State v. Lopez , 177 Conn. App. 651 ( 2017 )

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STATE v. LOPEZ—DISSENT AND CONCURRENCE
HARPER, J., dissenting in part and concurring in part.
I write separately to express my opinion that the trial
court did not improperly restrict the cross-examination
by the defendant, Juan C. Lopez, of the state’s expert
witness, Robert H. Powers, a forensic toxicology expert,
and my conclusion that the defendant’s conviction
should be affirmed. The conclusion reached by the
majority requires us to make assumptions that are not
supported by the record and to ignore established prec-
edent concerning the analysis of whether a jury has
complied with the trial court’s instructions. I do, how-
ever, concur in the conclusion of the majority that the
trial court did not abuse its discretion in admitting an
‘‘incomplete and altered’’ dashboard camera video
taken from the arresting police officer’s patrol car. I
would affirm the judgment of the trial court on all
claims.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On March 3, 2013, at approximately 1:50 a.m.,
the defendant was stopped on Interstate 95 in Fairfield
by state police Trooper Colin Richter after Richter
observed the defendant driving erratically and speed-
ing. Richter performed a series of standard field sobri-
ety tests on the defendant, which the defendant failed.
Thereafter, Richter arrested the defendant, and charged
him with operating a motor vehicle while under the
influence of alcohol in violation of General Statutes
§ 14-227a (a) (1) and driving with a suspended license
in violation of General Statutes § 14-215. No tests were
performed to determine the defendant’s blood alcohol
content level via a chemical analysis of his blood, urine,
or breath.
At trial, the state pursued a drunken driving prosecu-
tion under § 14-227a (a) (1) on the basis of behavioral
evidence of intoxication, known as a behavioral prose-
cution or behavioral theory. Because the state pursued
a behavioral prosecution, it was prohibited by § 14-227a
(c) from presenting evidence of the defendant’s blood
alcohol level that derived from a chemical analysis of
his blood, urine, or breath. The state presented two
witnesses: Richter, who testified regarding the circum-
stances of his encounter with the defendant and the
factors that led him to arrest the defendant; and Powers,
who testified regarding the scientific basis of the field
sobriety tests and the intoxication status of a person
who fails such tests. The trial court qualified Richter
as an expert in the administration of field sobriety tests
on the basis of his training and experience, and Powers
as an expert in toxicology, including the scientific basis
of field sobriety tests.
Richter testified regarding his interactions with the
defendant from his first observation of the defendant
driving erratically through his arrest and booking at the
state police barracks. The following testimony from
Richter is relevant. He testified that his interaction with
the defendant began when he noticed a vehicle
approaching him quickly from behind on Interstate 95
in Fairfield and then speeding past him. Richter then
followed the vehicle and observed the vehicle being
driven erratically, swerving between the left and center
lanes. Richter thereafter activated the overhead lights
in his police cruiser and stopped the vehicle. The vehicle
safely maneuvered from the left lane across the center
and right lanes before coming to a stop on the right
shoulder of the highway. Richter approached the vehi-
cle and found that the defendant was the driver of the
vehicle. Richter then proceeded to ask the defendant
standard questions about where he was going, where
he was coming from, and whether he could provide
a driver’s license for Richter to inspect.1 During this
interaction, Richter noted that the defendant had
slurred speech, his eyes were glassy and bloodshot, and
he had the odor of alcohol on his breath. On the basis
of these details, Richter suspected that the defendant
was intoxicated and determined that it would be appro-
priate for him to perform a series of field sobriety tests
on the defendant.
Richter instructed the defendant to exit his vehicle
in order to undergo the field sobriety tests. These tests
included the horizontal gaze nystagmus test, the walk
and turn test, and the one leg stand test. Before per-
forming each test, Richter gave the defendant detailed
instructions and demonstrations, asked if the defendant
understood the instructions, and asked if the defendant
had any medical conditions or physical impairments
that would impact the results. Each time, the defendant
stated that he understood the instructions and did not
have any medical or physical conditions that would
affect his performance on the tests.
The first test Richter performed on the defendant
was the horizontal gaze nystagmus test. Richter testified
that the test looks for nystagmus, which is an involun-
tary jerking of the eyes that is indicative of intoxication.
