Report by Patricia M. Froehlich, State's Attorney for the Judicial District of Windham, Regarding the June 19, 2001, Shooting Death of Robert Phelps in Danielson
June 19, 2002
Introduction and Authority to Conduct Investigation | Summary of Evidence | Law Regarding the Use of Deadly Force by Peace Officers | Trooper Bavosi's Observations and Activities | Scene Analysis and Forensics | Autopsy Analysis | Civilian Witness Observations | First Responding Officers' Observations | Findings of Fact | Conclusion
Introduction and Authority to Conduct Investigation
Shortly after 2:00 a.m. on June 19, 2001, Trooper Daniel Bavosi, while on duty as a Connecticut State Police Trooper assigned to Troop D in Danielson, shot and killed Robert Phelps on West Palmer Street in the Borough of Danielson, located within the Town of Killingly, CT.
The Connecticut State Police notified the State’s Attorney’s Office for the Judicial District of Windham. The Connecticut State Police Central District Major Crime Squad responded and conducted a thorough investigation, including photographs of the scene, the deceased and Trooper Bavosi, video of the scene, and interviews of civilian and law enforcement witnesses. The State Police collected fifty (50) items of evidence. Trooper Bavosi readily cooperated in this investigation, as did the other members of the State Police who responded to the scene. In addition, the citizens in the area of the incident provided signed, sworn statements as to their observations. Subsequent investigation confirmed Trooper Bavosi’s belief that Mr. Phelps’ had just committed a burglary.
Section 51-277a of the Connecticut General Statutes states that the Division of Criminal Justice shall cause an investigation to be made and shall have the responsibility of determining whether a peace officer’s use of deadly physical force was appropriate under Section 53a-22.
The undersigned State’s Attorney, with the invaluable assistance of Inspector Richard Weiss, has reviewed all of the information obtained during the course of this investigation and has walked from the Sunnyside Farms II convenience store to the location at which Trooper Bavosi first saw Robert Phelps and to the scene at which the shooting occurred. The undersigned is aware that Robert Phelps’ death is undoubtedly a great tragedy for his family. Further, the undersigned is acutely aware of the number of months that have passed since the occurrence of this tragic incident and the issuance of this report. The undersigned appreciates the patience Mr. Phelps’ family, the State Police administration and especially Trooper Bavosi have displayed as they have awaited the decision as to whether the use of deadly force was justified.
The investigation is concluded and this report is filed pursuant to Section 51-277a(c) of the Connecticut General Statutes.
Summary of Evidence
While working the midnight shift at Troop D Trooper Bavosi was patrolling the area of Prospect Avenue in Danielson in a State Police cruiser. At approximately 2:15 a.m. Trooper Bavosi heard a broadcast over the State Police radio. This broadcast consisted of Trooper Michael Avery reporting that he heard an alarm at Sunnyside Farms.
Trooper Bavosi reported that as he was turning from Prospect Avenue onto Palmer Street he saw a white male carrying numerous cartons of cigarettes. As he started to drive toward the white male, the man began walking more quickly. Once Trooper Bavosi illuminated the spotlight on his vehicle the man began to run. Trooper Bavosi reported that despite his having identified himself and his having ordered the man to stop, the man continued running. Once Trooper Bavosi caught up with him on foot, he grabbed the man in an attempt to gain control over him. During a struggle, the two fell to the ground and the white male repeatedly struck Trooper Bavosi about the head with an object, which Trooper Bavosi eventually realized was a metal crowbar. Trooper Bavosi reported that a large amount of fluid was pouring down his face. Realizing that it was his own blood and being fearful for his own life as the man reached for Trooper Bavosi’s gun, Trooper Bavosi pulled his State Police-issued weapon from its holster and fired one shot into the white male’s stomach area. When the white male continued to hold onto the crowbar and continued to advance toward Trooper Bavosi, Trooper Bavosi fired a second shot into the man. The man then fell to the ground with blood pooling around him.
Some residents heard the sounds of a “fight” and observed two men fighting. One resident, Dan Wolfburg of West Palmer Street, stated that he called 911 after hearing the trooper yelling “Call 911, Officer down!” Trooper Bavosi attempted to report the shooting to Troop D via portable radio. He was unable to hear the State Police Dispatcher via portable radio because the microphone/speaker unit had become disconnected from his portable radio during the struggle. The audio communications tape reveals that the dispatcher/desk officer repeatedly attempted to communicate with Trooper Bavosi and twice asked “586 your 34?” Another resident, a female who lived on Maple Street, also called 911 to report hearing voices and shots. It was based on this 911 call that the State Police were able to determine Trooper Bavosi’s location.
Upon the arrival of other troopers and ambulance personnel the as-yet unidentified white male was transported to Day Kimball Hospital in Putnam, CT, where J. Chaise, M.D., pronounced him dead at 2:55 a.m. on June 19, 2001. Det. Nancy Cabelus of the Central District Major Crime Squad obtained fingerprints from the deceased. Those fingerprints were entered into the State Police Bureau of Investigations’ Automated Fingerprint Identification System (“AFIS”). As a result of comparing the deceased’s fingerprints with those from prior arrests, the deceased was identified as Robert J. Phelps, Jr., DOB 5/14/70. The Office of the Chief Medical Examiner certified the cause of death as “gunshot wounds of chest and abdomen” and the manner of death as “homicide.”
Trooper Bavosi was also taken to Day Kimball Hospital and then transported to UMASS Medical Center in Worcester, MA due to the severity of his head injuries. Trooper Bavosi signed a Release for Medical Records. The undersigned’s review of those records reveals that Trooper Bavosi suffered what was described as both an “acute head injury” and a “severe head injury” consisting of “multiple lacerations” to his head.
