the fact that we have been married for twenty years and, you know . . . I was afraid, but I was also embarrassed in front of the guests [who] were in the house, that this is my wife.'' Although the plaintiff did not verbally threaten to harm Osborne, the defendant believed that her out of control behavior posed a risk of harm to his guests.

         The defendant approached the plaintiff and asked her to leave. He then took hold of the plaintiff's upper arm and ‘‘escorted'' her out the door and down the driveway toward the Sharon town green, where he believed her car was parked. The plaintiff kept turning around, trying to return to the house, but the defendant would not permit her to do so. The defendant testified that the plaintiff was shrieking, ‘‘over and over, ‘who's that woman in my house, what's going on here, what are you doing?' '' The plaintiff continued shouting, ‘‘[W]ho's that woman? What's going on between the two of you?''^[2]The defendant ‘‘felt at that moment [that the plaintiff] was trying to run back into the house and confront the guests . . . and [he] was terrified of that.''

         Osborne and Teasdale watched through the windows as the defendant escorted the plaintiff to the end of the driveway. Teasdale testified that she was ‘‘very concerned for everybody, so I watched out of the side window and I saw . . . [the plaintiff] coming by, and she was screaming, and she was really mad. She was just out of control. Mad screaming . . . .'' Teasdale continued: ‘‘I could hear the screaming and screaming, that same ‘Who is that woman?' . . . . When I saw her in the side window, her face, she was screaming; she was shaking, [en]raged, screaming.'' Teasdale testified that she ‘‘felt in danger-[like] my life was in danger with what was going on by [the plaintiff's] showing up and screaming like that, '' and ‘‘I didn't know if [the plaintiff] had a gun . . . . I didn't know what was going on out there, and I was really worried about our safety, my safety, everyone's safety.''

         Although the plaintiff testified that the defendant ‘‘dragged'' her down the driveway by her arm, head, and neck and repeatedly ‘‘flung'' her to the ground and yanked her back up again, Osborne, Teasdale, and the defendant testified to a very different version of events. Teasdale explained that it ‘‘looked like [the plaintiff and the defendant] were walking as a couple. At that point, it looked like they were-he had his arm on her- around her elbow, like, you know, like a gentle-like a man would walk with a woman . . . .'' Teasdale further explained that ‘‘it was snowy, and . . . it looked like [the plaintiff] was slipping, but [the defendant] . . . kept her steady . . . .'' Osborne testified that the defendant escorted the plaintiff away from the house by putting ‘‘his arm around her'' and that the level of force used by the defendant was ‘‘appropriate for the occasion'' because it was ‘‘[e]nough to keep her from getting back into the house and to move her down the driveway . . . .'' The defendant admitted that he held the plaintiff by the arm and forcibly led her down the driveway away from the house, even though she was actively resisting him, slipping in the snow, and trying to return to the house, but explained that he did so to protect his guests from harm.

         After the parties reached the sidewalk, the plaintiff began waving her arms and yelling, ‘‘Help, help! Call the police!'' Pierce Kearney, who was driving to the Christmas tree lighting ceremony with his family, observed the parties on the sidewalk. At first, Kearney believed that they were ‘‘clowning around, '' but, when he slowed down the car and rolled down his windows, he could hear the plaintiff ‘‘screaming that she was being assaulted by her husband and could you please call the police.'' Kearney pulled over, exited the car, and ran across the street, where he observed the defendant holding the plaintiff in ‘‘a very aggressive fashion.'' The defendant told Kearney, ‘‘It's okay, she's my wife.'' Kearney's wife called the police while he interposed himself between the parties and said, ‘‘No, this is over.'' The defendant then turned around and returned to the Sharon house.

         Upon reentering the Sharon house, the defendant apologized to his frightened guests and told them that he was going to drive them to the train station for their safety. The defendant drove Teasdale, Osborne, and Silberman to the train station and then returned to the Sharon house, where the police were present. The defendant cooperated with the police investigation, calmly informing the officers that he had escorted the plaintiff from the property because she was not welcome at the Sharon house and that ‘‘he is the sole owner of the house and his wife's name is not on the deed.''

         Sometime after the December 5, 2009 incident, the parties divorced, and the plaintiff filed this action, seeking compensatory damages from the defendant for personal injuries she sustained during the assault and battery. The complaint contained six counts: (1) intentional assault and battery; (2) reckless assault and battery; (3) negligent assault and battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) reckless infliction of emotional distress. The defendant raised, among others, the following special defenses: (1) the plaintiff's injuries were caused by her own contributory negligence; (2) the plaintiff's action is barred by her own wrongful conduct, including her trespassing on the premises of the Sharon house, exhibiting disorderly conduct, creating a public disturbance, and/or assaulting and battering the defendant; (3) his actions were in self-defense; (4) his actions were in defense of others; and (5) his actions were justified because ‘‘the plaintiff was trespassing on [his] property.''

         After an eight day jury trial, the trial court held a charge conference, at which it asked the defendant to clarify the distinction between the special defenses of ‘‘justification'' and ‘‘wrongful conduct.'' The defendant explained that ‘‘the case law is, if there is a criminal trespass, you are justified in removing the person. That's from the criminal statutes. So that's how that ties into the trespass part of it. And the wrongful conduct, it could be trespass. It could be [the plaintiff's] trying to hit [the defendant]. It could be all these other things. But for justification, if she was there after he ordered her to leave, he has a physical right to remove her using reasonable force.'' The trial court asked the defendant whether his justification defense ‘‘is premised largely on trespass.'' The defendant answered that he was ‘‘justified in the use of force'' against the plaintiff because ‘‘she became a criminal trespasser after [he] told her to leave and she refused.''

