Maio v. City of New Haven

• Decision Date: 05 September 2017
• Docket Number: (SC 19401).
• Citation: 326 Conn. 708,167 A.3d 338
• Court: Connecticut Supreme Court
• Parties: Anthony J. MAIO v. CITY OF NEW HAVEN

326 Conn. 708

167 A.3d 338

Anthony J. MAIO

v.CITY OF NEW HAVEN

(SC 19401).

Supreme Court of Connecticut.

Argued October 19, 2016

Officially released September 5, 2017

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.^*

PALMER, J.

Under General Statutes § 53–39a, a police officer acquitted of crimes "allegedly committed by such officer in the course of his duty" is entitled to indemnification from "his employing governmental unit for economic loss sustained by him as a result of such prosecution ...."¹ The plaintiff, Anthony J. Maio, a police officer with the New Haven Police Department (department), sought such reimbursement from the defendant, the city of New Haven, after he was acquitted of charges of sexual assault in the fourth degree and unlawful restraint² for conduct involving two young women that allegedly occurred while he was working an "extra duty" shift at a local nightclub. When the defendant declined to reimburse the plaintiff in 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 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 circumstancesnot 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 construction of the statutory phrase "in the course of his duty" were not properly preserved for appeal. See Practice Book § 60–5 (this court "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial").¹²

Although we would not ordinarily address the defendant's unpreserved statutory interpretation claim, we do so here because the issue necessarily will recur on retrial. Doing so is appropriate, moreover, because the claim involves a question of law briefed by both parties, and because the defendant cannot prevail on the claim. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 155–58, 84 A.3d 840 (2014) (record must be adequate for review, review cannot result in unfair prejudice to any party, and either [1] opposing party does not object to review or [2] party raising claim cannot prevail).

Section 53–39a provides indemnification for economic losses sustained by a police officer when that officer is prosecuted for, but subsequently acquitted of, a crime "allegedly committed by such officer in the course of his duty as such ...." See Rawling v. New Haven , 206 Conn. 100, 106, 537 A.2d 439 (1988) ("[A]ny person who invokes § 53–39a must sustain a...