State v. Browne, 23041.

• Court: Appellate Court of Connecticut
• Writing for the Court: DRANGINIS, J.
• Citation: 84 Conn.App. 351,854 A.2d 13
• Parties: STATE of Connecticut v. Bryant BROWNE.
• Docket Number: No. 23041.,23041.
• Decision Date: 10 August 2004

854 A.2d 13
84 Conn.App. 351

STATE of Connecticut
v.
Bryant BROWNE

No. 23041.

Appellate Court of Connecticut.

Argued February 10, 2004.

Officially released August 10, 2004.

854 A.2d 17

Mark Rademacher, Assistant Public Defender, for the appellant (defendant)

John A. East III, Senior Assistant State's Attorney, with whom, on the brief, was Timothy J. Liston, State's Attorney, for the appellee (state).

DRANGINIS, FLYNN and HENNESSY, Js.

Opinion

DRANGINIS, J.

The defendant, Bryant Browne, appeals from the judgment convicting him of numerous crimes, rendered after a jury trial.¹ The defendant's conviction encompasses criminal activity that began with a burglary in Middletown, led to a forty-six mile police pursuit that resulted in the death of a police officer and ended when the motor vehicle the defendant was driving struck a Jersey barrier on Interstate 95 in Branford. On appeal, the defendant claims that (1) there was insufficient evidence that he caused the death of the officer or that he did so with criminal negligence, (2) the court improperly charged the jury with

854 A.2d 18

respect to intervening cause, (3) the conviction and consecutive sentences for misconduct with a motor vehicle and engaging a police officer in pursuit resulting in death violate the constitutional prohibition against double jeopardy, (4) the conviction and consecutive sentences for two counts of disregarding a police officer's signal during one continuous pursuit violate the constitutional prohibition against double jeopardy, (5) the information charging him with interfering with a police officer was duplicitous, (6) the conviction of larceny and attempt to commit larceny, on the basis of one act of theft, violated the constitutional prohibition against double jeopardy and (7) he is entitled to a judgment of acquittal as to the conviction of larceny in the third degree and attempt to commit larceny in the third degree. We affirm the judgment of the trial court.²

The jury reasonably could have found the following facts in reaching its verdict. On January 28, 2000, the defendant was an unemployed drug addict with a $40 a day heroin habit. That morning, he met his accomplice, Victor Santiago,³ in New Haven and drove to Middletown. At approximately 11:30 a.m., the pair forcibly entered the unoccupied home of the Fraulino family. They ransacked the house, collecting jewelry, cash and electronic equipment. Shortly thereafter, Rosemary Fraulino returned home and observed an unfamiliar motor vehicle in the driveway. She did not stop at her house but instead called the police on her cellular telephone to alert them to the suspicious occurrence.

John Labbadia, a Middletown police officer, responded to the scene and partially blocked the defendant's vehicle in the driveway. The defendant and Santiago saw Labbadia arrive. When the officer walked to the rear of the house, they abandoned some of the Fraulinos' possessions in the living room and foyer. The defendant got into his vehicle and sped away with his accomplice.

Labbadia, believing that he had interrupted a burglary, radioed the police dispatcher. He pursued the defendant and Santiago on back roads and side streets to Route 9. George Dingwall, a sergeant on the Middletown police force, heard Labbadia's broadcast and joined the pursuit. A Portland police officer also heard Labbadia's broadcast. Three police cruisers with lights and sirens activated followed the defendant's vehicle south on Route 9 at a high rate of speed.

The state police had been alerted, and a number of troopers positioned themselves at exit six on Route 9. One trooper placed stop sticks⁴ across a lane of the highway, but the defendant successfully avoided them. Several troopers then joined the chase. The defendant operated his vehicle in an erratic manner back and forth across the highway.

Near exit four in Essex, Dingwall drove his cruiser beside the defendant's vehicle. The defendant swerved his vehicle toward

854 A.2d 19

Dingwall's vehicle. Dingwall lost control of his cruiser, which spun around and off the highway, crashing in a heavily wooded portion of the median

The defendant continued to drive south on Route 9 at a high rate of speed. Scott Wisner, a state trooper, positioned his cruiser alongside the defendant's vehicle. The defendant swerved toward Wisner's cruiser, striking it. Wisner dropped back, and Labbadia moved his cruiser ahead of the defendant's vehicle. The defendant's car struck the rear of Labbadia's cruiser, which also spun out of control and off the highway. The defendant then drove onto Interstate 95 southbound.

