State v. Waters ( 2022 )

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STATE OF CONNECTICUT v. RODNEY WATERS
(AC 44342)
Prescott, Alexander and Clark, Js.
Syllabus
Convicted, after a jury trial, of the crime of operating a motor vehicle
while under the influence of intoxicating liquor, and, under a part B
information, on a plea of guilty, of being a second time offender pursuant
to statute (§ 14-227a (g) (2)), the defendant appealed to this court. The
defendant had attempted to make a U-turn when the car he was driving
twice struck a car being driven by A. The defendant drove away from
the accident scene and went home, where he claimed to have consumed a
significant amount of alcohol and smoked a ‘‘spliff.’’ When the defendant
reappeared at the scene on foot about twenty minutes later, A identified
him as the driver of the other car. Police officers noticed that he was
acting aggressively, slurring his speech and moving unsteadily. The
defendant thereafter failed three sobriety tests the police administered
to him and was taken to the police station where he was questioned
after being advised of his rights pursuant to Miranda v. Arizona (384
U.S. 436). The defendant was charged under subdivision (1) of § 14-
227a (a), the behavioral subdivision, pursuant to which blood alcohol
levels generally are excluded from evidence without a defendant’s con-
sent, in accordance with § 14-227a (c). The defendant testified on his
own behalf, including testifying that he had not begun to consume
alcohol until after he returned home after the incident with A. The state
offered as rebuttal evidence the testimony of its expert witness, L, a
forensic toxicologist. L testified in response to a set of hypothetical
facts about the amount of time it typically takes for alcohol to have
observable effects on an individual’s motor functions and typical behav-
ior associated with certain blood alcohol levels. The court overruled
the defendant’s objection to L’s testimony. On appeal, the defendant
claimed, inter alia, that L’s testimony was tantamount to testimony about
the defendant’s blood alcohol content and, thus, violated the prohibition
of such testimony under § 14-227a (c) in a prosecution under the behav-
ioral subdivision. Held:
1. The evidence was sufficient to support the defendant’s conviction of
operating a motor vehicle while under the influence of intoxicating
liquor: the defendant’s reckless driving, the fact that he drove away
from the accident scene, and his slurred speech and belligerent behavior
toward the police when he returned to the scene permitted the jury
reasonably to infer that he was intoxicated when his car struck A’s car;
moreover, the defendant admitted that he had been driving, he was
substantially unable to follow the police officers’ instructions when he
failed the sobriety tests, and his refusal to take a breath analysis or
urine test at the police station permitted an inference that a test would
have revealed that he had an elevated blood alcohol content; further-
more, the jury reasonably could have inferred that the defendant’s intoxi-
cation when he reappeared at the accident scene was not reasonably
attributable to his drinking when he arrived home after leaving the
scene, which was supported by L’s testimony, and, although the defen-
dant claimed that A’s testimony was suspect and that the jury was
obligated to credit his testimony that he consumed a significant amount
of alcohol when he returned home, it was within the jury’s province to
determine whose testimony to credit.
2. The defendant could not prevail under State v. Golding (213 Conn. 233)
or the plain error doctrine on his unpreserved claim that the trial court
improperly permitted L to testify, in violation of § 14-227a (c), about
the likely blood alcohol content of a person who was slurring his speech:
a. Because the defendant objected to L’s testimony on the ground that
it was irrelevant and that L could not provide any definite conclusions
about the defendant’s blood alcohol content, the defendant’s claim on
appeal was unpreserved, as he did not cite to § 14-227a (c) or otherwise
inform the trial court that the admission of L’s testimony without the
defendant’s consent would violate § 14-227a (c).
b. The defendant’s claim that he was denied his right to due process as
a result of L’s testimony was unavailing; the defendant failed to demon-
strate that the testimony was so crucial, critical and highly significant
that he was denied a fair trial, as his claim did not implicate anything
more than an evidentiary or statutory claim and, thus, could not be
reviewed because it was not constitutional in nature, as required by Gold-
ing.
c. Although the state violated the spirit if not the letter of § 14-227a (c)
by seeking to admit opinion testimony in a behavioral case under § 14-
227a (a) (1) that implicitly related to the defendant’s blood alcohol
content, the defendant nevertheless failed to demonstrate the existence
of plain error.
3. The trial court did not abuse its discretion in determining that the defen-
dant failed to establish a proper foundation to cross-examine L about
whether other substances could have affected the rate at which an
individual can become visibly intoxicated from alcohol: although the
defendant had the opportunity to lay a factual foundation as to what
substances he ingested, he did not define what a spliff was or what
substances it contained, and, without that evidentiary foundation, any
opinion by L regarding the effect of other substances in combination
with alcohol on the rate of intoxication lacked relevance; accordingly,
the court’s decision to preclude L’s testimony on that basis did not
violate the defendant’s sixth amendment right to confrontation.
4. The record was inadequate to review the defendant’s claim that the trial
court improperly denied his motion to suppress statements he made at
the accident scene and at the police station, as he failed to seek a proper
memorandum of decision from the court addressing all of the arguments
he raised in his motion or to seek an articulation of the court’s decision,
which was made without having conducted an evidentiary hearing prior
to ruling on the motion.
Argued April 11—officially released August 2, 2022
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crime of operating a
motor vehicle while under the influence of intoxicating
liquor, and, in the second part, with having previously
been convicted of operating a motor vehicle while under
the influence of intoxicating liquor or drugs, brought
to the Superior Court in the judicial district of New
Haven, where the court, B. Fischer, J., denied the defen-
dant’s motion to suppress certain evidence; thereafter,
the first part of the information was tried to the jury
before B. Fischer, J.; verdict of guilty; subsequently,
the defendant was presented to the court on a plea of
guilty to the second part of the information; judgment
of guilty in accordance with the verdict and the plea,
from which the defendant appealed to this court.
Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Juan Carlos Leal, certified legal intern,
for the appellant (defendant).
Nathan J. Buchok, deputy assistant state’s attorney,
with whom were Kathleen E. Morgan, deputy assistant
state’s attorney, and, on the brief, Patrick J. Griffin,
former state’s attorney, Timothy F. Costello, senior
assistant state’s attorney, and Kevin M. Black, Jr., for-
mer special deputy assistant state’s attorney, for the
appellee (state).
