State v. Tenay ( 2014 )

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STATE OF CONNECTICUT v. MARK A. TENAY
(AC 35045)
Gruendel, Robinson and Alvord, Js.*
Argued November 18, 2013—officially released May 13, 2014
(Appeal from Superior Court, judicial district of
Ansonia-Milford, geographical area number twenty-
two, Keegan, J.)
Jeremiah Donovan, for the appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom were Kevin D. Lawlor, state’s attorney, and
Kevin S. Russo, supervisory assistant state’s attorney,
for the appellee (state).
Opinion
ROBINSON, J. The defendant, Mark A. Tenay, appeals
from the judgment of conviction, rendered after a jury
trial on the first part of an information, of operating a
motor vehicle while under the influence of alcohol in
violation of General Statutes § 14-227a (a) (1),1 and fol-
lowing a trial to the court on a part B information,2 of
being a three time offender pursuant to General Statutes
§ 14-227a (g) (3). The defendant claims on appeal that
the trial court improperly (1) excluded from evidence
during the jury trial portions of certain hospital records
that pertained to medical treatment that he received
following his arrest; (2) admitted into evidence during
the jury trial the results of a finger dexterity roadside
sobriety test without first determining the scientific
validity of that particular test in accordance with State
v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645
(1998); and (3) admitted into evidence during the trial
to the court on the part B information a certified copy
of a case abstract detailing a Florida criminal action
attributed to the defendant and a related fingerprint
card. We agree with the defendant that the abstract was
improperly admitted into evidence and, thus, reverse
that part of the judgment finding the defendant to be
a three time offender under § 14-227a (g); we otherwise
affirm the judgment of the trial court.3
The jury reasonably could have found the following
facts. Early in the morning of April 18, 2009, Officer
Jeffrey Nelson of the Milford Police Department was
dispatched to Naugatuck Avenue, where he observed
a brown Jeep Cherokee with Vermont license plates
partially on the front lawn of 1028 Naugatuck Avenue.
Additional police officers, Matthew Mello and Gillian
Gallagher, later arrived at the scene. The vehicle had
considerable damage. The rear bumper was hanging off
of the vehicle, the passenger side of the vehicle looked
to have been sideswiped, the front passenger side win-
dow was broken, and the front passenger side fender
and headlight were damaged. There was no tire on the
front passenger side of the vehicle, and a gouge in
the pavement, which extended back from the scene
approximately one mile to the off ramp of Interstate
95, indicated that the vehicle had traveled for a consid-
erable distance on its rim without the tire.
When Nelson arrived, the defendant was seated in
the driver’s seat of the vehicle with the door open. He
was confused and disoriented. His eyes had a glassy
appearance, and he smelled strongly of alcohol. When
Nelson inquired about the condition of the vehicle, the
defendant responded that he may have struck a curb
a couple of blocks away, although the damage to the
vehicle did not support that scenario. The defendant
later indicated that he may have struck a mailbox or
something else. Nelson had to repeat his request for the
defendant’s driver’s license, registration and insurance
card a few times before the defendant complied.
On the basis of initial observations, the defendant
was asked to perform certain field sobriety tests: the
alphabet test, the walk and turn test, the one leg stand
test, the horizontal gaze nystagmus test, and the finger
dexterity test. Nelson first asked the defendant to per-
form the alphabet test, which required him to recite
the alphabet from A to Z. The defendant responded that
he was ‘‘not good’’ at reciting the alphabet because his
first grade teacher had passed away in the middle of
the school year, and, thus, he never learned to recite
the alphabet properly. He nevertheless agreed to try.
He could only recite the letters A through K, the latter
which he pronounced as ‘‘key,’’ following which he
recited, in order, the letters E, M and F.
Nelson next indicated that he was going to have the
defendant perform a walk and turn test.4 Before Nelson
could explain to the defendant what the test entailed,
the defendant indicated that he would be unable to
perform the test because of existing knee problems.
Nelson instructed the defendant that he did not have
to place the toe of one foot against the heel of the other
as is usually required, but could keep them somewhat
apart. Even with that accommodation, however, the
defendant failed the test. He walked nine steps forward
and nine steps back, but counted fourteen steps, failed
to keep his balance and stepped off of the line. The
defendant refused to take the one leg stand test when
asked by Nelson.5
Mello then conducted the horizontal gaze nystagmus
test.6 Although Mello instructed the defendant to keep
his head straight and only move his eyes, the defendant
was not able to comply and moved his head. At the
maximum deviation point, the defendant’s eyes were
‘‘bouncing,’’ which was a strong indicator that he
was intoxicated.