The test required the defendant to track Richter’s pen2
with his eyes only while Richter held his pen a few
inches in front of the defendant’s eyes and moved his
pen from side to side. When officers perform this test,
they look for lack of smooth pursuit of the eyes, onset
of nystagmus prior to 45 degree turn of the eyes, and
nystagmus at the maximum deviation of the eye turned
from center. Richter testified that the presence of these
symptoms indicates intoxication. The defendant failed
the test because Richter observed all three factors indic-
ative of intoxication in the defendant’s performance on
the test.
The second test Richter performed on the defendant
was the walk and turn test. Richter testified that this
test consists of having the defendant walk heel to toe
in a straight line for exactly nine steps, with his arms
at his side, turn in a particular direction, and then walk
back to the starting point. The defendant failed this test
because he started the test before instructed to do so,
could not stay on the line he was instructed to walk,
raised his arms in order to gain better balance, turned
incorrectly, failed to walk heel to toe, took an incorrect
number of steps, and swayed.
The third and final test that Richter performed on
the defendant was the one leg stand test. Richter testi-
fied that this test consists of the defendant counting
out loud as he stands on one foot while raising the
other foot approximately six inches off the ground and
counting, keeping his arms at his sides. The defendant
failed this test because he put his foot down three times,
he swayed, and he was unable to properly count.
Richter testified that he determined that the defen-
dant was intoxicated and could not safely operate a
motor vehicle because the defendant failed the field
sobriety tests, and because Richter had observed other
indicators of intoxication, including glassy and blood-
shot eyes, the odor of alcohol on his breath, and erratic
driving. Additionally, Richter testified that the defen-
dant admitted drinking mojitos earlier that evening,
although the location of where the defendant stated he
drank this alcohol was not consistent with where the
defendant initially told Richter he was coming from
when Richter stopped him on the highway.
Subsequently, Richter placed the defendant under
arrest and transported him to the state police barracks
to be processed. Richter testified that, at the barracks,
the defendant still smelled of alcohol and had bloodshot
and glassy eyes, and acted intoxicated throughout the
booking process by exhibiting belligerent behavior.
Also during the booking process, the defendant refused
to submit to a breath test to determine his blood alco-
hol level.
Following Richter’s testimony, the state called Pow-
ers to testify. As previously noted, Powers was qualified
by the court as an expert in forensic toxicology. Powers
testified that the field sobriety tests performed by Rich-
ter on the defendant are reliable indicators of whether
a person is likely intoxicated or impaired because they
seek to identify involuntary symptoms that are com-
monly caused by intoxication.
The state then asked Powers to opine on a series
of hypotheticals that involved a hypothetical person
exhibiting the same behaviors and performance on the
field sobriety tests as Richter testified the defendant
had exhibited. Powers testified that, on the basis of the
behaviors described, he would expect that person to
be under the influence of a central nervous system
depressant, such as alcohol. He further explained that
he would expect such a person to have a blood alcohol
level of 0.12 or higher because below that level people
do not generally completely fail the field sobriety tests.
Further, he would expect such a person to have a dimin-
ished ability to operate a motor vehicle.
The defendant objected to the state’s questions
regarding the blood alcohol level of the hypothetical
person. First, the defendant objected on the ground
that there was inadequate foundation regarding ‘‘how
much alcohol’’ for the state to ask: ‘‘And if these same
symptoms, based upon the [hypothetical] . . . and
based on the assumptions that we’ve talked about here
in court, were caused by alcohol, could you opine as
to how much alcohol it would take to achieve those
symptoms?’’ The court overruled the objection because
the question asked only whether Powers could form an
opinion on the information provided to him on the basis
of his education, training, and experience. Powers
answered that he could form an opinion, and the state
then asked Powers to give his opinion. The defendant
objected again on the ground that there was inadequate
foundation regarding ‘‘how much alcohol.’’ The court
overruled the objection because there was proper foun-
dation for Powers to offer his opinion as a forensic
toxicologist because he had been qualified as an expert
witness in the field of forensic toxicology.
On cross-examination of Powers, the defendant
asked numerous questions regarding the state’s hypo-
theticals, and Powers’ underlying scientific knowledge
regarding field sobriety tests and how such tests relate
to a person’s ability to operate a motor vehicle under
certain blood alcohol levels. The defendant also twice
attempted to ask Powers to opine on the ultimate issue
of the case—specifically, whether the defendant was
intoxicated. On his first attempt, the defendant made
a rambling statement that could be viewed as either
asking about the defendant’s blood alcohol level or
about whether the defendant was so intoxicated as
to be legally impaired: ‘‘Without—with any degree of
medical certainty with you not being present at this
scene on [Interstate] 95 on March 3, 2013, at 1:52 a.m.,
you—you do not know what [the defendant’s] level
of intoxication was.’’ The court sustained the state’s
objection to this question, and the defendant attempted
to ask the question again by rephrasing it: ‘‘As you
sit here today, do you know if [the defendant] was
intoxicated that day?’’ The court again sustained the
state’s objection to this question.
