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DOUGLAS R. BROWN ET AL., COADMINISTRATORS

(ESTATE OF FREDERICK DEVON MCALLISTER)

v. BRIDGEPORT POLICE DEPARTMENT ET AL.

(AC 35304)

Gruendel, Keller and Flynn, Js.

Argued November 12, 2014—officially released January 20, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Radcliffe, J.)

Antonio PonvertIII, with whom was Preston Tisdale,

for the appellants (plaintiffs).

Daniel J. Krisch, with whom was Betsy A. Edwards,

associate city attorney, for the appellees (defendant

city of Bridgeport et al.).
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 departmentreceived 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 indi-
cating 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 withBarnum 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 driverto 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 hospi-
tal, 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 § 53a22 (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 orthreatened 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 result the appellant wishes to reverse

derives from the trial errors claimed, rather than from

the other, independent issues at trial, there is no reason

to spend the judicial resources to provide a second

trial.’’ (Citation omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364,

371–72, 727 A.2d 1245 (1999).

Accordingly, under the general verdict rule, ‘‘an

appellate court will presume that the jury found every

issue in favor of the prevailing party . . . and decline

further appellate review. . . . Where there was an

error free path available to the jury to reach its verdict,

and no special interrogatories were submitted showing

which road the jury went down, any judgment rendered

on such a verdict must be affirmed.’’ (Citations omitted;

emphasis added.) Jackson v. H.N.S. Management Co.,

109 Conn. App. 371, 372–73, 951 A.2d 701 (2008). ‘‘[I]n

a case in which the general verdict rule operates, if any

ground for the verdict is proper, the verdict must stand;

only if every ground is improper does the verdict fall.’’

Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d

1276 (1994).

Our Supreme Court ‘‘has held that the general verdict

rule applies to the following five situations: (1) denial

of separate counts of a complaint; (2) denial of separate

defenses pleaded as such; (3) denial of separate legal

theories of recovery or defense pleaded in one count

or defense, as the case may be; (4) denial of a complaint

and pleading of a special defense; and (5) denial of a

specific defense, raised under a general denial, that had

been asserted as the case was tried but that should

have been specially pleaded.’’(Internal quotation marks

omitted.) Kalams v. Giacchetto, 268 Conn. 244, 255, 842

A.2d 1100 (2004). The third situation is implicated in

the present case, as the defendants pleaded, in their

third special defense, that Fitzgerald’s use of deadly

force was reasonable both ‘‘to make an arrest, prevent
an escape’’ as well as to ‘‘protect himself . . . from

deadly physical force . . . pursuant to General Statutes § 53a-22 (c).’’ That pleading thus set forth distinct

legal theories on which the jury could find that Fitzgerald’s use of deadly force was statutorily authorized.

We conclude that the general verdict rule precludes

review of the plaintiffs’ claim. The record reveals that

the plaintiffs did not request any interrogatories that

would clarify the jury’s findings with respect to those

separate legal theories under § 53a-22 (c) (1) and (2).

They do not argue otherwise in this appeal.

We likewise are not persuaded by the plaintiffs’ claim

that, despite their failure to request such an interrogatory, the fact that the defendants allegedly did so renders the general verdictrule inapplicable. The plaintiffs,

citing Vertex, Inc. v. Waterbury, 278 Conn. 557, 561 n.4,

898 A.2d 178 (2006), claim that as long as either party

requests an interrogatory that addresses the matter in

question, the general verdict rule is inapplicable. But

see Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d

888 (2004) (stating that reviewing court will presume

jury found every issue in favor of prevailing party if

jury renders general verdict for one party and ‘‘the party

raising a claim of error on appeal did not request’’ interrogatories). The plaintiffs’ claim fails because the interrogatory requested by the defendants does not directly

address the matter in question—namely, whether the

jury found that Fitzgerald’s use of deadly force was

authorized under § 53a-22 (c) (1) or (2).

