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STATE OF CONNECTICUT v. KEVIN S. BIALOWAS
(AC 36250)
Gruendel, Beach and Sullivan, Js.
Argued June 3—officially released October 13, 2015
(Appeal from Superior Court, judicial district of New
London, A. Hadden, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant, Kevin S. Bialowas,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of manslaughter in the second degree
in violation of General Statutes § 53a-56 and evasion of
responsibility in the operation of a motor vehicle in
violation of General Statutes (Rev. to 2009) § 14-224
(a). The defendant claims that the court committed
plain error by failing to instruct the jury that a defen-
dant’s reasonable fear of harm from the victim would
be a possible defense to the charge of failing to stop
and render assistance under § 14-224 (a). We disagree
and, accordingly, affirm the judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history are nec-
essary to our consideration of the defendant’s claim.
The defendant and Jennifer Sanford met in October,
2005, and became romantically involved. Shortly there-
after, they began living together. On January 9, 2008,
in an unrelated criminal matter, the defendant was con-
victed of several tax offenses under General Statutes
§§ 12-428 (1) and 12-737 (a), and he was subsequently
sentenced to a period of incarceration.
In April, 2009, while the defendant was incarcerated,
Sanford began a relationship with the victim, Steven
Germano. Sanford and the victim resided together while
the defendant was incarcerated. The victim would pros-
titute Sanford and supported her drug addiction by pro-
viding her with heroin.
The defendant and Sanford remained in contact by
letter during his period of incarceration, and the two
planned to resume their relationship when he was
released. The victim was aware of these communica-
tions and did not want Sanford to resume her relation-
ship with the defendant upon his release from prison.
Upon the defendant’s release, he resided in a halfway
house, but remained in the custody of the Department
of Correction. Sanford provided him with a cell phone,
which was considered contraband in the facility.
On the morning of July 14, 2009, Sanford used heroin
and then traveled to Cheshire with the victim for work.
Later that day, the defendant was released from the
custody of the Department of Correction, and he drove
to see Sanford at her father’s home in Baltic. When the
defendant arrived, Sanford was at the residence with
her father, her son, and the victim. The victim wanted
to fight the defendant, but Sanford intervened and told
the victim to leave the premises. The victim drove away
in his dark blue truck. Shortly thereafter, Sanford and
the defendant left the house in a white Ford pickup
truck driven by the defendant. As they approached the
end of the driveway, the defendant and Sanford wit-
nessed the victim pass as he travelled toward Norwich.
Then, the defendant and Sanford pulled out onto Route
207 and were travelling behind the victim.
At St. Mary’s Church in Baltic, the victim pulled off
the roadway and allowed the defendant and Sanford to
pass him. When the defendant and Sanford passed the
victim, he ‘‘pulled right out behind [them] and just fol-
lowed [them].’’ The defendant increased his speed to
see if the victim would follow, and he did. While the
two trucks proceeded, the victim called the defendant’s
cell phone. Sanford answered, and the victim demanded
that she exit the defendant’s truck. The victim told
Sanford that he wanted to fight the defendant and, in
response, Sanford said that the defendant was not a
fighter. The defendant became distracted while driving
and hit a telephone pole, causing damage to his vehicle.
The defendant and Sanford continued to travel in the
defendant’s truck for approximately fifteen miles from
Baltic into Norwich, and the victim continued to follow
them in his vehicle. At a stop sign at the Norwichtown
Green, the victim pulled his truck in front of the defen-
dant’s truck. The victim exited his vehicle and began
waving his hands in the air. As the victim approached
the defendant’s truck, Sanford locked the doors. The
defendant reversed his truck a distance of fifteen to
twenty feet, shifted the gears into drive, and accelerated
toward the victim. The victim jumped on the hood of
the defendant’s vehicle, with his face pressed up against
the windshield. The defendant swerved, and the victim
fell off the hood of the truck, striking his head on
the pavement.
At first, Sanford thought that the victim was joking,
or ‘‘playing possum,’’ in an ‘‘attempt to trick [the defen-
dant] into stopping,’’ or to get the defendant into trouble
with his parole officer. When Sanford realized that the
victim was not getting up off the ground, she asked the
defendant to stop the vehicle. The defendant refused
to pull over because he did not have a driver’s license,
and the vehicle that he was operating was not registered
or insured. The defendant and Sanford then drove away
from the scene of the collision.