Following the testimony of Richter and Powers, the
state rested, and the defendant called no witnesses. The
jury found the defendant guilty of operating a motor
vehicle while under the influence of alcohol in violation
of § 14-227a (a) (1) and of driving with a suspended
license in violation of § 14-215. The defendant also
pleaded guilty to a part B information as a third time
offender. The court sentenced the defendant to three
years of incarceration, execution suspended after two
years, followed by three years of probation. This
appeal followed.
I disagree with the majority’s conclusion that the
defendant’s right to cross-examine Powers was improp-
erly restricted and that the restriction was harmful to a
degree requiring reversal of the defendant’s conviction.
The defendant argues, and the majority agrees, that
once Powers opined on direct examination that a hypo-
thetical individual who performed in a certain way on
each of the field sobriety tests would be expected to
have a blood alcohol level of 0.12 or higher, the court
should not have foreclosed the defendant from later
cross-examining him about this central, relevant issue.
A thorough review of the trial transcripts shows that
the court did not prevent, improperly or otherwise, the
defendant from cross-examining Powers regarding his
testimony as to the blood alcohol level of a person
described in the hypotheticals posed by the prosecutor.
Rather, the questions that he was prohibited from ask-
ing sought Powers’ opinion on the ultimate issue of the
case—whether the defendant was intoxicated—and it
is only on appeal that the defendant casts these ques-
tions as an attempt to undermine Powers’ testimony
regarding blood alcohol content.
‘‘[R]estrictions on the scope of cross-examination are
within the sound discretion of the trial judge . . . but
this discretion comes into play only after the defendant
has been permitted cross-examination sufficient to sat-
isfy the sixth amendment [to the United States constitu-
tion].’’ (Internal quotation marks omitted.) State v.
Daniel B., 164 Conn. App. 318, 341, 137 A.3d 837, cert.
granted on other grounds, 323 Conn. 910, 149 A.3d 495
(2016). This sixth amendment right is satisfied ‘‘when
defense counsel is permitted to expose to the jury the
facts from which [the] jurors, as the sole triers of fact
and credibility, could appropriately draw inferences
relating to the reliability of the witness.’’ (Internal quota-
tion marks omitted.) Id. ‘‘The defendant’s sixth amend-
ment right . . . does not require the trial court to forgo
completely restraints on the admissibility of evidence.
. . . Generally, [a defendant] must comply with estab-
lished rules of procedure and evidence . . . .’’ (Internal
quotation marks omitted.) State v. Wright, 273 Conn.
418, 424, 870 A.2d 1039 (2005). It is well established
that ‘‘[a]n expert witness ordinarily may not express an
opinion on an ultimate issue of fact, which must be
decided by the trier of fact.’’ (Internal quotation marks
omitted.) State v. Taylor G., 315 Conn. 734, 761, 110
A.3d 338 (2015).
The defendant’s claim that his cross-examination of
Powers was improperly restricted concerns two ques-
tions only, and each time the defendant asked these
questions, the court properly sustained the state’s
objections because the questions improperly sought
Powers’ opinion on the ultimate issue of intoxication.
On his first attempt, the defendant asked: ‘‘Without—
with any degree of medical certainty with you not being
present at this scene on [Interstate] 95 on March 3rd,
2013, at 1:52 a.m., you—you do not know what [the
defendant’s] level of intoxication was’’ (first question).
Immediately after the court properly sustained an objec-
tion to this question, the defendant rephrased the ques-
tion as: ‘‘As you sit here today, do you know if [the
defendant] was intoxicated that day?’’ (second ques-
tion). Taken together, these questions make clear that
the defendant was attempting to ask about an ultimate
issue and that the court properly prohibited him from
doing so. Under the case law cited herein, this is a
proper restraint on cross-examination and does not pro-
vide a basis for this court to reverse the defendant’s
conviction. It is only on appeal that the defendant has
attempted to cast these questions in a different light
by suggesting that the questions were an attempt to
undermine Powers’ blood alcohol content testimony
and clarify that Powers was not testifying as to the
defendant’s blood alcohol level.
