State v. Lin Qi Si ( 2018 )

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STATE OF CONNECTICUT v. LIN QI SI
(AC 39852)
DiPentima, C. J., and Sheldon and Harper, Js.
Syllabus
Convicted of the crime of negligent homicide with a commercial motor
vehicle in connection with an accident that occurred when the bus he
was driving struck and killed the decedent, a pedestrian crossing a road
at an intersection, the defendant appealed to this court. On appeal, he
claimed, inter alia, that the trial court erred by failing to instruct the
jury properly on the essential element of causation. Specifically, he
claimed that the jury charge was materially misleading because the jury
instructions on proximate causation could have led the jury to disregard
the conduct of the decedent entirely and, thus, to ignore the possibility
that she was the sole proximate cause of her own death. Held:
1. The defendant could not prevail on his claim that the trial court improperly
instructed the jury because it failed to instruct the jurors that it would
be a complete defense to the charge of negligent homicide with a com-
mercial motor vehicle that the decedent’s negligence was the sole proxi-
mate cause of her own death: although the trial court did not provide the
jury with the requested instruction verbatim, it included the substance
of the requested charge in its instructions, which correctly charged the
jury that proximate cause is an essential element of negligent homicide
with a commercial motor vehicle that the state must prove beyond a
reasonable doubt and, thus, effectively instructed the jury that the state
must disprove the defense of sole proximate cause, as proof that the
defendant’s negligence proximately caused the decedent’s death is nec-
essarily inconsistent with any claim that some other, concurrent cause
was the sole proximate cause of the death; moreover, the jury charge
was not materially misleading because, although certain portions of the
jury instructions misstated the applicable law with respect to the element
of proximate causation, namely, that it was the state’s obligation to
prove that it was not the negligence of the decedent that led directly
to her death, that instruction actually heightened the state’s burden of
proof to the benefit of the defendant so that no harm or injustice to the
defendant resulted, and there was no evidence in the record supporting
a finding that the instructions guided the jury to discount any fact or
set of facts inconsistent with the defendant’s guilt, as the evidence
presented did not establish that the decedent’s negligent conduct con-
tributed so substantially and materially to her own death that the defen-
dant could not have been a proximate cause of the death, and the jury’s
finding that the defendant’s negligence was a proximate cause of the
decedent’s death was supported by overwhelming evidence.
2. The trial court did not err when it provided the jury with a copy of the
jury charge during deliberations, as that was a permissible practice and
within the discretion of the court.
Argued April 16—officially released August 28, 2018
Procedural History
Information charging the defendant with the crime
of negligent homicide with a commercial motor vehicle,
brought to the Superior Court in the judicial district of
New London at Norwich, geographical area number
twenty-one, and tried to the jury before A. Hadden, J.;
verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
John F. Geida, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael L. Regan, state’s
attorney, and Thomas M. DeLillo, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Lin Qi Si, appeals from
the judgment of conviction, rendered against him after
a jury trial, on the charge of negligent homicide with
a commercial motor vehicle in violation of General Stat-
utes § 14-222a (b).1 The defendant was tried on that
charge under a long form information dated August 16,
2016, in which the state alleged that on December 5,
2012, he negligently operated a commercial motor vehi-
cle at the intersection of Sandy Desert Road and Trading
Cove Road on the premises of the Mohegan Sun Casino
(casino) in Montville, and thereby caused the death of
the decedent, Pui Ying Tam Li. On appeal, the defendant
claims that the trial court erred by (1) failing to instruct
the jury properly on the essential element of causation
and (2) providing the jury with a copy of the jury charge
during deliberations.2 We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On December 5, 2012, the defendant was working
as a bus driver for the Travel Sun Bus Company. At
approximately 12:15 p.m. on that day, he departed from
Boston, Massachusetts with at least forty passengers
and traveled to the casino in Montville, Connecticut.