The defendant had access to a commercial garage
located in Bozrah and drove the truck there following
the incident. Sanford attempted to contact the victim
by calling his cell phone, but a police officer answered,
and she hung up after providing the officer with a false
name. The defendant told Sanford to take the batteries
out of the cell phone that she had used to call the victim
so that the police could not locate it. Sanford then
called Michele Savalle, a friend of the defendant. Savalle
picked up the defendant and Sanford from the garage
in Bozrah and brought them to her home in Colchester.
After going out to dinner, the defendant and Sanford
spent the night at Savalle’s home.
The next day, on July 15, 2009, the defendant met
with his parole officer. The Norwich Police Department
had developed the defendant as a suspect in the inci-
dent, and, accordingly, his parole officer transported
him to the police station for questioning. Officer
Thomas Lazzaro of the Norwich Police Department
interviewed the defendant, but did not place him under
arrest. On July 20, 2009, the victim died at the hospital
as a result of the head trauma he suffered as a result
of the collision. Thereafter, the defendant was arrested
and was charged by information with murder in viola-
tion of General Statutes § 53a-54a and evasion of
responsibility in the operation of a motor vehicle in
violation of § 14-224 (a).1
A jury trial was held in September and October, 2012.
On October 1, 2012, following closing arguments, the
court, A. Hadden, J., charged the jury. With respect to
the evading responsibility charge, the court read the
pertinent part of § 14-224 (a)2 to the jury and then
explained the four elements of the crime that the state
had to prove beyond a reasonable doubt: (1) ‘‘the defen-
dant operated a motor vehicle’’; (2) ‘‘the defendant was
knowingly involved in an accident’’; (3) ‘‘the accident
caused serious physical injury or death to a person’’;
and (4) ‘‘the defendant did not stop at once and render
assistance as needed and did not [give] his name,
address, operator’s license number, and registration
number to either the person injured . . . the witness
to the accident or an officer. If, for any reason or cause,
the defendant was unable to provide the required infor-
mation at the scene of the accident, the law requires him
to immediately report the accident to a law enforcement
officer or to the nearest police station.’’ The defendant
did not take an exception to the court’s charge on the
ground that it did not explain that the defendant’s rea-
sonable fear for his safety would provide an excuse
that would justify his failure to stop. Subsequently, the
defendant submitted a written request to charge on the
defense of justification. In his written request to charge
the jury, the defendant did not request an instruction
that a defendant’s reasonable fear of harm from the
victim would be a possible defense to the charge of
failing to stop and render assistance under § 14-224 (a).
The jury found the defendant guilty of evasion of
responsibility in the operation of a motor vehicle and
the lesser included offense of manslaughter in the sec-
ond degree.3 The court imposed a total effective sen-
tence of twenty years incarceration, execution
suspended after fifteen years, followed by five years
of probation.
In an attempt to obtain extraordinary review of this
unpreserved claim, the defendant urges us to invoke
the plain error doctrine. See Practice Book § 60-5.4 ‘‘The
plain error doctrine is a rule of reversibility reserved
for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . . That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment, for reasons of policy. . . .
[Thus, an appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citation omitted; internal quotation marks
omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d
752 (2010).
As noted, the defendant’s sole claim on appeal is that
the court committed plain error by failing to instruct
the jury sua sponte that a defendant’s reasonable fear
of harm from the victim would be a possible defense
to the charge of failing to stop and render assistance
under § 14-224 (a). The defendant argues that State v.
Kitchens, 299 Conn. 447, 474 n.18, 10 A.3d 942 (2011),
is inapplicable where, as here, an improper jury charge
constitutes plain error. The defendant further argues
that defense counsel’s participation in the charge con-
ference and his subsequent failure to put any additional
information on the record ‘‘falls short of expressing
unequivocal approval of the evading responsibility
instruction.’’ In addition, the defendant argues that ‘‘[in]
light of [his] motion for judgment of acquittal, his clos-
ing argument and the testimony from . . . Sanford
which [he] developed through cross-examination, the
record is not [sufficient] to overcome the usual pre-
sumption against the waiver of important rights.’’ We
disagree.