Opinion
PRESCOTT, J. The defendant, Rodney Waters, appeals
from the judgment of conviction, rendered after a jury
trial, of operating a motor vehicle while under the influ-
ence of alcohol in violation of General Statutes § 14-
227a (a) (1), and, following a plea of guilty to a part B
information, of being a second time offender pursuant
to § 14-227a (g) (2). On appeal, the defendant claims
that his conviction under § 14-227a (a) (1) is not sup-
ported by sufficient evidence. He also claims that the
trial court improperly admitted expert testimony
related to the defendant’s blood alcohol content (BAC)
in contravention of § 14-227a (c), restricted his cross-
examination of the state’s expert witness, and denied
his motion to suppress inculpatory statements he made
to the police. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. At approximately 8:45 p.m. on May 18, 2019,
Tion Adlam was driving on Dixwell Avenue in New
Haven with her mother, daughter, and stepfather when
she observed the car ahead of her being driven reck-
lessly and attempting a U-turn. Adlam stopped her car,
but the other driver, later identified as the defendant,
drove his car into the left side of her car, causing it to
‘‘jerk . . . .’’ After the initial impact, the defendant’s
car struck her car at least once more. Adlam was forced
to reverse her car to get out of the way. Before the
defendant fled from the scene, Adlam saw him and took
a photograph of his car’s license plate.
Adlam called 911 to report the incident. Officers
Christopher Troche, Marco Correa, and Robert Stratton
of the New Haven Police Department arrived on the
scene at approximately 9 p.m. and spoke with Adlam.
At approximately 9:05 p.m., twenty minutes after the
accident occurred, the defendant appeared at the scene
on foot, and Adlam identified him as the driver of the
other car involved in the accident.
The officers then approached the defendant. Upon
speaking with him, they observed him acting aggres-
sively, slurring his speech, and moving unsteadily. After
this initial interaction with the police, the defendant
walked away from the scene but returned about ten
minutes later. Upon his return, the police placed the
defendant in handcuffs while Stratton confirmed that
the defendant’s address matched the registered address
of the suspect’s vehicle.1 After receiving confirmation,
Stratton and Troche had the defendant perform three
field sobriety tests:2 (1) the horizontal gaze nystagmus
test,3 (2) the walk and turn test,4 and (3) the one leg
stand test.5 The defendant failed all three field sobri-
ety tests.
As a result of failing the field sobriety tests and being
identified as the driver of the other car involved in the
accident, the defendant was transported to the police
station and brought to the ‘‘intoxilyzer room.’’6 Shortly
after arriving at the station, Correa read the defendant
his Miranda rights.7 The defendant declined a breath
analysis test, despite Stratton’s warning that it would
be deemed a refusal. Although the defendant initially
agreed to submit to a urine test, he proceeded to get
angry, raise his voice, and tell the officers to
‘‘unshackle’’ him because he was a ‘‘linebacker.’’ Strat-
ton asked him if he would be ‘‘alright’’ if he removed
the defendant’s handcuffs. The defendant replied, ‘‘yes,’’
but remained aggressive, once again stating that he was
a linebacker. Stratton deemed this behavior as a refusal
to do the urine test.
Correa then proceeded to ask the defendant ques-
tions from an A-44 form,8 including whether he was
injured, suffered from any medical conditions, and if
he had taken any drugs. The defendant answered most
of the questions, despite a reminder from Correa that
he could refuse to answer. The defendant subsequently
was charged with operating a motor vehicle while under
the influence in violation of § 14-227a (1). The state also
charged the defendant, by way of a part B information,
with operating a motor vehicle while under the influ-
ence of intoxicating liquor or drugs as a second offender
pursuant to § 14-227a (g) (2).
On February 6, 2020, a jury trial commenced. The
state called three witnesses to testify: Adlam, Stratton,
and Troche. After the state rested its case, the defendant
testified on his own behalf. According to the defendant,
he had not begun to consume alcohol on May 18, 2019,
until after he returned home following the incident with
Adlam. Specifically, the defendant testified that he
returned home immediately after the accident and
quickly consumed a ‘‘Jamaican splash,’’ a mixed drink
that consisted of about ten to twelve ounces of high-
proof rum, wine, and cranberry juice. After finishing
the mixed drink, he testified that he smoked a ‘‘spliff’’
and sipped from a half pint bottle of vodka.
In response to the defendant’s testimony, the state
offered, and the court admitted, rebuttal evidence from
Robert Lockwood, a forensic toxicologist employed at
the state’s forensics laboratory. Lockwood testified
about the amount of time after the consumption of
alcohol that it typically takes for the alcohol to have
observable effects on an individual’s motor functions
and typical behaviors associated with certain BAC lev-
els.
The jury found the defendant guilty of operating a
motor vehicle while under the influence of alcohol in
violation of § 14-227a (a) (1). The defendant then
pleaded guilty to being a second time offender under
§ 14-227a (g) (2). The court, B. Fischer, J., later sen-
tenced the defendant to two years of incarceration,
execution suspended after nine months, 120 days of
which was the mandatory minimum sentence, followed
by two years of probation. This appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
I
The defendant first claims that there was insufficient
evidence to support his conviction of operating a motor
vehicle while under the influence of intoxicating liquor
in violation of § 14-227a (a) (1). With respect to this
claim, the defendant makes three related arguments.
First, the defendant asserts that the only evidence of
his intoxication while driving was Adlam’s testimony
and that her testimony was insufficient and lacked cred-
ibility. Second, the defendant argues that the officers’
observations and the defendant’s performance on field
sobriety tests were not sufficient to establish that the
defendant was intoxicated while driving because they
did not take place until one-half hour after the defendant
had stopped driving. Third, the defendant argues that
Lockwood’s testimony did not establish that the defen-
dant was intoxicated due to drinking that occurred
before, rather than after, the defendant stopped driving.
We are not persuaded that the evidence in the present
case was insufficient to prove beyond a reasonable
doubt that the defendant operated a motor vehicle while
under the influence of intoxicating liquor.
We begin our analysis by setting forth the well estab-
lished legal principles for assessing an insufficiency of
the evidence claim. ‘‘In reviewing the sufficiency of the
evidence to support a criminal conviction we apply a
[two part] test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Petersen, 196 Conn. App. 646, 655, 230 A.3d
696, cert. denied, 335 Conn. 921, 232 A.3d 1104 (2020).
‘‘In particular, before this court may overturn a jury
verdict for insufficient evidence, it must conclude that
no reasonable jury could arrive at the conclusion the
jury did. . . . Although the jury must find every ele-
ment proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt.’’ (Citation omitted; internal quotation marks
omitted.) State v. Rhodes, 335 Conn. 226, 233, 249 A.3d
683 (2020).
‘‘If it is reasonable and logical for the [finder of fact]
to conclude that a basic fact or an inferred fact is true,
the [finder of fact] is permitted to consider the fact
proven and may consider it in combination with other
proven facts in determining whether the cumulative
effect of all the evidence proves the defendant guilty
of all the elements of the crime charged beyond a rea-
sonable doubt.’’ (Internal quotation marks omitted.)
State v. Petersen, supra, 196 Conn. App. 655.
‘‘[E]stablished case law commands us to review
claims of evidentiary insufficiency in light of all of the
evidence [adduced at trial].’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Id., 656. ‘‘Moreover, even
improperly admitted evidence may be considered . . .
since [c]laims of evidentiary insufficiency in criminal
cases are always addressed independently of claims of
evidentiary error.’’ (Internal quotation marks omitted.)