The following additional facts are relevant to that

claim. Toward the close of the defendants’ case, the

court held a charging conference, at which counsel had

an opportunity to participate in the formulation of the

jury charge. The defendants’ counselrequested an interrogatory to ascertain whether the jury found that the

deadly blow was delivered as part of the six shots in

the field or the one shot later fired in the alley. As she

stated: ‘‘Judge, I just have one thought on interrogatories. I think it’s important for purposes of knowing how

this verdict was reached . . . to know whether the jury

found that the shooting was one of the first six shots

in the field or the seventh shot in the alley because

. . . there’s varying things that happened to justify or

not justify . . . those two separate uses of deadly

force. . . . [W]e know that only one bullet hit him. So,

it could only be either the seventh shot or one of the

first six shots in the field. . . . I think the jury should

be asked which one they find that it is, and I think they

know it has to be one of them, so they have to pick

one . . . . I don’t see how it hurts anything to have

them decide . . . and I think it’s important to know

how . . . on what set of facts they were finding the

justification for [the use of deadly] force . . . .’’

Counsel indicated that her primary concern was that,

absent her requested interrogatory, the jury’s delibera-
tions might be complicated in the event that they found

that the use of deadly force was justified in one instance,

but not the other. As she explained: ‘‘[L]et’s say that

they determine it was the seventh shot in the alley that

struck him. If they find that, their only consideration

is whether the use of deadly force at that moment was

justified. They can’t find that [Fitzgerald] was wrong

for taking the first six shots in the field if they didn’t

hit him and, conversely, they can’t find that the use—

for example, let’s say they hate the idea of the seventh

shot, it’s a horrible thing and [they] hate the seventh

shot. However, [they] find that more likely than not, it

was one of the first six in the field that hit him. I don’t

think that they can be allowed to deliberate—I think

they need to be instructed that they have to only choose

one or the other, and that is the one that they determine

is justified, not the other one, and I don’t see how it

hurts anything at all.’’ During a colloquy with counsel,

the court suggested that it could address that concern

in its instruction to the jury on proximate cause:

‘‘The Court: [T]he only statute we have to worry about

. . . is § 53a-22 (c)—do you find that the plaintiff has

proven that the use of deadly force was not justified?

So, if they find, whether it was in the field or whether

it was in the alley—if they find that the use of deadly

force was—if they find that it wasn’t justified for a

shot—and I can charge them on this, and I think you—

you may have a point there. If they find that the use of

deadly force was not justified at one location—

‘‘[The Defendants’ Counsel]: Right.

‘‘The Court: —and find that the fatal shot was not

fired at that location, then that use of deadly force

would not be the proximate—would not be the legal

cause of the decedent’s death.

‘‘[The Defendants’ Counsel]: Yes, that’s exactly—

‘‘The Court: However, if they find that a shot was

fired at a location and that the use of deadly force was

not justified, and that shot caused the death of the

decedent, then they would answer that the plaintiffs

have met their burden of proof and they would answer

yes to this interrogatory.

‘‘[The Defendants’ Counsel]: That addresses my concern; that’s what I was looking for.’’

The plaintiffs’ counsel then articulated his opposition

to such an instruction, stating that he ‘‘would oppose

that on this—on these grounds. That forces a decision

on the jury to decide which shot it was.’’ The plaintiffs’

counsel argued that ‘‘the instruction needs to advise

them that those elements need to co-exist at the time

of the fatal shot . . . without placing a burden on the

plaintiff that appears to or does require the jury to

identify specifically which shot it was. . . . They have

to find that there was no reasonable justification for

the fatal shot.’’ He further stated that he ‘‘would be
worried about an instruction that defined for [the jury]

the two areas where the shooting may have occurred’’

because there was evidence before the jury that ‘‘some

or all of the six shots were taken . . . somewhere in

the field between the patrol car and the SUV and the

entrance to the alley.’’ Next came a noteworthy

exchange between the court and the plaintiffs’ counsel:

‘‘The Court: But there’s an additional justification,

and the expert testimony showed that, there’s an additional justification for the use of deadly force in the

alley that didn’t apply in the field.

‘‘[The Plaintiffs’ Counsel]: True.’’

When the charging conference continued several

days later, the defendants’ counsel again requested ‘‘a

factual interrogatory about whether it was one of the

first six shots in the field or the seventh shot in the

alley because I do believe that that is an important

factual finding that relates to the rest of their decision

making in this case.’’ The court denied that request.

