State v. Bialowas

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STATE OF CONNECTICUT v.
KEVIN S. BIALOWAS
(AC 36250)
DiPentima, C. J., and Kahn and Sullivan, Js.*
Syllabus
Convicted, following a jury trial, of the crimes of manslaughter in the second
degree and evasion of responsibility in the operation of a motor vehicle
in violation of statute ([Rev. to 2009] § 14-224 [a]), the defendant
appealed to this court. The defendant’s conviction stemmed from a
dispute involving the victim’s girlfriend during which the victim allegedly
stated that he intended to fight the defendant. The defendant drove his
truck toward the victim, who jumped on the hood of the truck and fell
off as the defendant swerved the truck, causing the victim to sustain
head injuries that resulted in his death. The defendant then drove away
from the scene and did not stop his vehicle or pull over. On appeal, he
claimed that the trial court committed plain error by failing to instruct
the jury sua sponte that the defendant’s reasonable fear of harm from
the victim would be a defense to the charge of evasion of responsibility
in the operation of a motor vehicle under § 14-224 (a) for failing to stop
and render assistance. After this court held that the defendant implicitly
waived his right to raise a claim of instructional error and affirmed
the judgment, the defendant filed a petition for certification with our
Supreme Court, which remanded the matter to this court to consider
the merits of the defendant’s plain error claim. On remand, held that
the trial court’s failure to provide, sua sponte, the instruction on reason-
able fear of harm from the victim did not constitute plain error: the
instruction given by the court on the elements of § 14-224 (a) was correct
in the law and sufficient for the guidance of the jury, which reasonably
could have found that the defendant had a reasonable fear of harm from
the victim that excused him from stopping and providing information
at the scene of the accident, but that the defendant’s fear did not excuse
his failure to report the incident immediately to a law enforcement
officer or to the nearest police precinct or station, as required by § 14-
224 (a), and, therefore, the defendant’s claim did not involve an error
so obvious that it affected the fairness of or public confidence in the
judicial proceeding; moreover, the defendant did not demonstrate that
the court’s failure to give the instruction was so harmful or prejudicial
that it resulted in manifest injustice necessitating reversal, as the state
presented overwhelming evidence against the defendant to prove the
evasion of responsibility charge, it having been undisputed that the
defendant never reported the incident under the mandate of the statute.
Argued September 20—officially released November 21, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder and evasion of responsibility in
the operation of a motor vehicle, brought to the Supe-
rior Court in the judicial district of New London and
tried to the jury before A. Hadden, J.; verdict and judg-
ment of guilty of the lesser included offense of man-
slaughter in the second degree and of evasion of
responsibility in the operation of a motor vehicle, from
which the defendant appealed to this court, which
affirmed the judgment; thereafter, the defendant filed
a petition for certification to appeal with our Supreme
Court, which remanded the matter to this court to con-
sider the defendant’s claim. Affirmed.
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant was convicted of man-
slaughter in the second degree in violation of General
Statutes § 53a-56 and evasion of responsibility in the
operation of a motor vehicle in violation of General
Statutes (Rev. to 2009) § 14-224 (a). He was sentenced
to twenty years of imprisonment, execution suspended
after fifteen years, followed by five years of probation.
He appealed, claiming that the trial court committed
plain error by failing to instruct the jury that a defen-
dant’s reasonable fear of harm from the victim would
be a defense to the charge of failing to stop and render
assistance under § 14-224 (a). This court affirmed the
defendant’s conviction, holding that he had waived his
challenge to the evasion of responsibility jury instruc-
tion under State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2016).1 See State v. Bialowas, 160 Conn. App. 417,
125 A.3d 642 (2015), remanded, 325 Conn. 917, 163 A.3d
1204 (2017). The defendant filed a petition for certifica-
tion to the Supreme Court, arguing that this court
improperly failed to conduct a plain error review of his
claim of error with respect to the evasion of responsibil-
ity instruction. While the petition was pending, our
Supreme Court released its decision in State v. McClain,
324 Conn. 802, 812, 155 A.3d 209 (2017), holding that
a Kitchens waiver does not preclude appellate relief
under the plain error doctrine. Thus, the Supreme Court
granted the defendant’s petition and remanded the mat-
ter to this court. State v. Bialowas, 325 Conn. 917, 163
A.3d 1204 (2017). In light of McClain, we review the
defendant’s claim pursuant to the plain error doctrine
and, accordingly, affirm the judgment of the trial court.