The claim raised by the defendant is premised upon
the court’s failure to instruct the jury on a possible
defense to the charge of evasion of responsibility in the
operation of a motor vehicle, as articulated previously
by this court in State v. Rosario, 81 Conn. App. 621,
628–29 n.4, 841 A.2d 254, cert. denied, 268 Conn. 923,
848 A.2d 473 (2004).5 The state counters that plain error
review of the defendant’s claim is thwarted because he
waived his challenge to the jury instruction by inducing
the error of which he now complains. See State v. Kitch-
ens, supra, 299 Conn. 480 (‘‘Connecticut courts have
deemed a claim of instructional error implicitly waived
when the defense failed to take exception to, and acqui-
esced in, the jury instructions following one or more
opportunities to review them’’). Specifically, the state
argues that such an instruction pursuant to State v.
Rosario, supra, 81 Conn. App. 628–29 n.4, would have
highlighted the defendant’s failure to report the incident
immediately to a law enforcement officer or to the
nearest police precinct or station, as required by § 14-
224 (a).6 The state further argues that the court afforded
the defendant a meaningful opportunity to review the
instructions before the court delivered its charge, and
counsel for the defendant affirmatively accepted the
instructions at trial by failing to take an exception at
the time they were given. See State v. Tozier, 136 Conn.
App. 731, 744–45, 46 A.3d 960, cert. denied, 307 Conn.
925, 55 A.3d 567 (2012). We agree with the state.
Whether a defendant waives the right to challenge
jury instructions is a question of law over which we
exercise plenary review. See State v. Mungroo, 299
Conn. 667, 672–73, 11 A.3d 132 (2011).
Relevant to the issue of waiver in the context of
jury instruction claims, our Supreme Court stated that
‘‘when the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ State v. Kitchens, supra, 299 Conn. 482–83.
To determine whether, as is argued by the state, the
defendant implicitly waived his claim of instructional
error, we will turn to ‘‘a close examination of the record
and the particular facts and circumstances of [this]
case.’’ Id., 483.
The record reflects that the presentation of evidence
in this case occurred over the course of four days in
September, 2012. On September 27, 2012, the third day
of evidence, the state filed a written request to charge
on the murder count and lesser included offenses. The
next day, on September 28, 2012, the defense filed its
request to charge on the murder count and lesser
included offenses. Neither the state nor the defendant
submitted a request to charge on the evading responsi-
bility count. On September 28, 2012, the court provided
counsel with copies of its proposed charge for review
over the weekend.
On Monday, October 1, 2012, the court memorialized
the charge conference held the previous week by stating
the following on the record: ‘‘We did have a discussion
regarding the jury charge. Counsel were provided with
copies of a proposed charge last Friday. We did discuss
making some alteration to the charge of evading respon-
sibility which I agreed to make.’’7 We can reasonably
infer that the defendant was present at the off-the-
record charge conference. Prior to charging the jury,
the court asked the parties if there was ‘‘[a]nything
else’’ to discuss on the record regarding the charge
conference. Defense counsel indicated that he did not
have anything to add to the record regarding the charge
conference. Following closing arguments, the jury was
given a short recess, and then the court delivered its
charge to the jury. The state objected to a negligent
homicide instruction being given on the basis that it
was not charged as being committed with a motor vehi-
cle. The court overruled the objection of the state. Nei-
ther the prosecutor nor defense counsel took an
exception to the court’s charge on evasion of responsi-
bility.
Our case law does not provide an exact definition of
what constitutes a meaningful opportunity for review
under Kitchens.8 See State v. Kitchens, supra, 299 Conn.
495 n.28 (‘‘The significance of a meaningful opportunity
for review and comment cannot be underestimated.
Holding an on-the-record charge conference, and even
providing counsel with an advance copy of the instruc-
tions, will not necessarily be sufficient in all cases to
constitute waiver of Golding review9 if defense counsel
has not been afforded adequate time, under the circum-
stances, to examine the instructions and to identify any
potential flaws.’’). Prior decisions of this court have
held that an opportunity to review a proposed charge
overnight amounts to an opportunity for meaningful
review. See, e.g., State v. Lee, 138 Conn. App. 420. 453–
54, 52 A.3d 736 (2012); State v. Fontaine, 134 Conn.