Mello also conducted the finger dexterity test. The
finger dexterity test requires the subject to count the
fingers of one hand by using the thumb to move forward
and back, touching the tips of the fingers starting with
the index finger, while counting out loud from one to
four and then backward from four to one. The defendant
failed the test because he performed the required tasks
very slowly, he had to concentrate on his hands and
focus on counting, and he swayed and lost his balance
while performing the test.
Having failed to perform adequately any of the road-
side sobriety tests administered to him, the defendant
was arrested for operating his motor vehicle while
under the influence, and he was transported to the
Milford Police Department. While at the police depart-
ment, the defendant refused to take a breathalyzer or
a urine test to determine his blood alcohol content. The
defendant was given a summons and released. The next
day, he reported for medical treatment to the emer-
gency room at Yale-New Haven Hospital. Additional
facts and procedural history will be set forth as nec-
essary.
I
The defendant first claims that the court erred in
redacting portions of medical records that he sought
to introduce as full exhibits during the jury trial. The
medical records at issue pertain to treatment the defen-
dant received after his arrest. The defendant argues
that the medical records in their unredacted form were
necessary to his defense because they tended to show
his physical and mental condition at the time leading up
to his arrest, and, in so doing, supported an alternative
explanation for his behavior and why he failed the field
sobriety tests. The state argues that the defendant’s
evidentiary claim fails because the court did not wholly
exclude the proffered records, but merely redacted cer-
tain portions that either were irrelevant, constituted
inadmissible hearsay, or would have confused the jury
without some further explanation from a witness.7 The
state also argues that the defendant has failed to prove
that he was harmed by the court’s redactions. We agree
with the state that the court did not abuse its discretion
in redacting portions of the proffered medical records.
The following additional facts and procedural history
are relevant to the present claim. Prior to the state
resting its case, the defendant sought to make an offer
of proof regarding medical records that he had subpoe-
naed from Yale-New Haven Hospital and that he wanted
to introduce to the jury as full exhibits without a wit-
ness.8 The defendant wanted a ruling from the court on
the admissibility of the medical records prior to his
deciding whether to testify on his own behalf.
The medical records at issue consist of four reports
dated April 21, April 27, April 30 and May 11, 2009—
each memorializing a follow-up visit that the defendant
had after his initial treatment in the hospital’s emer-
gency room on April 19, 2009—and an operative report
detailing a knee surgery that the defendant underwent
on July 29, 2009. When the court inquired as to the
relevancy of the records, the defendant argued that the
records would show that he had visited the emergency
room the day after the incident and that he had com-
plained of problems with his left knee, which ultimately
required surgery. According to the defendant, such evi-
dence supported his defense theory that his knee
impairment, and not his intoxication, had prevented
him from properly executing the walk and turn test and
from taking the one leg stand test. The defendant also
argued that the records indicated that he had suffered
a cervical strain and was provided with a cervical collar,
which, the defendant argued, was relevant to show that
there had been ‘‘some collision that caused the defen-
dant’s body to be thrown about.’’
The state objected to the proffered medical records
being introduced as full exhibits. It argued that the
medical records contained little relevant information.
It also argued that they were replete with inadmissible
hearsay in that they contained the authoring doctor’s
recitation of statements the defendant had made with
regard to the defendant’s medical history and to events
that transpired prior to his arrest. Finally, the state
argued that, without a witness, the records, which con-
tained the defendant’s self-reporting of a history of con-
cussions and blackouts, could mislead the jury into
believing that they were actual clinical diagnoses by
the treating physician.
In response to the state’s relevancy argument,
defense counsel stated that he was ‘‘not necessarily
claiming the entire document,’’ and indicated some will-
ingness to redact portions of the documents. As to the
state’s hearsay arguments, defense counsel argued that
he believed that the defendant’s statements could come
in under an exception to the hearsay rule for statements
made for the provision of medical services.9 The defen-
dant did not directly respond to the state’s argument
that the records contained information that could mis-
lead the jury without an explanatory witness.
After taking a brief recess to review the documents
further, the court, Keegan, J., ruled on the record as
follows: ‘‘[T]he majority of the documents are not rele-
vant to the issues that the jury has to decide in this
trial, namely, whether or not on the [day in] question
[the defendant] was recklessly operating a motor vehi-
cle, while under the influence of intoxicating liquors,
or any drugs, or both.’’ The court also noted that ‘‘these
records are confusing without a witness to explain the
records.’’ The court concluded that it would ‘‘order a
redaction of certain records to permit [the defendant]
to introduce the records with respect to the fact that
he had reported prior knee surgeries, and that he had
a knee surgery in July of 2009.’’ The court also indicated
that it would do the redactions during the next break.