There are three primary reasons why the prohibition
on these two questions did not improperly restrict the
defendant’s right to cross-examine Powers. First, in the
context of the cross-examination as a whole, there is
no basis to support a claim that the defendant’s right
to cross-examine was improperly restricted on the basis
of the court’s sustaining objections to only two ques-
tions. When the cross-examination is viewed as a whole,
it is clear that the defendant was afforded an opportu-
nity to thoroughly cross-examine Powers regarding his
blood alcohol content testimony.
As previously noted, to satisfy the defendant’s right
to cross-examine the state’s witnesses under the sixth
amendment, he must be ‘‘permitted to expose to the
jury the facts from which [the] jurors, as the sole triers
of fact and credibility, could appropriately draw infer-
ences relating to the reliability of the witness.’’ (Internal
quotation marks omitted.) State v. Daniel B., supra, 164
Conn. App. 341. The defendant was afforded an ample
opportunity to do so. On cross-examination, the follow-
ing colloquy took place:
‘‘[Defense Counsel]: Now, so you had testified that
regarding the horizontal gaze nystagmus, how many
types of nystagmus are there?
‘‘[Powers]: Well, I think medical personnel parse it
down quite a bit. In terms of forensic work, we really
only pay attention to horizontal and vertical.
‘‘[Defense Counsel]: Okay. But as an expert in foren-
sic toxicology and the effects of depressants on the
central nervous system, you should know the different
types of nystagmus. Is that correct?
‘‘[Powers]: I should?
‘‘[Defense Counsel]: But you don’t know all of the
types of nystagmus?
‘‘[Powers]: No, I don’t know all the medical classifica-
tions of nystagmus.
‘‘[Defense Counsel]: Okay. And so are you familiar
with optokinetic nystagmus?
‘‘[Powers]: I’m sorry?
‘‘[Defense Counsel]: Are you familiar with optoki-
netic nystagmus?
‘‘[Powers]: Optokinetic nystagmus. I may have read
the term, but I couldn’t define it for you.
‘‘[Defense Counsel]: Okay. But you’ve done research
on . . . the effects of depressants on the central ner-
vous system and the horizontal gaze nystagmus, yet you
don’t know what optokinetic nystagmus is?
‘‘[Powers]: Correct.
‘‘[Defense Counsel]: Okay. And so you don’t know
that there possibly might be another forty-seven types
of nystagmus?
‘‘[Powers]: Again, I would indicate that the medical
community parses this down quite a little bit. For my
purposes, I focused on horizontal and vertical gaze nys-
tagmus.
‘‘[Defense Counsel]: So—and that is only based upon
interpretations from police officers on the road for the
. . . horizontal gaze nystagmus?
‘‘[Powers]: The observations that we utilize are gener-
ally acquired by that fashion, yes.
‘‘[Defense Counsel]: Okay. And have you ever con-
sulted . . . with any neurologists or doctors that are
specialized in neurology that could affect the nystagmus
of the eye? Have you ever consulted with anybody like
that in any of your studies?
‘‘[Powers]: I had a question that has led me to do so.
‘‘[Defense Counsel]: Okay. But you don’t think that
it’s necessary to know about the different types of nys-
tagmus if you’re going to be an expert in nystagmus?
‘‘[Powers]: I guess that would depend on the level of
expertise with regard to nystagmus that one is claiming.
‘‘[Defense Counsel]: So, you don’t think that you have
the certain level of expertise, then, if you’ve never stud-
ied it?
‘‘[Powers]: I’m not offering . . . an understanding of
nystagmus that one would expect from a medical per-
son who has trained in that field.
‘‘[Defense Counsel]: . . . If a person has driven from
Stamford, Connecticut, to Fairfield, Connecticut, was
not involved in any accidents, was pulled over by a
trooper, the trooper only saw the car swerve once, the
operator then pulled over three lanes from the left lane
to the middle lane to the right lane to the shoulder,
parked the car properly, did not hit any other objects,
did not hit a guardrail; and would those set of facts
change your opinion as to the level of intoxication some-
body may have?
‘‘[Powers]: Probably not; but I recognize that that
level of control and behavior seems inconsistent with
the level of alcohol that I opined earlier, assuming this
is all referring to the same individual.