In the present case, the plaintiffs claim that the court

improperly instructed the jury on the use of deadly

force pursuant to § 53a-22 (c) (2). To avoid application

of the general verdict rule, they therefore must demonstrate that the requested interrogatory would have indicated whether the jury found that Fitzgerald’s use of

force was authorized under § 53a-22 (c) (1) or (2). They

cannot do so.

Had the court provided the interrogatory requested

by the defendants, the jury simply would have been

asked whether Fitzgerald delivered the deadly blow as

part of the six shots in the field or the one shot fired

in the alley. The answer to that factual question would

not shed light on whether the fatal shot was justified

pursuant to § 53a-22 (c) (2). Although the plaintiffs, in

both their appellate brief and at oral argument, focus

primarily on the shot fired in the alley, it nevertheless

remains, as counsel for the plaintiffs conceded at the

charging conference, that an ‘‘additional justification’’

for the use of deadly force existed for that shot. Put

differently, effecting an arrest or preventing escape pursuant to § 53a-22 (c) (2) was—in addition to defending

oneself from deadly physical force pursuant to § 53a22 (c) (1)—a justification potentially present in the

alley.5 As such, even if the defendants’ requested interrogatory had been given to the jury, the record still

would be inadequate to ascertain which of the two

justifications set forth in § 53a-22 (c) the jury found

applicable to the present case.

Irrespective of whether it found the fatal shot to have

been fired in the field or the alley, the jury nonetheless

could have found that Fitzgerald reasonably believed

that deadly force was necessary to defend himself from

the imminent use of deadly physical force pursuant to

§ 53a-22 (c) (1). The plaintiffs in this appeal do not
allege any error with respect to the court’s charge on

that subdivision of § 53a-22 (c), nor do they allege evidential insufficiency with respect thereto.6 As a result,

even if the court had provided the interrogatory

requested by the defendants, an error free path would

remain available for the jury to reach its verdict. The

present case thus is ‘‘a typical general verdict rule case’’

because ‘‘the record is silent regarding whether the jury

verdict resulted from the issue that the appellant seeks

to have adjudicated.’’ Curry v. Burns, 225 Conn. 782,

790, 626 A.2d 719 (1993). Accordingly, we conclude

that the general verdict rule precludes review of the

plaintiffs’ claim of instructional error.7

II

The plaintiffs also contend that the court 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.

‘‘The proper appellate standard of review when considering the action of a trial court in granting or denying

a motion to set aside a verdict is the abuse of discretion

standard. . . . In determining whether there has been

an abuse of discretion, every reasonable presumption

should be given in favor of the correctness of the court’s

ruling. . . . Reversal is required only [when] an abuse

of discretion is manifest or [when] injustice appears to

have been done. . . . [T]he role of the trial court on a

motion to set aside the jury’s verdict is not to sit as [an

added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached

the verdict that it did. . . . In reviewing the action of

the trial court in denying [or granting a motion] . . .

to set aside the verdict, our primary concern is to determine whether the court abused its discretion. . . . The

trial court’s decision is significant because the trial

judge has had the same opportunity as the jury to view

the witnesses, to assess their credibility and to determine the weight that should be given to [the] evidence.

Moreover, the trial judge can gauge the tenor of the

trial, as [this court], on the written record, cannot, and

can detect those factors, if any, that could improperly

have influenced the jury.’’ (Internal quotation marks

omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679,

698–99, 41 A.3d 1013 (2012); see also Palkimas v. Lavine, 71 Conn. App. 537, 542, 803 A.2d 329 (abuse of

discretion standard governs review of motion to set

aside verdict predicated on ‘‘improper remarks of counsel’’), cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).

The plaintiffs’ allegation of misconduct is twofold.

They argue that the defendants’ counsel improperly

elicited testimony at trial regarding McAllister’s criminal record, in contravention of the court’s order proscribing such evidence. The plaintiffs also claim that

the defendants’ counsel made improper references to
McAllister’s criminalrecord, his intoxication on the evening of January 31, 2008, and the possibility of ‘‘a trial

on [his] criminal charges’’ during her closing argument.

We address each claim in turn.