The defendant stated for the record that he disagreed
with the court’s decision to have the documents
redacted. The court later further clarified its evidentiary
ruling, stating that ‘‘[t]he court finds that only any com-
plaint of the injury to the knee is relevant to the defen-
dant’s claims about his ability to perform the roadside
sobriety tests. So, that’s the part that the court would
allow in, and we do need to redact the records for that.’’
The court later provided the parties with copies of the
redacted versions of the documents. Defense counsel
offered the redacted versions for admission as full
exhibits at the start of the defendant’s case, and they
were admitted without further objections.
We begin with the standard of review that governs
our consideration of the defendant’s evidentiary claim.
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
. . . Accordingly, [t]he trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . Further-
more, [i]n determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion. . . . In a criminal case, an
improper evidentiary ruling by the trial court is harm-
less if the reviewing court has a fair assurance that the
error did not substantially affect the jury’s verdict.’’
(Citation omitted; internal quotation marks omitted.)
State v. Williams, 146 Conn. App. 114, 124, 75 A.3d 668,
cert. granted on other grounds, 310 Conn. 959, 82 A.3d
626 (2013).
‘‘[I]f an [evidentiary] impropriety is of constitutional
proportions, the state bears the burden of proving that
the error was harmless beyond a reasonable doubt.
. . . When an improper evidentiary ruling is not consti-
tutional in nature, the defendant bears the burden of
demonstrating that the error was harmful.’’ (Internal
quotation marks omitted.) State v. Longo, 106 Conn.
App. 701, 708, 943 A.2d 488 (2008). ‘‘To the extent [that]
a trial court’s admission [or exclusion] of evidence is
based on an interpretation of the [Connecticut] Code of
Evidence, our standard of review is plenary.’’ (Internal
quotation marks omitted.) State v. Annulli, 130 Conn.
App. 571, 579–80, 23 A.3d 808 (2011), aff’d, 309 Conn.
482, 71 A.3d 530 (2013).
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.’’
(Internal quotation marks omitted.) State v. Thomas,
110 Conn. App. 708, 716, 955 A.2d 1222, cert. denied,
289 Conn. 952, 961 A.2d 418 (2008). ‘‘A clear statement
of the defendant’s theory of relevance is all important
in determining whether the evidence is offered for a
permissible purpose. . . . Ordinarily, we will not con-
sider a theory of relevance that was not raised before
the trial court.’’ (Internal quotation marks omitted.)
State v. Crespo, 114 Conn. App. 346, 366, 969 A.2d 231
(2009), aff’d, 303 Conn. 589, 35 A.3d 243 (2012). ‘‘While
relevant evidence is generally admissible, the trial judge
has a certain amount of discretion in excluding such
evidence; matters likely to mislead a jury, or to be
misused by it, or to unnecessarily complicate a case,
or of slight, remote, or conjectural significance, ought
not to be admitted.’’ (Internal quotation marks omitted.)
State v. Gooch, 186 Conn. 17, 23, 438 A.2d 867 (1982).
Thus, even potentially relevant evidence properly may
be excluded if its probative value is outweighed by the
danger of misleading the jury.
When asked at trial to explain the relevancy of the
proffered medical records, the defendant argued that
the records showed that he had reported to the emer-
gency room shortly after the incident leading to his
arrest complaining of problems with his left knee, and
that he ultimately required surgery to correct the prob-
lems with the knee. According to the defendant, evi-
dence of the knee injury was relevant because it
supported his theory of defense ‘‘that [he] had a medical
condition that would, at least, with respect to the walk
and turn and the one leg stand [tests], at least, impede
his ability to perform those tests, as a result of that
condition.’’ When the court asked if there was anything
else the defendant wanted to argue with respect to
relevancy, the defendant mentioned that the records
also indicated that he had suffered a cervical strain and
was given a cervical collar, which he argued tended to
support the notion that there had been some serious
collision prior to his arrest. The defendant never
explained to the court how evidence of a serious colli-
sion would aid the jury in its consideration of whether
the defendant had been intoxicated while operating the
vehicle or in resolving any other issue properly before
the jury.10
The defendant also mentioned to the court that the
records ‘‘contained a discussion about positive amnesia
that the defendant suffered,’’ and also indicated self-
reported, ‘‘subtle blackout type episodes.’’ The defen-
dant did not explain the significance of that evidence,
and, when the court indicated that it did not know
what the term ‘‘positive amnesia’’ meant, the defendant
immediately returned to a discussion of his knee injury.
