Manson v. Conklin ( 2020 )

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KEITH MANSON v. DANIEL CONKLIN ET AL.
(AC 41672)
Lavine, Prescott and Bright, Js.
Syllabus
The plaintiff sought to recover damages from the defendant police officer,
C, and the defendant city of New Haven for, inter alia, negligence in
connection with injuries he sustained when he collided with C’s police
cruiser while riding his dirt bike on a municipal street. In response to
the plaintiff’s complaint, the defendants alleged a number of special
defenses, including that the plaintiff’s claims were barred by governmen-
tal immunity because C was engaged in discretionary acts at the time
of the accident. Prior to trial, the defendants filed a motion in limine
to preclude the admission of any impeachment evidence relating to prior
alleged misconduct by C. The plaintiff filed an objection to which he
attached copies of three internal affairs reports authored by the New
Haven Police Department, which described three instances in which C
had engaged in misconduct and dishonesty during interactions with the
public and then had misrepresented the nature of those interactions in
official police reports or in response to internal affairs investigations.
The trial court granted the defendants’ motion in limine with respect
to the internal affairs reports and the information contained therein.
Following trial, the jury returned a verdict in favor of the defendants.
On the verdict form, the jury indicated that the plaintiff had failed to
prove by a fair preponderance of the evidence that C or the city was
negligent. Thereafter, the trial court rendered judgment in accordance
with the verdict, and the plaintiff appealed to this court. Held:
1. Contrary to the plaintiff’s claim, the trial court properly precluded the
admission of the findings and conclusions by the police department in
the internal affairs reports that C had engaged in misconduct and was
dishonest; those findings and conclusions constituted extrinsic evidence
of alleged prior misconduct because they reflected the opinions of the
police department that C had acted untruthfully, and, therefore, pursuant
to our Supreme Court’s decision in Weaver v. McKnight, (313 Conn.
393), they were inadmissible and properly excluded.
2. The plaintiff could not prevail on his claim that the trial court improperly
submitted the issue of governmental immunity to the jury, which was
based on his contention that the question of whether C’s actions were
ministerial or discretionary was not a factual question for the jury but,
rather, was a legal issue to be decided by the court; it was unnecessary
for this court to reach that question, as the plaintiff could not demon-
strate that he suffered any harm by the submission of the issue of
governmental immunity to the jury because the jury found that C was
not negligent and, therefore, it was not necessary for the jury to reach
that issue.
Argued December 4, 2019—officially released April 21, 2020
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the court, Markle, J., granted the defen-
dants’ motion to preclude certain evidence; thereafter,
the matter was tried to the jury before Markle, J.; verdict
and judgment for the defendants, from which the plain-
tiff appealed to this court. Affirmed.
Matthew D. Popilowski, with whom, on the brief,
was John F. Riley, Jr., for the appellant (plaintiff).
Alyssa S. Torres, assistant corporation counsel, for
the appellees (defendants).
Opinion
PRESCOTT, J. The plaintiff, Keith Manson, appeals
from the judgment of the trial court, rendered following
a jury trial, in favor of the defendants, Daniel Conklin
and the city of New Haven (city). The plaintiff brought
the underlying negligence action against the defendants
seeking compensation for damages he allegedly sus-
tained when he collided with Conklin’s police cruiser
while riding his dirt bike on a municipal street. On
appeal, the plaintiff claims that the court improperly (1)
precluded him from impeaching Conklin about findings
regarding his veracity made by his employer during
unrelated internal affairs (IA) investigations and (2)
submitted the issue of governmental immunity to the
jury. We disagree with the plaintiff and, accordingly,
affirm the judgment of the trial court.
The following procedural history and facts that the
jury reasonably could have found are relevant to the
plaintiff’s claims on appeal. On April 1, 2013, at approxi-
mately 10:49 a.m., the plaintiff was riding his dirt bike
east on Flint Street in New Haven. At the same time,
Conklin, an on-duty New Haven police officer, was driv-
ing his marked police cruiser west on Flint Street, in
the opposite direction in which the plaintiff was travel-
ing. As Conklin drove down Flint Street, he observed
a father with his young child playing in the street. To
provide sufficient space to safely pass the child and
his father, Conklin pulled his cruiser away from them
toward the middle of the road.
As Conklin slowly was maneuvering his cruiser
toward the middle of the road, the plaintiff continued
east on Flint Street at a high rate of speed, eventually
cresting a hill at the top of the street. Shortly after
cresting the hill, the plaintiff collided with the front
fender of Conklin’s cruiser, and the plaintiff fell off
of his bike, bleeding and in pain. Conklin called an
ambulance. He then approached the plaintiff and placed
him in handcuffs because he was combative. The ambu-
lance transported the plaintiff to Yale New Haven Hospi-
tal where he required immediate surgery for a fractured
kneecap, which required the removal of a rod in his leg
from a prior car accident.