A

The plaintiffs first argue that the defendants’ counsel

wilfully violated the court’s order proscribing the introduction of evidence regarding McAllister’s criminal history.8 The following additional facts are relevant to that

claim. Priorto trial, the plaintiffs filed a motion in limine

to preclude, inter alia, evidence of McAllister’s criminal

history. The court partially granted that motion, stating

that ‘‘I think the jury should have a full picture of the

decedent [so, I will] allow some of that, but I may . . .

limit the testimony of that to specific instances, so that

this does not turn into a trial of the criminal history of

[McAllister].’’ The court also stated that the defense

could present such evidence ‘‘for [the] limited purpose’’

of establishing wrongful death damages. For that reason, the court concluded that such evidence was ‘‘relevant only on the issue of noneconomic damages and

for no other purpose.’’

The defense largely complied with those orders, submitting no documentary evidence or questions to witnesses regarding McAllister’s criminal history. As part

of their case-in-chief, the defendants called Tanisha

Benjamin as a witness. Benjamin testified that she was

McAllister’s girlfriend and was living with him at the

time of his death. Benjamin also testified that she had

found crack cocaine packaged for sale in a closet, which

led her to confront McAllister over her suspicion that

he was dealing drugs out of their home. Notably, the

defense did not ask her any questions about McAllister’s

criminal record.

On cross-examination, the plaintiffs’ counsel asked

Benjamin if she was ‘‘in love’’ with McAllister; she

answered, ‘‘[y]es.’’ Counsel then asked, ‘‘And did you

think he was in love with you?’’ Benjamin answered,

‘‘[n]o.’’

Soon after that testimony, the defendants’ counsel

began her redirect examination by asking Benjamin if

she was okay. At that moment, the court then asked

Benjamin if she wanted ‘‘to take a minute; why don’t

we just suspend for . . . just a minute.’’ The court then

instructed Benjamin to ‘‘[h]ave some water there. Just

take your time. You take your time and don’t—you tell

us when you’re ready.’’

When Benjamin indicated that she was ready to proceed, she engaged in the following colloquy with the

defendants’ counsel:

‘‘[The Defendants’ Counsel]: And we’ve . . . talked

about this many times before.

‘‘[Benjamin]: Yes.
‘‘[The Defendants’ Counsel]: And . . . you’re willing

to talk to me about that, right?

‘‘[Benjamin]: Yes.

‘‘[The Defendants’ Counsel]: And I know this is hard.

Why didn’t you believe that [McAllister] was in love

with you?

‘‘[Benjamin]: Because at the end, I felt like I didn’t

know why he lied to me, and he didn’t tell me he had

more children and about his criminalrecord. I felt that if

he loved me enough, he would have told me everything

instead of lying to me.

‘‘[The Defendants’ Counsel]: You felt like he wasn’t

the person that he represented himself to be to you?

‘‘[Benjamin]: Yes.

‘‘[The Defendants’ Counsel]: And you found out after

he died about his criminal record?

‘‘[Benjamin]: Yes.

‘‘[The Defendants’ Counsel]: What did you find out

about that?

‘‘[Benjamin]: He—

‘‘[The Plaintiffs’ Counsel]: Object.

‘‘The Court: Sustained.

‘‘[The Defendants’ Counsel]: Nothing further.

Thank you.

‘‘The Court: All right.’’

The plaintiffs did not move to strike Benjamin’s reference to McAllister’s criminal history, nor did they move

for a mistrial or seek a curative instruction from the

court. To the contrary, they asked a follow-up question

during their recross-examination of Benjamin:

‘‘[The Plaintiffs’ Counsel]: . . . [T]his alleged record

that we’re talking about; is that something that Attorney

Edwards told you?

‘‘[Benjamin]: Yes.

‘‘[The Plaintiffs’ Counsel]: Okay. Thank you.’’

On appeal, the plaintiffs now contend that the defendants’ counsel committed ‘‘blatant misconduct’’ marked

by ‘‘unconscionable behavior.’’ For several reasons, we

do not agree.