On the basis of our review of the record, we conclude
that the only theory of relevancy offered by the defen-
dant to the court at the time the court ruled on the
admissibility of the medical records pertained to the
knee injury evidence. The court ruled that it would
allow the records in as a full exhibit with respect to
evidence concerning the defendant’s knee injury. The
rationale given by the court for redacting other portions
of the records was that they contained material that
was not relevant and that might mislead the jury without
further explanation. That rationale is fully supported
by the record. The defendant has failed to establish that
the court abused its discretion in admitting only the
redacted versions of the proffered medical records, and,
accordingly his claim to the contrary fails.
II
The defendant next claims that the court abused its
discretion by admitting testimony regarding the defen-
dant’s failure to pass the finger dexterity test without
first determining whether that test is scientifically valid
pursuant to Porter. We disagree.
The following additional facts are relevant to our
resolution of this claim. The state called Mello to testify
about the two field sobriety tests that he administered
to the defendant. Mello first testified, without objection,
about administering the horizontal gaze nystagmus test
to the defendant, and the results he observed. When
the state asked Mello whether he had administered
another test, defense counsel indicated that he had an
objection that should be heard outside the presence of
the jury. The jury was excused, after which defense
counsel indicated that he objected to any testimony
from Mello regarding the finger dexterity test without
the state first making an offer of proof that the test
satisfies the criteria for admissibility of scientific evi-
dence as set forth in Porter. Defense counsel argued
that although he was aware of literature from the
National Highway Traffic Safety Administration validat-
ing the use of the horizontal gaze nystagmus test, the
walk and turn test, and the one leg stand test as standard
field sobriety tests, he knew of no such scientific valida-
tion with regard to the finger dexterity test.
In response to questions from the court, Mello indi-
cated that although the horizontal gaze nystagmus test,
the walk and turn test, and the one leg stand test are
the three standard field sobriety tests, the police also
employ other tests capable of gauging a person’s motor
skills and hand-eye coordination, such as the finger
dexterity test. With respect to the finger dexterity test,
Mello explained that if a person was under the influ-
ence, they might either miss touching a finger or count
incorrectly. The state argued that it believed that the
defense’s objection pertained more to the weight of the
evidence, not to its admissibility.
The court ruled as follows: ‘‘Well, as to whether or
not a Porter hearing is necessary on finger dexterity,
based on what the officer has said, it doesn’t sound
scientific at all. It sounds no different to the walk and
turn, which is to see whether or not the person can
exhibit dexterity and count at the same time, as an
indicator as to whether or not, you know, that could
be used as a factor—to make a determination as to
whether a person is intoxicated or not. So, because it
sounds so similar to the walk and turn, using fingers
instead of feet, the [c]ourt feels that it is admissible
under the same standards that the walk and turn is
admissible.’’ Defense counsel noted his objection for
the record.11
The jury was brought back to the courtroom. In
response to questions from the state, Mello explained
to the jury what the finger dexterity test entailed, noting
that the test allowed officers ‘‘to observe an individual
at a normal task that they should be able to complete
if they’re not under the influence of drugs or alcohol.’’
When he was asked to describe the defendant’s results,
Mello testified: ‘‘He was very slow, concentrating on
his hands, focusing on counting. Also, while doing that,
he was swaying. That’s another indication. Someone
who’s under the influence, when you ask them to do
normal tasks, sometimes other natural motor skills will
start to fade away. At, which, at the time he was doing
that, he started swaying, as if he was losing his balance.’’
On the basis of his observations and experience, Mello
determined that the defendant had failed the test.
‘‘In Porter, this court followed the United States
Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and held that scientific evi-
dence should be subjected to a flexible test, with dif-
fering factors that are applied on a case-by-case basis,
to determine the reliability of the scientific evidence.
. . . Following [Porter], scientific evidence, and expert
testimony based thereon, usually is to be evaluated
under a threshold admissibility standard assessing the
reliability of the methodology underlying the evidence
and whether the evidence at issue is, in fact, derived
from and based upon that methodology . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. West, 274 Conn. 605, 630, 877 A.2d 787, cert. denied,
546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
Nevertheless, ‘‘certain types of evidence, although
ostensibly rooted in scientific principles and presented
by expert witnesses with scientific training, are not
scientific for . . . purposes of our admissibility stan-
dard for scientific evidence, either before or after Porter
[was decided]. . . . Thus, even evidence with its roots
in scientific principles, which is within the comprehen-
sion of the average juror and which allows the jury to
make its own conclusions based on its independent
powers of observation and physical comparison, and
without heavy reliance upon the testimony of an expert
witness, need not be considered scientific in nature for
. . . purposes of evidentiary admissibility. . . . [E]vi-
dence . . . which merely places a jury . . . in a posi-
tion to weigh the probative value of the testimony
without abandoning common sense and sacrificing
independent judgment to the expert’s assertions based
on his special skill or knowledge . . . is not the type
of scientific evidence within the contemplation of Por-
ter, and similarly was not within the ambit of our stan-
dard for assessing scientific evidence prior to Porter.’’