‘‘[Defense Counsel]: Okay. So, it is—so, assume that
it’s the same individual and—but you just testified that
. . . it doesn’t indicate the person that you just opined
to. So, would that . . . level of intoxication be lower,
then, if they had that much control over a vehicle?
‘‘[Powers]: I’m just saying . . . that the behavior you
described seems inconsistent to me with the behavior
described in the performance of the standardized field
sobriety tests. And I heard it as weaving. But neverthe-
less I was responding to your question. . . .
‘‘[Defense Counsel]: And were you on [Interstate] 95
on March 3rd, 2013, at 1:52 am?
‘‘[Powers]: I can say no.
‘‘[Defense Counsel]: And so you were not present
when any field sobriety tests were administered to
[the defendant]?
‘‘[Powers]: Correct. I was not.’’
The majority attempts to belittle this examination by
referring to it in footnote 10 of its opinion as ‘‘quantity’’
over ‘‘quality.’’ While quantity over quality certainly is
not determinative, nor do I assert that it is, this line
of questioning, with accompanying responses, clearly
demonstrates that the defendant was permitted to thor-
oughly cross-examine Powers and used that cross-
examination to undermine Powers’ credibility on his
interpretation of field sobriety tests and the accuracy
of his blood alcohol content testimony regarding the
hypothetical person. On this basis alone, this court
should affirm the defendant’s conviction.
Second, when the defendant’s cross-examination of
Powers is considered in its entirety, it is clear that the
two questions he was prevented from asking are of a
different nature than the other questions he asked, and
these two questions should be considered as being out-
side the proper scope of cross-examination. Indeed, as
support for the assertion that the ambiguous phrase,
‘‘level of intoxication,’’ in the first question should be
understood as a reference to a blood alcohol level,
the majority references questions the defendant asked
Powers earlier in cross-examination, in which it is clear
that the defendant was using this phrase to refer to
Powers’ testimony regarding blood alcohol content. The
previously cited cross-examination shows that the
defendant was permitted to ask Powers questions
regarding the blood alcohol level of the hypothetical
person that the state’s questions had posited. This was
properly within the scope of cross-examination because
the state had asked Powers to opine as to the blood
alcohol level of that hypothetical person. Accordingly,
the defendant was permitted to thoroughly examine
Powers regarding the hypotheticals.
The state did not, however, ask Powers to speculate
as to the defendant’s blood alcohol level. Rather, the
state merely asked Powers to opine as to the blood
alcohol level of a person exhibiting the behaviors
described in the posed hypotheticals. In fact, no evi-
dence of the defendant’s blood alcohol level was offered
at trial.3 Indeed, it would have been impossible to offer
such evidence because the defendant refused to submit
to a breath test on the night of his arrest.4
By contrast, the two questions highlighted by the
defendant were outside the proper scope of cross-exam-
ination because they asked Powers to opine on whether
the defendant was intoxicated. In the first question, the
defendant called on Powers to refute the statement,
‘‘you do not know what [the defendant’s] level of intoxi-
cation was.’’ Similarly, in the second question, the
defendant asked Powers, ‘‘do you know if [the defen-
dant] was intoxicated that day?’’ Independent of the
trial court’s proper conclusion that these questions
inappropriately called on Powers to opine on an ulti-
mate issue, I also conclude that these questions could
have been properly barred as outside the scope of
direct examination.
Third, the light in which the defendant attempts to
cast these questions on appeal is contrary to his objec-
tions to their exclusion during trial. On appeal, he
argues that these questions did not seek an opinion on
an ultimate issue, but rather that these questions were
an attempt to clarify Powers’ earlier testimony opining
as to a blood alcohol level in order to help the jury
understand that Powers was not testifying as to his
opinion of the defendant’s blood alcohol level.5 There
is no connection between this asserted purpose of the
questions and the questions themselves, both of which
asked Powers whether he knew if the defendant was
intoxicated. It is a matter of common sense that a ques-
tion seeking to clarify an issue must make clear on
which issue clarification is sought. Neither of the two
questions at issue here made reference to Powers’ ear-
lier testimony regarding the blood alcohol level of the
hypothetical person. Neither question asked Powers to
distinguish between the hypothetical person and the
defendant. Rather, the defendant simply asked Powers
if he knew whether the defendant was intoxicated.
Thus, the prohibition on these two questions was
proper, as they clearly were outside the scope of
cross-examination.
