Weyel v. Catania

• Decision Date: 16 March 1999
• Docket Number: (AC 17553)
• Court: Connecticut Court of Appeals
• Parties: STEVEN C. WEYEL v. GREGORY M. CATANIA ET AL.

52 Conn. App. 292

728 A.2d 512

STEVEN C. WEYEL v. GREGORY M. CATANIA ET AL.

(AC 17553)

Appellate Court of Connecticut.

Argued December 10, 1998.

Officially released March 16, 1999.

Schaller, Sullivan and Kulawiz, JS. Martin S. Echter, with whom was Thomas W. Ude, Jr., deputy corporation counsel, for the appellant (named defendant).

Erskine D. McIntosh, for the appellee (plaintiff).

Opinion

SULLIVAN, J.

The defendant, Gregory M. Catania,¹ appeals from a judgment for the plaintiff, rendered after a bench trial. The defendant claims that the trial court improperly (1) based its decision on various erroneous factual findings, (2) denied qualified immunity to the defendant, (3) denied the defendant's motion for recusal, (4) excluded from evidence part of a hospital record, (5) considered who would likely pay an adverse judgment and (6) awarded attorney's fees that were premature and excessive. We affirm the judgment of the trial court.

The trial court found the following facts. On August 21, 1993, New Haven police officer Allan Turechek and the defendant were conducting a stakeout in an unmarked police car for a suspect in the Westville section of New Haven. At approximately 10:45 p.m., the plaintiff and his girlfriend, Jessica Frisco, were driving through the area. After they argued, Frisco stopped the car and ordered the plaintiff to get out. The plaintiff walked toward the unmarked police car. Mistakenly believing the plaintiff to be the suspect, Turechek and the defendant identified themselves, ordered the plaintiff to stand against a fence and conducted a patdown search for weapons. They then checked his identification and determined that he was not the suspect. At some point during this encounter, the plaintiff told the police that he was walking on the street because he and Frisco had had an argument. The officers told the plaintiff that he could return to Frisco's car, and Turechek remarked that the plaintiff and Frisco had "fucked up" the stakeout. One of the police officers then told the plaintiff to run. As the plaintiff continued to walk toward the car, the officers followed him, ostensibly to investigate possible domestic violence. Turechek stood on the driver's side of the car, and the defendant and the plaintiff stood on the passenger side. The defendant testified that the plaintiff was "somewhat arrogant" and had the smell of liquor on his breath. As the plaintiff put his right hand on the door handle and turned away from the defendant, the defendant pushed him into the rear passenger side window. The plaintiff suffered injuries to his shoulder, arm and head. Turechek and the defendant called their supervisor, Sergeant William Tinker. After the discussion with Tinker, the plaintiff and Frisco went to the police station to report the incident but, upon finding the internal affairs office closed, proceeded to Yale-New Haven Hospital. They reported the incident the next morning to internal affairs.

The plaintiff filed suit against Turechek and the defendant, alleging violations of 42 U.S.C. § 1983, false imprisonment, intentional infliction of emotional distress and negligence. The trial court found in favor of Turechek on all charges and found the defendant liable under § 1983 for using excessive force against the plaintiff. This appeal followed.

I

The defendant first claims that the trial court rested its decision on several factual findings that were not supported by the evidence. Specifically, he asserts that the plaintiffs hospital records and the photograph of the injury contradict the plaintiffs description of the nature, extent and cause of the injuries, including the claim of a head injury. The defendant further argues that the actions of the plaintiff and Frisco immediately after the accident contradicted testimony about the nature and extent of the plaintiffs injuries, that the plaintiff and Frisco gave conflicting accounts of where they were standing and how the plaintiff was injured and that the claim that there was blood on the seat and the seat belt of the car was illogical. Additionally, the defendant argues that statements by the plaintiff and Frisco that the officers were out of control are contradicted by Frisco's statement that the plaintiff had been out of control in the argument they had had prior to the incident. The defendant also argues that the court improperly found that the plaintiff had particles of glass lodged in his arm.

Our standard of review is well established. "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... A factual finding may be rejected by this court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Murphy v. Buonato, 42 Conn. App. 239, 242, 679 A.2d 411 (1996), affd, 241 Conn. 319, 696 A.2d 320 (1997).

The defendant challenges the court's determinations of the credibility of testimony and the weight of the evidence. The trial court's findings are all supported by evidence, and we are unpersuaded that a mistake was committed. We conclude that the trial court's factual determinations were not clearly erroneous.

II

The defendant next claims that the trial court improperly rejected his claim of qualified immunity. We disagree.

"The defense of qualified immunity shields government officials from civil liability if the official's conduct did not violate constitutional rights that were clearly established at the pertinent time or if it was objectively reasonable for the official to believe that the conduct did not violate such rights." (Internal quotation marks omitted.) Greenwood v. New York, 163 F.3d 119, 121-22 (2d Cir. 1998). "State courts follow federal precedent in interpreting the doctrine of qualified immunity. Martinez v. California, 444 U.S. 277, 284 n.8, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980)." Outlaw v. Meriden, 43 Conn. App. 387, 395, 682 A.2d 1112, cert. denied. 239 Conn. 946, 686 A.2d 122 (1996). "`As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.' Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994)." Outlaw v. Meriden, supra, 395. "[A]ll claims that law enforcement officers have used excessive force— deadly or not—in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard . . . ." (Emphasis in original.) Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

"Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, [392 U.S. 1, 22-27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. Because `[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,' Bell v. Wolfish, 441 U.S. 520, 559 [99 S. Ct. 1861, 60 L. Ed. 2d 447] (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, supra, 490 U.S. 396.

The defendant does not argue that his conduct, as determined by the trier of fact, was reasonable. Instead, the defendant argues that his conduct was reasonable under his version of the facts, which the trier of fact rejected. Because the court's factual determinations were not clearly erroneous, we must accept them as the basis for the determination of reasonableness. The trial court, sitting as the trier of fact, reasonably found that the defendant pushed the plaintiff through a car window. The trial court did not find, nor did the defendant maintain, that the plaintiff had used any force against the defendant. Given these circumstances, we cannot say the trial court improperly determined that the defendant's actions were not objectively reasonable. Therefore, we conclude that the trial court properly denied the defendant qualified immunity.

III

The defendant next claims that the trial judge improperly failed to recuse himself. Specifically, the defendant asserts that there was an "appearance of a conflict of interest," that the trial judge "concluded that the filing of the posttrial motion and the motion for recusal called into question his own honesty and integrity versus the honesty and integrity of defense counsel" and that the court improperly credited the "word of a stranger" over the "sworn testimony of defense counsel despite the absence of any basis to cite counsel for contempt." We disagree.

The procedure for moving to disqualify a judge is set out in Practice Book § 1-23, formerly § 997.² "Both [an affidavit and a certificate that the motion was made in good faith] are required procedural adjuncts to a motion to recuse a judicial authority. Practice Book [§ 1-23]. Adherence to those procedures is necessary to obtain proper judicial review. State v. Weber, 6 Conn. App. 407, 412-13, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986)." State v. Santangelo, 205 Conn. 578, 585, 534 A.2d 1175 (1987); see also State...