(Citations omitted; internal quotation marks omitted.)
Id., 631.
This court previously has concluded that, unlike the
horizontal gaze nystagmus test, field sobriety tests like
the walk and turn test and the one leg stand test, which
‘‘probe an individual’s sense of balance, his coordina-
tion and his abilities to comprehend and follow instruc-
tions,’’ are within the common knowledge of lay jurors,
and, thus, do not constitute scientific evidence. State
v. Merritt, 36 Conn. App. 76, 90–91, 647 A.2d 1021 (1994),
appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995).
Such tests are not highly technical, nor do they require
special skills or knowledge to be understood. See State
v. Gracia, 51 Conn. App. 4, 19, 719 A.2d 1196 (1998).
The court in the present case ruled that, like the walk
and turn test, the finger dexterity test was not scientific
evidence. It based that decision on the testimony of
Mello that the finger dexterity test was used to evaluate
a person’s motor skills and hand-eye coordination. The
court correctly reasoned that the finger dexterity test,
like the walk and turn test, required a test subject to
demonstrate coordination while counting at the same
time. The jury required no special skills or knowledge
to evaluate the observational evidence provided by
Mello of the defendant’s performance. The court did
not err in determining that, like the walk and turn test
and the one leg stand test, the finger dexterity test does
not constitute scientific evidence as contemplated in
Porter, and we reject the defendant’s claim that the
court abused its discretion in admitting Mello’s testi-
mony regarding the finger dexterity test without first
conducting a Porter hearing.
III
The defendant next claims that the court improperly
admitted into evidence during the part B trial a copy
of a criminal case abstract obtained from a court clerk
in Santa Rosa County, Florida (abstract), and a related
fingerprint card obtained from the Santa Rosa County
sheriff. The defendant argues that information on the
abstract and fingerprint card was inadmissible hearsay
and that the state failed to lay a proper foundation for
the documents’ admission under a hearsay exception
for public records. We agree that the abstract was not
properly admitted and that this constituted reversible
error.12
The following additional facts and procedural history
are relevant to our review of the claim. The defendant
was charged in the part B information with being a
repeat offender subject to an enhanced sentence pursu-
ant to § 14-227a (g).13 According to the information, the
defendant previously had been convicted of driving a
motor vehicle while under the influence in Florida in
1996 and in Connecticut in 2002. The state, therefore,
had the burden of proving those prior convictions
beyond a reasonable doubt.14 To meet that burden, the
state presented the testimony of Ian Shackleton, a crimi-
nal justice secretary II with the office of the state’s
attorney in the judicial district of Ansonia-Milford.
Shackleton testified that, using parameters that
included the defendant’s name, date of birth, gender,
race and social security number, he had conducted
searches of state and federal government on-line data-
bases for criminal and motor vehicle records with data
matching those parameters. On the basis of the informa-
tion that Shackleton obtained from his database
searches, he contacted the court of record in Santa
Rosa County, Florida, seeking a certified copy of dispo-
sition. He was referred to a county records clerk from
whom he requested the necessary record.15
A deputy clerk with the archives division of the Santa
Rosa County Clerk of Courts sent Shackleton a certified
letter explaining that because of a Florida law regarding
the retention of documents, the only documentation
available with respect to the requested 1996 Florida
conviction was an abstract containing the case history
detail. The clerk’s signature was marked with a raised
seal of the court. Attached to the letter was a copy of
the abstract that was certified by the same clerk as a
true and correct copy. In addition to docket descrip-
tions, the abstract contained general case information.
In particular, it contained entries identifying by name
and address the party defendant—the name being the
same as that of the defendant in the present case—and
indicating, inter alia, the date the offense had occurred,
the disposition, the disposition date and the sentence
that was imposed. Although the abstract did not include
any notation identifying the specific statutory violation
at issue, amongst the docket descriptions were entries
indicating that an ‘‘INFORMATION DUI’’ had been filed
and that, following an adjudication of ‘‘GUILTY,’’ the
defendant’s driver’s license had been suspended, and
he had been ordered to attend ‘‘DUI SCHOOL.’’
The defendant objected to the admission of the
abstract arguing, inter alia, that it contained inadmissi-
ble hearsay and violated his constitutional rights under
the confrontation clause because the person that had
prepared the abstract was not available for cross-exami-
nation. The state argued that the abstract should be
admitted because it was a self-authenticated public doc-
ument. The court overruled all objections to the admis-
sibility of the abstract based on the fact that the abstract
was a court document certified by a clerk of the court
under seal.