First, the record indicates that the defendants’ counsel did not raise the subject of McAllister’s criminal

history with any witness at trial. Second, with respect

to Benjamin’s testimony, counsel did not discuss that

criminal history during her direct examination of Benjamin. Rather, it was Benjamin who broached the subject

during redirect examination, and in response to the

question of why she believed that McAllister did not

love her—which was in direct response to the plaintiffs’
query, ‘‘[D]id you think he was in love with you?’’ Third,

at no time did the plaintiffs move to strike Benjamin’s

reference to McAllister’s criminal history, nor did they

move for a mistrial or seek a curative instruction from

the court.9 See State v. Luster, 279 Conn. 414, 428, 902

A.2d 636 (2006) (when opposing counsel ‘‘does not

object, request a curative instruction or move for a

mistrial, he presumably does not view the alleged

impropriety as prejudicial enough to seriously jeopardize [his client’s] right to a fair trial’’ [internal quotation

marks omitted]). Rather, their sole objection came in

response to a subsequent question as to precise details

of what Benjamin learned about that criminal record.

As a result, Benjamin’s earlierreferences to McAllister’s

criminal history were in evidence before the jury.

Fourth, the plaintiffs’ counsel proceeded to ask his own

follow-up question on McAllister’s criminal history to

Benjamin during his recross-examination. Having

declined to object to Benjamin’s testimony that McAllister had a criminal record and having subjected that

testimony to the crucible of cross-examination at trial,

it appears somewhat disingenuous to now claim on

appeal that the court abused its discretion in denying

the plaintiffs’ motion to set aside the verdict due to the

admission of that testimony into evidence.

Fifth, and perhaps most significantly, we are mindful

that a determination as to whether an attorney committed impropriety is a question of fact. See, e.g., Palkimas

v. Lavine, supra, 71 Conn. App. 546 (in cases alleging

improper argument by counsel, preliminary issue to be

resolved is whether the remarks were improper); see

also State v. Gibson, 302 Conn. 653, 659, 31 A.3d 346

(2011)(explaining that first step of prosecutorial impropriety analysis entails factual determination of whether

any impropriety occurred). In resolving that factual

inquiry, the court did not find that any impropriety had

transpired. During argument on the plaintiffs’ motion

to set aside the verdict, the court specifically noted that

‘‘as far as the motion in limine . . . I indicated very

clearly all the time that I couldn’t rule in a vacuum,

that there could be situations where the door might

be open to certain evidence, and I wasn’t going to be

precluded from making that determination based upon

a factual predicate.’’

The plaintiffs portray the isolated colloquy during

redirect examination of Benjamin as part of a cleverly

concocted and brilliantly executed plan by the defendants’ counsel to circumvent the court’s general preclusion of testimony regarding McAllister’s criminal

history.10 We decline to venture down that trail of speculation and conjecture, which ‘‘have no place in appellate

review.’’11 (Internal quotation marks omitted.) New

Hartford v.Connecticut ResourcesRecovery Authority,

291 Conn. 502, 510, 970 A.2d 578 (2009). Instead, we

view the cold record before us, cognizant of the trial

court’s superior vantage point and the deference
accorded thereto. We therefore conclude that the defendants’ counsel did not improperly elicit testimony from

Benjamin regarding McAllister’s criminal record.

B

We next consider the plaintiffs’ claim that the defendants’ counsel engaged in improper argument in her

closing remarks. ‘‘[T]he trial court is invested with a

large discretion with regard to the arguments of counsel

. . . . [W]hile its action is subject to review and control, we can interfere only where the discretion was

clearly exceeded or abused to the manifest injury of

some party. . . . In fact, the court must allow [c]ounsel

. . . a generous latitude in argument, as the limits of

legitimate argument and fair comment cannot be determined precisely by rule and line, and something must

be allowed for the zeal of counsel . . . .’’ (Citations

omitted; internal quotation marks omitted.) Skrzypiec

v. Noonan, 228 Conn. 1, 15–16, 633 A.2d 716 (1993).