Law Regarding the Use of Deadly Force by Peace Officers
The purpose of this investigation is to determine whether Trooper Bavosi’s use of deadly force was appropriate under Section 53a-22 of the Connecticut General Statutes. More specifically, it is the law regarding a peace officer’s use of deadly physical force upon another person as set forth in Section 53a-22(c)(1) that controls whether Trooper Bavosi’s use of deadly physical force was justified. Section 53a-22(c) states that A peace officer…is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; (emphasis added).
Thus, a peace officer may use deadly physical force when he reasonably believes the use of such force is necessary to defend himself or a third person from the use or imminent use of deadly physical force. The determination of “reasonableness” is both subjective and objective, i.e., the officer must believe that the use of deadly force is necessary to defend himself or another from the use or imminent use of deadly physical force and, the officer’s belief must be objectively reasonable. State v. Prioleau, 235 Conn. 274, 286, 287 (1995). Further,
The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than the 20/20 vision of hindsight…The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation. Graham v. Connor, 490 U.S. 386, 396-397 (1980), internal citations omitted.
Trooper Bavosi's Observations and Activities
Trooper Bavosi’s July 11, 2001 report reads as follows:
“On 6-19-01 I was working the midnight shift at Troop D. That approximately 0215 hours, I was patrolling, in my marked cruiser, in the area of Prospect Avenue in Danielson. In my travels I heard the broadcast over my State Police radio concerning an alarm at Sunnyside Farms in Danielson and that Trooper Avery was assigned to investigate the alarm call. As I turned right onto Palmer Street from Prospect Avenue I observed a white male walking on the side walk approximately 20 yards east of Maple Street. The white male was wearing a red tank top, carrying what appeared to be numerous cartons of cigarettes. The white male had his arms crossed, cradling the cartons of cigarettes. I started to drive towards the white male who then started to walk faster in a suspicious manner. Realizing that the troop area has had several reports of burglaries involving the thefts of cartons of cigarettes, along with the time of night, and the area which is in the recent proximity of the alarm at Sunnyside Farms, I then turned my spotlight on and shined it on the white male in an attempt to investigate this matter further. The white male suddenly started to run west across Maple Street towards West Palmer Street. I immediately existed my cruiser and turned on my portable radio on Palmer Street and pursued on foot. I yelled to the white male, “stop, State Police,” but he did not respond and continued running. I was now thinking that the cartons of cigarettes that the white male was cradling were stolen and that was why he would not obey my verbal command. I caught up to the white male before my radio had time to finish its “self check” and was unable to call for backup. I then grabbed the white male by the shirt in an attempt to gain control of him. The shirt started to tear off of the white male and I then pushed him to the ground on the front lawn of a residence on West Palmer Street. As the white male fell on the grass area of the lawn, he dropped the cartons of cigarettes. As the result of the struggle, I then fell on top of the white male. The white male was lying on his stomach with his hands underneath him at this time. In an attempt to handcuff the white male I then instructed him to show his hands as I was attempting to pull his left hand out from under him. He then rolled over on his right side and swung an object at me and struck me in the head. I then felt a large amount of fluid pouring down my face. I then felt approximately 2 to 3 more strikes to my head and more fluid pour down my face.
As the struggle continued, the white male rolled on top of me. I was now lying on my back and the white male was over me, and was attempting to strike me again. At this point I recall thinking that this man was attempting to kill me. As this thought entered my mind I grabbed a hold of the object I was being struck with and realized it was a metal crowbar. I was then able to wrestle the crowbar from the white male at this time. The white male was still on top of me, and as I was lying on my back I realized that the fluid that was on my face and pooling in my eyes was my own blood. Fearing for my life, I attempted to fight off the white male’s attacks and swung the crowbar in the area of the white male’s shoulders possibly striking him. This had no effect on the white male, and he then grabbed the crowbar with one hand and then reached in the area of my gun belt with his other hand. I felt the white male tug on my left hip and then saw him reaching for my right hip where my duty weapon is holstered. I then rolled onto my right side to shield my weapon. I was still attempting to gain control of the crowbar, and was able to get to my feet. Both the white male and I had our hands on the crowbar and made our way to the street as the struggle ensued. I observed the white male again reach for the area of my weapon. I turned my right hip to the side to avoid the white male from grabbing my weapon. I then took my right hand off of the crowbar to wipe the blood from my eyes to provide some visibility. I then saw the white male reach for my weapon again. At this point I was very weak and lightheaded from the blows to my head and loss of blood. I felt that my life was in grave danger and that if the struggle continued longer, I may blackout and white male [sic] would grab my weapon and kill me. I then pulled my weapon from its holster and fired one shot into the white male’s stomach area. The white male did not let go of the crowbar and continued to advance towards me. Fearing that another blow to the head would kill me, I then fired a second shot into the white male’s stomach area. At this point the white male fell to the ground on his left side with his hands underneath him. I then saw blood pooling near the white male’s stomach and knew he was hit. I then de-cocked my weapon, but kept it trained on the white male. The attack lasted for approximately 1 to 1 ½ minutes. I then attempted to call for assistance using my shoulder microphone. I then realized that the white male had pulled the cord out of the radio disabling it. I then removed the portable radio from my belt and used the main transmit button to call for assistance. My portable radio would not receive transmissions due to part of the shoulder mike attachment still attached to the main portable radio. I did hear my outgoing transmissions coming from my mobile radio in my cruiser, due to the fact that driver’s door on my patrol vehicle remained open. I then radioed dispatch of my location, informing them that there had been shots fired, and a suspect was down, and to send assistance, and an ambulance.
