Opinion
No. S2N-CR-03-0101244S
September 24, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S AMENDED MOTION TO DISMISS
The defendant Igor Bronov is charged in this case with manslaughter in the first degree in violation of Section 53a-55(a)(3) of the Connecticut General Statutes.
By his amended motion to dismiss dated March 3, 2004 the defendant seeks the dismissal of the information on the grounds: first, that the prosecution of the defendant for the offense of manslaughter in the first degree under the facts and circumstances of this case is a violation of due process of law, in that a reasonable person would not be on notice that he could be convicted of manslaughter in the first degree under the specific facts of this case and therefore as applied to the defendant's specific conduct, the statute is unconstitutionally vague; and, secondly, that the prosecution of the defendant for manslaughter in the first degree is violative of the defendant's rights to equal protection of the law under the state and federal constitutions, in that by this prosecution for manslaughter in the first degree the State is treating the defendant disparately from others similarly situated who have been charged with manslaughter in the second degree with a motor vehicle.
For purposes of this motion the State and the defendant have asked the Court to take notice of the facts leading to the defendant's arrest on this charge as set forth in the Norwalk Police Department Uniform Accident Report Number 03-14126 relating to a fatal accident of April 5, 2003 at 12:15 a.m. on Westport Avenue, one-half mile east of the intersection with East Avenue in the city of Norwalk. A copy of the uniform Accident Report is attached as Exhibit A to the defendant's Memorandum of Law in support of this motion. For purposes of this motion to dismiss only, the defendant does not dispute the facts set forth in that police report. By stipulation of the parties the Court has also reviewed twelve photographs taken at the accident scene on April 5, 2003 by the Norwalk Police. All those photos are in a manila envelope and I will ask that they be marked as a single Court's Exhibit Number 1 and placed in the file.
The party attacking the validity of a validly-enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Courts must indulge in every presumption in favor of a statute's constitutionality. The void for vagueness Doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute and the guarantee against standardless law enforcement. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness.
References to judicial opinions involving the statute can help in ascertaining a statute's meaning to determine if it gives fair warning. State v. Jason B., 248 Conn. 543, 556, cert. denied, 528 U.S. 967 (1999); State v. Hall, 82 Conn. App. 435 (2004). Also a very new case, State v. Haung T., 48 Conn. Sup. 610, Superior Court, Judicial District of Hartford (2004) (Keller, J.).
The statute in question, Section 53a-55 of the Connecticut General Statutes, provides in subsection (a)(3) that, "A person is guilty of manslaughter in the first degree when, under circumstances evidencing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person." Violation of Section 53a-55 is a Class B felony under the Connecticut Penal Code.
The term "recklessly" is a defined term under our Penal Code. Section 53a-3(13) says that, "A person acts recklessly with respect to a result or circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk, that such result will occur or that such circumstance exists. The risks must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in this situation." The defendant, Mr. Bronov, claims that under the particular facts of this case as set forth in the police report and depicted in the photographs, a reasonable person would not be put on notice that this conduct would be a violation of Section 53a-55(a)(3). This same argument was recently rejected by the Connecticut Supreme Court in State v. Kirsch, 263 Conn. 390 (2003), in a factual situation somewhat similar but not identical to the present factual situation.
In Kirsch the Supreme Court pointed out that the terms "extreme indifference to human life" and "grave risk of death" have been previously discussed and explained by the Supreme Court in State v. McMahon, 257 Conn. 554 (2001). After reviewing prior case law construing the Connecticut first degree manslaughter statute the Kirsch Court concluded that, "A reasonable person would be on fair notice that the elements of the statute are satisfied when a person gets into his or her car after consuming excessive quantities of alcohol, drives that vehicle for a considerable distance in the wrong direction at a high rate of speed on major thoroughfares and hits another vehicle head on thereby killing another person."
Conceding the Kirsch analysis, as he must, the defendant argues that the facts of this case are starkly different from the facts of Kirsch and that the level of misconduct in Kirsch and other reported cases under Section 53a-55 is considerably above any of the alleged allegations against the defendant.
The police report at Page 4 summarizes the accident in this case as follows. "Mr. Bronov was operating his vehicle heading eastbound on Westport Avenue at a high rate of speed approaching the curve at number 48 Westport Avenue. Mr. Bronov did not attempt to negotiate the curb and ran straight over the curb and the sidewalk striking a telephone pole. This caused Mr. Boyko, (ph) the passenger of the vehicle, to strike his head on the windshield from the impact with the pole." Mr. Boyko was found to have no pulse by the responding officers and was later pronounced dead at the Norwalk Hospital. The cause of death was found after autopsy to be "multiple blunt traumatic injuries. The defendant was also taken to the Norwalk Hospital for treatment of minor injuries. His blood was tested for alcohol. His blood alcohol content was found to be .240 alcohol by weight. The Connecticut standard for intoxication as measured by blood alcohol content is .08 alcohol by weight. Sections 14-227a and 227(n) Connecticut General Statutes.
