Argued
December 19, 2018
Appeal
from the Superior Court, Judicial District of
Stamford-Norwalk, Lee, J.
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Gregory Jacob, pro hac vice, Washington, with whom were
Mishima Alam, pro hac vice, and Anne C. Dranginis,
Bridgeport, for the appellant (plaintiff).
Charles
S. Harris, Norwalk, with whom was Stephanie C. Laska,
Norwalk, for the appellee (defendant).
Joseph
D. Jean, New York, filed a brief for the Connecticut
Coalition Against Domestic Violence as amicus curiae.
Robinson,
C.J., and Palmer, DAuria, Mullins, Kahn, Ecker and
Vertefeuille, Js.
OPINION
ECKER,
J.
Page 781
[334
Conn. 102] The plaintiff, Elizabeth Burke, appeals from the
Appellate Courts affirmance of the trial courts judgment
rendered in favor of the defendant, Gregory [334 Conn. 103]
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 jurys 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 jurys 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 [334
Conn. 104] 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
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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 "couldnt
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 [334 Conn. 105] 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 plaintiffs 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, whos that woman in my house, whats
going on here, what are [334 Conn. 106] you doing? "
The plaintiff continued shouting, "[W]hos that woman?
Whats 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
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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
plaintiffs] showing up and screaming like that," and
"I didnt know if [the plaintiff] had a gun .... I
didnt know what was going on out there, and I was really
worried about our safety, my safety, everyones 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] ... [334
Conn. 107] 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,
"Its okay, shes my wife." Kearneys 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 [334 Conn. 108] at the Sharon house and that "he
is the sole owner of the house and his wifes 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
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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 plaintiffs injuries
were caused by her own contributory negligence; (2) the
plaintiffs 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. Thats from the criminal statutes. So thats how that
ties into the trespass part of it. And the wrongful conduct,
it could be trespass. It could be [the plaintiffs] 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 [334 Conn. 109] "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
...