State v. Morelli, 293 Conn. 147, 153, 976 A.2d 678 (2009).
Turning to our evaluation of the sufficiency of the
evidence, we begin with the elements of the offense
for which the defendant was convicted. Section 14-227a
(a) provides in relevant part: ‘‘A person commits the
offense of operating a motor vehicle while under the
influence of intoxicating liquor (1) if such person oper-
ates a motor vehicle . . . while under the influence of
intoxicating liquor . . . .’’
The defendant’s insufficiency of the evidence claim
focuses only on the state’s obligation to demonstrate
beyond a reasonable doubt that the defendant was
under the influence of intoxicating liquor at the time
he was operating his motor vehicle. We conclude that
the evidence admitted at trial, including the reasonable
inferences that the jury was permitted to draw from that
evidence, was sufficient to establish that the defendant
operated a motor vehicle while under the influence of
intoxicating liquor.
In construing the evidence in the light most favorable
to sustaining the verdict, we conclude that the jury
reasonably could have found that the defendant drove
recklessly and struck Adlam’s car with his vehicle not
only once but a second time as well. From his reckless
operation of his motor vehicle, the jury was permitted,
in conjunction with the evidence that he was visibly
intoxicated twenty minutes later, to infer that he was
already under the influence of intoxicating liquor when
he struck Adlam’s vehicle.
The defendant then immediately fled the scene after
the accident. See, e.g., State v. Holley, 90 Conn. App.
350, 361, 877 A.2d 872 (‘‘[f]light, when unexplained,
tends to prove a consciousness of guilt’’ (internal quota-
tion marks omitted)), cert. denied, 275 Conn. 929, 883
A.2d 1249 (2005). The jury was, of course, free to infer
that the defendant fled the scene so that the police
would not arrive to find him intoxicated.
Additionally, the defendant returned to the scene less
than twenty minutes after the accident and was visibly
intoxicated. He slurred his speech, behaved belliger-
ently, and engaged in drunken behaviors such as stum-
bling and challenging officers to a push-up contest.
The defendant also failed three field sobriety tests
administered within one-half hour after the defendant
admittedly had been driving and during which he dem-
onstrated a substantial inability to follow the officers’
instructions. From these facts alone, the jury reasonably
could have inferred that the defendant was under the
influence of alcohol while driving and that his erratic
operation of his vehicle and behavior at the scene was
the result of his intoxication.
The defendant further refused to take a breath analy-
sis or urine test. Pursuant to § 14-227a (e), the defen-
dant’s refusal of a breath or urine test is admissible
evidence from which an adverse inference may be
drawn that the test would have revealed an elevated
BAC.
Even without the state’s expert testimony, the jury
reasonably could have inferred, based on the short
period of time between the accident and when the
defendant reappeared at the scene intoxicated, that his
intoxication was not reasonably attributable to drinking
that occurred within the short period of time after he
ceased driving and when he arrived on foot at the scene
of the accident. See, e.g., State v. McShea, 11 Conn.
App. 338, 340–41, 527 A.2d 1 (1987) (jury reasonably
could have inferred defendant was intoxicated while
driving from ‘‘the time and location of the accident . . .
the defendant’s admission that he was driving the car;
the evidence regarding the time sequence and its rela-
tionship to the defendant’s degree of intoxication’’); see
also State v. Morelli, supra, 293 Conn. 160 (despite
defendant’s alternative explanation for his behavior,
his failure of field sobriety tests, belligerent attitude,
questionable driving practices, and refusal of Breatha-
lyzer test were sufficient to prove beyond reasonable
doubt that defendant had operated motor vehicle while
under influence of intoxicating liquor). With Lock-
wood’s testimony, the jury had additional evidence to
support the conclusion that, even if the defendant had
quickly consumed eight or nine drinks when he arrived
home, he could not have reached the level of intoxica-
tion he exhibited only thirteen to fifteen minutes later.
In large measure, the defendant’s insufficiency of the
evidence claim is premised on his assertion that the
jury was obligated to credit his testimony that he had
consumed a significant amount of alcohol after arriving
home and before returning to the scene of the incident,
and that this explained his subsequent behavior, includ-
ing the results of the field sobriety tests. It is the prov-
ince of the jury, however, to weigh conflicting evidence
and determine whose testimony to credit. Thus, the jury
was under no obligation to credit any of the defendant’s
testimony. See, e.g., State v. Allen, 289 Conn. 550, 559,
958 A.2d 1214 (2008). Similarly, the defendant argues
that ‘‘Adlam’s testimony is suspect’’ because she was
angry with the defendant for hitting her car and endan-
gering her family. As with the defendant’s testimony,
it was within the province of the jury to credit Adlam’s
testimony and to accept or reject any claim of bias she
may have had against the defendant.
In support of his assertion that the state failed to
prove that he was under the influence of intoxicating
liquor while operating his motor vehicle, the defendant
relies largely on State v. DeCoster, 147 Conn. 502, 162
A.2d 704 (1960). DeCoster, however, is readily distin-
guishable from the present case.
In DeCoster, a police officer found the defendant’s
car stopped on a street in New Haven with the key in
the ignition but the engine turned off. Id., 504. The
defendant was slumped at the steering wheel of the
car. Id. There was visible damage to the defendant’s
car, and four nearby road signs were knocked over. Id.
On the basis of these facts, the defendant was arrested
and later found guilty of operating a motor vehicle while
under the influence of intoxicating liquor. Id., 503–504.
On appeal, however, our Supreme Court reversed the
judgment of conviction on insufficiency grounds, con-
cluding that the state had failed to prove that the defen-
dant was under the influence of liquor at the time he
was driving. See id., 505. The court found that ‘‘[n]o
one had seen him operating the car, and there was no
evidence to show how long it had been standing in the
place where it was found. Even though [a fact finder]
might infer that the defendant’s car had struck the signs
at the traffic circle, there was no evidence whatever to
show when or how the collision occurred. Id., 504–505.
The court concluded that, ‘‘[i]n the absence of any evi-
dence as to the time when the defendant last operated
his car, the conclusion of the trial court that he violated
the statute was unwarranted and invaded the realm of
speculation and conjecture.’’ Id., 505.
In the present case, and unlike DeCoster, Adlam testi-
fied about how and when the collision between her and
the defendant occurred. As established through Adlam,
Troche, and Stratton’s testimony, the defendant was
admittedly driving at 8:47 p.m. and visibly intoxicated
less than twenty minutes later at 9:05 p.m. The defen-
dant failed field sobriety tests approximately thirty
minutes after the accident. Furthermore, Lockwood tes-
tified that it would be unlikely for an individual to
engage in the behavior the defendant exhibited within
only thirteen to fifteen minutes after beginning to con-
sume alcohol, even if that individual had quickly drank
eight to nine drinks.