As this court noted in its previous decision, the jury
reasonably could have found the following facts: ‘‘The
defendant and Jennifer Sanford met in October, 2005,
and became romantically involved. Shortly thereafter,
they began living together. On January 9, 2008, in an
unrelated criminal matter, the defendant was convicted
of several tax offenses . . . and he was subsequently
sentenced to a period of incarceration. In April, 2009,
while the defendant was incarcerated, Sanford began
a relationship with the victim, Steven Germano. Sanford
and the victim resided together while the defendant
was incarcerated. . . . The defendant and Sanford
remained in contact by letter during his period of incar-
ceration, and the two planned to resume their relation-
ship when he was released. The victim was aware of
these communications and did not want Sanford to
resume her relationship with the defendant upon his
release from prison. . . .
‘‘[On July 14, 2009], the defendant was released from
the custody of the Department of Correction, and he
drove to see Sanford at her father’s home in Baltic.
When the defendant arrived, Sanford was at the resi-
dence with her father, her son, and the victim. The
victim wanted to fight the defendant, but Sanford inter-
vened and told the victim to leave the premises. The
victim drove away in his dark blue truck. Shortly there-
after, Sanford and the defendant left the house in a
white Ford pickup truck driven by the defendant. As
they approached the end of the driveway, the defendant
and Sanford witnessed the victim pass as he travelled
toward Norwich. Then, the defendant and Sanford
pulled out onto Route 207 and were travelling behind
the victim.
‘‘[Shortly thereafter], the victim pulled off the road-
way and allowed the defendant and Sanford to pass
him. When the defendant and Sanford passed the victim,
he pulled right out behind [them] and just followed
[them]. The defendant increased his speed to see if the
victim would follow, and he did. While the two trucks
proceeded, the victim called the defendant’s cell phone.
Sanford answered, and the victim demanded that she
exit the defendant’s truck. The victim told Sanford that
he wanted to fight the defendant and, in response, San-
ford said that the defendant was not a fighter. The
defendant became distracted while driving and hit a
telephone pole, causing damage to his vehicle.
‘‘The defendant and Sanford continued to travel in
the defendant’s truck for approximately fifteen miles
from Baltic into Norwich, and the victim continued
to follow them in his vehicle. At a stop sign at the
Norwichtown Green, the victim pulled his truck in front
of the defendant’s truck. The victim exited his vehicle
and began waving his hands in the air. As the victim
approached the defendant’s truck, Sanford locked the
doors. The defendant reversed his truck a distance of
fifteen to twenty feet, shifted the gears into drive, and
accelerated toward the victim. The victim jumped on
the hood of the defendant’s vehicle, with his face
pressed up against the windshield. The defendant
swerved, and the victim fell off the hood of the truck,
striking his head on the pavement.
‘‘At first, Sanford thought that the victim was joking,
or playing possum, in an attempt to trick [the defendant]
into stopping, or to get the defendant into trouble with
his parole officer. When Sanford realized that the victim
was not getting up off the ground, she asked the defen-
dant to stop the vehicle. The defendant refused to pull
over because he did not have a driver’s license, and the
vehicle that he was operating was not registered or
insured. The defendant and Sanford then drove away
from the scene of the collision.
‘‘The defendant had access to a commercial garage
located in Bozrah and drove the truck there following
the incident. Sanford attempted to contact the victim
by calling his cell phone, but a police officer answered,
and she hung up after providing the officer with a false
name. The defendant told Sanford to take the batter[y]
out of the cell phone that she had used to call the victim
so that the police could not locate it. . . .’’