At or about 2:52 p.m., after dropping his passengers off
at the casino and driving out of the bus parking lot, he
stopped in the southbound lane of Trading Cove Road
at a traffic light controlling its intersection with Sandy
Desert Road. As Sandy Desert Road enters the intersec-
tion from the east, it has three westbound lanes and
one large eastbound lane. The intersection is situated
between the casino employee parking lot to the north-
west and the Eagleview Employment Center to the
southeast, where shuttle buses transport employees to
and from the casino. While he was stopped at the light,
the defendant saw the decedent and her coworker, Tung
Lun Hom, cross Trading Cove Road in an easterly direc-
tion in the crosswalk directly in front of his bus. The
two continued walking to the sidewalk on the corner
to the defendant’s left, then turned right toward the
start of the southbound crosswalk across Sandy Desert
Road. Before entering the crosswalk, Hom looked at
the traffic light to his right, which controlled westbound
traffic stopped on Sandy Desert Road, and saw that it
was red. He did not look, however, at the signal on the
southeast corner of the intersection controlling pedes-
trian traffic on the crosswalk itself. When he did not
see any vehicles coming, he entered the crosswalk and
began to cross Sandy Desert Road with the decedent
close behind him.
Meanwhile, the defendant’s traffic light on Trading
Cove Road turned green. He looked left, right, and then
back at the traffic light before him, and began to make
a legal left turn into the eastbound lane of Sandy Desert
Road. At the same time, Hom and the decedent had
walked southbound in the crosswalk, almost all the
way across Sandy Desert Road, when Hom noticed the
bus suddenly approaching them from behind. He imme-
diately ran but fell down, and thus did not see what
happened to the decedent. While making his turn, the
defendant hit the decedent with his bus; she later died
of ‘‘multiple blunt traumatic injuries.’’ The defendant
did not see the decedent until the moment the bus
struck her.
A second eyewitness, Charles Trolan, was stopped
at the traffic light at the same intersection on Sandy
Desert Road, facing westbound in the lane closest to
the center of the road. The decedent and Hom walked
in front of his car as they crossed Sandy Desert Road
in a southerly direction. Trolan saw the decedent fall
to the ground but did not see what happened to her
before she fell because he was looking past her, down
the street to his left, for a parking spot. Because the
decedent fell to Trolan’s left, he reasoned that she was
more than halfway across the street when the bus hit
her.
A surveillance camera at the Eagleview Employment
Center, on the southeast corner of the intersection,
captured part of the incident on video. Hom and the
decedent can be seen in the video crossing in front of
the defendant’s bus as it stood at the light on Trading
Cove Road just seconds before the impact. No vehicles,
other than the defendant’s bus, drove through the inter-
section after they began to cross Trading Cove Road.
A ‘‘brown patch’’ obscured part of the camera’s view,
so the video does not clearly show where they were
located in the roadway when the defendant’s bus began
to turn, nor does it show where they were when the
decedent was struck by the bus. Photographs of the
scene reveal that after the impact, the bus came to a
stop straddling the crosswalk in the eastbound lane of
Sandy Desert Road. The beginning of a skid mark just
behind the bus is also visible in the photographs.
Retired State Trooper James Foley, an expert in acci-
dent reconstruction, went to the scene at about 4:30
p.m. on the day of the accident to gather physical evi-
dence, create a diagram of the scene, and ascertain
the timing sequence of the pedestrian crosswalk signal.
Based on the video, the location of the bus when it
stopped, and the skid mark, he opined that the decedent
was hit while she was in the crosswalk on the far side
of Sandy Desert Road from where she had begun to
cross it. The photographs also show the decedent’s
clothing, which had been cut away to facilitate emer-
gency medical treatment at the place where she fell,
lying in the roadway in front and to the right of the bus
where it came to rest. Foley’s original diagram of the
scene was drawn to scale; however, the key on the
diagram that indicates distances was enlarged after the
diagram was created, so he could not be sure that using
the diagram to calculate distances would lead to accu-
rate results.