On April 1, 2015, the plaintiff commenced the present
action against the defendants. The plaintiff filed, on
November 15, 2017, the operative three count amended
complaint. In count one of that complaint, the plaintiff
alleged negligence against Conklin; in count two, he
sought indemnification from the city pursuant to Gen-
eral Statutes § 7-465;1 and, in count three, he alleged
negligence against the city pursuant to General Statutes
§ 52-577n.2
In response, the defendants, on February 1, 2018,
filed their operative answer and special defenses. The
defendants alleged by way of special defenses that (1)
the plaintiff’s injuries were caused by his own compara-
tive negligence, (2) Conklin, as a government employee,
is entitled to qualified immunity, (3) as to Conklin, the
accident was unavoidable, and (4) the plaintiff’s claims
were barred by governmental immunity pursuant to
§ 52-557n because Conklin was engaged in discretion-
ary acts.
The case was tried to a jury over the course of two
days. Following the close of evidence and prior to the
submission of the case to the jury, the parties met with
the court to review proposed jury instructions. The
parties disagreed on whether Conklin’s actions were
discretionary or ministerial for purposes of a jury
charge on the doctrine of governmental immunity. The
court concluded that it was appropriate to charge the
jury on the doctrine of governmental immunity by pro-
viding the jury examples of duties that were ministerial
and discretionary because doing so would help the jury
understand the charge.
Thereafter, the court charged the jury, and the case
was submitted to the jury for a verdict. In addition to
a verdict form, the court provided the jury with interrog-
atories. The interrogatories asked, in relevant part: ‘‘Did
the plaintiff prove by a fair preponderance of the evi-
dence that . . . Conklin was negligent in one or more
of the ways as alleged?’’ The jury was instructed to
respond either yes or no.
On the same day, the jury returned a verdict in favor
of the defendants. With respect to the interrogatory
asking whether the plaintiff had established that Con-
klin was negligent, the jury answered no, and it did not
answer any other interrogatories in accordance with
the instructions on the form. The jury then completed
the verdict form, indicating that the plaintiff had failed
to prove by a fair preponderance of the evidence that
Conklin or the city was negligent. The court rendered
judgment in favor of the defendants in accordance with
the jury’s verdict. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The plaintiff first claims that the court improperly
precluded him from impeaching Conklin about the find-
ings and conclusions contained in unrelated IA investi-
gative reports regarding alleged misconduct and dishon-
esty he previously had engaged in as a police officer and
his lack of veracity in responding to those allegations.
Although we conclude that the court properly excluded
this evidence, we do so for somewhat different reasons
than those stated by the court.3
The following facts and procedural history are rele-
vant to this claim. Prior to the commencement of trial,
the defendants filed a motion in limine to preclude
the admission of any impeachment evidence relating
to prior alleged misconduct by Conklin. Specifically,
the defendants, citing to §§ 4-3, 4-4, and 4-5 of the Con-
necticut Code of Evidence, sought to preclude the plain-
tiff from asking questions or admitting evidence regard-
ing alleged misconduct engaged in by Conklin unrelated
to the present case.
The plaintiff filed an objection to the motion in limine
and appended to his objection copies of the three IA
investigative reports authored by the New Haven Police
Department (department).4 In general, these reports
describe three instances in which Conklin had engaged
in misconduct and dishonesty during interactions with
the public and then had misrepresented the nature of
those interactions in official police reports or in
response to the IA investigations. By way of example
only, in one of the IA reports, Conklin is alleged to
have improperly tampered with the driver’s license of
a suspect by removing the change of address sticker
on the back of the license. In another report, Conklin
is alleged to have illegally detained a person sitting
in a parked car and to have misrepresented the facts
regarding the detention in a police report.
The record is somewhat muddled regarding the pre-
cise evidentiary use the plaintiff hoped to make of these
reports or the information contained in them. In the
plaintiff’s written objection to the defendants’ motion
in limine, the plaintiff at times appears to have argued
that he intended to ask Conklin about the specific acts
of misconduct in which Conklin allegedly engaged. In
other words, the plaintiff’s objection suggested that he
merely sought to question Conklin about whether he,
in fact, had engaged in the specific misconduct
described in the IA reports such as removing the change
of address sticker from the license of a driver. In doing
so, the plaintiff referred to § 6-6 (b) (1) of the Connecti-
cut Code of Evidence, which provides that ‘‘[a] witness
may be asked, in good faith, about specific instances
of conduct of the witness, if probative for the witness’
character for untruthfulness.’’