Generally, as set forth in part I of this opinion, a
court’s ruling on the admissibility of evidence is entitled
to great deference and will be overturned only for a
clear abuse of discretion. See State v. Williams, supra,
146 Conn. App. 124. ‘‘[T]o the extent a trial court’s
admission of evidence is based on an interpretation of
the Code of Evidence [however], our standard of review
is plenary. For example, whether a challenged state-
ment properly may be classified as hearsay and whether
a hearsay exception properly is identified are legal ques-
tions demanding plenary review. They require determi-
nations about which reasonable minds may not differ;
there is no ‘judgment call’ by the trial court, and the
trial court has no discretion to admit hearsay in the
absence of a provision providing for its admissibility.’’
State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633
(2007).
‘‘Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted and is generally
inadmissible unless an exception to the hearsay rule
applies.’’ State v. Calderon, 82 Conn. App. 315, 321, 844
A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523,
cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d
361 (2004); see also Conn. Code Evid. § 8-2 (‘‘[h]earsay
is inadmissible, except as provided in the Code, the
General Statutes or the Practice Book’’). Section 8-3
(7) of the Connecticut Code of Evidence codifies our
common-law hearsay exception applicable to public
records and reports. Conn. Code Evid. § 8-3, commen-
tary. ‘‘The public records exception to the hearsay rule
is based upon the fact that the [record] of the public
official can be relied upon for its trustworthiness. The
public official may act only occasionally, but when he
does act he knows and feels that he is acting under the
sanction of his official place. Experience has led to the
conclusion that it is ordinarily safe to rely upon the
trustworthiness of a [record] made under such circum-
stances.’’ (Internal quotation marks omitted.) State v.
Calderon, supra, 322. ‘‘Although Connecticut has nei-
ther precisely nor consistently defined the elements
comprising the common-law public records exception
to the hearsay rule . . . [§] 8-3 (7) gleans from case
law three distinct requirements for substantive admissi-
bility.’’ (Citations omitted.) Conn. Code Evid. § 8-3, com-
mentary. Specifically, it is the burden of the party
offering the evidence to show that ‘‘(A) the record,
report, statement or data compilation was made by a
public official under a duty to make it, (B) the record,
report, statement or data compilation was made in the
course of his or her official duties, and (C) the official
or someone with a duty to transmit information to the
official had personal knowledge of the matters con-
tained in the record, report, statement or data compila-
tion.’’ Conn. Code Evid. § 8-3 (7).
‘‘[I]t is generally recognized that public documents
can be authenticated simply by showing [that] the
record purports to be a public record and comes from
the custody of the proper public office.’’ (Emphasis
added; internal quotation marks omitted.) State v. Cal-
deron, supra, 82 Conn. App. 322, citing C. Tait, Connecti-
cut Evidence (3d Ed. 2001) § 9.4.2, pp. 757–58. Further,
General Statutes § 52-165 provides in relevant part that
‘‘[t]he entries or records of all corporations and all
public offices, where entries or records are made of
their acts, votes and proceedings, by some officer
appointed for that purpose, may be proved by a copy
certified under the hand of such officer, and the seal
of such corporation or office, if any . . . . ’’ See also
Conn. Code Evid. § 9-1 (b) (no extrinsic evidence neces-
sary ‘‘if the offered evidence is self-authenticating in
accordance with applicable law’’). Rules governing the
authentication of documents, however, are not a proper
substitute for a valid hearsay exception. See Wright v.
Hutt, 50 Conn. App. 439, 446–47, 718 A.2d 969, cert.
denied, 247 Conn. 939, 723 A.2d 320 (1998). ‘‘An official
certificate simply authenticates a document, that is, it
proves that it is what it purports to be. It is not a hearsay
exception that permits the contents of a certified docu-
ment to be used to prove the truth of the matter
asserted. Any and all assertions of fact contained within
a certified document must be proven by the usual rules
of evidence and must satisfy the hearsay rule or its
exceptions.’’ C. Tait & E. Prescott, Connecticut Evi-
dence (5th Ed. 2014) § 9.12.3, p. 698.
Here, the state sought to admit the abstract as sub-
stantive evidence that the defendant had a prior convic-
tion for driving a motor vehicle while under the
influence in Florida. No argument was made at trial
that the data entries on the abstract were not being
admitted for the truth of the matter asserted and, thus,
that the entries were not hearsay statements. Rather,
in response to the defendant’s objection that the infor-
mation contained in the abstract was hearsay, the state
argued only that the document was properly authenti-
cated and admissible as a public record. The defendant
argued to the trial court, as he does on appeal, that the
state had failed to show that the foundational require-
ments set forth in § 8-3 (7) of the Connecticut Code of
Evidence were satisfied.