I then observed a white male and a white female on the front porch of the residence of where I was standing. I instructed the people to go inside their home because I did not know if the white male was alive or if he had any more weapons on him. The people ignored my instructions. I again instructed them to get inside their house. Again, they ignored my instructions. I then observed a vehicle approach me from the west on West Palmer Street. The operator called out to me and asked if he should call 911. I told him yes and then I continued my observations of the white male. Moments later, Tpr. Blair #749 was at the scene. While I was still covering the white male with my weapon drawn, I instructed Tpr. Blair to handcuff him. Tpr. Blair then put on his rubber gloves. While putting on his gloves, Tpr. Blair observed the couple on the porch. Tpr. Blair then instructed them to go inside their home. They ignored his instructions. Tpr. Blair then instructed the white male to show his hands. The white male did move slightly and I did observe one heavy breath. Tpr. Blair then slightly nudged the white male on his side with his foot and again instructed him to show his hands. The white male did not move. Tpr. Blair then placed the handcuffs on the white male’s wrists. I then holstered my weapon. Tpr. Blair then tended to my head injuries until medical personnel arrived at the scene.
I was then transported to Day-Kimball Hospital, in Putnam, for treatment of trauma to my head. I was later transported by ambulance to UMass Medical Center, Worcester, MA. While at UMass, I received a CT scan, 21 stitches to my forehead for a laceration approximately 4 inches long, and 7 staples for a laceration to the right side of my head. I also received an abrasion to my right elbow and a cut on my left ear. I was released from the hospital on 6-19-01at [sic] approx. 0730 hours. Later this same day while at home I was advised by Troop D that the white male who had attacked me was a Robert Phelps from the Danielson area. Prior to this night, I did not ever remember having any contact with Phelps.”
Scene Analysis and Forensics
As soon as they were able to determine Trooper Bavosi’s location and respond to the scene, the State Police secured the scene. Trooper Bavosi’s vehicle and all evidentiary items remained as they were at the time of the incident. The State Police Central District Major Crime Squad responded from Meriden, CT. As a result of the notification to the Office of the State’s Attorney for the Judicial District of Windham the State Police conducted the crime scene investigation. In accordance with standard procedure, they documented the scene via video, photographs, diagrams, and measurements. Trooper Bavosi’s vehicle remained as it was at the time of the incident: parked on the left side of the street (facing opposite the normal direction of travel), headlights and spotlight lit, driver’s door open. The Police conducted a detailed search of the area for items of evidence, each of which was numbered and collected. As is typical in the investigation into any serious incident, many of the items were then submitted to the Department of Public Safety Forensic Science Laboratory for examination and analysis. Members of the Central District Major Crime Squad returned to the scene after midnight on June 20, 2001 (almost 24 hours later) in an effort to document the scene in the dark of night. They videotaped the area using auxiliary lighting.
The Police recovered from the front lawn of 15 West Palmer Street a 24-inch steel crowbar (CSP Evidence Item No. 16). In the same area, the Police also discovered, documented and seized, among other things, the following items:
eight (8) cartons of Newport Box menthol cigarettes (CSP Evidence Item No. 13)
one (1) box of Phillies Panatella cigars (CSP Evidence Item No. 11),
one (1) opened package of Bugler cigarette tobacco (CSP Evidence Item No. 14),
one (1) Stanley 16 oz. fiberglass and steel claw hammer (CSP Evidence Item No. 12)
and one (1) brown leather glove (CSP Evidence Item No. 22)
Latent Print Examiners at the Forensic Science Laboratory examined Trooper Bavosi’s pistol, the box of cigars, the cartons of cigarettes and the package of tobacco for identifiable latent impressions (fingerprints). Members of the Forensic Laboratory reported that there were no identifiable latents (fingerprints) developed or found on any of the items.
Trooper Bavosi turned over his State Police-issued weapon, a Sig Sauer Model P229, 40-caliber semi-automatic pistol, serial number AE32225. It was secured (CSP Evidence Item No. 1) and examined. The pistol and magazines were found to have two rounds missing. During the search of the scene, the State Police recovered two spent cartridge casings. (CSP Evidence Item Nos. 19 and 20).
Firearms Examiners at the Forensic Science Laboratory examined the pistol, casings and bullets. The pistol “was found to be operable without malfunction.” The Examiners also found that the two cartridge cases had been fired from Trooper Bavosi’s State Police-issued weapon. Firearms Examiners compared both bullets recovered from Robert Phelps’ body to the test fires from Trooper Bavosi’s weapon and found both to have been fired from that pistol.
The Police described the cartons of cigarettes, the package of tobacco and the glove as having red “blood-like” stains and submitted those items for analysis. Criminalists at the Forensic Science Laboratory reported that each of those items “gave positive results with a chemical screening test for the presence of blood.”
Beginning at 10:55 a.m. on June 19, 2001 H. Wayne Carver, M.D., Chief Medical Examiner, conducted a postmortem examination on the body of Robert J. Phelps. The body was received from Day Kimball Hospital in Putnam, CT. The undersigned has reviewed the postmortem report in which Dr. Carver certified the cause of death as gunshot wounds of chest and abdomen and the manner of death as homicide. In addition, Dr. Carver noted various abrasions on the deceased’s body, specifically a patterned contusion on the deceased’s left shoulder. “The patterned contusion on the left shoulder” was “compared to the butt of a weapon said to be the same model as that used by the officer. The pattern of the contusion is similar to the butt of the weapon but there is an injury in the center of the arch which is not consistent.”
With respect to the gunshot wounds, Dr. Carver noted that there was one gunshot wound to the left chest and one gunshot wound to the left lower chest/upper abdomen. The gunshot wound to the left chest was surrounded by a broad area of abrasion, part of which was coated with soot. Upon dissection of the body, Dr. Carver noted that the path of the bullet was “from above to below, front to back and very slightly towards the midline.” Dr. Carver recovered and provided to the State Police “a fragment of copper jacket and a medium to large caliber partially copper jacketed bullet.”
