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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 governmental 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 demonstrate 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 defendants’ 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 defendants’ 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 plaintiff 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 sustained 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 approximately 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 driving his marked police cruiser west on Flint Street, in

the opposite direction in which the plaintiff was traveling. 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 ambulance transported the plaintiff to Yale New Haven Hospital 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 General 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 comparative 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 discretionary 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 providing 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 interrogatories. The interrogatories asked, in relevant part: ‘‘Did

the plaintiff prove by a fair preponderance of the evidence 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 Conklin 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 findings and conclusions contained in unrelated IA investigative reports regarding alleged misconduct and dishonesty 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 relevant 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 Connecticut Code of Evidence, sought to preclude the plaintiff from asking questions or admitting evidence regarding 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 precise 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 Connecticut 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 plaintiff 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 ‘‘findings’’ 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 investigator’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 decision 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 findings 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, including 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 defendant 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 Conklin had engaged in misconduct and was dishonest,

rather than evidence of the misconduct itself. The plaintiff 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-examination. . . . Thus, [w]e will make every reasonable

presumption in favor of upholding the trial court’s ruling[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 omitted.) 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 decision 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 membership organization. Id., 418. The censure included the

organization’s determination that the expert had violated 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’ credibility allows a party to cross-examine a witness about

the witness’ prior misconduct (other than a felony conviction, 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 misconduct . . . 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 misconduct 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 precludes cross-examination of the witness about another’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 [appellate] cases from this state directly addressing this question,’’ 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 Witness: 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 dishonesty. ‘‘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 crossexamination of a police officer, the government cannot

make reference to [the witness’] forty-four day suspension 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 officer. . . . This court concluded that the judge’s comment 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 therefore the comment did not sufficiently relate to the officer’s credibility. . . . Professor Tait and Judge Prescott go further in their treatise, explaining that counsel

could not have asked the officer about the judge’s comment [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 contained within the IA reports constitute extrinsic evidence 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 questioning Conklin about the conclusions and findings contained 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 conclude 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 immunity7

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 question 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 discretion 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 municipal 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).