State v. Lin Qi Si

184 Conn.App. 402

194 A.3d 1266

STATE of Connecticut

v.LIN QI SI

AC 39852

Appellate Court of Connecticut.

Argued April 16, 2018

Officially released August 28, 2018

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).

DiPentima, C.J., and Sheldon and Harper, Js.

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 Statutes § 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 vehicle 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 intersection 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 northwest 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 direction 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 pedestrian 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 immediately 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 intersection 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 accident reconstruction, went to the scene at about 4:30 p.m. on the day of the accident to gather physical evidence, 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 emergency 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 accurate 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 pedestrian 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 chambers and later summarized the contents of the conference 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 proximate 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, emphasize 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 contributes, in a natural and continuous sequence, unbroken 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 challenges 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 instruction 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." Practice 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, ...