State Trooper Jeffrey Rogers, the lead investigator
on the case, determined that the pedestrian crosswalk
signal controlling the crosswalk on the east side of the
intersection was either flashing red or solid red when
the decedent began to cross Sandy Desert Road at that
location; either signal would have indicated to a pedes-
trian in the decedent’s location that it was unsafe to
cross the road at that time and place. An inspection of
the bus revealed that it had no mechanical problems
that could have contributed to the accident. December
5, 2012, was a cold, clear day.
The trial court held a charging conference in cham-
bers and later summarized the contents of the confer-
ence on the record. The court then noted that defense
counsel had requested that the jury be instructed that,
‘‘if the negligence of the decedent was the sole proxi-
mate cause, that that is, in fact, a defense . . . .’’ The
court went on to say, ‘‘I did, in fact, point out [that]
this sentence is a sentence that is in compliance with
the law and is contained within the segment of my
charge that describes the obligation of the state to prove
beyond a reasonable doubt that the defendant was the
proximate cause of the death. And I will, in fact, empha-
size that by repeating that at the end of that paragraph.’’
In its charge, the court identified the four elements
of negligence and gave the following instructions on
the element of causation: ‘‘The third element is that the
defendant’s negligent operation of the motor vehicle
was the proximate cause of . . . the death . . . .
Proximate cause does not necessarily mean the last act
[of] cause, or the act in point of time nearest to the
death . . . . An act or omission to act is a proximate
cause of death when it substantially and materially con-
tributes, in a natural and continuous sequence, unbro-
ken by an efficient, intervening cause, to the death
. . . . When the result is a foreseeable and natural
result of the defendant’s conduct, the law considers
the chain of legal causation unbroken and holds the
defendant criminally responsible.’’
The court concluded its instructions on proximate
causation by saying: ‘‘Keep in mind that any negligence
on the part of the decedent . . . is irrelevant to your
determination of the defendant’s guilt or nonguilt of this
charge. [The decedent’s] reasonable or unreasonable
conduct does not relieve the defendant from his duty
to operate his motor vehicle in a careful and cautious
manner. Remember that it is the state’s obligation to
prove the element that it was the defendant’s negligent
operation of a motor vehicle which caused the death
of the decedent and not the negligence of the [decedent]
which led directly to the death.’’ The defendant chal-
lenges these last three sentences of the charge in this
appeal.
After concluding its deliberations, the jury returned
a verdict of guilty on the charge of negligent homicide
with a commercial motor vehicle. The defendant was
sentenced thereafter to six months’ incarceration, with
the execution of that sentence suspended, and two
years of probation. This appeal followed.
As an initial matter, we note that defense counsel
failed to submit a written request to charge on the
element of causation pursuant to Practice Book § 42-
16. ‘‘An appellate court shall not be bound to consider
error as to the giving of, or the failure to give, an instruc-
tion unless the matter is covered by a written request
to charge or exception has been taken by the party
appealing immediately after the charge is delivered.
Counsel taking the exception shall state distinctly the
matter objected to and the ground of exception.’’ Prac-
tice Book § 42-16. Even so, we conclude that counsel
adequately stated his objection on the record before
the jury charge and properly excepted to the charge
after it was given. Furthermore, the state has not argued
on appeal that the defendant failed to properly preserve
this claim. We will, therefore, address the merits of the
defendant’s claim of instructional error.
I
The defendant claims that the court improperly
instructed the jury because (1) it failed to instruct the
jurors that it would be a complete defense to the charge
of negligent homicide with a commercial motor vehicle
that the decedent’s negligence was the sole proximate
cause of her own death, and (2) the jury charge was
materially misleading with respect to the element of
proximate causation. We conclude that the substance
of the requested instruction was addressed in the
charge. We further conclude that, although certain por-
tions of the instructions misstated the applicable law,
the charge as a whole actually heightened the state’s
burden of proof on the element of causation to the
benefit of the defendant. Therefore, any instructional
error was harmless.
‘‘We begin with the well established standard of
review governing claims of instructional impropriety.
[I]ndividual jury instructions should not be judged in
artificial isolation, but must be viewed in the context
of the overall charge. . . . The pertinent test is whether
the charge, read in its entirety, fairly presents the case
to the jury in such a way that injustice is not done to
either party under the established rules of law. . . .