‘‘The next day, on July 15, 2009, the defendant met
with his parole officer. The Norwich Police Department
had developed the defendant as a suspect in the inci-
dent, and, accordingly, his parole officer transported
him to the police station for questioning. Officer
Thomas Lazzaro of the Norwich Police Department
interviewed the defendant, but did not place him under
arrest. On July 20, 2009, the victim died at the hospital
as a result of the head trauma he suffered as a result
of the collision. Thereafter, the defendant was arrested
and was charged by information with murder in viola-
tion of General Statutes § 53a-54a and evasion of
responsibility in the operation of a motor vehicle in
violation of § 14-224 (a).2
‘‘A jury trial was held in September and October,
2012. On October 1, 2012, following closing arguments,
the court, A. Hadden, J., charged the jury. With respect
to the evading responsibility charge, the court read the
pertinent part of § 14-224 (a) to the jury and then
explained the four elements of the crime that the state
had to prove beyond a reasonable doubt: (1) the defen-
dant operated a motor vehicle; (2) the defendant was
knowingly involved in an accident; (3) the accident
caused serious physical injury or death to a person;
and (4) the defendant did not stop at once and render
assistance as needed and did not give his name, address,
operator’s license number, and registration number to
either the person injured . . . the witness to the acci-
dent or an officer. If, for any reason or cause, the
defendant was unable to provide the required informa-
tion at the scene of the accident, the law requires him
to immediately report the accident to a law enforcement
officer or to the nearest police station.
‘‘The defendant did not take an exception to the
court’s charge on the ground that it did not explain that
the defendant’s reasonable fear for his safety would
provide an excuse that would justify his failure to stop.
[After receiving the proposed charge from the judge],
the defendant submitted a written request to charge on
the defense of justification. In his written request to
charge the jury, the defendant did not request an
instruction that a defendant’s reasonable fear of harm
from the victim would be a possible defense to the
charge of failing to stop and render assistance under
§ 14-224 (a).
‘‘The jury found the defendant guilty of evasion of
responsibility in the operation of a motor vehicle and
the lesser included offense of manslaughter in the sec-
ond degree. The court imposed a total effective sen-
tence of twenty years incarceration, execution
suspended after fifteen years, followed by five years of
probation.’’ (Citations omitted; emphasis added; foot-
notes altered; internal quotation marks omitted.) State
v. Bialowas, supra, 160 Conn. App. 419–23.
The defendant claims that the court committed plain
error by failing to instruct the jury on the reasonable
fear of harm from the victim defense to the charge of
evasion of responsibility in the operation of a motor
vehicle under § 14-224 (a), as articulated in State v.
Rosario, 81 Conn. App. 621, 841 A.2d 254, cert. denied,
268 Conn. 923, 848 A.2d 473 (2004).3 The state, in turn,
argues that the omission of the instruction was not
plain error. We agree with the state and conclude that
the court properly instructed the jury.
‘‘[T]he plain error doctrine in Connecticut, codified
at Practice Book § 60-5, is an extraordinary remedy used
by appellate courts [only] to rectify errors committed
at trial that, although unpreserved, are of such monu-
mental proportion that they threaten to erode our sys-
tem of justice and work a serious and manifest injustice
on the aggrieved party.’’ (Internal quotation marks omit-
ted.) State v. Bellamy, 323 Conn. 400, 437, 147 A.3d 655(2016). The court in McClain emphasized that ‘‘[i]t is
axiomatic that, [t]he plain error doctrine . . . is not
. . . a rule of reviewability. It is a rule of reversibility.
That is, it is a doctrine that [our courts invoke] in order
to rectify a trial court ruling that, although either not
properly preserved or never raised at all in the trial
court, nonetheless requires reversal . . . for reasons
of policy. . . . Put another way, plain error review is
reserved for only the most egregious errors. When an
error of such magnitude exists, it necessitates reversal.’’
(Citation omitted; internal quotation marks omitted.)
State v. McClain, supra, 324 Conn. 813–14.
The plain error doctrine has two prongs, both of
which the defendant must meet to prevail. State v. Jam-
ison, 320 Conn. 589, 597, 134 A.3d 560 (2016). The first
prong requires that the error is ‘‘indeed plain in the
sense that it is patent [or] readily discernible on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable.’’ (Internal quota-
tion marks omitted.) State v. Myers, 290 Conn. 278, 287,
963 A.2d 11 (2009). With respect to the second prong,
the defendant must demonstrate that the ‘‘failure to
grant relief will result in manifest injustice.’’ (Internal
quotation marks omitted.) Id., 288. In the present case,
we conclude that the defendant cannot meet either
prong of this demanding standard.
