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State v. Kwaak

Court of Appeals of Connecticut

April 3, 1990

STATE of Connecticut
v.
Brett KWAAK.

Argued Oct. 10, 1989.

Page 1016

[21 Conn.App. 139] John R. Gulash, Jr., with whom, on the brief, was Peter J. McGuinness, Bridgeport, for appellant (defendant).

Leon F. Dalbec, Jr., Deputy Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gerald D. Eisenman, Asst. State's Atty., for appellee (State).

Before DALY, NORCOTT and FOTI, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b(a), [1] and operating a motor

Page 1017

vehicle while under the influence of an intoxicating liquor in violation of General Statutes § 14-227a(a)(2). The defendant's claims of error relate only to the charge of manslaughter in the second degree with a motor vehicle. The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal which alleged that there was insufficient evidence presented as to the element of causation, (2) in admitting an autopsy report into evidence, (3) in restricting his cross-examination of one of the plaintiff's accident reconstruction witnesses, (4) in admitting the testimony [21 Conn.App. 140] of the second of the plaintiff's accident reconstruction witnesses as it relates to the tendencies of intoxicated drivers, and (5) in improperly instructing the jury as to reasonable doubt. We find no reversible error.

The facts are as follows. On November 14, 1986, at approximately 6 p.m., the defendant met a female friend at a restaurant in Westport. He admitted to having consumed three beers there. He left at approximately 9:30 p.m. and headed for his home town of Huntington. He drove his Dodge pickup truck on Route 95 north and then exited onto Route 25 north. At approximately 10:47 p.m., the defendant was operating his pickup truck in the far right lane of that three lane highway in Bridgeport, when he encountered a Subaru stationwagon that was being driven by the victim at a considerably slower speed than the defendant was traveling. The defendant attempted to pass the Subaru but did not reduce his speed quickly enough and struck it in the rear, causing the gas tank to rupture and the car to catch on fire. The victim was in the car when it burst into flames and died as a result of the fire.

The police and firemen arrived within a few minutes after the accident. Sergeant John Ramik of the Connecticut state police was in charge of the scene and was assisted by Troopers Adrienne LaMorte and John Burturla and support personnel. The investigating officers at the scene detected a strong odor of alcohol on the defendant's breath, noticed that his speech was slurred, his eyes were bloodshot, and that he was staggering. The defendant failed a field sobriety test. As a result, he was arrested for driving under the influence of alcohol or drugs in violation of General Statutes § 14-227a and transported to police headquarters in Westport. Two hours after the accident, the defendant voluntarily submitted to a breathalizer test. The first test was administered at 1:45 a.m. and measured his blood alcohol level at .150, and the second test, administered at [21 Conn.App. 141] 2:19 a.m., measured his blood alcohol level at .144. On the basis of these figures, Sanders Hawkins, chief toxicologist for the department of health services, testified at trial that the blood alcohol level at the time of the accident was approximately .186. At police headquarters, the defendant was also charged with manslaughter with a motor vehicle in violation of General Statutes § 53a-56b (a). [2]

At trial, the state presented evidence that, on the night of the accident, the weather was dry and clear. The evidence also showed that the accident occurred on a straight, well illuminated section of Route 25 and that visibility was 1000 to 1500 feet at the time of the accident. The state offered the expert testimony of LaMorte and Burturla. Expert testimony showed that the defendant's vehicle was traveling thirty-one miles per hour faster than the victim's vehicle at the time of impact, but the expert was not able to determine how

Page 1018

fast the defendant's vehicle was traveling. In addition, there was expert testimony that the major damage was to the left rear of the Subaru and to the right front fender of the pickup truck and that there were no brake or skid marks at the scene of the accident. Furthermore, the state presented expert testimony that the defendant's inability to judge the distance and speed of the Subaru was consistent with the conduct of intoxicated drivers and that this conduct caused the accident and subsequent death of the driver. The state also presented the testimony of the pathologist who performed the autopsy on the victim. The pathologist's autopsy report was also permitted as an exhibit over the defendant's objection.

[21 Conn.App. 142] At trial, the defendant never conceded that he was intoxicated. [3] He presented a witness who happened to be on the same road a short time Before the accident occurred. This witness testified that shortly Before the accident, he saw a vehicle that closely resembled the victim's vehicle on the right shoulder of Route 25 with the windows fogged and the lights dimmed. The defendant also presented expert evidence contradicting the state's evidence on the issue of causation, that the accident most likely occurred as a result of the Subaru's pulling out from the right shoulder and crossing in front of the path of the defendant's pickup truck.

The jury convicted the defendant on both charges, and this appeal followed.

I

The defendant's first claim is that the court erred in denying his motion for judgment of acquittal, which was based on the state's failure to prove beyond a reasonable doubt that the defendant's intoxication caused the death of the victim. We do not agree.

" 'In determining whether the evidence is sufficient to sustain a verdict, we have said that " 'the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.... [T]he evidence presented at trial must be given a construction most favorable to sustaining the jury's verdict.' " ... "Each essential element of the crime charged must be established by proof beyond a reasonable doubt" ' "; State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. [21 Conn.App. 143] denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981); and " 'although it is within the province of the jury to draw reasonable logical inferences from the facts proven, they may not resort to speculation and conjecture.' " (Citations omitted.) State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984).

