Brown v. Bridgeport Police Dep't

155 Conn.App. 61

107 A.3d 1013

Douglas R. BROWN et al., Coadministrators (Estate of Frederick Devon McAllister)

v.BRIDGEPORT POLICE DEPARTMENT et al.

No. 35304.

Appellate Court of Connecticut.

Argued Nov. 12, 2014.

Decided Jan. 20, 2015.

Antonio Ponvert III, with whom was Preston Tisdale, Bridgeport, for the appellants (plaintiffs).

Daniel J. Krisch, Hartford, with whom was Betsy A. Edwards, associate city attorney, for the appellees (defendant city of Bridgeport et al.).

GRUENDEL, KELLER and FLYNN, Js.

Opinion

GRUENDEL, J.

The plaintiffs, Douglas R. Brown and Carlonetta McAllister, coadministrators of the estate of Frederick Devon McAllister, appeal from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, the city of Bridgeport and Brian Fitzgerald.¹ They claim that the court (1) improperly instructed the jury on General Statutes § 53a–22 (c)(2), and (2) abused its discretion in denying their motion to set aside the verdict due to the alleged misconduct of the defendants' counsel at trial. We disagree and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following relevant facts. During roll call² on the afternoon of January 31, 2008, officers of the Bridgeport Police Department (department) received a flyer indicating that a black male named Justin Ellerbe was a “wanted” and “armed” person. The flyer included a photograph of Ellerbe, his date of birth, his approximate height and weight, and his connection to a “burgundy Suburban” sport utility vehicle (SUV) whose plate marking included “WOA.” Fitzgerald, a sergeant with the department, was present at roll call and was on patrol from 2:30 p.m. until 10:30 p.m.

That evening, the department received an anonymous 911 call reporting that Ellerbe had just arrived at 185 Hewitt Street in Bridgeport in a maroon SUV. The caller also stated that the vehicle's license plate was “601 WOH” and that Ellerbe was brandishing a .50 caliber handgun in the street outside that residence. Numerous officers converged at 185 Hewitt Street, including Fitzgerald, who was acting as a patrol supervisor at that time. They observed an SUV matching the general description provided in the flyer and the 911 call, and thereafter conducted a consensual search of the property, but did not encounter anyone matching Ellerbe's description. As a result, all uniformed officers departed the area. Sergeant Carl Bergquist instructed an undercover officer, Detective William Reilly, to maintain surveillance of the SUV from an unmarked vehicle.

Later in the evening, Reilly saw two black males exit the house at 185 Hewitt Street and head toward the SUV. When one of those individuals entered the driver's side of the vehicle and began to drive away, Reilly notified Bergquist of this development. Bergquist then stated over the main police radio channel: “Be advised units in the area of Hewitt and Stratford Avenue, I have an undercover following that vehicle we were watching on Hewitt, just left the area. I will try and update you.” At that time, Fitzgerald's shift had ended and he was working “an extra duty road job” on Barnum Avenue, which required the use of his marked police vehicle.³ When he heard a subsequent police transmission indicating that the SUV was headed in his general direction, Fitzgerald responded and proceeded down Barnum Street. As the SUV traveled north on Willow Street approaching the intersection with Barnum Street, it suddenly swerved toward the marked police vehicle, then accelerated through the intersection without stopping at the stop sign on Willow Street. At that time, Fitzgerald made eye contact with the driver and observed that “there was a black male driving the car and based on the wanted poster I had seen earlier in the day, the driver looked like Justin Ellerbe.”

Fitzgerald thus turned onto Willow Street and activated his vehicle's lights behind the SUV to effectuate a motor vehicle stop. The driver nonetheless refused to stop the SUV and continued north on Willow Street.

When the SUV approached an intersection with Claremont Street, the driver once again drove through a stop sign without any attempt to slow or stop the vehicle. The SUV continued in a northerly direction, then cut through a pharmacy parking lot, where it jumped the curb and proceeded onto Carnegie Street. The SUV then crossed over to Grandfield Avenue, crashed through a chain-link fence and drove into a field, where it ultimately came to rest after sideswiping a tree. Fitzgerald followed the SUV into the field and stopped his vehicle when the SUV struck the tree.