The gunshot wound to the lower left chest and upper abdomen was surrounded by an area of gun stipple powder abrasions. Upon dissection of the body, Dr. Carver noted that the path of the bullet was from above to below, from front to back and from left to right. Dr. Carver recovered and provided to the State Police “a medium to large caliber, partially copper jacketed bullet.”
At the request of the Office of the Chief Medical Examiner, Dean F. Uphoff, M.D., Neuropathology Consultant, examined the deceased’s brain. Dr. Uphoff noted a lesion “entirely typical of an old traumatic contusion of unusually large extent.” Dr. Uphoff also noted that “there is no evidence of recent hemorrhage or of recent trauma” to the deceased’s brain.
Civilian Witness Observations
Some residents in the area of West Palmer Street and Maple Avenue observed some of the actual confrontation between Trooper Bavosi and Robert Phelps. Each of those witnesses was interviewed separately. The Central District Major Crime Squad conducted a neighborhood canvass in an effort to determine whether there were additional witnesses.
Below is a summary of each witness’ statement, including pertinent quotations:
Susan M. LaRose
On June 19, 2001 between 4:30 a.m. and 6:30 a.m. Susan LaRose provided the State Police with a signed, sworn statement detailing her activities and observations earlier that morning.
Ms. LaRose lives with her husband, Dennis Knapp, on West Palmer Street in Danielson, CT. At approximately 2:00 a.m. she was in bed but awake. Her husband was sleeping beside her. Ms. LaRose heard the sound of “running” up her street and then a loud “scuffling” in front of her house. From her second floor bedroom window in the front of the house, Ms. LaRose could see “two guys rolling around on the ground fighting” and “really going at it.” “They were making a lot of noise and looked very ‘heated’.” Ms. LaRose stated that “the fight was getting so heated that [she] was debating whether or not to call the police.” Instead, she awakened her husband and told him about the fight. Upon returning to the window Ms. LaRose saw that “the two men had separated somewhat and then [she] heard two or more gunshots.” When one of the men stepped into the street, she saw that he was a State Trooper who had a gun in his hand, repeatedly yelling “put your hands behind your back.”
Ms. LaRose and her husband went out to their first floor front porch “to see what had happened.” From that location she observed a car “come up West Palmer Street from West to East” and “heard someone ask the Trooper if he wanted them to call 911.” Ms. LaRose also heard the Trooper telling her and her husband to go back into the house “because he did not know if the man on the ground had anything in his hands.” Ms. LaRose stated that she thought it took “5 or 10 minutes for the second Trooper to show up” and that when he did “the first Trooper told him, ‘he hit me in the head with a crowbar.’”
Ms. LaRose also noted that as she and her husband “left the house to go to Troop D, [she] saw several ‘Newport’ cigarette cartons and a hammer on the grass” where she had “first [seen] the two guys fighting.”
Dennis R. Knapp
On June 19, 2001 between 4:35 a.m. and 5:30 a.m. Mr. Knapp provided the State Police with a signed, sworn statement detailing his observations and activities earlier that morning.
At approximately 2:00 a.m. Mr. Knapp’s wife woke him up by screaming that “two guys were fighting outside of [their] house.” Mr. Knapp looked out the window but “had no idea that a police officer was involved.” From his second floor window he had “a clear view of the front of [his] house, except for one tree, which is slightly to the right of the window.”
Mr. Knapp said that at first the two men were fist fighting about twenty (20) feet from where the shooting eventually took place. He further stated that “the two men were close while they were fighting…both were grunting” and that “you could tell that it was a nasty fight.”
Mr. Knapp said that he “knew that one of the men was hit pretty hard because he staggered backward” and that “the other man then started running straight down the road…towards Brooklyn.” According to Mr. Knapp, the “injured man started chasing the other man down West Palmer Street” and “was able to catch up with other man [sic] and grabbed him.” Mr. Knapp also stated that “as the injured man grabbed the other man, he spun him around” and “all of a sudden, I heard two (2) shots, in close secession [sic] go off.”
Mr. Knapp said that the man who was shot had his back toward Mr. Knapp’s house so that he couldn’t see any muzzle flash and that “it didn’t sound like a large caliber gun, it wasn’t like it was on T.V.”
It was only after the man who was shot fell to the ground that Mr. Knapp realized that the man holding the gun was a Trooper. The Trooper, wearing his radio microphone on his left shoulder, then started calling for help on his radio. At that point, Mr. Knapp “could tell that the Trooper was injured” and “he was screaming ‘Officer hurt, shots fired!”
Mr. Knapp said that he and his wife then went down stairs out to the front porch and “were about five (5) feet away from the man laying on the ground” while “[t]he Trooper is [sic] now about five or six (5 or 6) feet away from the man who was shot.” Mr. Knapp also noted that the Trooper was “still in a defensive position.” Despite the fact that Mr. Knapp heard the Trooper tell him and his wife to “get the fuck back in the house,” he and his wife remained on the porch while a second and eventually a third Trooper arrived.
Mr. Knapp said that the “Trooper involved in the shooting said to the second Trooper ‘Cuff him, I don’t care if he is dead” and that the second trooper kicked the man on the ground in the back several times while telling the man lying on the ground “Let me see your hands, let me see your hands.” “The way the injured man was lying on the ground, the Troopers couldn’t see his hands or if he was still holding a weapon” because “his back was pointed at the Troopers and his hands were pointed towards [Knapp’s] porch, between his legs.” Mr. Knapp further stated that “the Trooper then handcuffed the man lying on the ground and rolled him over to his back.”
Mr. Knapp stated that Trooper Avery was the third Trooper on the scene and that [he] “applied a pressure bandage to the handcuffed man” and “continued administering first aid to the injured man until EMS arrived and took over.”
Mr. Knapp heard the injured Trooper tell the second Trooper at the scene that “he had been struck by a crowbar and to find it.” According to Mr. Knapp, however, “it turned out he was struck by a hammer.”