Thus, [t]he whole charge must be considered from the
standpoint of its effect on the [jurors] in guiding them
to the proper verdict . . . and not critically dissected
in a microscopic search for possible error. . . .
Accordingly, [i]n reviewing a constitutional challenge
to the trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . In
other words, we must consider whether the instructions
[as a whole] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury.’’
(Internal quotation marks omitted.) State v. Hampton,
293 Conn. 435, 452–53, 988 A.2d 167 (2009).
‘‘A jury instruction that improperly omits an essential
element from the charge constitutes harmless error if
a reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and sup-
ported by overwhelming evidence, such that the jury
verdict would have been the same absent the error.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Davis, 255 Conn. 782, 794, 772 A.2d 559 (2001).
‘‘[N]egligent homicide with a motor vehicle is a motor
vehicle violation and not an offense within the meaning
of General Statutes § 53a-24. We first note that the
degree of negligence prohibited by this statute is equiva-
lent to the ordinary civil standard of negligence, namely,
the failure to use due care.’’ (Internal quotation marks
omitted.) State v. Kluttz, 9 Conn. App. 686, 694–95, 521
A.2d 178 (1987).
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury . . . .’’ (Internal quotation
marks omitted.) Giacalone v. Housing Authority, 306
Conn. 399, 418, 51 A.3d 352 (2012) (Zarella, J., concur-
ring). In a criminal case, ‘‘the state must prove every
fact necessary to constitute the crime with which [the
defendant] is charged beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Salz, 226
Conn. 20, 28, 627 A.2d 862 (1993).
The first two elements of negligent homicide with a
commercial motor vehicle are that the defendant had
a duty to use due care in operating a commercial motor
vehicle and breached that duty. See Giacalone v. Hous-
ing Authority, supra, 306 Conn. 419 (Zarella, J., concur-
ring). ‘‘The ultimate test of the existence of the duty to
use care is found in the foreseeability that harm may
result if it is not exercised. . . . [T]he test is, would the
ordinary [person] in the defendant’s position, knowing
what he knew or should have known, anticipate that
harm of the general nature of that suffered was likely
to result . . . .’’ (Internal quotation marks omitted.) Id.
‘‘A defendant’s duty and breach of duty is measured by
a reasonable care standard, which is the care [that] a
reasonably prudent person would use under the circum-
stances.’’ (Internal quotation marks omitted.) Kumah
v. Brown, 160 Conn. App. 798, 804, 126 A.3d 598, cert.
denied, 320 Conn. 908, 128 A.3d 953 (2015).
The state must next prove that the defendant’s breach
of his duty of care caused the decedent’s death. ‘‘[I]n
order for legal causation to exist in a criminal prosecu-
tion, the state must prove beyond a reasonable doubt
that the defendant was both the cause in fact, or actual
cause, as well as the proximate cause of the victim’s
[death].’’ (Internal quotation marks omitted.) State v.
Collins, 100 Conn. App. 833, 843, 919 A.2d 1087, cert.
denied, 284 Conn. 916, 931 A.2d 937 (2007). ‘‘Proximate
cause in the criminal law does not necessarily mean
the last act of cause, or the act in point of time nearest
to death. The concept of proximate cause incorporates
the notion that an accused may be charged with a crimi-
nal offense even though his acts were not the immediate
cause of death. An act or omission to act is the proxi-
mate cause of death when it substantially and materially
contributes, in a natural and continuous sequence,
unbroken by an efficient, intervening cause, to the
resulting death.’’3 (Internal quotation marks omitted.)
State v. Spates, 176 Conn. 227, 233–34, 405 A.2d 656
(1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L.
Ed. 2d 475 (1979).
‘‘[A] jury instruction with respect to proximate cause
must contain, at a minimum, the following elements:
(1) an indication that the defendant’s conduct must
contribute substantially and materially, in a direct man-
ner, to the victim’s injuries; and (2) an indication that
the defendant’s conduct cannot have been superseded
by an efficient, intervening cause that produced the
injuries.’’ State v. Leroy, 232 Conn. 1, 13, 653 A.2d
161 (1995).
