State v. Russo

• Decision Date: 16 April 1982
• Docket Number: No. 1044,1044
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. Mark RUSSO.

Page 857

450 A.2d 857

38 Conn.Supp. 426

STATE of Connecticut v. Mark RUSSO.

No. 1044.

Superior Court of Connecticut.

Argued Sept. 14, 1981.

Decided April 16, 1982.

Donald A. Mitchell, Danbury, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom, on the brief, was Brian E. Cotter, Asst. State's Atty., for appellee (state).

DALY, Associate Justice.

The defendant was convicted after a jury trial of negligent homicide with a motor vehicle, in violation of General Statutes § 53a-58a. The issues raised by the defendant in this appeal involve the constitutionality of that statute, the admissibility of certain evidence, the adequacy of the instructions to the jury and the denial of his motion for a judgment of acquittal. ¹

The factual situation may be summarized as follows: The defendant, who was sixteen years old, was operating a motor vehicle northbound on Pocono Road in Brookfield at about 4 p.m. on March 7, 1979. The occupants of the vehicle had attended a party and the defendant was driving the decedent home. The road was posted with speed limit signs of twenty-five miles per hour for northbound traffic, and the surface was generally dry, although there were some wet areas. After passing through one such wet area the vehicle crossed the center line, proceeded back into the northbound lane, left the traveled portion of the roadway and went onto the east shoulder where it skidded broadside and struck a utility pole. The decedent, who was seated in the middle of the rear seat, sustained serious injuries and was taken to the hospital where she died on March 9, 1979. The police conducted an extensive investigation and tests which revealed that the defendant had been driving unreasonably fast. Thereafter, the defendant was charged with negligent homicide with a motor vehicle.

I

The first claim of error, the constitutionality of General Statutes § 53a-58a, ² involves the very essence of the defendant's conviction. The four arguments underlying this claim are that the statute (1) is void because it creates and unreasonable and arbitrary classification; (2) is void for vagueness; (3) violates the constitutional guarantee of separation of powers; and (4) violates the constitutional prohibition against ex post facto laws.

A

By arguing that the statute herein creates an unreasonable and arbitrary classification, the defendant has raised an equal protection claim. ³ At the outset of every such claim the court must determine the standard of review by which the challenged classification must be judged. The principles governing the traditional "two-tier" equal protection analysis are well settled: legislative classifications involving either fundamental rights or suspect classes must be struck down unless justified by a compelling state interest, while most other classifications will withstand constitutional attack if the legislative distinction is founded on a rational basis. Leech v. Veterans' Bonus Division Appeals Board, 179 Conn. 311, 313, 426 A.2d 289 (1979); Laden v. Warden, 169 Conn. 540, 542-43, 363 A.2d 1063 (1975).

Since the advent of motor vehicles, regulations involving travel upon public highways and the use of vehicles upon these highways have been upheld as a valid exercise of the state's police power; Silver v. Silver, 108 Conn. 371, 377, 143 A. 240 (1928), aff'd, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929); and this is still the law today. See Gentile v. Altermatt, 169 Conn. 267, 300, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976). Furthermore, a court applying an equal protection analysis must uphold police power legislation that serves to promote the public health, safety or morals in a reasonable manner. Amsel v. Brooks, 141 Conn. 288, 294-95, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S.Ct. 125, 99 L.Ed. 693 (1954); Silver v. Silver, supra, 108 Conn. 378, 143 A. 240; accord, Opinion of the Justices, 368 Mass. 824, 827, 333 N.E.2d 385 (1975).

The defendant contends that § 53a-58a creates an unreasonable classification by predicating guilt upon the consequences of a motor vehicle accident, that is, whether death resulted, rather than upon the conduct which caused this accident. We are not persuaded by this argument, however, and agree with the trial court that this statute clearly bears a rational relationship to the preservation and promotion of the public welfare, by protecting the public from motorists who operate vehicles negligently and thereby cause death on the highway. See generally State v. Ashton, 175 Kan. 164, 170-71, 262 P.2d 123 (1953).

B

The defendant's second attack on § 53a-58a is that it is unconstitutionally vague and results in a denial of due process. Such an attack involves two separate but connected inquiries: (1) whether the statute provides fair warning of its effect and (2) whether it provides guidelines for nondiscriminatory law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-1247, 39 L.Ed.2d 605 (1974).