App. 224, 231, 40 A.3d 331, cert. denied, 304 Conn. 926,
41 A.3d 1052 (2012).
Here, we are persuaded that the defense had a mean-
ingful opportunity to review the court’s proposed
charge. There is no dispute that defense counsel was
in possession of the court’s proposed charge on Friday,
September 28, 2012, three days before the charge was
given. On the morning of Monday, October 1, 2012,
prior to delivering closing arguments, the court asked
defense counsel whether he had ‘‘[a]nything else’’ to
state on the record with regard to the off-the-record
charge conference regarding the proposed instructions.
Defense counsel responded: ‘‘I don’t think so, Your
Honor.’’
‘‘The mechanism by which a right may be waived
. . . varies according to the right at stake. . . . For
certain fundamental rights, the defendant must person-
ally make an informed waiver. . . . For other rights,
however, waiver may be effected by action of counsel.
. . . This court has stated that among the rights that
may be waived by the action of counsel in a criminal
proceeding is the right of a defendant to proper jury
instructions.’’ (Citation omitted; internal quotation
marks omitted.) State v. Kitchens, supra, 299 Conn. 467.
On the basis of our close examination of the facts of
this case, we have determined that the representations
of defense counsel, and his failure to request additional
time to examine the instructions as proposed, reflected
acquiescence in those instructions. See State v. Tozier,
supra, 136 Conn. App. 745. We therefore conclude that
the defendant implicitly waived his claim that the court
improperly omitted an instruction that a defendant’s
reasonable fear of harm from the victim would be a
defense to the charge of failing to stop and render
assistance under § 14-224 (a).
Because we have concluded that the defendant
waived his right to raise the present claim of instruc-
tional error at trial, we reject his argument that the
court committed plain error.10 As our Supreme Court
observed in Kitchens, ‘‘a valid waiver precludes a find-
ing that a jury instruction constitutes plain error
because a valid waiver means that there is no error to
correct.’’ State v. Kitchens, supra, 299 Conn. 474 n.18;
see also Mozell v. Commissioner of Correction, 291
Conn. 62, 70, 967 A.2d 41 (2009) (reasoning that valid
waiver thwarts ‘‘review’’ under plain error doctrine).
This court has adhered to the view that waiver thwarts
a finding that plain error exists. See, e.g., State v. Fuller,
158 Conn. App. 378, 390, A.3d (2015); State v.
McClain, 154 Conn. App. 281, 293, 105 A.3d 924 (2014);
State v. Reddick, 153 Conn. App. 69, 82, 100 A.3d 439,
appeal dismissed, 314 Conn. 934, 102 A.3d 85, cert.
denied, 315 Conn. 904, 104 A.3d 757 (2014); State v.
Cancel, 149 Conn. App. 86, 102–103, 87 A.3d 618, cert.
denied, 311 Conn. 954, 97 A.3d 985 (2014); State v.
Tozier, supra, 136 Conn. App. 744. Accordingly, we
conclude that the defendant’s waiver precludes the
application of the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On September 28, 2012, the state filed a substitute information charging
the defendant with the same offenses.
2
General Statutes (Rev. to 2009) § 14-224 (a) provides: ‘‘Each person
operating a motor vehicle who is knowingly involved in an accident which
causes serious physical injury, as defined in section 53a-3, to or results in
the death of any other person shall at once stop and render such assistance
as may be needed and shall give his name, address and operator’s license
number and registration number to the person injured or to any officer or
witness to the death or serious physical injury of any person, and if such
operator of the motor vehicle causing the death or serious physical injury
of any person is unable to give his name, address and operator’s license
number and registration number to the person injured or to any witness or
officer, for any reason or cause, such operator shall immediately report
such death or serious physical injury of any person to a police officer, a
constable, a state police officer or an inspector of motor vehicles or at the
nearest police precinct or station, and shall state in such report the location
and circumstances of the accident causing the death or serious physical
injury of any person and his name, address, operator’s license number and
registration number.’’
3
Additionally, we note that the jury returned a verdict of not guilty with
regard to one count of murder in violation of General Statutes § 53a-54a
and as to the lesser included offense of manslaughter in the first degree in
violation of General Statutes § 53a-55 (a) (3).
