State v. Leroy

• Decision Date: 03 February 1994
• Docket Number: No. 11187,11187
• Citation: 635 A.2d 305,33 Conn.App. 232
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James D. LEROY.

Page 305

635 A.2d 305

33 Conn.App. 232

STATE of Connecticut v. James D. LEROY.

No. 11187.

Appellate Court of Connecticut.

Argued Sept. 14, 1993.

Decided Dec. 14, 1993.

Certification Granted Limited to the Following Issues Feb. 3, 1994.

Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).

Jack W. Fischer, Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and Leah Hawley and Keith Duboff, Asst. State's Attys., for appellee (State).

Before LAVERY, LANDAU and FREDERICK A. FREEDMAN, JJ.

LANDAU, Judge.

The defendant appeals from his conviction, rendered after a jury trial, of assault in the second degree with a motor vehicle while under the influence of intoxicating liquor in violation of General Statute § 53a-60d. ¹ The defendant claims that the trial court improperly (1) instructed the jury as to proximate cause, (2) denied a motion to strike expert testimony on the ground of lack of an evidentiary foundation, and (3) instructed the jury as to reasonable doubt thereby diluting the state's burden of proof. We agree with the defendant's first claim and reverse the judgment of the trial court. Because this is dispositive of the appeal, we need not address the remaining claims.

The jury could have reasonably found the following facts. On September 29, 1984, at approximately 3 a.m., the defendant, James Leroy, was involved in a two vehicle collision with Leslie Daniel in Enfield. The defendant's car was traveling east and Daniel's car was heading west on Shaker Road when the two cars collided. The area where the impact occurred was rural, dark and badly lit, with curves and hills. Ralph Adamczyk was the only eyewitness to the accident. He was traveling behind Daniel's car and observed both headlights of the defendant's oncoming car as it came around a corner. As the defendant's car approached, the driver's side headlight disappeared twice from Adamczyk's view. Both cars swerved to avoid a collision. Adamczyk spoke with and observed the defendant after the collision and did not consider him to be intoxicated. At the accident scene, police officers noted the smell of alcohol on the defendant, and the defendant had difficulty maintaining his balance and exhibited slurred speech. The defendant was unable to perform two field sobriety tests satisfactorily. The defendant's breath test yielded a blood alcohol reading of 0.215 of 1 percent, revealing that he had consumed between ten to thirteen beers.

As a result of the accident, Daniel suffered serious injuries. She was unconscious from the time of the accident until October 19, 1984, and remained hospitalized until late November, 1984. Upon release from the hospital, Daniel's speech and memory were impaired, she could not walk or use her left arm, and her vision was limited. She received more than seven months of physical, occupational and educational rehabilitation therapy. Daniel's speech is no longer impaired and she has relearned to read and write, but has not regained all of her memory. Daniel cannot walk or use her left arm or hand, and has impaired vision.

We first turn to the defendant's claim that the trial court improperly instructed the jury as to proximate cause. The defendant concedes that this claim is unpreserved. He seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, the Supreme Court held that a defendant can prevail on an unpreserved claim of error if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., at 239-40, 567 A.2d 823.

We find the defendant's claim reviewable. In examining the first criterion of Golding, we note that it was designed to avoid remands for the purpose of supplementing the record. State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992). " 'If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim.' " State v. O'Brien, 29 Conn.App. 724, 732, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993), quoting State v. Golding, supra, at 240, 567 A.2d 823. Our review of the record indicates that the facts are sufficiently clear and unambiguous for this court to determine whether a constitutional violation has occurred.

The second prong of Golding is also satisfied. "An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Improper jury instructions on an essential element of the crime charged, in this case proximate cause, implicates a fundamental constitutional right. See State v. Wilkinson, 176 Conn. 451, 460, 408 A.2d 232 (1979); State v. Kwaak, 21 Conn.App. 138, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Next, we must consider whether the defendant met his burden as to the third requirement of Golding. We must inquire whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial. ²

The defendant claims that the jury instructions were inaccurate as to whether the defendant's conduct was the proximate cause of the victim's injuries. ³ Specifically, he argues that the trial court instructed the jury that if the defendant's conduct was "a substantial factor" in bringing about the victim's injuries, his conduct was the proximate cause of those injuries. The defendant maintains that his actions would be the proximate cause of the victim's injuries only if a jury found that his conduct was "the predominating cause or the substantial factor" in producing the victim's injuries.

The state relies on State v. Jacobs, 194 Conn. 119, 125, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985), and State v. Tomassi, 137 Conn. 113, 118, 75 A.2d 67 (1950), for the proposition that because the defendant's intoxication contributed to the injuries, liability arises. The issue before the Jacobs and Tomassi courts was not causation and the effect of concurrent events. Rather, both courts spoke to the effect of negligent medical care as to the issue of causation. Thus, the case at bar is distinguished from those cases.

Our review of the charge in its entirety indicates that the trial court's instructions were not a correct statement of the law on the issue of proximate causation. "While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury." State v. Channer, 28 Conn.App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). " 'Proximate cause' in the criminal law does not necessarily mean the last act of cause, or the act in point of time nearest to [the result]. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of [the result]. An act or omission to act is the proximate cause ... when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the [result.] It is the cause without which the [result] would not have occurred and the predominating cause, the substantial factor, from which [the result] follows as a natural, direct and immediate consequence." (Emphasis added.) 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); State v. Kwaak, 21 Conn.App. 138, 145-46, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). ⁴ The charge did not inform the jury that the element of proximate cause is established if the defendant's actions were "the predominating cause, or the substantial factor" of the injuries sustained by the victim. Instead, the trial court repeatedly used the phrase "a substantial factor," language that the jury could reasonably interpret as permitting a guilty verdict simply if the defendant's conduct was one of the many factors that caused the injuries. Connecticut law requires for a conviction, however, that a jury find beyond a reasonable doubt, that the defendant's conduct was 'the predominating cause, or the substantial factor' of the injuries, not one of many factors. See State v. Spates, supra, at 234, 405 A.2d 656. It is not crucial for jury instructions to include the exact language offered in Spates, but words that communicate the meaning presented in Spates are crucial. Here, the instructions did not include supplemental language correcting the possibility of misinterpretation presented by the "a substantial factor" language.

"[T]he failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant's due process rights implicating the fairness of his trial...." (Internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990). "It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged." State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). The trial court gave instructions that were not correct in law on the issue of causation, thus, we...