‘‘[C]ontributory negligence is not a defense in a . . .
[prosecution for] negligent homicide [with a motor vehi-
cle] . . . unless such negligence on the part of the
decedent is found to be the sole proximate cause of
[the] death.’’ State v. Scribner, 72 Conn. App. 736, 741,
805 A.2d 812 (2002). ‘‘If it is shown that the sole proxi-
mate cause of death is the decedent’s own negligence
rather than that of the defendant, there can be no con-
viction . . . . If, however, the defendant’s negligence
was the cause of the decedent’s death, the defendant
would be responsible under the statute whether or not
the decedent’s failure to use due care contributed to
his injuries, since contributory negligence is no defense
in such a case.’’ (Citation omitted.) State v. Pope, 6
Conn. Cir. Ct. 712, 714, 313 A.2d 84 (1972).
The complete defense of sole proximate cause to the
charge of negligent homicide with a commercial motor
vehicle is available only in circumstances where some
act or omission, other than the defendant’s negligence,
is shown to have been the only conduct that contributed
substantially and materially to the decedent’s death.
Proof that the decedent was the sole proximate cause
of her own death is necessarily inconsistent with the
proof required for conviction, that the defendant’s negli-
gence was a proximate cause of the death. In the event
such a sole proximate cause is proved, the state will
have failed to prove an essential element of the charge
and the defendant must be found not guilty. Where, by
the same token, a defendant’s negligence is proved to
have been a proximate cause of the decedent’s death
notwithstanding the causative contribution of other
concurrent causes to that death, then proof of such
proximate causation necessarily disproves that any
other cause was the sole proximate cause of the death.
With these principles in mind, we turn to the charge as
given in the present case.
The defendant first claims that the court improperly
instructed the jury because it failed to give an instruc-
tion that it would be a complete defense to the charge
of negligent homicide with a commercial motor vehicle
that the decedent’s negligence was the sole proximate
cause of her own death. We conclude that the trial
court did not err because, although it did not give the
requested instruction verbatim, it included the sub-
stance of such a charge in its instruction. Before the
court gave the challenged instructions, it correctly
charged the jury that proximate cause is an essential
element of negligent homicide with a commercial motor
vehicle that the state must prove beyond a reasonable
doubt by including the required language for an ade-
quate instruction on proximate causation from State
v. Leroy, supra, 232 Conn. 13. In doing so, the court
effectively instructed the jury that the state must dis-
prove the defense of sole proximate cause because
proof that the defendant’s negligence proximately
caused the decedent’s death is necessarily inconsistent
with any claim that some other, concurrent cause was
the sole proximate cause of the death.
The defendant also claims that the jury charge was
misleading. Specifically, the defendant argues that the
instructions on proximate causation could have led the
jury to disregard the conduct of the decedent entirely
and, thus, to ignore the possibility that she was the sole
proximate cause of her own death. Although a portion
of the instructions misstated the applicable law, we
conclude that the instructions actually heightened the
state’s burden of proof to the benefit of the defendant
so that no injustice to the defendant resulted. We further
conclude that the charge as a whole did not lead the
jury to disregard any fact or set of facts that might
have been found to raise reasonable doubt as to the
defendant’s guilt.
The first challenged sentence at the end of the court’s
instructions on proximate causation was as follows:
‘‘Keep in mind that any negligence on the part of the
decedent . . . is irrelevant to your determination of
the defendant’s guilt or nonguilt of this charge.’’ This
instruction is correct if read literally; the defendant
is, in fact, legally responsible for his own negligence
regardless of whether the decedent’s conduct was also
negligent. The concern raised by this instruction, how-
ever, is that the jury might interpret the word ‘‘negli-
gence’’ to mean conduct and, thus, might be led to
disregard facts suggesting that the decedent’s negligent
conduct was the sole proximate cause of her own death.