The officers noted that Westport Avenue at that point is a four-lane state highway, two eastbound lanes and two westbound lanes. The eastbound lane which Mr. Bronov was traveling inclines upward with a sloping curve to the north which would be a left curve as Mr. Bronov was driving. There was no obstructions to vision, the roadway was lighted and properly painted with lines per state statutes. The roadway was wet from a slight rain. There was no ice on the road. The temperature was above freezing. There was no fog. There were no visible skid marks or other indications of braking prior to the impact. Mr. Bronov told the police he had been drinking in South Norwalk. The Court takes notice that South Norwalk is at least several miles from the accident scene.
Comparing these facts to the facts of the Kirsch case there are many similarities. In each case there was operation of a motor vehicle by the defendant for a considerable distance on a major thoroughfare after consumption of excessive quantities of alcohol and a collision resulting in death to another person. In Kirsch the Court found operation at a high rate of speed. The defendant in this case argues that there was no indication of a high rate of speed, but, upon reviewing the police report referenced above, the police report specifically found at Page 4 that, "The vehicle was operated at a high rate of speed approaching the curb at number 48 Westport Avenue." The police report also found that the telephone pole was imbedded approximately two feet into the hood of the vehicle which would also be an indication of a high rate of speed at the time of the impact. The extensive damage to the front end of the vehicle as noted in the photographs reviewed by the Court would also be consistent with impact at a high rate of speed.
The defendant's primary argument differentiating this case from the Kirsch case is that Mr. Kirsch operated his vehicle some 3.9 miles on the wrong side of Interstate 84 and Connecticut Route 9, that is, in the lane designated for travel in the opposite direction. There's no indication that Mr. Bronov who was headed eastbound on Westport Avenue at any time strayed to the left into the westbound lane and his counsel argues that he, therefore, did not create a danger to other vehicles. But the photographs do show that Mr. Bronov's vehicle was almost entirely onto the pedestrian sidewalk on the southerly side of Westport Avenue at the time of impact which clearly would have been a danger to any pedestrians who might have been in the area. Also, as previously noted, the police report concluded that Mr. Bronov did not attempt to negotiate the curve and ran straight over the curb and sidewalk striking a telephone pole. This happened to be an outside curve for eastbound traffic. If it had been an inside curve or had Mr. Bronov somehow negotiated this curve successfully and later come upon a curve to the south or an inside curve, and he likewise did not or could not attempt to negotiate the curve, he would have been into the on-coming traffic lane and would have presented a danger to traffic in that lane. It is also self-evident that his conduct did present a danger to his passenger.
There is another factor which makes the factual pattern in this case somewhat more culpable than the reported facts of the Kirsch case. Mr. Kirsch's blood alcohol content was reported at .210. 263 Conn. at 395. Mr. Bronov's alcohol content measured out at .240 which is approximately fourteen percent higher.
Because of the many similarities to the facts of the Kirsch case and at least one aggravating factor in this case more serious than in the Kirsch case, the Court finds, primarily under the authority of State v. Kirsch, supra, that a reasonable person would be on notice that the conduct described in the Norwalk Police Uniform Accident Report concerning this accident, and depicted in the photographs (Court Exhibit 1) would be a violation of Section 53a-55(a)(3) of the Connecticut General Statutes.
The defendant's equal protection argument is that cases with similar degrees of culpability or factual circumstances similar to the instant matter have resulted in charges of manslaughter in the second degree with a motor vehicle in violation of Section 53a-56b of the Connecticut General Statutes, which is a Class C felony, and that the defendant, therefore, has been denied his Constitutional right to equal protection of the law in that he is being treated disparately from others similarly situated. The Court finds that State v. Kirsch, supra, is also dispositive of this argument where the same issue was raised. As said by the Kirsch Court, "We first note that the defendant has failed to demonstrate that he is similarly situated to the defendants in the case cited in his brief who were charged only with a lesser offense. Moreover, decisions by State's Attorneys as to the offense with which they will charge a defendant require inherently fact intensive inquiries. We will not second guess the rationality of those decisions in the absence of persuasive reasons for doing so." 263 Conn. at 422, 423.
Having found the factual pattern in this case to be not sufficiently different from the facts in the Kirsch case to validly distinguish Kirsch, the holding of the Kirsch case as to the equal protection argument is applicable to the equal protection argument raised by Mr. Bronov.
Accordingly, as to both grounds of the Amended Motion to Dismiss, the Court's order is that the motion is denied.
Alfred J. Jennings, Jr. Judge