The defendant claims that the court committed error
when it failed to instruct the jury on the reasonable
fear of harm defense. ‘‘[A] defendant is entitled to have
the jury correctly and adequately instructed on the perti-
nent principles of substantive law.’’ (Internal quotation
marks omitted.) State v. Roger B., 297 Conn. 607, 618,
999 A.2d 752 (2010). Nonetheless, ‘‘[t]he test of a court’s
charge is not whether it is as accurate upon legal princi-
ples as the opinions of a court of last resort but whether
it fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper.’’ (Internal quotation marks
omitted.) Stafford v. Roadway, 312 Conn. 184, 189, 93
A.3d 1058 (2014).
In the present case, the court correctly charged the
jury in accordance with the elements of § 14-224 (a).
In explaining the fourth element, the court instructed:
‘‘The fourth element is that the defendant did not stop
at once and render assistance as needed . . . . If, for
any reason or cause, the defendant was unable to pro-
vide the required information at the scene of the acci-
dent, the law requires him to immediately report the
accident to a law enforcement officer or to the nearest
police station.’’ (Emphasis added.) We presume the jury
followed this instruction. See State v. Wooten, 227 Conn.
677, 694, 631 A.2d 271 (1993).4
We are persuaded that the instruction given by the
court was correct in the law and sufficient for the guid-
ance of the jury. The phrase ‘‘for any reason or cause’’
is sufficiently broad to encompass the defendant’s rea-
sonable fear of harm from the victim and allowed the
jury to consider the Rosario defense. A jury could rea-
sonably find, under the instruction given by the court,
that the defendant had a reasonable fear of harm from
the victim that excused him from stopping and provid-
ing information at the scene of the accident. The defen-
dant’s fear, however, does not excuse his failure to
report the incident immediately to a law enforcement
officer or to the nearest police precinct or station, as
required by § 14-224 (a). Therefore, we conclude that
the defendant’s claim does not involve an error so obvi-
ous that it affects the fairness of or public confidence
in the judicial proceeding.
The defendant’s reliance on Dionne v. Markie, 38
Conn. App. 852, 663 A.2d 420 (1995), is misplaced. In
Dionne, this court held that ‘‘plain error review is neces-
sary where the trial court, in its instruction, overlooks
a clearly applicable statute . . . or where the trial
court fails to comply with a relevant statute,’’ and found
plain error when the trial court did not instruct the jury
on a statutory presumption. (Citations omitted.) Id.,856–58. Here, the court properly instructed the jury on
each element of § 14-224 (a), and there is neither an
applicable statute nor a statutory presumption relating
to the reasonable fear of harm that the court over-
looked. Thus, the analysis in Dionne is inapplicable to
the present case.
Even if we assume that the court’s failure to provide
such a reasonable fear of harm from the victim instruc-
tion was an error satisfying the first prong of the plain
error doctrine, the defendant has not demonstrated that
the failure was so harmful or prejudicial that it resulted
in manifest injustice necessitating reversal. The state
presented overwhelming evidence against the defen-
dant to prove the evasion of responsibility charge, par-
ticularly the testimony of Sanford, who was in the car
with him at the time of the fatal accident. It is undis-
puted that the defendant never reported the accident
to law enforcement as required by § 14-224 (a). See
State v. Bialowas, supra, 160 Conn. App. 425 n.6. He
did not discuss with Sanford the possibility of going to
the nearest police station for his own safety. He refused
to pull over because he did not have a license, the truck
was not registered or insured, and he did not want to
go back to jail. He instructed Sanford to take the battery
out of her phone so that they could not be traced to
the accident. The defendant left his truck, which was
involved in the accident, in a commercial garage in
Bozrah to avoid police detection. That night, rather than
reporting the accident to the police, the defendant drove
Sanford to Willimantic to buy heroin, and went out to
dinner with friends in Montville. He also hid from police
in the woods behind his brother’s house the following
day while they were investigating this crime. We agree
with the state that even if the jury was persuaded that
the defendant’s emotional state justified his failure to
remain at the scene of the collision, that does not excuse
his failure to comply with the statute’s mandate to
‘‘immediately report such death or serious physical
injury of any person to a police officer . . . or at the
nearest police precinct or station . . . .’’ General Stat-
utes (Rev. to 2009) § 14-224 (a). We, therefore, conclude
that such alleged error fails to satisfy the second plain
error prong because it did not result in manifest
injustice.