Throughout his written objection, however, the plain-
tiff suggested that his true intent was to have admitted
the actual findings and conclusions of the department
regarding whether Conklin had engaged in misconduct
and had lied about it. The plaintiff in his objection
referred repeatedly to the ‘‘determinations’’ and ‘‘find-
ings’’ made by the department regarding Conklin’s
conduct.
On April 26, 2018, the court heard argument on the
motion in limine. During the hearing, the plaintiff’s
counsel and the court engaged in a colloquy regarding
the IA reports and the uses the plaintiff wanted to make
of the reports or the information contained within them.
Counsel informed the court that he wanted to question
Conklin about the IA reports, specifically, the investiga-
tor’s findings of dishonesty. During the same colloquy,
counsel further stated that ‘‘[t]he bad behavior, in and
of itself, isn’t something I necessarily need to or plan
to get involved in. It’s as you read the full order for
the findings of the IA board, implicit in there is an
understanding that [Conklin] was not exactly truthful
in his explanations of his behavior. . . . When the IA
board makes a conclusion, which inherent in that deci-
sion is that they don’t believe . . . Conklin, to me that
certainly is fair game as far as truthfulness of the party
who will be a witness.’’ (Emphasis added).
The plaintiff’s counsel conceded that he was not
offering the IA reports themselves: ‘‘I don’t think under
the law I would be allowed to offer them as extrinsic
evidence. I just want to be allowed to inquire. . . . I’m
assuming he’s going to be honest when I ask him has
he been, for instance, disciplined by his department
for destroying evidence.’’ (Emphasis added.)
During its colloquy with the plaintiff’s counsel, the
court appears to have understood his argument to be
that he had a right to question Conklin about the find-
ings and conclusions of the department, rather than
asking Conklin directly whether he had engaged in the
misconduct. The court stated in part: ‘‘It’s the IA board
making fact findings . . . it’s just finding one person’s
statement more credible than the other.’’ Counsel then
rebutted the court’s statement by claiming that the
board was ‘‘[m]aking a conclusion.’’ After the colloquy,
the court reserved its ruling on the motion in limine
until May 1, 2018, indicating that it would review the
exhibits and the relevant rules of evidence.
On May 1, 2018, the morning on which the evidentiary
portion of the trial was set to begin, the court granted
the motion regarding the IA reports and the information
contained within them. The court stated: ‘‘[A]fter
reviewing the alleged misconduct evidence, I find that
insufficient to be probative of the witness’ truthfulness
. . . in this action wherein the allegations simply
involve negligence. I also find that the probative value,
after taking into consideration the nature or the type
of proceedings and the findings that were made, includ-
ing the findings that certain training and rules were not
abided to, I [find] that the probative value is outweighed
by the unfair prejudice in the sense that it would unduly
[arouse] the emotions or prejudice against the defen-
dant in this case and . . . I believe in addition . . .
that we are going [to] get off track and get into minitrials
about what those hearings were about, who made the
allegations, who were the supporting witnesses, and
we are going to get off the path.’’5
On appeal, the plaintiff, in his brief, again asserts that
the court improperly precluded the admission of the
conclusions and findings by the department that Con-
klin had engaged in misconduct and was dishonest,
rather than evidence of the misconduct itself. The plain-
tiff does not argue that the court improperly prevented
him from asking Conklin whether he had engaged in
certain misconduct or dishonesty but, instead, he
argues that the court should have permitted him to ask
Conklin whether the department had so found. On the
basis of this record, we conclude that the sole issue
before us is whether the findings and conclusions of the
department that the Conklin had engaged in misconduct
and was dishonest should not have been precluded by
the court.
We first set forth our standard of review. ‘‘To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of [our law of evidence], our
standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.
. . . The trial court has wide discretion to determine
the relevancy of evidence and the scope of cross-exami-
nation. . . . Thus, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing[s] [on these bases] . . . . In determining whether
there has been an abuse of discretion, the ultimate
issue is whether the court . . . reasonably [could have]
conclude[d] as it did.’’ (Internal quotation marks omit-
ted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d
920 (2014).
Although not relied on by the court or the defendants
on appeal, we conclude that our Supreme Court’s deci-
sion in Weaver is dispositive of this question. In Weaver,
the mother of a stillborn infant brought a negligence
action against her gynecologist and his medical group.