On June 19, 2001 between 8:25 a.m. and 8:50 a.m. Dan Wolfburg provided the State Police with a signed, sworn statement detailing his observations and activities earlier that morning.
At about 2:30 a.m. Mr. Wolfburg was sleeping with his girlfriend Laura Warner in the back bedroom of his home on West Palmer Street. He was awakened by the sound of two male voices arguing outside. He heard a “pop,” more yelling, “then a pause, and a second ‘pop’.” Mr. Wolfburg knew that the “pops” were gunshots.
When he went to look out his kitchen window he saw a Trooper standing over a person laying on the street and pointing his gun at the person.
When Mr. Wolfburg heard the Trooper yelling “Call 911, Officer down,” he “called 911 and told the person on the other end what had happened.”
Mr. Wolfburg said that two more Troopers arrived and were asking the first Trooper if he was all right.
On June 19, 2001 between 6:50 a.m. and 8:10 a.m. Lynn Krajewski provided the State Police with a signed, sworn statement detailing her observations and activities earlier that morning.
Some time after 10:00 p.m. on June 18, 2001 Ms. Krajewski was sleeping in a chair in the living room at the front of her home on West Palmer Street while her husband slept in the master bedroom at the back side of their home. At around 2:00 a.m. Ms. Krajewski was awakened “by the sounds of loud voices and what sounded like the scuffling of feet coming from the right side of [her] house which is a grass area.” The clock on the microwave in her kitchen read 2:04 a.m.
She immediately looked out through the mini-blinds on her front door and saw “a uniformed police officer and a white male …fighting in the grass area next to [her] house near the edge of the street.” She “saw this white male hitting the police officer in the head and face area, they were close together.” She thought that the police officer was trying “to grab his arms to subdue this white male.” She heard the uniformed police officer “repeatedly saying ‘Stop’ at least three or four times and then ‘Stop it’.”
Although Ms. Krajewski does not “recall seeing any object in the hands of this white male,” she could see that “he was using his hands on the police officer above the officer’s shoulders” and that “the struggle continued into the middle of the street on West Palmer Street almost directly in front of [her] house.” Ms. Krajewski was not wearing her glasses but was able to see that “while the police officer and this man were near the middle of the street still fighting they were always right on top of each other but always on their feet fighting.”
Ms. Krajewski then heard two “pops” which she assumed were gun shots, although she “did not know at first who shot who.” After the second shot Ms. Krajewski saw the white male fall to the street onto his left side “facing the houses across the street” and could see the “police officer holding his gun pointing it at the white male on the ground” and calling on his radio ‘shots fired,’ ‘911,’ two or three times.” Ms. Krajewski was unable to see whether the police officer was injured or not, but stated that “once the white male went down [she] did not see any other struggle or fighting between this male and the police officer.” Ms. Krajewski described the entire struggle as having lasted about “three or four minutes” from when she first saw it to the time the white male fell down in the street.
Within a few minutes of the police officer calling on his radio Ms. Krajewski saw a second uniformed police officer arrive and “nudge the foot of the male subject on the ground to see if he was responsive.”
Ms. Krajewski’s husband did not get out of bed and go to the front door window until after the two gunshots.
Felicia A. Hansen
On June 19, 2001 between 7:10 a.m. and 7:30 a.m. Felicia A. Hansen provided the State Police with a signed, sworn statement detailing her observations and activities earlier that morning.
At approximately 2:00 a.m. on June 19 Ms. Hansen was sleeping in the second floor bedroom of her home at the corner of Maple and Palmer Streets. She was awakened by the sound of two males very loudly yelling at each other. The yelling stopped after what she believed to be two gunshots.
When Ms. Hansen went downstairs and looked out a window which faces Palmer Street she saw a police cruiser with the driver’s door open and the spotlight shining across the street. “The police cruiser was empty.”
Once Ms. Hansen looked out a front window she could see a State Trooper “standing on West Palmer Street just down from the intersection with Maple Street…holding a flashlight in one of his hands.” She also observed a man lying on the ground.
“Within seconds another Trooper arrived and parked on Palmer Street. A few minutes later another Trooper arrived.”
First Responding Officers' Observations
Trooper Scott Blair
In a sworn written statement Trooper Blair stated that on June 19, 2001 he was working the midnight shift as a Connecticut State Trooper assigned to Troop D in Danielson. While patrolling the Route 6 area at “about 2:03 a.m.” he heard “Trooper Avery call in an audible alarm at Sunny Side Dairy. [Trooper Avery] also said that nothing was found and he was clearing.”
Trooper Blair stated “about one to two minutes later “I heard Tpr. Bavosi (#586) yelling that shots were fired.” Trooper Blair immediately turned around and traveled eastbound on Route 6 because Trooper Bavosi “had the north patrol which covers I-395 X94 to the Massachusetts line and several towns in this area.”
Trooper Blair described the fact that Troop D was trying to identify Trooper Bavosi’s location but that they were not getting a clear response.
Trooper Blair was the first to arrive on the scene. He stated that he saw Trooper Bavosi’s car “parked on Palmer facing west. The spotlight was on pointed toward the south shoulder and his door was open.” Trooper Blair also stated that after parking next to Trooper Bavosi’s car he got out of his own vehicle, attempting to locate Trooper Bavosi. With his gun drawn, Trooper Blair scanned the area for Trooper Bavosi but did not see him until he heard Trooper Bavosi saying “Behind you.”
Trooper Blair stated that when he did see Trooper Bavosi, Bavosi was “covered in blood. He further stated that Trooper Bavosi’s “uniform was disheveled and he was holding his duty weapon.” Trooper Blair saw a large white male lying on the side of the road. Trooper Bavosi was yelling for Trooper Blair to handcuff the male as Trooper Bavosi was keeping the male at gunpoint.