In the present case, the defendant bore the burden
of establishing that he was entitled to relief under the
plain error doctrine. See State v. Jamison, supra, 320
Conn. 597. He has not met that burden on either prong.
Given that the trial court instructed the jury in accor-
dance with the elements of § 14-224 (a), the omission
of a reasonable fear of harm instruction is not so clearly
and obviously an error that it undermines the integrity
and fairness of the judicial proceeding necessitating
reversal. Accordingly, we conclude that the trial court’s
failure to provide, sua sponte, the instruction on reason-
able fear of harm from the victim was not plain error
requiring reversal.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In Kitchens, our Supreme Court held that ‘‘when the trial court provides
counsel with a copy of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively accepts the instructions
proposed or given, the defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly the constitutional right
to challenge the instructions on direct appeal.’’ State v. Kitchens, supra,
299 Conn. 482–83.
2
General Statutes (Rev. to 2009) § 14-224 (a) provides: ‘‘Each person
operating a motor vehicle who is knowingly involved in an accident which
causes serious physical injury, as defined in section 53a-3, to or results in
the death of any other person shall at once stop and render such assistance
as may be needed and shall give his name, address and operator’s license
number and registration number to the person injured or to any officer or
witness to the death or serious physical injury of any person, and if such
operator of the motor vehicle causing the death or serious physical injury
of any person is unable to give his name, address and operator’s license
number and registration number to the person injured or to any witness or
officer, for any reason or cause, such operator shall immediately report
such death or serious physical injury of any person to a police officer, a
constable, a state police officer, or an inspector of motor vehicles or at the
nearest police precinct or station, and shall state in such report the location
and circumstances of the accident causing the death or serious physical
injury of any person and his name, address, operator’s license number and
registration number.’’
3
In Rosario, this court held that ‘‘§ 14-224 (a) allows an operator to report
an accident at the nearest police station if he is unable to give the statutorily
required information to the person injured or to any witness or officer, for
any reason or cause . . . .’’ (Emphasis in original; internal quotation marks
omitted.) State v. Rosario, supra, 81 Conn. App. 628–29. Although this court
determined that a defendant’s mental state does not excuse his actions, it
created a limited exception, stating: ‘‘We recognize that a situation might
arise in which the operator’s emotional state and subsequent flight from
the scene are grounded in facts that could excuse his failure to stop. . . .
[When] confronted with danger to life or great bodily harm [i]t would be
unjust and unreasonable to declare that . . . [a defendant] was required
to remain at the scene and go through the formality of complying with each
and every requirement of the statute. . . . [The] [a]ccused’s honest belief
that he was in danger of bodily harm if he remained at the scene of the
accident may justify his conduct in leaving without giving identification;
but the alleged fear of [the] accused that he might have been assaulted if
he had stopped to comply with the statute does not excuse his failure to
comply, where there was not any attempt or threat to assault him or the
display of any weapon with which an assault might have been committed.’’
(Citation omitted; internal quotation marks omitted.) Id., 628–29 n.4. The
defendant premises his argument wholly on this footnote, claiming that the
jury, without the instruction, was precluded from accepting the reasonable
fear of harm defense for his failure to stop.
4
The defendant claims that this case is unlike McClain, in which the
court held that it was not plain error for the court to fail to include a
consciousness of guilt instruction when the prosecutor made one comment
regarding consciousness of guilt in closing arguments. State v. McClain,
supra, 324 Conn. 820–21. The defendant argues that his trial counsel made
a robust Rosario argument during closing arguments that necessitated a
reasonable fear of harm from the victim instruction from the court, regard-
less of whether it was requested by the defendant. However, jury instructions
are predicated on the evidence presented at trial, not the arguments of
counsel. See Connecticut Criminal Jury Instructions (4th Ed. 2008) §§ 1.2-
4, 1.2-6, available at https://www.jud.ct.gov/JI/criminal/criminal.pdf (last vis-
ited November 16, 2017); see also court’s jury charge: ‘‘[A]rguments and
statements by the lawyers are not evidence. The lawyers are not witnesses.
What they have said in their closing arguments and at other times is intended
to help you interpret the evidence, but it is not evidence.’’ Therefore, the
court was not required to instruct the jury according to the counsel for the
defendant’s closing argument remarks.