Id., 396. During trial, the court allowed the defendants
to question the plaintiffs’ expert witness regarding a
censure that he had received from a voluntary member-
ship organization. Id., 418. The censure included the
organization’s determination that the expert had vio-
lated the organization’s rules of conduct. Id., 427. Our
Supreme Court concluded that the determinations in
the censure amounted to extrinsic evidence of alleged
prior misconduct and, thus, were inadmissible. Id., 432.
In so concluding, our Supreme Court recognized that
although the Connecticut Code of Evidence generally
prohibits the use of character evidence to prove that a
person has acted in conformity with a character trait on
a particular occasion, one significant exception permits
the admission of evidence of a witness’ character for
untruthfulness to impeach the credibility of the witness.
Id., 426. ‘‘One method for impeaching a witness’ credi-
bility allows a party to cross-examine a witness about
the witness’ prior misconduct (other than a felony con-
viction, which is governed by other rules), subject to
certain limitations: First, cross-examination may only
extend to specific acts of misconduct other than a fel-
ony conviction if those acts bear a special significance
upon the issue of veracity . . . . Second, [w]hether to
permit cross-examination as to particular acts of mis-
conduct . . . lies largely within the discretion of the
trial court. . . . Third, extrinsic evidence of such acts
is inadmissible. . . . Conn. Code Evid. § 6-6 (b) (2).
Under these limitations, the only way to prove miscon-
duct of a witness for impeachment purposes is through
examination of the witness. . . . The party examining
the witness must accept the witness’ answers about a
particular act of misconduct and may not use extrinsic
evidence to contradict the witness’ answers.’’ (Citation
omitted; internal quotation marks omitted.) Weaver v.
McKnight, supra, 313 Conn. 426–27.
After citing these general principles, the court turned
to the more difficult issue presented in Weaver, namely,
‘‘whether the prohibition on extrinsic evidence pre-
cludes cross-examination of the witness about anoth-
er’s determination that the witness acted untruthfully.’’
Id., 427–28. Our Supreme Court indicated that it had
‘‘not been pointed to, and [was] not aware of, any [appel-
late] cases from this state directly addressing this ques-
tion,’’ but that ‘‘[c]ommentators and courts in other
jurisdictions have addressed this question and generally
have concluded that ‘counsel should not be permitted
to circumvent the no-extrinsic-evidence provision by
tucking a third person’s opinion about prior acts into
a question asked of the witness who has denied the
act.’ S. Saltzburg, ‘Trial Tactics: Impeaching the Wit-
ness: Prior ‘‘Bad Acts’’ and Extrinsic Evidence,’ 7 Crim.
Just. 28, 31 (Winter 1993).’’ Weaver v. McKnight, supra,
313 Conn. 428.
The court in Weaver noted that the Federal Rules of
Evidence and cases interpreting them do not permit a
party to introduce findings or determinations by a third
party that a witness has engaged in misconduct or dis-
honesty. ‘‘The Third Circuit Court of Appeals squarely
addressed this issue in United States v. Davis, 183 F.3d
231, 257 n.12 (as amended by slip opinion, 197 F.3d 662,
663 n.1 (3d Cir.1999), and concluded that, during cross-
examination of a police officer, the government cannot
make reference to [the witness’] forty-four day suspen-
sion or that Internal Affairs found that he lied about
the [prior] incident. The government needs to limit
its [cross-examination] to the facts underlying those
events. . . . If he denies that such events took place,
however, the government cannot put before the jury
evidence that he was suspended or deemed a liar by
Internal Affairs. . . .
‘‘Professor Colin C. Tait and Judge Eliot D. Prescott,
in their treatise about Connecticut evidence law, also
agree that a witness cannot be asked about the opinions
of others regarding the alleged misconduct. C. Tait &
E. Prescott, Connecticut Evidence (4th Ed. 2008)
§ 6.32.5, p. 362. They refer to this court’s decision in
State v. Bova, [240 Conn. 210, 690 A.2d 1370 (1990)],
as an example. In Bova, the court upheld a trial court’s
decision to preclude a party from asking a police officer
about another case in which a judge commented that
another witness was more credible than the police offi-
cer. . . . This court concluded that the judge’s com-
ment in the other case did not meet the first requirement
for admitting misconduct testimony because the judge
made no express finding that the officer lied, and there-
fore the comment did not sufficiently relate to the offi-
cer’s credibility. . . . Professor Tait and Judge Pres-
cott go further in their treatise, explaining that counsel
could not have asked the officer about the judge’s com-
ment [e]ven if the judge had found that the officer lied
as a witness [because] that finding is not a conviction
of perjury. Such conduct, not being a conviction, can
be proved only by questions addressed to the witness,
i.e., Did you lie in case X? If the witness denies such
misconduct, the questioner must take the [witness’]
answer and cannot introduce extrinsic evidence. C.