In sum, we are not persuaded that the evidence in
the present case was insufficient to prove that the defen-
dant operated a motor vehicle while under the influence
of intoxicating liquor. We therefore conclude that the
jury reasonably could have found the defendant guilty
beyond a reasonable doubt of violating § 14-227a (a) (1).
II
The defendant next claims that the trial court improp-
erly admitted expert testimony regarding the likely BAC
of an individual who is slurring his or her speech. The
defendant asserts that this testimony was tantamount
to testimony on the defendant’s BAC and, thus, violated
§ 14-227a (c), which prohibits the admission of such
testimony without the defendant’s consent in a case in
which the defendant is charged with violating § 14-227a
(a) (1).9 The defendant, in seeking to prevail on this
claim, argues that the claim is preserved. The defendant
argues in the alternative that, if the claim is not pre-
served, he is entitled to prevail under State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015), or pursuant to the plain error doctrine. We dis-
agree with the defendant that his claim was preserved
at trial. We also conclude that his claim is not entitled
to review under Golding because it fails to satisfy Gold-
ing’s second prong. Finally, we are unpersuaded that
he is entitled to prevail under the plain error doctrine.
Before turning to the relevant facts and procedural
history, it is necessary to set forth the following legal
principles. Section 14-227a (a) establishes two different
ways an individual can commit the offense of operating
a motor vehicle while under the influence of intoxicat-
ing liquor: ‘‘[a] person commits the offense of operating
a motor vehicle while under the influence of intoxicat-
ing liquor or any drug or both if such person operates
a motor vehicle (1) while under the influence of intox-
icating liquor or any drug or both, or (2) while such
person has an elevated blood alcohol content.’’ ‘‘We
previously have described . . . § 14-227a (a) (1) as the
‘behavioral’ subdivision and § [14-227a] (a) (2) as the
‘per se’ subdivision.’’ State v. Longo, 106 Conn. App.
701, 705 n.5, 943 A.2d 488 (2008).
Section 14-227a (c) provides: ‘‘In any prosecution for
a violation of subdivision (1) of subsection (a) of this
section, reliable evidence respecting the amount of
alcohol in the defendant’s blood or urine at the time of
the alleged offense, as shown by a chemical analysis
of the defendant’s blood, breath or urine, otherwise
admissible under subsection (b) of this section, shall
be admissible only at the request of the defendant.’’
Thus, under § 14-227a (c), when an individual is prose-
cuted under the behavioral subdivision of the statute,
the defendant’s BAC is admissible ‘‘only at the request
of the defendant.’’
The following additional facts and procedural history,
which are undisputed in the record, are relevant to our
resolution of the defendant’s claim. After the defense
rested, the state called Lockwood, a forensic toxicolo-
gist, as a rebuttal witness to testify as to the time it
takes for an individual to exhibit effects on their motor
functions after drinking alcohol and the typical BAC of
an individual exhibiting slurred speech. Prior to the
state’s offer of proof, defense counsel made a general
objection to this testimony. Specifically, defense coun-
sel stated: ‘‘I do have a general objection to the testi-
mony, and my argument is that it’s not relevant on this
rebuttal. This—this expert can’t testify to any definite
conclusions . . . .’’10
In response, the court stated, ‘‘[a]ll right. There has
been evidence from the defendant that he did—that he
just testified . . . that he consumed large amounts of
alcoholic beverages in a very short period of time. I
will allow the doctor to come up here . . . .’’
The court then permitted the state to make an offer
of proof outside the presence of the jury. During the
state’s offer of proof, Lockwood was presented a hypo-
thetical and asked: ‘‘Given those facts, do you have an
opinion regarding—at the rate of consumption, the rate
of absorption of alcohol into the body given the facts
I’ve asked you to assume, and the effects one could
expect from the—on the human body of that much
alcohol in that time period?’’ Lockwood then testified
that the average time for an individual to begin to exhibit
the effects of alcohol is between thirty and forty minutes
after consumption. The expert was also asked, ‘‘when
one is stumbling and slurring their words, do you have
an opinion as to what BAC would be associated with
that?’’ The expert replied, ‘‘[b]ased on my training and
experience, when you have an individual with slurred
speech, you are around a BAC of 0.16 or 0.17.’’
Following the state’s offer of proof, the defendant
maintained his original objection to the general rele-
vancy of the evidence and ‘‘lack of definite conclu-
sions.’’ He did not otherwise explain the grounds for his
objection. Specifically, the court asked the defendant
whether he maintained his objection based on what he
heard. The defendant responded, ‘‘yes.’’ The court then
stated, ‘‘[y]ou still do? Okay. I’m going to overrule the
objection.’’
Lockwood then proceeded to testify in front of the
jury as to his opinion on the amount of time it would
take an individual who quickly drank eight or nine
drinks to reach a level of intoxication that would visibly
effect their motor functions.11 Lockwood also opined
on the typical BAC of an individual with slurred speech.
Finally, Lockwood testified that it is not reasonably
probable that an individual would be displaying signs
of intoxication within thirteen to fifteen minutes from
beginning to consume alcohol even if that individual
had quickly drank eight or nine drinks.
A
We begin by reviewing whether the defendant’s claim
that the admission of Lockwood’s testimony violated
§ 14-227a (c) was preserved. It plainly was not.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must prop-
erly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted. . . . We have
explained that these requirements are not simply for-
malities. [A] party cannot present a case to the trial
court on one theory and then seek appellate relief on
a different one . . . . For this court to . . . consider
[a] claim on the basis of a specific legal ground not
raised during trial would amount to trial by ambuscade,
unfair both to the [court] and to the opposing party.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Miranda, 327 Conn. 451,
464–65, 174 A.3d 770 (2018).
The defendant simply objected on the grounds of
relevancy and on the ability of the witness to testify
about ‘‘definite conclusions.’’ He did not alert the court
or opposing party to the basis of the objection now
raised on appeal. The defendant did not cite to § 14-
227a (c) or otherwise inform the trial court of his claim
that admitting the proffered evidence without his con-
sent would violate a statutory provision. See State v.
Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990) (‘‘the
defendant, by objecting to the state’s questions on rele-
vancy grounds, failed to preserve properly [the statu-
tory violation claim] he has raised on appeal’’).12
In sum, the defendant never articulated to the trial
court the claim he now raises on appeal. Accordingly,
we agree with the state that the claim is unpreserved.
B
We next turn to the defendant’s argument that, even
if his claim is not preserved, he is entitled to prevail
pursuant to Golding. The defendant, likely recognizing
that Golding review is limited to claims of a constitu-
tional magnitude, argues that the admission of the evi-
dence violated the defendant’s due process rights
because it violated the statutory prohibition contained
in § 14-227a (c). We are not persuaded that a trial court’s
admission of evidence implicates anything more than
an evidentiary or statutory claim. Thus, the claim fails
under the second prong of Golding because it is not
constitutional in nature.