4
Practice Book § 60-5 provides in relevant part: ‘‘The court shall not be
bound to consider a claim unless it was distinctly raised at the trial or arose
subsequent to the trial. The court may in the interests of justice notice plain
error not brought to the attention of the trial court. . . .’’
5
In Rosario, the defendant was the driver of a vehicle that struck and
killed a pedestrian. State v. Rosario, supra, 81 Conn. App. 622. The defendant
did not stop immediately after striking the pedestrian but, instead, drove
directly to his home. Id., 624. After speaking with his wife, the defendant
turned himself in at the police station approximately twenty minutes after
the first report of the accident. Id. After a jury trial, the defendant in Rosario
was convicted of evasion of responsibility in the operation of a motor vehicle
in violation of § 14-224 (a). Id., 623. The court in Rosario noted that the
evidence amply supported the conclusion that the defendant was scared
and that was one of the reasons why he had failed to stop at the scene of
the accident. Id., 628. The court concluded that the defendant’s emotional
state in Rosario did not excuse his actions, but the court noted that ‘‘a
situation might arise in which the operator’s emotional state and subsequent
flight from the scene are grounded in facts that could excuse his failure to
stop.’’ Id., 628 n.4. The court continued: ‘‘[A defendant’s] honest belief that
he was in danger of bodily harm if he remained at the scene of the accident
might justify his conduct in leaving without giving identification; but the
alleged fear of [the defendant] that he might have been assaulted if he had
stopped to comply with the statute does not excuse his failure to comply,
where there was not any attempt or threat to assault him or the display of
any weapon with which an assault might have been committed. 61A C.J.S.
553, Motor Vehicles, § 676 (1970).’’ Id., 629 n.4. The court in Rosario con-
cluded that the defendant’s failure to stop was not justified, because there
was no evidence of any threats or a display of weapons at the scene of the
accident. Id.
6
General Statutes (Rev. to 2009) § 14-224 (a) allows an operator to report
an accident at the nearest police station if he is unable to give the statutorily
required information ‘‘to the person injured or to any witness or officer, for
any reason or cause . . . .’’ (Emphasis added.) Our review of the record
indicates that the defendant did not call the police, nor did he discuss with
Sanford the possibility of going to the nearest police station for his own
safety. We therefore agree with the state that even if the jury was persuaded
that the defendant’s emotional state justified his failure to remain at the
scene of the collision, that does not excuse his failure to comply with the
statute’s mandate to ‘‘immediately report such death or serious physical
injury of any person to a police officer, a constable, a state police officer
or an inspector of motor vehicles or at the nearest police precinct or station
. . . .’’ General Statutes (Rev. to 2009) § 14-224 (a).
7
It is not apparent from our review of the record what ‘‘alteration’’ the
court agreed to make with respect to the evading responsibility charge.
Because the record does not contain a copy of the proposed jury instructions
as provided to the parties on September 28, 2012, we are able to consider
only the final amended version of the instructions as given to the jury.
8
At oral argument, the defendant urged this court to adopt the federal
plain error standard as articulated by the United States Court of Appeals
for the Ninth Circuit. See United States v. Bear, 439 F.3d 565, 568 (9th Cir.
2006) (‘‘[w]hen a defendant actually presents and relies upon a theory of
defense at trial, the judge must instruct the jury on that theory even where
such an instruction was not requested’’). We find no occasion to turn to the
federal law regarding plain error in light of our own precedents.
9
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
10
In its appellate brief, the state maintains that the claim raised by the
defendant on appeal is not reviewable under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). Under Golding, ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial only 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 . . .
exists and . . . 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.’’ (Empha-
sis in original; footnote omitted.) Id.; see In re Yasiel R., 317 Conn. 773,
781, A.3d (2015) (modifying third prong).
We agree with the state that the defendant cannot prevail under Golding
because he cannot demonstrate that the alleged constitutional violation
exists and deprived him of a fair trial. ‘‘[I]n the usual Golding situation, the
defendant raises a claim on appeal [that], while not preserved at trial, at
least was not waived at trial. . . . [A] constitutional claim that has been
waived does not satisfy the third prong of the Golding test because, in such
circumstances, we simply cannot conclude that injustice [has been] done
to either party . . . or that the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial . . . .’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.) State v. Holness, 289
Conn. 535, 543, 958 A.2d 754 (2008).