Closing argument by the defendants’ counsel extends

over thirty pages of the October 17, 2012 transcript. At

issue is one paragraph therefrom, in which counsel

argued: ‘‘[I]f [McAllister] had pulled over in response

to [Fitzgerald’s] light and sirens, none of this ever would

have happened. It would not have happened. And one

of the things that you are going to be asked to address

by the judge in your deliberations is something called

causation. And causation is what it sounds like; it’s

what’s the cause. What caused this? And you have to

determine, what caused this? Was it any bad act by

[Fitzgerald] or the Bridgeport Police Department? Was

it caused by [McAllister’s] illegal actions? And I told you

at the beginning of this case, everything that happened

happened because of what [McAllister] did. This never

would have happened if he pulled over and allowed

himself to be identified. This never would have happened if he didn’t crash through a fence and hit a tree.

It never would have happened if he hadn’t gotten out

of his car and disobeyed [Fitzgerald], threatened him,

yelled at him, tried to escape, that never would have

happened. And you might . . . wonder, well, why

would [McAllister] do this? Why would he act this way?

And I think we all know why he would act this way.

He’s got a criminal record. He is a drug dealer. He’s

got someone in the car who has a gun. He doesn’t have

a driver’s license. He is intoxicated. He is trying to

avoid the police. He has every reason to avoid the police,

but he can’t do that. That is not how it works. If you

don’t believe you should be . . . pulled over, you don’t

believe you should be arrested; we have a court for

that. That is why we are here. We could have had a

trial on [McAllister’s] criminal charges. You would be

the jury. We could have had a trial if he had a false

arrest claim, if he thought for some reason he was

unjustly arrested. We could have had a trial about that.

He would have been here. But instead we are having
a trial about his death, and we didn’t need to have that

trial. We have courts so that we can address issues like

this. [McAllister] didn’t want to be in that system. He

didn’t want to obey the police. He didn’t want to go

through the court system. He wanted to run and hope

he got away.’’ (Emphasis added.)

The plaintiffs claim that the defendants’ counsel

improperly argued that McAllister had ‘‘a criminal

record’’ and was ‘‘intoxicated’’ on the night of January

31, 2008. Those claims require little discussion. Her

single reference to the criminal record simply mirrored

the aforementioned testimony from Benjamin at trial.

Her reference to McAllister being intoxicated at the

time of his encounter with Fitzgerald likewise finds

evidentiary support in the record before us. The toxicology report filed as part of the autopsy performed by

the Office of the Chief Medical Examiner, which was

introduced into evidence at trial, confirmed that

McAllister had a blood alcohol level between 0.08 and

0.09 at the time of his death. In ruling on the plaintiffs’

pretrial motion in limine, the court held that although

such evidence was not ‘‘an objective standard of intoxication . . . it is relevant to show that there was some

use of a substance of this nature, which the jury might

be able to consider for whatever it wishes . . . .’’ The

court also clarified that ‘‘just the mere fact that he had

been drinking is something that maybe the trier of fact

can consider.’’ In light of the toxicology report admitted

at trial, we conclude that the defendants’ counsel’s single reference to the fact that McAllister was ‘‘intoxicated’’ at the time of the encounter with Fitzgerald fell

within the bounds of fair argument on the evidence.

Last, the plaintiffs assail the reference by the defendants’ counsel to the possibility of having ‘‘a trial on

[McAllister’s] criminal charges . . . .’’ They argue that

this statement both improperly referenced McAllister’s

criminal history and was ‘‘factually false and intentionally misleading.’’12 The plaintiffs misconstrue that statement. Read in the context of the full statement by the

defendants’ counsel, it appears plain to us that she

was not referencing McAllister’s criminal history or any

charges that were pending prior to his encounter with

Fitzgerald. Rather, she was noting that McAllister could

have opted to pull his vehicle over instead of fleeing

when Fitzgerald attempted to effectuate a motor vehicle

stop. McAllister then could have challenged the propriety of that police stop and any criminal charges stemming therefrom in a court of law. For that reason, we

perceive no impropriety with the statement to that

effect by the defendants’ counsel.

C

Even if we were to conclude that any statements by

the defendants’ counsel were improper, the plaintiffs

still could not prevail. To obtain a reversal of the court’s

decision to deny their motion to set aside the verdict,
the plaintiffs must demonstrate that they suffered manifest injury. Sturgeon v. Sturgeon, 114 Conn. App. 682,

690, 971 A.2d 691 (harmed party seeking to set aside

judgment in civil case must show manifest injury), cert.

denied, 293 Conn. 903, 975 A.2d 1278 (2009).

