155 Conn.App. 61
Conn. App. Ct.2015Background
- On Jan. 31, 2008, Bridgeport officers received a flyer and an anonymous 911 tip identifying a wanted, armed suspect (Justin Ellerbe) connected to a maroon/burgundy SUV; Sgt. Brian Fitzgerald later encountered an SUV matching the description.
- The SUV fled a marked police vehicle, drove through multiple intersections and a field, struck a tree and stopped; the driver (Frederick McAllister) exited, advanced toward Fitzgerald with a black object, and Fitzgerald fired multiple shots. McAllister later ran, was pursued, reached into his waistband again in an alley and Fitzgerald fired a final shot; McAllister died of a single gunshot wound.
- Plaintiffs (coadministrators of McAllister’s estate) sued the city and Fitzgerald for wrongful death; after a jury trial, verdict for defendants and court denied plaintiffs’ posttrial motion to set aside the verdict.
- Plaintiffs appealed, arguing (1) the trial court improperly instructed the jury on the statutory justification for deadly force under Conn. Gen. Stat. § 53a-22(c)(2) (use of deadly force to effect an arrest/prevent escape), and (2) the court abused its discretion in denying their motion to set aside the verdict based on alleged prosecutorial/defense counsel misconduct (eliciting/arguing McAllister’s criminal history and intoxication).
- Trial record: defendants pleaded as a special defense that Fitzgerald’s use of deadly force was reasonable under § 53a-22(c) (both subdivisions (1) and (2)). Jury interrogatories were general and did not specify which statutory subdivision justified the force; plaintiffs did not request interrogatories to differentiate the theories and opposed the defendants’ proposed factual interrogatory about which shot was fatal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by instructing the jury on § 53a-22(c)(2) (deadly force to effect arrest/prevent escape) when the evidence allegedly did not support that theory | Court should not have charged subdivision (2) because evidence did not reasonably support it for the fatal shot | General verdict rule bars review; defendants pleaded § 53a-22(c) (both (1) and (2)) as special defense and jury returned a general verdict without specific interrogatories | Affirmed: general verdict rule precludes review because plaintiffs failed to secure interrogatories to distinguish which statutory justification the jury relied on; an error-free path (§ 53a-22(c)(1)) existed, so verdict stands |
| Whether the court abused its discretion by denying motion to set aside verdict based on alleged misconduct by defense counsel (eliciting and arguing McAllister’s criminal record/intoxication) | Counsel improperly elicited and argued inadmissible criminal-history evidence and made false/misleading statements, causing manifest prejudice | Any elicitation mirrored witness testimony or arose from witness volunteering; intoxication and related facts were in evidence; plaintiffs did not timely object or seek curative relief; no manifest injury shown | Affirmed: trial court did not abuse discretion — testimony did not contravene rulings in context, plaintiffs failed to preserve/mitigate, and the court found no manifest prejudice |
Key Cases Cited
- Dowling v. Finley Associates, Inc., 248 Conn. 364 (explaining the general verdict rule and appellate review limits)
- Gajewski v. Pavelo, 229 Conn. 829 (stating that if any ground for a general verdict is proper, the verdict must stand)
- Kalams v. Giacchetto, 268 Conn. 244 (listing situations where general verdict rule applies)
- Curry v. Burns, 225 Conn. 782 (characterizing a typical general verdict rule case)
- Patino v. Birken Mfg. Co., 304 Conn. 679 (abuse of discretion standard for motions to set aside a verdict)
- State v. Luster, 279 Conn. 414 (failure to object weighs against finding prejudice from opposing counsel’s remarks)
- State v. Glenn, 194 Conn. 483 (trial court’s advantage to assess propriety and harm of counsel’s remarks)
- New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502 (appellate review cannot rely on speculation or conjecture)