         As relevant to this appeal, the plaintiff objected to a jury instruction on criminal trespass on the ground that a wife cannot ‘‘commit a criminal trespass on marital property when there [are] no divorce proceedings'' pending or court orders regarding the property. The defendant disagreed, arguing that the Sharon house was not marital property because it ‘‘was bought in his name [and] titled in his name.'' The trial court noted that ‘‘there is evidence on both sides'' and, therefore, considered an instruction on criminal trespass to be appropriate.

         The trial court instructed the jury that the defendant had raised ‘‘five special defenses . . . . They are: (1) [t]he contributory negligence of [the plaintiff]; (2) [j]ustification; (3) self-defense; (4) defense of others; [and] (5) [w]rongful conduct of [the plaintiff].'' With respect to the second special defense, which the trial court referred to as ‘‘justification, ''^[3] the trial court instructed the jury as follows: ‘‘Justification is a general defense to the use of physical force. The use of physical force upon another person that results in actual injury, while usually a criminal assault, is not criminal if it is permitted or justified by a provision of law or statute.

         ‘‘Therefore, when one who is accused of committing an assault claims that he or she acted under a legal justification, the jury must examine the circumstances and discover whether the act was truly justified. The court's function in instructing the jury is to tell the jury the circumstances in which the use of physical force against another person is legally justified.

         ‘‘Justification defenses focus on the defendant's reasonable beliefs as to circumstances and the necessity of using force. The jury must view the situation from the perspective of the defendant. However, the defendant's belief ultimately must be found to be reasonable. For example, a person in possession or control of premises is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises. A person commits criminal trespass when, knowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises, after an order to leave, or after an order not to enter, that was personally communicated to such person by the owner of the premises.

         ‘‘The claim focuses on what the defendant reasonably believes under the circumstances and presents a question of fact. The jury's initial determination requires the jury to assess the veracity of witnesses, often including the defendant, and to determine whether the defendant's account of his belief at the time of the confrontation is in fact credible. The jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant's circumstances.

         ‘‘The defendant's conduct must be judged ultimately against that of a reasonably prudent person. It is not required that the jury find that the victim was, in fact, using or about to use physical force against the defendant.''

         The trial court then proceeded to instruct the jury regarding the defenses of self-defense and defense of others. This portion of the jury charge provided as follows: ‘‘The defendant raised the issues of self-defense and defense of others as to the incident on December 5, 2009. After you have considered all of the evidence in this case, if you find that the plaintiff has proved her claims, you must go on to consider whether . . . the defendant acted in [the defense] of himself or of others.

         ‘‘A person is justified in the use of force against another person that would otherwise be illegal if he is acting in the defense of himself or others under the circumstances.

         ‘‘The statute defining self-defense reads in pertinent part as follows:

‘‘ ‘[A] person is justified in using reasonable physical force upon another person to defend himself [or a third person] from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .'

         ‘‘The statute requires that, before a defendant uses physical force upon another person to defend himself, he must have two ‘reasonable beliefs.' The first is a reasonable belief that physical force is then being used or about to be used upon him. The second is a reasonable belief that the degree of force he is using to defend himself from what he believes to be an ongoing or imminent use of force is necessary for that purpose.

         ‘‘A defendant is not justified in using any degree of physical force in self-defense against another if he provokes the other person to use physical force against him. Also, a defendant is not justified in using any degree of physical force in self-defense against another if he is the initial aggressor. A defendant cannot use excessive force in his self-defense or defense of others.''

         After deliberating for more than one day and asking, among other things, to rehear the testimony of Osborne and Teasdale regarding their views of the alleged assault and battery, the jury returned a verdict in favor of the defendant. The plaintiff's verdict form reveals the following basis for the jury's verdict.^[4] The jury found that the defendant's conduct on December 5, 2009, constituted an intentional assault and battery and that the defendant's conduct proximately caused or aggravated the plaintiff's injuries and damages. The jury also found, however, that the plaintiff's recovery was barred by the defendant's special defenses of justification and defense of others. The jury rejected the plaintiff's claims of intentional and negligent infliction of emotional distress, and also rejected the defendant's special defenses of self-defense and wrongful conduct. The trial court rendered judgment in favor of the defendant, and the plaintiff appealed to the Appellate Court.

         On appeal to the Appellate Court, the plaintiff raised two claims: (1) the jury improperly was charged on the defendant's special defense of justification because the trial court incorporated an instruction on criminal trespass, even though a spouse cannot trespass on marital property as a matter of law;^[5] and (2) the evidence was insufficient to support the defendant's special defense of defense of others. See Burke v. Mesniaeff, 177 Conn.App. 824, 826, 173 A.3d 393 (2017). With respect to the plaintiff's first claim, the Appellate Court determined that it need not decide whether the trial court improperly instructed the jury on criminal trespass because it ‘‘construe[d] the jury's findings to indicate [that] it decided that the plaintiff was not trespassing.'' Id., 837. The Appellate Court reasoned that, even though ‘‘trespassing is understood to be a form of wrongful conduct, '' the jury did not find that the plaintiff's recovery was barred by the doctrine of wrongful conduct, and, therefore, the jury necessarily found that the plaintiff was not trespassing. Id. With respect to the plaintiff's second claim regarding the sufficiency of the ...