Pursuant to Golding, as modified by In re Yasiel R.,
supra, 317 Conn. 781, ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only
if all of the following conditions are met: (1) the record
is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Police, 343 Conn. 274, 288,
273 A.3d 211 (2022).
‘‘The first two [prongs of Golding] involve a determi-
nation of whether the claim is reviewable; the second
two . . . involve a determination of whether the defen-
dant may prevail [on the merits]. . . . Thus, Golding
review of an unpreserved constitutional claim is avail-
able provided that the defendant can present a record
that is [adequate] for review and affirmatively [demon-
strate] that his claim is indeed a violation of a fundamen-
tal constitutional right.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Grant, 154 Conn. App.
293, 307, 112 A.3d 175 (2014), cert. denied, 315 Conn.
928, 109 A.3d 923 (2015).
‘‘[T]he defendant can not raise a constitutional claim
by attaching a constitutional label to a purely eviden-
tiary claim or by asserting merely that a strained con-
nection exists between the evidentiary claim and a fun-
damental constitutional right. . . . Thus, [o]nce
identified, unpreserved evidentiary claims masquerad-
ing as constitutional claims will be summarily
[rejected]. . . . We previously have stated that the
admissibility of evidence is a matter of state law and
unless there is a resultant denial of fundamental fairness
or the denial of a specific constitutional right, no consti-
tutional issue is involved.’’ (Internal quotation marks
omitted.) State v. Gilbert I., 106 Conn. App. 793, 796,
944 A.2d 353, cert. denied, 287 Conn. 913, 950 A.2d
1289 (2008).
Though the defendant asserts that the admission of
evidence violated his due process rights, he fails to brief
or otherwise demonstrate that this alleged error was
so crucial, critical, and highly significant that he was
denied a fair trial.13 See, e.g., State v. Turner, 334 Conn.
660, 674, 224 A.3d 129 (2020) (evidentiary error must
be crucial, critical, and highly significant to degree that
defendant was denied a fair trial in order to rise to
constitutional error). The defendant has failed to cite
to a single case from Connecticut, or elsewhere, that
holds that the admission of BAC testing in a behavioral
case violates the defendant’s right to due process. More-
over, the defendant has not argued that, if the legislature
had chosen not to include in § 14-227a (c) the prohibi-
tion on admissibility of the defendant’s BAC, then the
due process clause itself would have barred the admis-
sion of a defendant’s BAC level in a behavioral case.
Because we conclude that the defendant’s claim is
not constitutional in nature, it fails under the second
prong of Golding. Accordingly, we decline to review it.
C
Finally, we address whether the defendant is entitled
to prevail on his statutory claim under the plain error
doctrine. See Practice Book § 60-5. We do not agree
that Lockwood’s testimony regarding the expected BAC
of an individual exhibiting slurred speech, which the
defendant exhibited, was plain error under the circum-
stances of this case.
We begin by setting forth the relevant legal principles.
‘‘[I]f a claim is unpreserved . . . an appellate court may
in the interests of justice notice plain error not brought
to the attention of the trial court. . . . Application of
the plain error doctrine is nevertheless reserved for
truly extraordinary situations [in which] the existence
of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . . [Thus, a] defendant cannot prevail
under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Citations omitted; internal
quotation marks omitted.) State v. Brett B., 186 Conn.
App. 563, 603, 200 A.3d 706 (2018), cert. denied, 330
Conn. 961, 199 A.3d 560 (2019).
There is a two step framework for evaluating claims
under the plain error doctrine. ‘‘First, we must deter-
mine whether the trial court in fact committed an error
and, if it did, whether that error was indeed plain in
the sense that it is patent [or] readily discernable on
the face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . [T]his
inquiry entails a relatively high standard, under which
it is not enough for the defendant simply to demonstrate
that his position is correct. Rather, the party seeking
plain error review must demonstrate that the claimed
impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal.’’
(Internal quotation marks omitted.) State v. Darryl W.,
303 Conn. 353, 373, 33 A.3d 239 (2012).
In the present case, the trial court did not admit direct
evidence of the defendant’s BAC. Lockwood testified
only about the BAC of a hypothetical individual who
exhibited the same behaviors that the defendant had
exhibited. On cross-examination, defense counsel made
clear through his questioning of Lockwood that he was
not testifying about the defendant’s BAC and that the
state’s scenarios were purely hypothetical.14 Although
Lockwood’s testimony may have implicitly suggested
what the defendant’s BAC level may have been, if it
had been tested, we cannot say that the alleged error
constituted ‘‘impropriety . . . so clear, obvious and
indisputable as to warrant the extraordinary remedy of
reversal.’’ (Internal quotation marks omitted.) Id.In reaching this conclusion, we do not mean to sug-
gest that the defendant could not have prevailed on this
claim if it had been preserved properly and brought to
the attention of the trial court. Although we do not
conclude that the admission of this evidence is such a
clear and obvious error that it results in a manifest
injustice to the defendant, we are nevertheless troubled
by the state’s introduction of Lockwood’s testimony
regarding blood alcohol content. In State v. Lopez, 177
Conn. App. 651, 669–70, 173 A.3d 485, cert. denied, 327
Conn. 989, 175 A.3d 563 (2017), we made it clear that
evidence pertaining to the expected BAC of a hypotheti-
cal individual exhibiting the same behavior as the defen-
dant is problematic at best.
In State v. Lopez, supra, 177 Conn. App. 669, the
state elicited testimony of the blood alcohol level of
a hypothetical individual based on behaviors that the
defendant had exhibited, such as his performance on
the field sobriety tests. We stated: ‘‘Although we recog-
nize that the language of the statute refers to blood
alcohol content as shown by a chemical analysis of the
defendant’s blood, breath or urine . . . and that the
blood alcohol content evidence in this case was not
derived from such a chemical analysis, we do not
believe that, at the time the legislature passed the stat-
ute, it contemplated that there would be any other way
to demonstrate the concentration of alcohol in some-
one’s blood except by chemical analysis. Thus, as a
matter of statutory interpretation, it would lead to
absurd and unworkable results to interpret the statute
to permit evidence of the defendant’s blood alcohol
content derived from a less reliable, extrapolated analy-
sis, such as the one made here, while prohibiting blood
alcohol content evidence derived from a more reliable
procedure, i.e., chemical testing of the defendant’s
blood, breath, or urine . . . . Permitting evidence in
this behavioral prosecution case of a blood alcohol
content derived from a subjective interpretation of the
defendant’s performance on standard field sobriety
tests, without using any of the approved methods and
procedures, does great violence to the intent of the
statute. . . . Given the potential unreliability of blood
alcohol content evidence that is based on this method,
and given that [w]e cannot ignore the heightened cre-
dence juries tend to give scientific evidence . . . the
risk that this type of evidence might have had an
improper impact on the jury and on the result of the
trial, without the defendant’s being permitted to engage
in the scope of unfettered cross-examination to which
he was entitled, is too great.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Id.,669–73.