The conduct of the decedent is entirely relevant to the
defendant’s guilt in the sense that it is a critical part of
the circumstances surrounding the defendant’s alleged
negligence, which are obviously necessary for the jury
to consider in determining whether the state has proved
the essential elements of its case against him. If the
decedent’s negligent conduct contributed so substan-
tially and materially to her own death as to reduce the
causative contribution of the defendant’s negligence to
the point that it was not substantial or material, then the
defendant could not be convicted of negligent homicide
with a commercial motor vehicle because his negli-
gence could not be found to have been a proximate
cause of the decedent’s death.
The second challenged sentence in the causation
instructions reads as follows: ‘‘[The decedent’s] reason-
able or unreasonable conduct does not relieve the
defendant from his duty to operate his motor vehicle
in a careful and cautious manner.’’ This instruction is
a correct statement of law. See Wagner v. Clark Equip-
ment Co., 243 Conn. 168, 183, 700 A.2d 38 (1997).
The final challenged sentence in the causation
instructions reads as follows: ‘‘Remember that it is the
state’s obligation to prove the element that it was the
defendant’s negligent operation of a motor vehicle
which caused the death of the decedent and not the
negligence of the [decedent] which led directly to the
death.’’ If the court had instructed the jury that it was the
state’s obligation to prove that the defendant’s negligent
operation of a commercial motor vehicle proximately
caused the death of the decedent and stopped there,
its instruction would have been completely correct.
Instead, however, the court erred when it went on to
state that it was also the state’s obligation to prove that
it was ‘‘not the negligence of the [decedent] which led
directly to the death.’’
Although the court’s stated purpose in so instructing
the jury was to emphasize the complete defense of sole
proximate cause, this language overstated the state’s
burden of proof in two ways. First, the court’s instruc-
tion suggested that the state must prove that the defen-
dant’s negligence was the only proximate cause of the
decedent’s death. Second, it suggested, more particu-
larly, that the state must disprove that the decedent’s
negligence was a proximate cause of her own death.
Neither proposition is legally correct.
To begin with, it is well established that a cause can
be a proximate cause of a result or consequence even
if it is not the only cause of that result or consequence.
See Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383,
441 A.2d 620 (1982). Each of several concurrent causes
of a death can thus be a proximate cause of the death if
it contributed substantially and materially to producing
that result. As long as a particular act of negligence by
a defendant is proved to have been a substantial factor
in causing a death by contributing materially to produc-
ing it, the state can meet its burden of proof as to
proximate causation without disproving that any other
cause was also a proximate cause of the death. See
Rawls v. Progressive Northern Ins. Co., 310 Conn. 768,
777, 83 A.3d 576 (2014). There is, moreover, no specific
rule requiring the state to disprove that the decedent’s
own negligence was a proximate cause of her own
death, for even if such negligence was a proximate
cause, that fact, as previously noted, would not affect
the defendant’s guilt unless such negligence was shown
to have been the sole proximate cause of the death.
Here, then, by requiring the state to disprove that the
decedent’s negligence was a proximate cause of her
own death, the court required the state to prove more
than the law required of it to establish the element of
causation. The state’s burden of proof was in no way
diminished by these instructions; instead, the charge
doubly enhanced the burden that the state had to meet
to establish proximate causation and, therefore, caused
the defendant no harm or resulting injustice.
Furthermore, we must observe that there is no evi-
dence in the record supporting a finding that the instruc-
tions guided the jury to discount any fact or set of facts
inconsistent with the defendant’s guilt. The evidence
presented did not establish that the decedent’s negligent
conduct contributed so substantially and materially to
her own death that the defendant could not have been
a proximate cause of the death. There was, for example,
no evidence that the decedent darted into the street
from a place where she could not have been seen or her
actions could not have been anticipated by a reasonably
prudent bus driver exercising due care under the cir-
cumstances. Instead, overwhelming evidence was pre-
sented that the decedent was established in the
roadway, having walked in the crosswalk, in front of
at least three lanes of westbound traffic, while the
defendant was turning his bus in her direction. Two
eyewitnesses testified that she was more than halfway
across Sandy Desert Road when the bus struck her. An
expert opined that she was in the crosswalk at the time
of impact and was closer to her destination across the
roadway than to the point where she had entered the
crosswalk. Photographs of the scene supported his
opinion. There were, moreover, no external factors doc-
umented in the record, such as other vehicles, inclement
weather, or mechanical problems with the bus that
might have been found to negate the defendant’s negli-
gence or to reduce its causative contribution to the
decedent’s death to the point that it was not a proximate
cause of the death. It was a clear day and the defendant’s
vision was unobstructed. The defendant admitted that
he looked at the light in front of him, not at the cross-
walk to his left, as he began to make his fatal left turn.