Although, as noted previously, I do not agree that the
defendant’s right to cross-examine Powers was improp-
erly restricted, I continue my analysis in order to
address the majority’s conclusion that this restriction
on cross-examination caused the defendant harm
requiring reversal. ‘‘When an improper evidentiary rul-
ing is not constitutional in nature, the defendant bears
the burden of demonstrating that the error was harmful.
. . . [A] nonconstitutional error is harmless when an
appellate court has a fair assurance that the error did
not substantially affect the verdict. . . . [O]ur determi-
nation [of whether] the defendant was harmed by the
trial court’s . . . [evidentiary ruling] is guided by the
various factors that we have articulated as relevant [to]
the inquiry of evidentiary harmlessness . . . such as
the importance of the . . . testimony in the [state’s]
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony . . . on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the [state’s] case. . . .
Most importantly, we must examine the impact of the
evidence on the trier of fact and the result of the trial.’’
(Emphasis added; internal quotation marks omitted.)
State v. Rodriguez, 311 Conn. 80, 89, 83 A.3d 595 (2014).
Even assuming arguendo that there was an improper
restriction on the cross-examination of Powers, after
applying these factors to the present case, I cannot
agree with the majority that the record supports the
conclusion that Powers’ blood alcohol content testi-
mony, and therefore the restriction on the defendant’s
questions on cross-examination, had any impact on the
trier of fact and the result of the trial.
As an initial matter, in the context of the evidence
presented as a whole, the result of the trial would have
been the same, even if the defendant had been permitted
to ask the two questions on cross-examination. The jury
heard Richter’s testimony as to his observations of the
defendant’s driving—that the defendant’s car was
swerving and speeding. The jury heard Richter’s obser-
vations that the defendant had slurred speech, his eyes
were glassy and bloodshot, and he had the odor of
alcohol on his breath. The jury heard Richter’s testi-
mony that the defendant had admitted to drinking alco-
hol earlier in the evening. The jury heard Richter’s
lengthy testimony that the defendant failed all three
field sobriety tests. The jury also heard testimony that
the defendant refused to submit to a breath test. On
the basis of this evidence alone, even without Powers’
testimony, the jury reasonably could have found the
defendant guilty of operating a motor vehicle while
under the influence of alcohol in violation of § 14-227a
(a) (1). The defendant has not met his burden of show-
ing how a restriction on just two questions was harmful.
See id. Thus, in light of the ‘‘ ‘the overall strength of
the [state’s] case,’ ’’; id.; even if the restriction on the
defendant’s two questions was improper, the error
was harmless.
Further, the majority’s conclusion to the contrary
relies on assumptions that are unsupported by the
record and requires the court to ignore established prec-
edent regarding analysis of whether a jury has complied
with the trial court’s instructions. The majority’s conclu-
sion that the restriction on cross-examination was
harmful relies on the assumption that the jury viewed
Powers’ testimony regarding the blood alcohol level of
the hypothetical person as conclusive of the defendant’s
blood alcohol level. But this assumption itself relies on
several additional assumptions that are equally unsup-
ported by the record.
First, the majority’s conclusion necessarily assumes
that Powers’ blood alcohol content testimony regarding
a hypothetical person influenced the jury’s determina-
tion of whether the defendant was intoxicated. This
assumption rests on the additional assumptions that
the jury was either unable to distinguish between the
hypothetical person and the defendant, or somehow
viewed an opinion regarding a hypothetical person’s
expected blood alcohol level as conclusively determina-
tive of the defendant’s intoxication status.6 It is unneces-
sary to address these assumptions further than to note
that there is simply nothing in the record to support
them.
Second, the majority is clear that it presumes that
the jury was aware that Connecticut law specifies a
particular blood alcohol level as constituting per se
intoxication. In footnote 12 of its opinion, the majority
states that it ‘‘is likely within the common knowledge
of most jurors’’ that a ‘‘specific blood alcohol level . . .
constitutes per se intoxication in this state for purposes
of operating a motor vehicle under the influence . . . .’’
The record contains no evidence, testimony, arguments
from counsel, or instructions from the court regarding
the fact that Connecticut law identifies some blood
alcohol level as per se intoxication or explaining what
specific level constitutes per se intoxication. While I
certainly agree with the majority that many people are
aware that the law designates some blood alcohol level
as constituting per se intoxication, I do not agree that
the average lay person could recite, without reference
to a statute or conducting cursory independent
research, which specific blood alcohol level constitutes
per se intoxication. The record contains no indication
that the jury was provided with the information neces-
sary to conclude that the defendant was per se intoxi-
cated based on a 0.12 or higher blood alcohol level.