We maintain this view and caution the state against
seeking to admit opinion testimony concerning an indi-
vidual’s BAC, whether it be hypothetical or otherwise, in
behavioral cases under § 14-227a (a) (1). Such evidence
implicitly relating to the defendant’s BAC in behavioral
cases violates the spirit if not the letter of § 14-227a
(c). Nevertheless, we conclude that the defendant failed
to demonstrate the existence of plain error.
III
The defendant next claims that the trial court violated
his sixth amendment right to confrontation by unduly
restricting his cross-examination of Lockwood regard-
ing the effects that additional ingested substances may
have on the rate at which alcohol will begin to cause
observable effects on an individual’s behavior. The state
responds that the defendant failed to lay an adequate
foundation to permit him to cross-examine Lockwood
regarding the effects of additional substances because
there was no evidence of what additional substances,
if any, he had ingested. We agree with the state.
The following facts are relevant to this claim. At trial,
Lockwood was permitted to testify as an expert about
the amount of time after the consumption of alcohol
that it typically takes for the alcohol to have observable
effects on an individual’s motor functions and the typi-
cal BAC associated with slurred speech. The state asked
Lockwood several hypothetical questions comprised of
facts mirroring those in the present case. The first hypo-
thetical described a man who had consumed a large
volume of alcohol in a very short amount of time. The
state asked Lockwood if he had an opinion on the speed
at which an individual would exhibit the effects of intox-
ication after alcohol consumption commenced. Lock-
wood responded that it would take the individual in the
hypothetical scenario thirty to forty minutes to become
observably intoxicated. The second hypothetical
assumed that an individual had slurred speech, and the
state asked whether there is a BAC that is associated
with that behavior. Lockwood responded that slurred
speech usually suggests a BAC of 0.16 or 0.17. Next,
the state asked how many alcoholic beverages (drinks)
an individual would have to consume to reach a BAC
of 0.16 or higher, assuming that the individual weighed
190 pounds. Lockwood responded that the individual
would need to consume eight or nine drinks. The state
next posed a hypothetical in which an individual was
stumbling and slurring words at approximately 9:05
p.m. The state asked what time the individual likely
began drinking to have reached a BAC of 0.16 at 9:05
p.m. Lockwood estimated they likely would have
needed to start drinking at about 8:35 p.m. The state’s
final question was whether it was reasonably probable
that an individual who quickly drank eight or nine drinks
would exhibit slurred speech within thirteen to fifteen
minutes of consuming those drinks. Lockwood
responded that it was not reasonably probable for this
to occur.
The defendant sought to cross-examine Lockwood
on whether additional ingested substances could affect
how quickly an individual would become visibly intoxi-
cated from alcohol. The following colloquy took place
between Lockwood, defense counsel, the prosecutor,
and the court:
‘‘[Defense Counsel]: Okay. What about adding other
substances to that alcohol?
‘‘[Lockwood]: Could you be more specific?
‘‘[Defense Counsel]: Like, if [the defendant] said he
smoked a spliff while he was drinking, would that
enhance the effects?
‘‘[Lockwood]: Pardon me, when you say a spliff, you
mean marijuana?
‘‘[Defense Counsel]: Marijuana, yes.
‘‘[Lockwood]: Okay.
‘‘[Defense Counsel]: Would that enhance it?
‘‘[The Prosecutor]: I’m going to object at this point,
Your Honor. There’s been no evidence what a spliff is
before this jury or this court as to what that is.
‘‘The Court: Yeah, there hasn’t been any evidence of
what a . . .
‘‘[Defense Counsel]: A spliff. He smoked—he smoked
something. He said he was smoking something at the—15
‘‘The Court: Yeah, but there’s no evidence, counsel,
that that was any—you know—illegal substance or mar-
ijuana. Unless I missed it, I didn’t hear that. Do you
agree with that or disagree with that?
‘‘[Defense Counsel]: I disagree. I think a spliff in gen-
eral is a substance and that he could enhance—
‘‘The Court: Well, there was no evidence of what the
substance was. My question is . . . I’m not aware that
that was ever—a question was ever asked of [the defen-
dant] of—you know . . . what [a spliff] . . . contains.
I’m not aware of that. Tell me if I’m wrong.
‘‘[Defense Counsel]: Right, I didn’t ask him what it
contains.
‘‘The Court: All right, all right. So, I’m not gonna . . .
it’s not in evidence . . . what is in a spliff.
‘‘[Defense Counsel]: But he did smoke something, so
I would like to ask this expert if that could enhance
the effects.
‘‘The Court: Well, I mean, it could’ve been a Camel
cigarette, I don’t know. It could’ve been an Ashton cigar,
you know. Do you follow me? In other words, there’s
no evidence that it was an illegal substance, is what
I’m trying to say . . . so, I’m not going to allow that—
‘‘[Defense Counsel]: Anything about smoking?
‘‘The Court: Not with this—I mean, if you want to
argue this, you could do that in closing argument
. . . .’’ (Footnote added.)
We begin our analysis by setting forth the applicable
standard of review and the relevant legal principles for
assessing a confrontation clause claim. ‘‘The right of
an accused to effectively cross-examine an adverse wit-
ness is embodied in the confrontation clause of the
sixth amendment. . . . The general rule is that restric-
tions on the scope of cross-examination are within the
sound discretion of the trial judge . . . but this discre-
tion comes into play only after the defendant has been
permitted cross-examination sufficient to satisfy the
sixth amendment. . . . The constitutional standard is
met 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. . . .
Indeed, if testimony of a witness is to remain in the
case as a basis for conviction, the defendant must be
afforded a reasonable opportunity to reveal any infirmi-
ties that cast doubt on the reliability of that testimony.
The defendant’s right to cross-examine a witness, how-
ever, is not absolute. . . . Therefore, a claim that the
trial court unduly restricted cross-examination gener-
ally involves a two-pronged analysis: whether the afore-
mentioned constitutional standard has been met, and,
if so, whether the court nonetheless abused its discre-
tion . . . .’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Clark, 260
Conn. 813, 826–27, 801 A.2d 718 (2002).
‘‘In order to comport with the constitutional stan-
dards embodied in the confrontation clause, the trial
court must allow a defendant to expose to the jury facts
from which [the] jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating
to the reliability of the witness. . . . We have empha-
sized in numerous decisions, however, that the confron-
tation clause does not give the defendant the right to
engage in unrestricted cross-examination. . . . A
defendant may elicit only relevant evidence through
cross-examination. . . . The court determines
whether the evidence sought on cross-examination is
relevant by determining whether that evidence renders
the existence of [other facts] either certain or more
probable.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crespo, 303 Conn. 589, 610–11, 35
A.3d 243 (2012).