In denying the motion to set aside, the court aptly

noted: ‘‘[A]s to the criminal record, there was some

testimony from one witness, the girlfriend of the decedent, who testified that she learned from the city attorney’s office that the decedent had a criminal record,

that both the source of the information and the statement were before the jury in evidence; that’s all the

jury had heard. I think the jury was properly informed

and followed the instruction that closing arguments are

not evidence, they are merely argument and designed

to help the jury interpret the evidence, but it’s the jury’s

recollection of the evidence that controls. The fact that

that one piece of evidence was before the jury, I don’t

believe affected or impacted the jury’s verdict in any

way in determining the use of deadly force, the negligence of the officers of the city of Bridgeport, other

than [Fitzgerald], and whether or not that negligence

was a substantial factor in causing injury. It might have

provided a motive to flee, but . . . there was no real

contest or real issue over the fact that he did flee or

did try to evade apprehension by a police officer whose

lights and sirens were in operation at the time. So, the

jury had, I think, ample evidence to find as it did . . . .’’

We concur with that assessment, and emphasize that

the ‘‘action of the trial court is entitled to weight

because of the vantage point from which it can observe

and evaluate the circumstances of the trial. The trial

court is in a better position to determine the propriety

of the remarks of counsel and whether or not they are

harmful.’’ State v. Glenn, 194 Conn. 483, 493, 481 A.2d

741 (1984). In Yeske v. Avon Old Farms School, Inc., 1

Conn. App. 195, 205, 470 A.2d 705 (1984), this court held

that, in the context of civil cases, ‘‘[a] verdict should be

set aside if there has been manifest injury to a litigant,

and it is singularly the trial court’s function to assess

when such injury has been done since it is only that

court which can appraise the atmosphere prevailing

in the courtroom.’’ We decline to disturb the court’s

determination that the allegedly improper conduct by

the defendants’ counsel did not cause manifest injury

to the plaintiffs. We therefore cannot say that the court

abused its discretion in denying their motion to set

aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although the plaintiffs initially named the Bridgeport Police Department

as an additional defendant, they withdrew all claims against that entity

at trial.

2 Detective William Reilly testified that roll call occurs at the beginning

of an officer’s shift and that the most important information conveyed at

that time is information about wanted persons.
3 Fitzgerald testified that an officer working an extra duty road job was

considered to be on duty by the department.

4 No weapon was recovered from the field. Officers did find a cell phone

in the field near the SUV.

5

In their reply brief, the plaintiffs contend that counsel for the defendants

conceded during the charging conference that—in the plaintiffs’ words—

’’the only possibly applicable statutory justification for Fitzgerald’s use of

deadly force’’ for the seventh shot in the alley was to effect an arrest or

prevent escape pursuant to § 53a-22 (c) (2). The plaintiffs characterize that

statement as a ‘‘binding judicial admission.’’(Emphasis omitted.) A review of

the transcripts reveals that the defendants’ counsel made no such sweeping

concession. Rather, she repeatedly noted that the justification for the use

of deadly force in the field differed from that with respect to the seventh

shot in the alley. After the court clarified that ‘‘there’s an additional justification for the use of deadly force in the alley that didn’t apply in the field,’’

the court stated that ‘‘the second justification [pursuant to subdivision (2)]

is inapplicable to the first six shots. It might be, based on what the trier of

fact might find, applicable to the seventh.’’ The defendants’ counsel then

indicated her agreement with those propositions by responding, ‘‘Right.’’

Two concessions emerge from those statements. First, the defendants

acknowledged that the second justification pursuant to subdivision (2) did

not apply to the shots fired in the field. Second, the potential justification

for the use of deadly force in the alley differed from that in the field. The

latter concession is entirely consistent with the defendants’ argument at

trial that both justifications under § 53a-22 (c) (1) and (2) were implicated

by the seventh shot fired in the alley.

6 During cross-examination by the plaintiffs’ counsel, Fitzgerald testified

in relevant part:

‘‘[The Plaintiffs’ Counsel]: . . . [A]t the time that you took your seven

shots at [McAllister], you believed you were at risk of bodily harm or

death, correct?