The trial court ruled that because the abstract was
a court document under seal and certified by the clerk
of that court, the state had addressed all concerns raised
by the foundational requirements in § 8-3 (7) of the
Connecticut Code of Evidence. Although the seal and
certification served as proof of the authenticity of the
abstract, authenticity was never challenged by the
defendant. The court’s ruling suggests that the same
elements that serve as indicia of authenticity—the seal
and certification—also serve to satisfy the foundational
elements set forth in § 8-3 (7) with respect to the hearsay
exception for public records. We can find no legal sup-
port for that proposition in the Code of Evidence, in
our statutes or in our case law.
In order to satisfy the requirements set forth in § 8-
3 (7) of the Connecticut Code of Evidence, the state
needed to show that the abstract was prepared by a
public official under a duty to do so, that the abstract
was prepared in the course of that duty, and that the
official either had personal knowledge of the informa-
tion contained in the abstract or the information was
provided by someone with a duty to transmit that infor-
mation to the official. In its appellate brief, the state
addresses the lack of foundation claim by stating that
it was reasonable for the court to have inferred that
the foundational requirements had been met.16 The state
does not cite to any case law that directly supports
the proposition that a trial court is permitted to infer
evidentiary foundational requirements. Further, we do
not agree that it reasonably can be inferred from either
the certification or the seal that the deputy clerk who
certified the abstract was the same official responsible
for its preparation, or that the deputy clerk, or someone
with a duty to transmit evidence to the deputy clerk,
had personal knowledge of the information contained
on the abstract.
The state presented only Shackleton’s testimony as
a foundation for the admission of the abstract. Shack-
leton provided no background information about how
or by whom the abstract was prepared. The state fails
to point to any portion of Shackleton’s testimony that
could have served as a basis for the court drawing
inferences that the foundational requirements of § 8-3
(7) of the Connecticut Code of Evidence had been met.
Because the state failed to meet its foundational bur-
den for the admission of the abstract under the hearsay
exception for public records, we conclude that the
abstract was admitted by the court in error. In its brief,
the state concedes that the abstract was the only evi-
dence presented that proves the defendant was con-
victed of driving a motor vehicle under the influence
in Florida, and thus, if the abstract was admitted in
error, that error was not harmless. We agree. We also
agree with the state, however, that because the defen-
dant did not challenge the evidence of the Danbury
conviction, there was sufficient evidence to support the
allegation in the part B information that the defendant
was ‘‘subject to the enhanced penalties under [§] 14-
227a (g),’’ albeit as a second time offender. Accordingly,
the judgment on the part B information is reversed only
as to the court’s finding that the defendant was guilty
of being a third time offender based on the alleged
Florida conviction.
The judgment is reversed only as to the defendant’s
conviction as a third time offender under the part B
information and the case is remanded with direction
to modify his conviction on the part B information to
reflect that he is a second time offender and to resen-
tence the defendant accordingly. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The jury also found the defendant guilty of reckless driving in violation
of General Statutes § 14-222; however, he does not challenge his reckless
driving conviction in the present appeal.
2
The defendant waived his right to a jury trial on the part B information.
3
Because we reverse the judgment of the court on the part B information
on the basis of the claimed evidentiary error, we do not reach the defendant’s
additional claims that the court erroneously determined that the defendant
previously had been convicted of violating a Florida criminal statute, Fla.
Stat. § 316.193 (1999), and that the elements of that statute essentially were
the same as those of General Statutes § 14-227a.
4
‘‘The walk and turn test requires the subject to walk heel to toe along
a straight line for nine paces, pivot, and then walk back heel to toe along
the line for another nine paces. The subject is required to count each pace
aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Popel-
eski, 291 Conn. 769, 771 n.4, 970 A.2d 108 (2009).
5
‘‘The one leg stand test requires the subject to stand on one leg with
the other leg extended in the air for [thirty] seconds, while counting aloud
from [one] to [thirty].’’ (Internal quotation marks omitted.) State v. Popeleski,
291 Conn. 769, 771 n.5, 970 A.2d 108 (2009).
6
‘‘The horizontal gaze nystagmus test measures the extent to which a
person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the understanding
that, whereas everyone’s eyes exhibit some jerking while turning to the side,
when the subject is intoxicated the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme angles becomes more
distinct.’’ (Internal quotation marks omitted.) State v. Popeleski, 291 Conn.