The state police responded in force. One trooper preceded the pursuit and warned motorists to move off the highway. State troopers used their cruisers to block the entrance ramps to the interstate highway. At exit sixty-seven, the state troopers deployed stop sticks again, but the defendant veered off the roadway to avoid them. At exit sixty-three in Clinton, police cruisers were parked in the gore between the exit and entrance ramps to the highway. State troopers were standing in the gore in another effort to deploy stop sticks. The defendant saw the trap and drove off the highway through the gore, coming dangerously close to the troopers standing there. He drove onto the entrance ramp and back onto the highway.

The defendant continued to weave through traffic. Between exits fifty-nine and fifty-eight in Guilford, Adam Brown, a state trooper, successfully deployed stop sticks under the tires of the defendant's vehicle. Nevertheless, the defendant kept going and at exit fifty-seven attempted to force Robert Hart, a state trooper, off the highway. The defendant stopped his vehicle, which was traveling on the rims of its wheels, against the Jersey barriers near exit fifty-four in Branford.

When the defendant got out of his vehicle, he said, "I'm on drugs, man — real bad — I'm on drugs." Personalty belonging to the Fraulino family was found in the defendant's vehicle. As a state trooper was transporting the defendant to the state police barracks in Westbrook, a police radio dispatch broadcasted information that Dingwall had been transported to a hospital by Life Star helicopter. In response, the defendant made several unsolicited remarks: "It's not my fault; I'm on drugs; you can't blame me for any of this because I'm on drugs." Dingwall died as a result of his injuries.

I

The defendant's first claim concerns his conviction of misconduct with a motor vehicle⁵ and disregarding an officer's signal by engaging an officer in pursuit causing death.⁶ He claims that the state failed to produce sufficient evidence that he caused Dingwall's death or that he did so with criminal negligence. We disagree.

854 A.2d 20

The following additional facts are relevant to our review of the defendant's claim.⁷ The police pursued the defendant on Route 9 often at speeds in excess of 100 miles per hour. Labbadia and Dingwall attempted to box in the defendant's vehicle. After Labbadia passed the defendant's vehicle with his cruiser, he positioned his cruiser in front of the defendant's vehicle and slowed. Dingwall drove his cruiser alongside the defendant's vehicle, but the defendant swerved his vehicle into Dingwall's travel lane. Dingwall avoided a collision but lost control of his cruiser, which spun counterclockwise off the highway and collided with trees on the median strip

The cause of Dingwall's accident was investigated. Jae Fontanella, an accident reconstruction expert for the state police, examined the site of Dingwall's accident and his police cruiser. He discovered that the right rear tire was a Goodyear snow tire and that the other tires were Goodyear all season tires. Twenty-four days before Dingwall's accident, a snow tire was used to replace a flat all season tire. Prior to the accident, Goodyear had issued a product service bulletin warning that its snow tires should not be matched with other types of tires. Fontanella also discovered that the left front tire of the cruiser was overinflated.

At the accident scene, Fontanella found several yaw marks made by the mismatched snow tire. Yaw marks of the other tires appeared more than 100 feet farther along the path of Dingwall's cruiser. The tire marks demonstrated that the cruiser was in an oversteer condition during a left turn, which caused the cruiser to move counterclockwise.

Darryl Fieldman, a Goodyear product-analyst engineer, inspected Dingwall's cruiser and noted the mismatched tires. He prepared a report stating that it is important for a police cruiser operating at high speeds to be equipped with four of the same type of tires. At trial, Fieldman testified that in new condition, a snow tire and an all season tire would have differing tread depths, surface areas and somewhat different response characteristics. He noted that the snow tire here, however, had worn down to the point that its tread, surface area and response characteristics were similar to those of the three all season tires. Neither Fontanella nor Fieldman could determine the cause of Dingwall's accident. Fieldman opined that it was "possible," but "improbable" and "not likely" that the mismatched tires caused Dingwall's cruiser to spin off of the highway. There was no evidence that the mismatched tires caused Dingwall's accident.

Following the jury's verdict, the defendant filed a motion for a judgment of acquittal on the charges of misconduct with a motor vehicle and engaging an officer in pursuit causing death, arguing that the conviction on those co¶unts was inconsistent with the verdict acquitting him of felony murder and manslaughter. On appeal, the defendant claims that the state failed to prove that his conduct was the proxate cause of Dingwall's death and, with regard to misconduct with a motor vehicle, that he operated his vehicle with criminal negligence. The defendant asks this court to review his unpreserved claims pursuant to ...