Trooper Blair stated that the person was lying in a near fetal position, with the right hand covered by his body. Trooper Blair repeatedly yelled for the person, who was still moving slightly, to show his hands and put them behind his back. When the person did not comply with the verbal commands, Trooper Blair “used [his] foot to push at the suspect and nudged him several times in an attempt to get him to his move his hands.”He was eventually able to handcuff the man on the ground.
While tending to Trooper Bavosi’s injuries Trooper Blair noted that the “top magazine on Tpr. Bavosi’s duty belt was missing.” When Trooper Blair pointed it out to Trooper Bavosi, Bavosi explained that “it must’ve happened when the suspect was reaching for his gun.”
Trooper Avery and Sergeant Aulerich then arrived, along with Emergency Medical Services. Trooper Blair assisted Trooper Bavosi to the ambulance and also removed Trooper Bavosi’s gun from its holster, turning it over to Sgt. Aulerich.
Trooper Blair stated that Palmer Street is “about 3/10 of a mile from the Sunnyside Dairy” and that “there is a footbridge leading from behind the area of the Sunnyside Dairy to Palmer Street."
Trooper Michael Avery
Trooper Avery reported that on June 19, 2001 he was on routine patrol in the town of Danielson and that at “0051 hours” he heard what appeared to be an alarm sounding off. He discovered that it was coming from “Sunny Side Farms Market which is located on Commerce Ave.” Trooper Avery reported that he “checked the entrances to the store and all had appeared to be secure.”
Trooper Avery further reported that
On 06/19/01 at 0201 hrs. I was traveling past Sunny Side Farms again and I could hear their alarm sounding off. I checked the building and it had appeared to be secure. The inside of the store had appeared to be undisturbed. I observed two Norwich Bulletin carriers right next to Sunny Side Farms and they stated to me that they did not observe any unusual activity in regards to the alarm. Once I determined that the store was secure I cleared from the scene.
Once I cleared from the store I continued to conduct my patrol. On 06/19/01 at approx. 0202 hrs. I was traveling north on Rt. 12 just north of Morin Ave. in Danielson. At this point I heard Tpr. Bavosi #586 on my radio stating that he had shots fired.
Once the Police were able to determine Trooper Bavosi’s location, Trooper Avery responded to the scene and saw Trooper Bavosi standing in the middle of West Palmer Street “with a large amount of blood on his entire head and over the front of his uniform.” Trooper Avery reported that he was the second trooper to arrive and that Trooper Blair was standing next to Trooper Bavosi. Trooper Avery reported seeing a white male lying on the road with a large pool of blood next to him and his hands cuffed behind him. Trooper Avery applied pressure “with 4x4 dressings” to two wounds on the white male’s upper body until he was relieved by medical personnel. Trooper Avery reported that although he checked the white male’s pulse it “did not appear that he had one.”
After setting crime scene tape in the area Trooper Avery transported two witnesses from the scene (Susan LaRose and Dennis Knapp) to Troop D.
Trooper Avery later learned that Sunny Side Farms had been burglarized and drove back to the store, where he learned that there was a rear door. Trooper Avery reported that “I did not realize that this door existed when I responded to the two alarms earlier in my shift.”
Findings of Fact
Based on the evidence set forth above and a review of the reports, written statements, audio and video recordings and photographs, the undersigned makes the following findings of fact:
On June 19, 2001, Daniel Bavosi, a Connecticut State Trooper with over three (3) years experience at Troop D, Danielson, was working the midnight shift and patrolling the Borough of Danielson.
Trooper Bavosi’s State Police-issued weapon was a Sig Sauer model P229 .40 caliber semi-automatic pistol, serial number AE32225.
The State Police radio communications tape recorded Trooper Avery’s communication that for the second time during the June 19, 2001 midnight shift he heard an alarm at the Sunnyside Farms II convenience store located on Commerce Street, Danielson, CT.
Since Trooper Avery heard the alarm as he was driving past, the exact time at which the alarm was activated is unknown.
At the time of the transmission regarding that alarm, Trooper Bavosi was in the vicinity.
The State Police radio communications tape reveals a period of three minutes between Trooper Avery’s communication regarding the alarm and Trooper Bavosi’s communication “Shots fired, suspect down.”
The Sunnyside Farms convenience store is located just a short walk over a footbridge from the location on Palmer Street at which Trooper Bavosi first saw the white male later identified as Robert Phelps.
Shortly after 2:00 in the morning the white male later identified as Robert Phelps was walking in a dark residential neighborhood carrying numerous cartons of cigarettes.
There is no 24-hour convenience store in Danielson at which a person could buy cartons of cigarettes at 2:00 in the morning.
Trooper Bavosi reasonably believed that the white male later identified as Robert Phelps had committed an offense.
Trooper Bavosi was justified in his efforts to investigate the suspicious act of walking through a residential neighborhood with cartons of cigarettes shortly after another Trooper reported hearing an alarm at a nearby convenience store.
In response to Trooper Bavosi’s turning on the spotlight on his cruiser, Robert Phelps began to run away and ignored Trooper Bavosi’s lawful order to stop.
While walking on West Palmer Street at approximately 2:00 in the morning on June 19, 2001, Robert Phelps was armed with a claw hammer and a 24” steel crowbar and was wearing or carrying a glove.
Pursuant to Section 53a-3(7) of the Connecticut General Statutes, both a hammer and a crowbar constitute a “dangerous instrument.”
Instead of obeying a lawful order to stop, Robert Phelps chose to attack Trooper Bavosi, beating him about the head and face.
There is no evidence that Trooper Bavosi and Robert Phelps knew each other or had had any previous encounters.