When the blood alcohol content testimony is divorced
from the information that such a blood alcohol level
would constitute per se intoxication, it becomes merely
another factor for the jury’s consideration—on par with
testimony that the defendant’s speech was slurred, that
his driving was erratic, that there was an odor of alcohol
on his breath, that his eyes were bloodshot and glassy,
and that he failed all three field sobriety tests. In this
context, Powers’ blood alcohol content testimony told
the jury nothing more than that the hypothetical person
would be expected to have alcohol in his blood and at
a level that Powers associates with impaired ability to
drive a motor vehicle. This is markedly different from
the majority’s assumption that this testimony informed
the jury that the defendant was necessarily intoxicated
as a matter of law due to a particular blood alcohol level,
which had not even been attributed to the defendant.
Third, implicit in the majority’s conclusion is the
assumption that the jury ignored or deliberately dis-
obeyed the court’s instructions on finding intoxication.
The court’s instructions to the jury made no reference
to finding the defendant guilty on the basis of any blood
alcohol level, but instead made reference to behavioral
evidence only.7 Yet, the majority’s conclusion necessar-
ily assumes that the jury considered Powers’ blood alco-
hol content testimony as determinative of the
defendant’s intoxication status. As stated numerous
times herein, however, no evidence of the defendant’s
blood alcohol level was introduced at trial. Therefore,
the jury instructions properly made reference to behav-
ioral evidence only,8 and there is nothing in the record
to support a finding that the jury disregarded the
court’s instructions.
‘‘[I]n the absence of evidence that the jury disre-
garded any of the court’s instructions, we presume that
the jury followed the instructions.’’ State v. A. M., 324
Conn. 190, 215, 152 A.3d 49 (2016). ‘‘Mere conjecture by
the defendant is insufficient to rebut this presumption.’’
State v. Purcell, 174 Conn. App. 401, 413, 166 A.3d 883
(2017). The defendant has the burden of establishing
that Powers’ testimony was so prejudicial that the jury
cannot be presumed reasonably to have followed the
court’s instructions. See id. The defendant has pointed
to no evidence that the jury failed to determine intoxica-
tion according to the instructions of the trial court. He
also has failed to establish that Powers’ testimony was
so prejudicial as to lead the jury to disregard the court’s
instructions—particularly given that his claims of preju-
dice rely so heavily on the assumptions noted pre-
viously, which lack evidentiary support in the record.
There is simply no reason to conclude that the defen-
dant’s conviction was based on any consideration other
than the proper behavioral evidence referenced by the
court in its instructions on finding intoxication.
For the foregoing reasons, I would affirm the judg-
ment of the trial court.
1
The defendant was unable to produce a driver’s license, which Richter
later determined had been suspended, and a computer check of the defen-
dant’s motor vehicle registration performed from the computer in Richter’s
police cruiser revealed that the defendant’s registration for the vehicle he
was operating had expired.
2
Richter testified that he administers the test using either his finger or
his pen. In this case, Richter recalled using his finger to determine equal
tracking of the defendant’s eyes prior to administering the test. Richter then
used a pen to administer the horizontal gaze nystagmus test.
3
This fact did not receive adequate attention from the majority. There
can be no dispute that no evidence of the defendant’s blood alcohol level
was offered at any point during the trial. The majority nevertheless, in effect,
treats Powers’ opinion as to the blood alcohol level of an individual described
in the state’s hypothetical as being testimony about the defendant’s blood
alcohol level.
4
The jury was well aware that there was no evidence of the defendant’s
blood alcohol level in this matter—further negating any argument that the
jury considered such evidence in finding the defendant guilty, as I will
discuss in greater detail—because Richter, in response to the prosecutor’s
questioning, testified as follows:
‘‘[The Prosecutor]: Now, on March 3rd, 2013, did you ask the defendant
to submit to a breath test?
‘‘[Richter]: I did.
‘‘[The Prosecutor]: And did he submit to a breath test?
‘‘[Richter]: No.
‘‘[The Prosecutor]: Why is that?
‘‘[Richter]: He refused.’’