769, 770 n.3, 970 A.2d 108 (2009).
7
The court did not exclude the evidence on hearsay grounds. Because
we affirm the court’s evidentiary ruling on the basis of the grounds stated
by the court, we do not address whether the evidence contained inadmissi-
ble hearsay.
8
The state made no objection as to the authenticity of the records.
9
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness . . . . A statement made for purposes
of obtaining a medical diagnosis or treatment and describing medical history,
or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof, insofar as reasonably
pertinent to the medical diagnosis or treatment.’’ Because the court did not
rule on the hearsay argument in addressing the admissibility of the medical
records, that issue is not properly before us on appeal.
10
The defendant never argued before the trial court, as he does on appeal,
that evidence of his neck injury would have helped to explain his failure
to adequately perform the horizontal gaze nystagmus test, and, therefore,
we do not consider that argument. See State v. Crespo, supra, 114 Conn.
App. 366.
11
In addition to the Porter argument, defense counsel also objected to
the admissibility of testimony regarding the finger dexterity test on the
ground that evidence of another field sobriety test would be cumulative of
other evidence supporting the officer’s determination at the time of arrest
that the defendant had been intoxicated, namely, that the defendant had
failed the horizontal gaze nystagmus test and the walk and turn test, that
he refused to participate in the one leg stand test and that he refused a
breathalyzer test. The court overruled that objection, noting that the state’s
burden of proof was very high and that it had a right to present to the jury
everything that factored into the officers’ decisions at the time of the arrest.
The defendant does not challenge that aspect of the court’s ruling on appeal.
12
Because our disposition of the claim with respect to the abstract is
dispositive, we do not address whether the fingerprint card also was admitted
in error. The defendant also argues as part of this claim that the admission
of the abstract and fingerprint card violated his constitutional right to con-
frontation under both the federal and state constitutions, although he chose
not to brief the state constitutional claim separately thus abandoning it. See
State v. Simpson, 286 Conn. 634, 651 n.17, 945 A.2d 449 (2008). ‘‘This court
has a basic judicial duty to avoid deciding a constitutional issue if a noncon-
stitutional ground exists that will dispose of the case.’’ Moore v. McNamara,
201 Conn. 16, 20, 513 A.2d 660 (1986). Because we agree with the evidentiary
aspect of the defendant’s claim, we do not reach the constitutional question.
13
General Statutes § 14-227a (g) provides in relevant part: ‘‘Any person
who violates any provision of subsection (a) of this section shall . . . (2)
for conviction of a second violation within ten years after a prior conviction
for the same offense, (A) be fined not less than one thousand dollars or
more than four thousand dollars, (B) be imprisoned not more than two
years, one hundred twenty consecutive days of which may not be suspended
or reduced in any manner, and sentenced to a period of probation [with
statutorily described conditions]; and (3) for conviction of a third and subse-
quent violation within ten years after a prior conviction for the same offense,
(A) be fined not less than two thousand dollars or more than eight thousand
dollars, (B) be imprisoned not more than three years, one year of which
may not be suspended or reduced in any manner, and sentenced to a period
of probation [with statutorily described conditions], and (C) have such
person’s motor vehicle operator’s license or nonresident operating privilege
permanently revoked upon such third offense . . . . For purposes of the
imposition of penalties for a . . . third and subsequent offense pursuant
to this subsection, a conviction . . . in any other state of any offense the
essential elements of which are determined by the court to be substantially
the same as subdivision (1) or (2) of subsection (a) of this section or section
53a-56b or 53a-60d, shall constitute a prior conviction for the same offense.’’
14
It is not a ‘‘condition to the imposition of enhanced penalties for a third
offense, that a defendant must have been convicted previously of being a
second time offender.’’ See State v. Surette, 90 Conn. App. 177, 181, 876
A.2d 582 (2005).
15
The state also introduced through Shackleton documentary evidence
of a 2002 conviction of operating a motor vehicle while under the influence
prosecuted in the Superior Court in Danbury, including a certified copy of
a judgment of conviction and a related fingerprint card. The defendant does
not challenge the admissibility of that evidence on appeal.
16
The state argues in the alternative that the court was permitted to
consider hearsay evidence because it was acting as a sentencing court with
respect to the part B trial. We find no merit in this argument. Sentencing
cannot occur until both parts of the information have been adjudicated. See
State v. Jones-Richards, 271 Conn. 115, 123, 855 A.2d 979 (2004). Adjudica-
tion of part B of an information is no less of a trial than the proceedings
on the first part of the information; the state has the burden of proving a
violation beyond a reasonable doubt and all evidentiary rules regarding the
admission of evidence are the same.