Trooper Bavosi reasonably believed that the man later identified as Robert Phelps had broken into a store in the middle of the night and stolen cartons of cigarettes, facts which if true would in law constitute the offenses of burglary (a felony) and larceny.
Later investigation into the burglary of the Sunnyside Farms convenience store revealed that the male who was shown on the surveillance tape was wearing clothing similar to Robert Phelps’ clothing.
The male who was in the store after it had closed was wearing a glove.
The price tags on the cartons of cigarettes recovered at the scene of the struggle between Robert Phelps and Trooper Bavosi were similar to those used by the Sunnyside Farms store.
Autopsy results reveal that Robert Phelps’ blood alcohol content was 0.14%.
Autopsy results also revealed the presence of cocaine in Robert Phelps’ blood.
It is unknown whether Robert Phelps’ intoxicated state contributed to his vicious attack on Trooper Bavosi.
Trooper Bavosi used his State Police-issued weapon, a .40 caliber semi automatic pistol, to fire two shots into Robert Phelps while Phelps was attacking Trooper Bavosi.
The fact that there is a patterned abrasion on Robert Phelps’ left shoulder is consistent with Trooper Bavosi’s report that at one point he was able to wrestle the crowbar from the white male and “swung the crowbar in the area of the white male’s shoulders possibly striking him.”
There is no evidence that Trooper Bavosi struck Robert Phelps with his pistol.
There is no evidence to corroborate Dennis Knapp’s statement that “it turned out that he [Trooper Bavosi] was struck by a hammer.”
The Central District Major Crime Squad recovered two spent Federal .40 caliber shell casings from the area in front of 15 West Palmer Street, Danielson, CT.
Autopsy results reveal that Robert Phelps died as the result of two (2) gunshot wounds, one to the chest and one to the abdomen.
Autopsy results further reveal “gunpowder stipple abrasions surrounding the wound of entrance” with respect to the gunshot wound of the abdomen.
Gunpowder stipple abrasions surrounding an entrance wound indicate that the shot was fired from within close range.
The gunpowder stipple abrasions corroborate Trooper Bavosi’s report that the white male was sufficiently close to him as to have been reaching for Trooper Bavosi’s weapon when Trooper Bavosi shot him.
The soot coating the gunshot wound to the left chest reveals that the gunshot wound to the chest was consistent with “contact range of fire.”
The contact wound to the chest corroborates Trooper Bavosi’s report that the white male was advancing toward him when Trooper Bavosi fired the second shot into the white male.
The location of the two entrance wounds corroborates Trooper Bavosi’s report that he and the white male were facing each other when Trooper Bavosi shot Robert Phelps in response to the attack.
Dennis Knapp’s statement that one man [Robert Phelps] ran toward Brooklyn with the other man [Trooper Bavosi] chasing him is inconsistent with both the location of the deceased’s body and Mr. Knapp’s own statement that the body was about five (5) feet away from Mr. Knapp’s porch.
The Central District Major Crime Squad located in the roadway the magazine to which Trooper Blair referred.
Photographic and medical documentation of the injuries to Trooper Bavosi’s head make clear that Robert Phelps used deadly physical force against Trooper Bavosi.
Section 53a-22(c) of the Connecticut General Statutes provides that:
a peace officer…is justified in using deadly physical force upon another person…only when he reasonably believes such to be necessary to (1) Defend himself or a third person from the use or imminent use of deadly physical force…
It is abundantly clear from a review of the reports, statements and photographs that Trooper Bavosi was involved in a fight for his life and reasonably believed that the use of deadly physical force was necessary to defend himself from the vicious attack he endured on June 19, 2001. Despite the beating, however, Trooper Bavosi instinctively attempted to protect citizens in the area when he instructed them to go inside their home. It is unfortunate that some civilians chose to watch two men fighting, whether aware that one of them wore a uniform or not, rather than to immediately call 911 for assistance.
Trooper Bavosi’s use of deadly force was appropriate under Section 53a-22 of the Connecticut General Statutes.
The Division of Criminal Justice will take no further action as a result of this incident.
Patricia M. Froehlich
State’s Attorney, Judicial District of Windham
June 17, 2002
 The State Police contacted Inspector Rene Barbeau. Inspector Barbeau attempted to notify then- State’s Attorney Mark S. Solak. Mr. Solak, however, did not respond to the scene or participate in the investigation as the shooting occurred during the interim between the May 17, 2001 hearing on his reappointment and the June 30, 2001 end of his term. In light of Mr. Solak’s failure to respond, Inspector Barbeau notified the Office of the Chief State’s Attorney. The undersigned assumed responsibility for the investigation and submission of this report upon her July 10, 2001 appointment as State’s Attorney for the Judicial District of Windham.
 Sec. 51-277a. Investigation of the use of deadly physical force by peace officers.
(a) Whenever a peace officer, in the performance of his duties, uses deadly physical force upon another person and such person dies as a result thereof, the Division of Criminal Justice shall cause an investigation to be made and shall have the responsibility of determining whether the use of deadly physical force by the peace officer was appropriate under section 53a-22. The division shall request the appropriate law enforcement agency to provide such assistance as is necessary to determine the circumstances of the incident.
(b) In causing such an investigation to be made, the Chief State’s Attorney may, as provided in section 51-281, designate a prosecutorial official from a judicial district other than the judicial district in which the incident occurred to conduct the investigation or may, as provided in subsection (a) of section 51-285, appoint a special assistant state’s attorney or special deputy assistant state’s attorney to conduct the investigation. If the Chief State’s Attorney designates a prosecutorial official from another judicial district or appoints a special prosecutor to conduct the investigation, the Chief State’s Attorney shall, upon the request of such prosecutorial official or special prosecutor, appoint a special inspector or special inspectors to assist in such investigation. Any person may make a written request to the Chief State’s Attorney or the Criminal Justice Commission requesting that the Chief State’s Attorney so designate a prosecutorial official from another judicial district or appoint a special prosecutor to conduct the investigation.
