State v. Wilkinson

• Decision Date: 16 January 1979
• Citation: 408 A.2d 232,176 Conn. 451
• Parties: STATE of Connecticut v. Anthony J. WILKINSON, Jr.
• Court: Connecticut Supreme Court

Page 232

408 A.2d 232

176 Conn. 451

STATE of Connecticut v. Anthony J. WILKINSON, Jr.

Supreme Court of Connecticut.

Argued Oct. 12, 1978.

Decided Jan. 16, 1979.

Stephen E. D. Fournier, Law Student, with whom was Michael R. Sheldon, West Hartford, for appellant (defendant).

Abbot B. Schwebel, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

The defendant in the present case was charged with misconduct with a motor vehicle, in violation of General Statutes § 53a-57(a), and was convicted, along with his codefendant (see State v. Varricchio, 176 Conn. 445, 408 A.2d 239), by a jury. The defendant has appealed from the judgment.

From a review of the evidence, the jury could have found the following: On March 5, 1976, at about 9:52 p. m., there was an accident near Ellington Center in Ellington, Connecticut. Two cars were directly involved, a 1975 Buick LeSabre operated by James L. Daigle and a 1972 Ford pickup truck operated by the codefendant, Wayne A. Varricchio. The accident was a head-on collision. Daigle subsequently died as a result of injuries sustained in the collision.

Prior to the accident, Wilkinson, Varricchio and several other persons were in the parking lot of a shopping center in Ellington. Stephen L. LaVoie, who was at this time driving Varricchio's truck, testified that he asked Wilkinson if he wanted to race. Wilkinson answered "Let's go." At this point Varricchio took over driving the Ford truck. Wilkinson was driving a Dodge van.

On or near route 83, both Varricchio and Wilkinson stopped their vehicles and talked, after which both vehicles headed south on route 83. They intended to race. They had agreed that the starting signal for the race would be three beeps of the horn.

The first attempt to race was aborted. The second time the race started, Varricchio was in the left lane on route 83, which is a two-lane highway. The two vehicles accelerated rapidly and traveled together for about fifty feet. Wilkinson pulled ahead and Varricchio ducked back into the right lane. Varricchio caught up with Wilkinson very quickly. He then downshifted to slow down. Daigle's car was traveling eastbound prior to the collision. Varricchio was traveling westbound in the Ford pickup truck. The pickup truck crossed into the eastbound lane after its brakes locked up at the end of 400 feet of skid marks. The point of impact was totally in the eastbound lane. Several witnesses testified that the truck was in the left lane and the van was in the right lane as they approached Ellington Center. There was also testimony to the effect that Wilkinson's van had been in contact with the Varricchio truck just prior to the fatal crash.

All of the errors claimed relate to the charge to the jury. The rule is well settled in this state that a charge does not rise or fall on individual, isolated sentences, but must be looked at as a whole. This court laid down the test in State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077, 1080: "For an erroneous portion of a charge to be reversible error, the court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147; State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69."

The first assignment of error pressed by the defendant is that the trial judge misled the jury by explaining the elements of simple negligence before giving the statutory definition of criminal negligence. He claims that this order of instructions left the jury with the impression that criminal negligence is merely a degree of simple negligence and is in all material respects equivalent to gross negligence.

Criminal negligence is an element of misconduct with a motor vehicle, ¹ the offense with which both Wilkinson and his codefendant, Varricchio, were charged. In § 53a-3(14) of the General Statutes, criminal negligence is defined as follows: "(A) person acts with 'criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

After giving a general explanation of the respective duties of the court and jury, the trial judge read § 53a-57 and then went on to say that he would explain what "negligence" was before he attempted to delineate what criminal negligence was. He defined simple negligence, breaking it down into a breach of a common-law duty or a breach of a statutory duty. He then instructed the jury to measure the defendants' conduct against the standard of care "that a reasonably prudent person under the same circumstances would have used."

The court explained that it had been concentrating on simple negligence because it was a component of criminal negligence and if the jury could not find that the defendants had been negligent, they could stop there in their deliberations: "If you find that the state has not proven that the accused was negligent, either one of them, you may need consider the particular charge no further, and you will find both the accused not guilty or either one of them not guilty, whichever you find." The court then went to say: "However, if even if you do find the accused was negligent, either one was negligent, that in and of itself is not a basis for a verdict of guilty of the crime as charged here. It is only a particular degree of negligence that makes one guilty of that crime, a degree which is characterized by the word, 'criminal negligence.' " Thus, the court did point out explicitly that a finding of simple negligence alone was not sufficient to support a conviction.

The defendant further argues that the court misled the jury by implying that criminal negligence was equivalent to simple negligence somehow elevated in degree by unspecified aggravating circumstances. In so arguing, the defendant is taking bits and pieces of the charge out of context. The law is clearly established that the charge must be read as a whole, and error cannot be predicated on detached sentences or portions. The court made the difference very clear by first reading the definition of criminal negligence contained in § 53a-3(14) and then adding: "(C)riminal negligence is not mere ordinary negligence. It differs in that a certain state of mind is required, and I have told you about that certain state of mind by reading you those definitions."

The defendant urges that a juror might readily have seized upon the less complex standard, that of simple negligence elevated in degree, instead of the statutory standard because of the court's detailed explanation of simple negligence. As the above quoted passages indicate, the charge gave the jury a clear understanding of the difference involved between simple negligence and criminal negligence and gave proper guidance in distinguishing one from the other. State v. Williams, 169 Conn. 322, 335, 363 A.2d 72; State v. Vars, 154 Conn. 255, 269, 224 A.2d 744.

The defendant also objected to the court's mention of gross negligence as the factor distinguishing negligent homicide with a motor vehicle ² from misconduct with a motor vehicle. The defendant argues that gross negligence is an obsolete standard in Connecticut and that a reasonable jury could have confused gross negligence with criminal negligence. After discussing the two statutes, the court pointed out: "You will immediately note a great distinction between this . . . statute (General Statutes § 53a-58a) and the one under which the accused are charged. Under the statute under which the accused are charged, which is entitled 'Misconduct with a Motor Vehicle,' an accused is not guilty, so far as negligence is concerned, unless you find that that negligence was criminal negligence." In light of this qualifying remark, made immediately after the court's reference to the negligent homicide statute, it is not likely that a reasonable jury would have been misled. State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, 156.

The defendant claims that the court erred in instructing the jury that a violation of § 14-219(a)(1) ³ of the General Statutes is negligence. He bases his argument on the fact that the decedent was not an occupant of either of the defendants' vehicles, but was driving his own car at the time of the accident.

The court never equated a violation of the statute with criminal negligence. In citing § 14-219(a)(1) it was giving an example based on the facts of the case from which the jury could find negligence. The court made it very clear that negligence must be established first and that one way of finding it was a statutory violation. Only then could the jury go on to the further test of criminal negligence.

The defendant argues that the jury could not find negligence per se even if there was a violation of § 14-219(a)(1) because the decedent was not an occupant of either of the defendants' vehicles and that the duty specifically imposed by the statute is owed only to that class of persons intended to be protected by it. This is a misreading of the court's intention and the law. As noted above, the court was using the statutory violation as an example of conduct that constituted negligence. What the defendant is arguing is tort liability, not negligence. It is only in that context that the doctrine of a duty being owed only to that class of persons intended to be protected by the statute is relevant.

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