‘‘The trial court has wide discretion to determine the
relevancy of evidence and [e]very reasonable presump-
tion should be made in favor of the correctness of the
court’s ruling in determining whether there has been
an abuse of discretion. . . . The proffering party bears
the burden of establishing the relevance of the offered
testimony. Unless such a proper foundation is estab-
lished, the evidence . . . is irrelevant.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Davis,
298 Conn. 1, 23, 1 A.3d 76 (2010).
‘‘To be admissible, [expert] testimony must comply
with the requirements for reliability and relevance
established in State v. Porter, 241 Conn. 57, 698 A.2d
739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118
S. Ct. 1384, 140 L. Ed. 2d 645 (1998).’’ Kairon v. Burn-
ham, 120 Conn. App. 291, 292, 991 A.2d 675, cert. denied,
297 Conn. 906, 995 A.2d 634 (2010). ‘‘To be helpful, an
expert’s opinion testimony must aid the fact finder in
resolving an issue in the case and have some basis in
fact.’’ Weaver v. McKnight, 313 Conn. 393, 410, 97 A.3d
920 (2014).
In the present case, we conclude that the trial court
did not abuse its discretion in determining that the
defendant failed to establish a proper foundation to
cross-examine Lockwood regarding whether other sub-
stances could have affected the rate at which an individ-
ual can become visibly intoxicated from alcohol. See,
e.g., State v. Davis, supra, 298 Conn. 24–25 (because
defendant’s evidentiary foundation was insufficient,
preclusion of irrelevant evidence did not violate defen-
dant’s right to confrontation). The defendant testified
that he smoked a ‘‘spliff,’’ but the defendant did not
define what a ‘‘spliff’’ was or what substances it con-
tained. Because the defendant did not testify what a
‘‘spliff’’ contained, the defendant could have been refer-
encing marijuana, other psychotropic drugs, a combina-
tion of the two, or some other substance. Without this
evidentiary foundation, any opinion regarding the effect
of those substances in combination with alcohol on the
rate of intoxication simply lacks any relevance or ‘‘fit’’
in the case. See State v. Porter, supra, 241 Conn. 65(‘‘fit’’ means the ‘‘proposed scientific testimony must
be demonstrably relevant to the facts of the particular
case in which it is offered, and not simply be valid in
the abstract’’ (internal quotation marks omitted)). The
defendant had the opportunity when he testified to lay
the factual foundation as to what substances he
ingested, but he failed to do so.
Accordingly, the trial court did not abuse its discre-
tion in determining that Lockwood’s testimony lacked
relevance to the case. Accordingly, the court’s decision
to preclude it on that basis did not violate the defen-
dant’s sixth amendment right to confrontation.
IV
The defendant’s final claim is that the court improp-
erly denied the defendant’s motion to suppress certain
statements that he made to the police (1) at the scene
of the accident and (2) in the intoxilyzer room. In regard
to the statements he made at the scene of the accident,
the defendant claims that, after he was placed in hand-
cuffs, he was in custody for purposes of Miranda and
had not been advised of his Miranda rights at that time.
As for the statements made in the intoxilyzer room, the
defendant claims that, although he had been advised
of his Miranda rights prior to giving these statements,
the court should have suppressed the statements
because he never expressly or impliedly waived his
Miranda rights. The state responds that the defendant’s
claims are unreviewable because the record is inade-
quate for review.16 Alternatively, the state argues that
the defendant was not subjected to custodial interroga-
tion at the scene of the accident and that the defendant’s
conduct in the intoxilyzer room ‘‘evinced a knowing
and intelligent waiver of his right to remain silent
. . . .’’ We agree that the record is inadequate to review
whether the defendant (1) was subjected to custodial
interrogation at the scene of the accident and (2) waived
his Miranda rights in the intoxilyzer room.
The following additional procedural history and facts
are relevant to our resolution of this claim. On January
10, 2020, the defendant filed a motion to suppress. The
motion to suppress asserted that the defendant, while
in custody, made inculpatory statements to law enforce-
ment officers, the statements were made without a valid
Miranda waiver, the statements were involuntary, and
that the statements were tainted by a prior illegality.
On February 4, 2020, the defendant filed an addendum
to his motion to suppress, requesting the suppression
of certain statements that were made by the defendant
after he was handcuffed. The addendum specified
which statements the defendant was moving to sup-
press but did not reference facts in support of his claim.
The statements specified in the addendum were limited
to (1) ‘‘[the] defendant’s responses to police asking him
if he was driving,’’ (2) ‘‘[the] defendant’s responses to
police asking him where his car was,’’ (3) ‘‘[the] defen-
dant’s responses to police asking him what ‘‘RDW
Works’’ is,’’ and (4) ‘‘[the] defendant’s answer of ‘13’ to
the postarrest questions . . . .’’
It is important to note that the record is extremely
opaque with respect to the manner in which the motion
to suppress was adjudicated. The court did not hold an
evidentiary hearing prior to ruling on the motion. No
witnesses testified in support of or in opposition to the
motion to suppress. The record also does not memorial-
ize an agreement between the parties on the procedure
to be followed for litigating the motion to suppress.
From our review of the record, it appears that the court
and the parties agreed that the court would review the
police body camera footage and base its decision solely
on what it could determine from these videos.
On February 5, 2020, the court, B. Fischer J., asked
the parties to address the defendant’s motion to sup-
press. In support of the motion, defense counsel argued:
‘‘I am specifically asking for these statements after he
was handcuffed because, at that point, he was in cus-
tody, and these are questions from the police, so this
is interrogation. He did not waive his Miranda rights,
did not sign the form at the station.’’ The prosecutor
responded: ‘‘[T]he defendant was not in custody at that
point. It was a Terry stop,17 and it was based on reason-
able and interpretable facts. The defendant had already
walked away once, and, based on his behavior, using
handcuffs was the least restrictive means in order to
keep him on the scene. Therefore, the state would
request to have those statements be admissible.’’ (Foot-
note added.)
Immediately after this exchange, the court stated the
following, which comprises its entire decision with
respect to the motion to suppress: ‘‘I’m going to deny
the defendant’s motion to suppress . . . and I’ll just
recite some of our case law on this issue. General,
on-the-scene questioning of citizens in the fact-finding
process is not affected by Miranda holdings. It is an
act of responsible citizenship for individuals to give
whatever information they may have to aid in law
enforcement. In such situations, the compelling atmo-
sphere inherent in the process of in-custody interroga-
tion is not necessarily present. An officer may ask the
detainee a moderate number of questions to determine
his identity and to try to obtain information confirming
or dispelling the officer’s suspicions, but the detainee
is not obliged to respond, and, unless the detainee’s
answers provide the officer with probable cause to
arrest him—so forth. . . .
‘‘[A]nd this is the case of State v. Mucha, [137 Conn.
