State v. Bialowas

160 Conn.App. 417

125 A.3d 642

STATE of Connecticut

v.Kevin S. BIALOWAS.

No. 36250.

Appellate Court of Connecticut.

Argued June 3, 2015.

Decided Oct. 13, 2015.

Glenn W. Falk, Madison, 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).

GRUENDEL, BEACH and SULLIVAN, Js.

SULLIVAN, J.

The defendant, Kevin S. Bialowas, appeals from the judgment of conviction, rendered following a jury trial, of manslaughter 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). The defendant claims that the court committed plain error by failing to instruct the jury 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). We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, and procedural history are necessary to our consideration of the defendant's claim. 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 under General Statutes §§ 12–428(1) and 12–737(a), 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 victim would prostitute Sanford and supported her drug addiction by providing her with heroin.

The defendant and Sanford remained in contact by letter during his period of incarceration, and the two planned to resume their relationship 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. Upon the defendant's release, he resided in a halfway house, but remained in the custody of the Department of Correction. Sanford provided him with a cell phone, which was considered contraband in the facility.

On the morning of July 14, 2009, Sanford used heroin and then traveled to Cheshire with the victim for work. Later that day, 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 residence with her father, her son, and the victim. The victim wanted to fight the defendant, but Sanford intervened and told the victim to leave the premises. The victim drove away in his dark blue truck. Shortly thereafter, 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.

At St. Mary's Church in Baltic, the victim pulled off the roadway 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, Sanford 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 defendant 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 batteries out of the cell phone that she had used to call the victim so that the police could not locate it. Sanford then called Michele Savalle, a friend of the defendant. Savalle picked up the defendant and Sanford from the garage in Bozrah and brought them to her home in Colchester. After going out to dinner, the defendant and Sanford spent the night at Savalle's home.

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 incident, 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 violation of General Statutes § 53a–54a and evasion of responsibility in the operation of a motor vehicle in violation of § 14–224(a).¹

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)² to the jury and then explained the four elements of the crime that the state had to prove beyond a reasonable doubt: (1) "the defendant 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 accident or an officer. If, for any reason or cause, the defendant was unable to provide the required information 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. Subsequently, 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 second degree.³ The court imposed a total effective sentence of twenty years incarceration, execution suspended after fifteen years, followed by five years of probation.

In an attempt to obtain extraordinary review of this unpreserved claim, the defendant urges us to invoke the plain error doctrine. See Practice Book § 60–5.⁴ "The plain error doctrine is a rule of reversibility reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... That is, it is a doctrine that this court invokes 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 of the trial court's judgment, for reasons of policy.... [Thus, an appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citation omitted; internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010).

As noted, the defendant's sole claim on appeal is that the court committed plain error by failing to instruct the jury sua sponte 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 defendant argues that State v. Kitchens, 299 Conn. 447, 474 n. 18, 10 A.3d 942 (2011), is inapplicable where, as here, an improper...