5
Notably, when the state objected to these questions, the defendant did
not defend his right to ask these questions on the ground that he raises
on appeal.
6
The majority’s assumption ignores the court’s instruction to the jury as
to the testimony of an expert witness. The court instructed the jury: ‘‘An
expert witness may state an opinion in response to a hypothetical question,
and some experts have done so in this case. A hypothetical question is one
in which the witness is asked to assume that certain facts are true and to
give an opinion based on those assumptions. The value of the opinion given
by an expert in response to a hypothetical question depends upon the
relevance, validity, and completeness of the facts he was asked to assume.
The weight that you give to the opinion of an expert will depend on whether
you find that the facts assumed were proved and whether the facts relied
upon in reaching the opinion were complete or whether material facts were
omitted or not considered. Like all other evidence, an expert’s answer to a
hypothetical question may be accepted or rejected in whole or in part
according to your best judgment.’’ (Emphasis added.) These instructions
contradict any assumption that the jury would accept the expert’s testimony
as to a hypothetical as ‘‘conclusive’’ of the defendant’s blood alcohol level.
7
The court instructed the jury: ‘‘Element two, under the influence. The
second element is that at the time the defendant operated the motor vehicle,
he was under the influence of intoxicating liquor. A person is under the
influence of intoxicating liquor when, as a result of drinking such beverage,
that person’s mental, physical, or nervous processes have become so affected
that he lacks to an appreciable degree the ability to function properly in
relation to the operation of his motor vehicle.
‘‘The person’s physical or mental capabilities must have been impaired
to such a degree that he no longer had the ability to drive a vehicle with
the caution characteristic of a sober person of ordinary prudence under the
same or similar circumstances. If you find that the defendant was operating
a vehicle under the influence of an intoxicating liquor, it is no defense that
there was some other cause that also tended to impair the defendant’s ability
to exercise the required caution. Evidence of the manner in which a vehicle
was operated is not determinative of whether the defendant was operating
the vehicle under the influence of an intoxicating beverage. It is, however,
a factor to be considered in light of all the prudent surrounding circum-
stances in deciding whether the defendant was or was not under the
influence.
‘‘In this case, there has been testimony that the defendant was asked and
did agree to perform certain acts which are commonly called field—field
sobriety tests. It is up to you to decide if those tests give any reliable
indication of whether or not the defendant’s capacity to operate a motor
vehicle safely was impaired to such a degree that he no longer had the
ability to drive a motor vehicle with caution characteristic of a sober person
of ordinary prudence under the same or similar circumstances, or whether
they have any rational connection to operating a motor vehicle safely.
‘‘In judging the defendant’s performance of those tests, you may consider
the circumstances under which they were given, the defendant’s physical
condition, the defendant’s state of mind, and other factors you may deem
relevant. Further, in evaluating his testimony, you should consider whether
proper instructions and directions were given by the officer to the defendant
prior to the commencement of the test, the observations made during the
test, and use your common experience in determining whether the defendant
was under the influence of intoxicating liquor as I have defined it for you.
‘‘The horizontal gaze nystagmus test is a scientific test. The standardized
field sobriety test known as the walk and turn and the one leg stand are
not scientific tests, and you should not consider them as scientific tests.
You may, however, consider the police officer’s observations of the defen-
dant while such tests were being performed, and use your common experi-
ence in determining the value, if any, of this evidence. Evidence of the
defendant’s refusal to submit to a breath test has been introduced. If you
find the defendant did refuse to submit to such a test, you may make any
reasonable inference that follows from that fact. Any inference that you
draw must be reasonable and logical and not the result of speculation or
conjecture or guessing in accordance with my earlier instruction to you
regarding inferences. To be clear, the state does not have to prove refusal
as an element of the offense of operating under the influence, but if you
find that there was a refusal you are permitted to draw inferences in accor-
dance with my earlier instructions regarding inferences. The law does not
require that you draw any inference, but rather permits you to do so. Evi-
dence of a refusal by itself cannot support a guilty verdict.’’
8
In an attempt to rebut this point, the majority asserts in footnote 13 of
its opinion that the court did not ‘‘expressly [direct] the jury that it could
rely on ‘only’ behavioral evidence . . . .’’ Certainly, no such limiting instruc-
tion was given because no evidence of the defendant’s blood alcohol level
was introduced at trial. Instead, the court properly instructed the jury based
on the evidence it could consider in reaching an ultimate conclusion.