In the present case, the defendant challenges only the element of causation. General Statutes § 53a-56b(a) provides that, "A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of an intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug." (Emphasis added.) No. 85-147 of the 1975 Public Acts modified the causation language of General Statutes (Rev. to 1975) §§ 53a-56b(a) and 53a-60d, the latter section being assault in the second degree with a motor vehicle. Previously, § 53a-56b(a) provided that "when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person." (Emphasis added.) Nevertheless, a legislative history of this amendment reveals that the modification of "in consequence" to "as a consequence of" was not made to change any previously defined burden of proving causation. [4] The

Page 1019

purpose, rather, was [21 Conn.App. 144] to remove the language in §§ 53a-56b and 53a-60d that referred to a person's being "intoxicated" and instead to insert the requirement that a person has to be "under the influence" in order to "get tougher on drunk drivers" and to avoid the result reached in an uncited court decision where an individual escaped liability under the law because the court found that the individual was not "intoxicated" even though he may have been under the influence. See footnote 4, supra.

This is the first case to determine the causation requirement of § 53a-56b(a). The predecessor statutes of §§ 53a-56b and 53a-60d were General Statutes (Rev. to 1985) §§ 53a-57 and 53-17. [5] These sections contained the same causation language, "in consequence," as the original version of § 53a-56b. In State v. Alterio, 154 Conn. 23, 29-30, 220 A.2d 451 (1966), our Supreme Court interpreted the causation requirements of § 53-17, which provided that, "any person operating a motor vehicle upon the highways of this state who, [21 Conn.App. 145] in consequence ... of any gross or wilful misconduct or of gross negligence, causes any loss of life " (emphasis added), to mean that "[i]t was the state's burden to prove that a proximate cause of the death was the unlawful acts of the [defendant]...." While the unlawful act in § 53-17 was gross or wilful misconduct or gross negligence, the unlawful act in the present statute is driving under the influence of an intoxicating liquor or drug (intoxication). [6] This court adopts these causation requirements set forth in Alterio and applies them to General Statutes § 53a-56b.

The court in Alterio then concluded that " '[e]very person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result.' State v. Leopold, [110 Conn. 55, 61, 147 A. 118 (1930) ]." State v. Alterio, supra, 154 Conn. at 30, 220 A.2d 451. Thus, contrary to the negligence cases relied upon by the defendant, the issue of contributory negligence does not exist in criminal cases that require the state to prove that the defendant proximately caused the death of another.

Page 1020

In 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), our Supreme Court defined the criminal law concept of proximate cause as it applies to a manslaughter statute (General Statutes § 53a-55[a]: " '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 criminal offense even [21 Conn.App. 146] though his acts were not the immediate cause of death. An act or omission to act is the proximate 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. It is the cause without which the death would not have occurred and the predominating cause, the substantial factor, from which death follows as a natural, direct and immediate consequence. See State v. Tomassi, 137 Conn. 113, 75 A.2d 67 [1950]; State v. Leopold, supra; 40 C.J.S., Homicide, § 11(b), p. 854; see, generally, Cardozo, The Paradoxes of Legal Science, pp. 81 et seq.; Beale, 'The Proximate Consequences of an Act,' 33 Harv.L.Rev. 633." (Emphasis added.) Applying the principle of State v. Alterio, supra, and the definition in State v. Spates, supra, to the present case, the causation element requires that the state prove beyond a reasonable doubt, first that the death of a person would not have occurred "but for" the defendant's intoxication, and second, that the defendant's intoxication substantially and materially contributed to the death of a person in a natural and continuous sequence, unbroken by an efficient, intervening cause. In order to determine that the state has not met its burden of proof on this element, the jury must find either that the defendant's intoxication was not the actual "but for" cause of the victim's death or that there was an "independent and efficient cause"; State v. Alterio, supra, 154 Conn. at 30, 220 A.2d 451; or an intervening and efficient cause. State v. Spates, supra.

Bearing this in mind, we now turn to the evidence presented in this case to determine whether the jury could have found that the defendant's intoxication while operating the vehicle met the above described definition of proximate cause.

The evidence of causation presented in the light most favorable to sustaining the verdict is the following. Burturla testified that the defendant's pickup truck [21 Conn.App. 147] with the victim's automobile in the center of the right lane, rotating the vehicles, causing the Subaru to make contact with a guardrail and then to explode with the resulting fire. There was no evidence of evasive action by the defendant and LaMorte testified that at impact the defendant's vehicle was traveling thirty-one miles per hour faster than the victim's vehicle. Expert testimony also showed that intoxicated drivers tend to drive too closely and not to perceive the speed of a vehicle, that this conduct was consistent with the defendant's operation of the vehicle and that this conduct was how the accident occurred. In addition, the state established that a person died and that the cause of death was asphyxiation that resulted from the car fire. ...


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