The most persuasive fact in favor of the defendant’s
trial theory was the uncontested evidence that the dece-
dent crossed the street against the pedestrian crosswalk
signal. However, this fact alone was not so powerful
as to reduce the defendant’s causative contribution to
the decedent’s death to the point that it was no longer
substantial or material. Even if the jury found that the
decedent crossed the street unlawfully, that would at
most have suggested that her negligence contributed
substantially and materially to, and thus proximately
caused her death, not that it was the sole proximate
cause of her death. The defendant failed to see the
decedent in the roadway with no evidence in the record
as to why, in the exercise of reasonable care, he could
not have done so in time to avoid striking her when he
made his turn. Therefore, we conclude that the jury’s
finding that the defendant’s negligence was a proximate
cause of the decedent’s death was supported by over-
whelming evidence. For that reason as well, the court’s
instructional errors that increased the state’s burden
of proof as to causation had no prejudicial impact on
the jury’s verdict.
II
The defendant’s next claim on appeal is that the trial
court erred by providing the jury with a copy of the
jury charge during deliberations. We conclude that this
is a permissible practice and within the discretion of
the trial court. ‘‘[T]he practice of submitting written
instructions to the jury is permissible . . . .’’ State v.
Jennings, 216 Conn. 647, 665, 583 A.2d 915 (1990). More-
over, Practice Book § 42-23 (b) states in relevant part:
‘‘The judicial authority may, in its discretion, submit to
the jury . . . (2) [a] copy or tape recording of the judi-
cial authority’s instructions to the jury . . . .’’ There-
fore, we conclude that the court’s decision to provide
the jury with a copy of the jury charge during delibera-
tions was within the discretion of the trial court, and
there was no error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 14-222a (b) provides: ‘‘Any person who, in conse-
quence of the negligent operation of a commercial motor vehicle, causes
the death of another person shall be fined not more than two thousand five
hundred dollars or imprisoned not more than six months, or both.’’
2
The defendant also claims that a decedent’s contributory negligence
should be considered by the jury when the basis for the prosecution is
common-law negligence. We conclude that this claim was abandoned and
do not reach the claim on the merits. ‘‘The court shall not be bound to
consider a claim unless it was distinctly raised at the trial or arose subsequent
to the trial.’’ Practice Book § 60-5. ‘‘We are not required to review issues
that have been improperly presented to this court through an inadequate
brief . . . . Analysis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief the issue properly.’’
(Internal quotation marks omitted.) State v. Fowler, 178 Conn. App. 332,
345, 175 A.3d 76 (2017), cert. denied, 327 Conn. 999, 176 A.3d 556 (2018).
In our review of the record, this court could find only one reference to
contributory negligence by defense counsel, as he noted, ‘‘that’s an issue
for another day.’’ In his brief, the defendant’s argument on the issue is two
paragraphs long with no references to the law or facts in the record. Because
defense counsel did not request that the trial court give an instruction on
contributory negligence, did not take exception to the lack of such instruc-
tion and did not brief the issue beyond a bare assertion, we conclude that
he has abandoned this claim.
3
A useful, alternative way of characterizing conduct that is an actual
cause of the result but is not a proximate cause, is to say that the conduct
has been reduced to the point of triviality or inconsequence. ‘‘Remote or
trivial [actual] causes are generally rejected because the determination of
the responsibility for another’s injury is much too important to be distracted
by explorations for obscure consequences or inconsequential causes.’’ (Inter-
nal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 758, 563
A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated
Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).