As he was departing his vehicle, Fitzgerald saw the driver exit the SUV. Fitzgerald drew his weapon from his holster as the driver advanced toward him. The driver yelled profanities at Fitzgerald and drew a black object from his waistband, which Fitzgerald believed was a handgun. Fitzgerald ordered the driver to “drop the gun.” but the driver refused. When the driver raised the object and pointed it in his direction, Fitzgerald fired three shots. A second later, Fitzgerald saw the driver turn in a lateral direction and then heard the sound of a gunshot. In response, Fitzgerald fired three more shots in the driver's direction. The driver momentarily fell to a knee. He then stood up, dropped the black object, and ran away.⁴ That entire encounter—from the time that the driver initially approached Fitzgerald to the time that he fled—lasted approximately five seconds.

Fitzgerald chased the fleeing driver through the field and into an adjacent parking lot and alley at an apartment complex. As he did so, Fitzgerald repeatedly ordered the driver to stop, but the driver did not comply. With Fitzgerald closing ground on him in the alley, the driver abruptly stopped, turned toward Fitzgerald, and again reached into his waistband, at which point Fitzgerald fired a seventh shot at him. The driver, later identified as Frederick Devon McAllister, then surrendered, raising his hands to his head. As he did so, Fitzgerald observed that McAllister's white T-shirt was covered in blood. McAllister was transported to a nearby hospital, where he was pronounced dead as the result of a single gunshot wound.

The plaintiffs commenced this wrongful death action in 2010. Following a trial, the jury returned a verdict in favor of the defendants on all counts. The court denied the plaintiffs' subsequent motion to set aside the verdict and rendered judgment accordingly. This appeal followed.

I

Section 53a–22 (c) authorizes the use of deadly force by peace officers in two instances. See generally State v. Smith, 73 Conn.App. 173, 196–98, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). The first instance is when an officer “reasonably believes such [force] to be necessary to ... [d]efend himself or herself or a third person from the use or imminent use of deadly physical force....” General Statutes § 53a–22 (c)(1). The second instance in which an officer is authorized to use deadly force is when the officer “reasonably believes such [force] to be necessary to ... effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he or she has given warning of his or her intent to use deadly physical force.” General Statutes § 53a–22 (c)(2). On appeal, the plaintiffs claim that the court improperly instructed the jury on § 53a–22 (c)(2) because the evidence adduced at trial did not reasonably support such a charge. In response, the defendants contend, as a threshold matter, that the general verdict rule bars review of that claim. We agree with the defendants.

Following the commencement of this civil action, the defendants filed an answer and multiple special defenses. Relevant to this appeal is their third special defense, which alleged that “[a]t all times mentioned herein [Fitzgerald's] use of force to make an arrest, prevent an escape or protect himself and other persons from deadly physical force was reasonable pursuant to [§] 53a–22 (c).” (Emphasis added.) The plaintiffs conceded at trial that they bore the burden of proving that Fitzgerald's use of deadly force was not justified under either subdivisions (1) or (2) of § 53a–22 (c) in establishing their wrongful death case.

It is undisputed that the interrogatories provided to the jury did not distinguish the two instances in which peace officers are authorized to use deadly force. Specifically, the first interrogatory asked: “Do you find that the [plaintiffs] have proven that the use of deadly force by [Fitzgerald] was not justified, pursuant to [§] 53a–22 (c) of the General Statutes ?” That interrogatory plainly does not differentiate between deadly force used pursuant to § 53a–22 (c)(1) and (2). As a result, the defendants submit that review of the plaintiffs' instructional error claim is barred by the general verdict rule.

The general verdict rule “relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant's claims is consistent with the general principle of appellate jurisprudence that it is the appellant's responsibility to provide a record upon which reversible error may be predicated.... In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the...