Tait & E. Prescott, supra, p. 362.’’ (Citations omitted;
emphasis altered; footnote omitted; internal quotation
marks omitted.) Weaver v. McKnight, supra, 313
Conn. 429–30.
In the present case, the conclusions and findings con-
tained within the IA reports constitute extrinsic evi-
dence of alleged prior misconduct because they reflect
the opinions of the department that Conklin acted
untruthfully. Although the plaintiff would have been
permitted to question Conklin about his misconduct,
he would have been precluded from offering extrinsic
evidence of that misconduct if denied by Conklin. The
plaintiff could not circumvent these rules by ques-
tioning Conklin about the conclusions and findings con-
tained in the reports. Although the court in the present
case appears to have precluded the evidence proffered
by the plaintiff on somewhat different grounds, we con-
clude that the exclusion of the evidence was dictated
by our Supreme Court’s decision in Weaver, and we
affirm the ruling on that basis.6
II
We next address the plaintiff’s claim that the court
improperly submitted the issue of governmental immu-
nity7 to the jury. Specifically, the plaintiff argues that
the dispute over whether the actions of Conklin were
ministerial or discretionary was not a factual question
for the jury but, instead, was a legal issue to be decided
by the court.
We conclude that it is unnecessary to reach this ques-
tion because the plaintiff cannot demonstrate that he
suffered any harm by the court’s submission of the issue
of governmental immunity to the jury. Before deciding
whether governmental immunity applied, the jury first
had to determine whether the municipal employee was
negligent. Here, the jury did not find Conklin negligent.
During oral argument before this court, the plaintiff
conceded that he cannot show harm because the jury
found that Conklin was not negligent and, thus, it was
not necessary for the jury to reach the question of
whether the defendants enjoyed immunity for negligent
acts. Accordingly, this claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 7-465 allows an action for indemnification against a
municipality in conjunction with a common-law action against a municipal
employee; Gaudino v. East Hartford, 87 Conn. App. 353, 356, 865 A.2d 470
(2005); and provides in relevant part: ‘‘Any town, city, or borough . . . shall
pay on behalf of any employee of such municipality . . . all sums which
such employee becomes obligated to pay by reason of the liability imposed
upon such employee by law for damages awarded . . . if the employee, at
the time of the occurrence, accident, physical injury or damages complained
of, was acting in the performance of his duties and within the scope of his
employment . . . .’’
2
General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise of judgment or discre-
tion as an official function of the authority expressly or impliedly granted
by law. . . .’’
3
If evidence would have been admissible or excludable on a ground other
than that relied on by the trial court, we may affirm the evidentiary ruling
on that alternative ground. See, e.g., State v. Vines, 71 Conn. App. 359,
366–67, 801 A.2d 918 (‘‘even if the trial court did not engage in the proper
inquiry as to the admissibility of evidence, we are mindful of our authority
to affirm a judgment of a trial court on a dispositive alternat[ive] ground
for which there is support in the trial court record’’ (internal quotation
marks omitted)), cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002).
4
Although the plaintiff never asked the court to mark the reports as
exhibits for identification purposes, the reports are contained in the trial
court record.
5
We understand the court’s ruling, therefore, to hinge on its conclusion
that the IA reports did not describe misconduct that bore on Conklin’s
veracity. Although we differ with that assessment, the court’s decision to
exclude the evidence was proper, albeit for different reasons that we discuss
herein. We also disagree with the court’s ruling to the extent that it may be
read to suggest that, because the case only involved allegations of negligence,
Conklin’s veracity was somehow not at issue. Conklin was obviously a
critical eyewitness to the accident and, as one of the defendants, had a
substantial stake in the outcome of the case.
6
In light of this conclusion, it is unnecessary to address the plaintiff’s
claim that the court improperly relied on § 4-3 of the Connecticut Code of
Evidence by finding that the evidence’s probative value was outweighed by
the danger of its unfair prejudice before determining under which section of
the Connecticut Code of Evidence the evidence should have been classified.
7
‘‘The [common-law] doctrines that determine the tort liability of munici-
pal employees are well established. . . . Generally, a municipal employee
is liable for the misperformance of ministerial acts, but has a qualified
immunity in the performance of governmental acts. . . . Governmental acts
are performed wholly for the direct benefit of the public and are supervisory
or discretionary in nature. . . . The hallmark of a discretionary act is that
it requires the exercise of judgment. . . . In contrast, [m]inisterial refers
to a duty which is to be performed in a prescribed manner without the
exercise of judgment or discretion.’’ (Internal quotation marks omitted.)
Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).