The fair warning principle has been developed in a long line of United States Supreme Court cases, as noted by our own Supreme Court in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980). "[A]s a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid." Id., 59-60, 428 A.2d 322. This principle does not automatically prohibit statutes which are general in nature and which proscribe a wide range of conduct, however, since the constitution requires no more than a reasonable degree of certainty. State v. Chetcuti 73 Conn. 165, 167, 377 A.2d 263 (1977); accord, United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-598, 9 L.Ed.2d 561 (1963). The question presented, therefore, is whether § 53a-58a, which punishes "the negligent operation of a motor vehicle [which] causes the death of another person," conveys a sufficiently definite warning of the proscribed conduct.

Where the first amendment is not involved, the claim of vagueness is tested by the facts applicable to the particular defendant. State v. Pickering, supra, 180 Conn. 57, 428 A.2d 322. In the bill of particulars, the state indicated that the charge of negligence was based upon the defendant's operation of a motor vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway or road, and to the weather conditions, in violation of General Statutes § 14-218a.

Negligence has long been defined as "the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent man would use under like circumstances." Temple v. Gilbert, 86 Conn. 335, 340, 85 A. 380 (1912). The requisite degree of care here was determined by § 14-218a: operating a motor vehicle at a speed that is reasonable to the conditions of the roadway. In this regard, the presence of posted speed limit signs provided unambiguous notice of the degree of care to be exercised. See generally State v. Gordon, 144 Conn. 399, 402, 132 A.2d 568 (1957). Thus, we hold that § 53a-58a is not void for vagueness. Accord, State v. Ashton, supra, and cases cited therein; note, 12 A.L.R.2d 580. Furthermore, our conclusion that § 53a-58a provides fair warning of the proscribed conduct undermines the defendant's argument that the statute is incapable of nondiscriminatory enforcement. ⁴

As a final corollary to his void for vagueness argument, the defendant contends that § 53a-58a is unconstitutional because it fails to include an element of intent. This argument is inapplicable, however, to statutes which regulate conduct under the police power. Statutes regulating the operation of motor vehicles are clearly within the class of police power legislation the violation of which can support a conviction regardless of intent. State v. Calhoun, 1 Conn.Cir. 174, 177, 23 Conn.Sup. 198, 179 A.2d 837 (1962); State v. Salone, 1 Conn.Cir. 99, 106, 22 Conn.Sup. 482, 174 A.2d 803 (1961). Hence, we find no vagueness based upon lack of intent.

C

The defendant also argues that § 53a-58a violates the constitutional guarantee of the separation of powers among the legislative, judicial and executive branches of government. Conn.Const., art. II. ⁵ He claims that this statute is unconstitutional because in it the legislature has delegated its primary responsibility for standard-setting to the judiciary. This claim is not purely one of delegation of legislative power, however, for it incorporates the defendant's earlier argument regarding the statute's alleged vagueness. See, e.g., State v. Smith, 183 Conn. ---, ---, ---, 438 A.2d 1165 (1981).

In enacting § 53a-58a, the legislature established primary standards for carrying out its intent to protect the public from negligent motorists. The crime of negligent homicide has three elements: (1) the death of a person; (2) by the instrumentality of a motor vehicle; (3) which is operated in a negligent manner. The third element, negligence, has been previously defined. See Temple v. Gilbert, 86 Conn. 335, 340, 85 A. 380 (1912). Thus, the statute gives fair notice of conduct whose primary standards are clearly delineated by the legislature. Our conclusion that the statute is neither vague nor an impermissible delegation of legislative power constrains us to reject this claim.

D

The defendant's final constitutional attack is that § 53a-58a violates the provision of the United States constitution against ex post facto laws because it permits the judicial fact finder, in retrospect, to define criminal conduct subjectively. ⁶ We disagree. The rejection of this claim involving another statute by our Supreme Court; State v. Smith, supra, 15; and our previous conclusion that § 53a-58a does not permit a subjective definition of the proscribed conduct, lead us to reject the defendant's ex post facto claim.

II

The defendant's next claims of error concern the...