‘‘[Fitzgerald]: Yes.

‘‘[The Plaintiffs’ Counsel]: And it’s that alleged or that perceived threat

to you that in your view . . . justified you taking the seven shots at him?

‘‘[Fitzgerald]: Not just in my view, I believe I have the right by state

law. . . .

‘‘[The Plaintiffs’ Counsel]: . . . And your purpose in shooting [McAllister]

seven times was to protect yourself from the alleged threat that he posed

to you?

‘‘[Fitzgerald]: On the threat, yes. . . .

‘‘[The Plaintiffs’ Counsel]: . . . [T]he reason that you took the seventh

shot was because you believed [McAllister] posed a risk of harm to you?

‘‘[Fitzgerald]: I thought he was about to turn around and kill me.’’

7 We further note the unique procedural posture of this case. Not only

did the plaintiffs fail to submit any interrogatories pertaining to the issue

they now seek to have adjudicated, they also opposed the interrogatory

requested by the defendants. Moreover, when the court—after a lengthy

discussion of proposed interrogatories—stated that ‘‘[w]e’re getting very

close to a general verdict in this case, and I don’t know who that helps,’’

the plaintiffs’ counsel responded that ‘‘[a] general verdict is looking pretty

good.’’ The court then suggested that it could simply provide the jury with

both a plaintiffs’ verdict form and a defendants’ verdict form for each count.

The plaintiffs’ counselresponded, ‘‘I agree.’’ When counsel forthe defendants

then restated her view that ‘‘a general verdict form would be inappropriate’’

under the circumstances, the plaintiffs’ counsel replied, ‘‘I argue the

opposite.’’

Permitting an appellant, who, when before the trial court, argued against

the inclusion of a interrogatory request by the opposing party, to now rely

on that very interrogatory strikes this court as inequitable and contrary to

well established law regarding induced error. ‘‘[T]he term induced error, or

invited error, has been defined as [a]n error that a party cannot complain

of on appeal because the party, through conduct, encouraged or prompted

the trial court to make the erroneous ruling. . . . It is well established that

a party who induces an error cannot be heard to later complain about that

error.’’ (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39,

59 n.32, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167

L. Ed. 2d 85 (2007). Indeed, the defendants in their appellate brief argue,

inter alia, that ‘‘the plaintiffs told the trial court that they agreed with the

language of the interrogatory, which waived their right to disagree with

it now.’’
We already have determined that the interrogatory requested by the defendants would not have resolved the inadequacy of the record with respect

to the basis of the jury’s finding that Fitzgerald’s use of deadly force was

authorized under § 53a-22 (c). We therefore need not consider whether any

induced error on the part of the plaintiffs provides an independent basis

for determining that the general verdict rule applies in this case.

8 The plaintiffs aver that ‘‘[d]efense counsel’s calculated violation of the

court’s preclusion order also ran afoul of the Rules of Professional Conduct.

See, e.g., Rule 3.4 . . . .’’ We decline to address that bald assertion set forth

in a footnote to their principal appellate brief.

9 To be clear, the plaintiffs objected to a follow-up question by the defendants’ counsel, by which she sought to ascertain what Benjamin learned

about McAllister’s criminal record. The court sustained the objection to that

line of inquiry, and the defendants’ counsel immediately concluded her

redirect examination.

10 During argument on the plaintiffs’ motion to set aside the verdict, the

defendants’ counsel expressed her incredulity with that allegation, noting

that if the plaintiffs’ counsel ‘‘had sat down without asking [Benjamin] any

questions at all, this never would have happened.’’

11 During argument on their motion to set aside the verdict, the plaintiffs’

counsel argued that Benjamin’s reference to McAllister’s criminal history

was ‘‘the most manufactured piece of colloquy of examination of a witness

I believe I’ve ever seen . . . . I mean, it was just a setup . . . .’’ The trial

court, having observed that colloquy at trial and the context in which it

arose, nevertheless rejected that argument.

12 On that point, the plaintiffs argue that ‘‘as defense counsel well knew,

we could not have a trial on [McAllister’s] criminal charges because there

were no criminal charges pending against him anywhere in or near this

jurisdiction.’’ (Emphasis omitted.)