(c) Upon the conclusion of the investigation of the incident, the division shall file a report with the Chief State’s Attorney which shall contain the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate under section 53a-22, and (3) any future action to be taken by the Division of Criminal Justice as a result of the incident. The Chief State’s Attorney shall provide a copy of the report to the chief executive officer of the municipality in which the incident occurred and to the Commissioner of Public Safety or the chief of police of such municipality, as the case may be.
 See footnote 2.
 Trooper Bavosi’s complete report is set forth in the Section entitled “Trooper Bavosi’s Observations and Activities” and is attached as Appendix A.
 Sunnyside Farms is a convenience store located on Commerce Avenue in Danielson, CT and referred to throughout the reports as Sunnyside Farms, Sunny Side Dairy, Sunny Side Market, and the Sunnyside Farms Store.
 Palmer Street is located within a short walk over a footbridge from the Sunnyside Farms convenience store.
 See Section entitled Witness Observations as well as witness statements set forth in their entirety in the Appendices.
 “586” is Trooper Bavosi’s State Police-assigned badge and radio identification number. “34” is State Police radio code for “location.”
 See Section entitled Autopsy Analysis.
 The term “homicide” is defined as “the killing of one human being by the act, procurement or omission of another.” Black’s Law Dictionary, 6th ed., (1990), which also states that “Homicide is not necessarily a crime…there are cases in which homicide may be committed without criminal intent and without criminal consequences…The term “homicide” is neutral; while it describes the act, it pronounces no judgment on its moral or legal quality.”
 Sec. 53a-22. Use of physical force in making arrest or preventing escape. (a) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of physical force to make an arrest or to prevent an escape from custody. A peace officer or an authorized official of the Department of Correction or the Board of Parole who is effecting an arrest pursuant to a warrant or preventing an escape from custody is justified in using the physical force prescribed in subsections (b) and (c) of this section unless such warrant is invalid and is known by such officer to be invalid.
(b) Except as provided in subsection (a) of this section, a peace officer or authorized official of the Department of Correction or the Board of Parole is justified in using physical force upon another person when and to the extent that he reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or (2) defend himself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
(c) A peace officer or authorized official of the Department of Correction or the Board of Parole is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force.
(d) Except as provided in subsection (e) of this section, a person who has been directed by a peace officer or authorized official of the Department of Correction or the Board of Parole to assist such peace officer or official to effect an arrest or to prevent an escape from custody is justified in using reasonable physical force when and to the extent that he reasonably believes such to be necessary to carry out such peace officer’s or official’s direction.
(e) A person who has been directed to assist a peace officer or authorized official of the Department of Correction or the Board of Parole under circumstances specified in subsection (d) of this section may use deadly physical force to effect an arrest or to prevent an escape from custody only when: (1) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (2) he is directed or authorized by such peace officer or official to use deadly physical force, unless he knows that the peace officer or official himself is not authorized to use deadly physical force under the circumstances.
(f) A private person acting on his own account is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of an arrested person whom he reasonably believes to have committed an offense and who in fact has committed such offense; but he is not justified in using deadly physical force in such circumstances, except in defense of person as prescribed in section 53a-19.
 “Peace officer” means a member of the Division of State Police within the Department of Public Safety…” Section 53a-3(9), Connecticut General Statutes.
 “Deadly physical force” is physical force which can be reasonably expected to cause death or serious physical injury. Section 53a-3(5), Connecticut General Statutes. “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. Section 53a-3(4), Connecticut General Statutes.
 The State Police Dispatch audio communications tape (CSP Evidence Item No. 35) reveals Trooper Avery’s announcement that “Sunnyside Farms is going off again.”
 Trooper Scott Blair, Connecticut State Police, assigned Badge and radio identification No. 749.
 During the autopsy, the Office of the Chief Medical Examiner recovered two bullet projectiles from the body of Robert Phelps (CSP Evidence Item No. 43 and 44).
 The statement is set forth in its entirety in Appendix B.
 The statement is set forth in its entirety in Appendix C.
 The statement is set forth in its entirety in Appendix D.
 The statement is set forth in its entirety in Appendix E.
 The statement is set forth in its entirety in Appendix F.
 Trooper Blair’s statement is set forth in its entirety in Appendix G.
 from midnight through 8:00 a.m.
 Interstate 395, Exit 94
 A “magazine” holds rounds of ammunition. The duty belt issued as part of the standard State Police uniform includes a magazine holder capable of storing two (2) magazines.
 Trooper Avery’s badge and radio identification number is 406. His report is set forth in its entirety in Appendix H.
 12:51 a.m.
 A separate investigation conducted by the Criminal Investigations Unit at Troop D subsequent to the shooting revealed that the rear entrance to the Store was damaged. Toolmark Examiners at the Forensic Science Laboratory reported that the damage was consistent with marks made by a tool “similar” to the crowbar. The investigation included a review of the Store’s video surveillance tape. Detective Charles Sarant reported that the tape showed a white male wearing dark shorts, dark tank top, light color ball cap and wearing a dark colored glove on his right hand entered the Sunnyside Farms Store after hours and moved through the store to the area where the cigarettes are kept. “Identification of the white male was not possible as the quality of the tape is poor and the white male continually kept his gloved right hand to his face hiding it from camera view. As the white male exited the store he dropped something from his arms and the sound of metal could be heard as it struck the floor. The clothing recovered at the shooting scene from Robert Phelps was similar to the clothing worn by the suspect in the video. On June 20, 2001, the owner of the convenience store reported that an inventory of the store showed that approximately five (5) to eight (8) cartons of Newport cigarettes were stolen.
 Section 53a-3(7) Definitions. “Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used or attempted to be used, is capable of causing death or serious physical injury…”