App. 173, 189, 47 A.3d 931, cert. denied, 307 Conn. 912,
53 A.3d 998 (2012)] . . . that the routine investigatory
stage of a motor vehicle accident is a noncustodial
situation and, thus—that statements made by a defen-
dant to a police officer in such circumstances are admis-
sible regardless of whether the police officer gave the
defendant his Miranda warning. The court, moreover,
has concluded that conducting a field sobriety test does
not place a suspect in custody for the purposes of
Miranda. So, the questions the police asked, Miranda
warning was not required based on what I observed in
the body cam . . . .’’
The court made no factual findings beyond its asser-
tion that ‘‘the questions the police asked, Miranda
warning was not required based on what I observed in
the body cam . . . .’’ Although the court’s statement
suggests that the trial court relied primarily on the body
camera footage in deciding to deny the motion to sup-
press, the record is unclear as to when and how the
body camera footage18 was admitted into evidence and
reviewed in relation to the motion to suppress.19 More
importantly, the court did not make any explicit findings
regarding the content of the video. The court later
signed the transcript of its brief oral ruling.
Practice Book § 61-10 (a) provides: ‘‘It is the responsi-
bility of the appellant to provide an adequate record
for review. The appellant shall determine whether the
entire record is complete, correct and otherwise per-
fected for presentation on appeal.’’ Practice Book § 64-
1 (a) provides in relevant part: ‘‘The trial court shall
state its decision either orally or in writing . . . in rul-
ing on motions to suppress . . . . The court’s decision
shall encompass its conclusion as to each claim of law
raised by the parties and the factual basis therefor.
. . .’’ (Emphasis added.) Subsection (b) of § 64-1 further
provides that, if the trial court fails to comply with
these requirements, ‘‘the appellant may file with the
appellate clerk a notice that the decision has not been
filed in compliance with subsection (a).’’
Additionally, it is axiomatic that ‘‘[t]he proper proce-
dure by which an appellant may ask the trial court to
provide the factual and legal basis for a ruling, or to
address a matter that it has overlooked in its decision,
is to file a motion for articulation. See Practice Book
§ 66-5.20 A motion seeking articulation is appropriate in
cases in which the trial court has failed to state the
basis of a decision . . . [or] to clarify the legal basis
of a ruling . . . [and it is the proper procedural vehicle]
to ask the trial judge to rule on an overlooked matter.’’
(Footnote added; internal quotation marks omitted.)
State v. Bennett, 101 Conn. App. 76, 81, 920 A.2d 312(2007).
In the present case, the defendant filed a motion to
suppress statements that the defendant made to the
police both at the scene of the incident and while in
the intoxilyzer room. The trial court’s brief oral ruling,
however, addressed only the admissibility of the state-
ments made at the scene of the incident. The oral ruling
did not set forth the facts the court found established
in making the ultimate determination that Miranda
warnings were not required at the scene of the accident
before the officers questioned the defendant. Although
the trial court determined that a ‘‘Miranda warning was
not required based on what [was] observed in the body
cam,’’ the trial court did not specify whether the defen-
dant was in custody or subject to police interrogation.21
Furthermore, the court altogether did not address,
either factually or legally, the statements made by the
defendant in the intoxilyzer room, including whether
the defendant had waived his Miranda rights.
Despite the court’s failure to include in its oral deci-
sion a ‘‘conclusion as to each claim of law raised by
the parties and the factual basis therefor’’; Practice
Book § 64-1 (a); the defendant did not file a notice of
noncompliance with the appellate clerk. In addition,
the defendant failed to seek an articulation pursuant
to Practice Book § 66-5.
The defendant argues that, if we find the record to
be inadequate for review of his claim, we ‘‘should
remand the matter to the trial court for further articula-
tion.’’ In doing so, the defendant relies on Practice Book
§ 61-10 (b), which provides: ‘‘The failure of any party
on appeal to seek articulation pursuant to Section 66-
5 shall not be the sole ground upon which the court
declines to review any issue or claim on appeal. If the
court determines that articulation of the trial court deci-
sion is appropriate, it may, pursuant to Section 60-5,
order articulation by the trial court within a specified
time period.’’ (Emphasis added.)
We decline the defendant’s invitation to order an
articulation in this case because his failure to seek an
articulation is not the sole ground on which we decline
to review this claim. The defendant failed to exercise
at least two avenues to meet his obligation to provide
an adequate record for appellate review of his claim.
Furthermore, we note that this appeal was filed on
October 26, 2020, and it has been more than two years
since the court issued its oral ruling on the motion to
suppress. This lengthy passage of time would undoubt-
edly frustrate its ability to remedy the legal and factual
lacunas relating to its decision on the motion. Addition-
ally, because there was no evidentiary hearing, the court
would not have the benefit of any transcripts to review
when attempting to comply with an articulation order.
‘‘Our role is not to guess at possibilities, but to review
claims based on a complete factual record developed
by a trial court. . . . Without the necessary factual and
legal conclusions furnished by the trial court, either on
its own or in response to a proper motion for articula-
tion, any decision made by us respecting [a] claim would
be entirely speculative.’’ (Internal quotation marks
omitted.) Shobeiri v. Richards, 104 Conn. App. 293,
296, 933 A.2d 728 (2007). Because the defendant failed
to seek a proper memorandum of decision addressing
all the legal arguments he raised in his motion to sup-
press or to file a motion for articulation, the record is
inadequate to review the defendant’s claim that he was
subjected to custodial interrogation at the scene of the
accident and that he did not expressly or impliedly
waive his Miranda rights after they were read to him
in the intoxilyzer room.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Stratton testified that the registration to the license plate number Adlam
provided ‘‘came back to 44 Admiral Street, and it was registered to [R]DW
Works’’ and that the defendant lived at that same address. The record is
unclear as to how Stratton obtained the defendant’s address in order to
make that connection.
2
The officers testified that they started the field sobriety tests approxi-
mately ten minutes after the defendant returned to the scene for the sec-
ond time.
3
‘‘Nystagmus is the inability of the eyes to maintain visual fixation on a
stimulus when the eyes are turned to the side, often resulting in a lateral
jerking of the eyeball. . . . The premise of the horizontal gaze nystagmus
test is that as alcohol consumption increases, the closer to the midline of
the nose the onset of nystagmus occurs. To administer the test, the officer
positions a stimulus approximately twelve to eighteen inches away from
and slightly above the subject’s eyes. The stimulus, usually a pen or the
officer’s finger, is then moved slowly from the midline of the nose to maxi-
mum deviation, the farthest lateral point to which the eyes can move to
either side. The officer observes the subject’s eyes as he tracks the stimulus
and looks for six clues, three for each eye, to determine whether the subject
passes or fails the test.’’ (Citations omitted.) State v. Commins, 83 Conn.
App. 496, 499, 850 A.2d 1074 (2004), aff’d, 276 Conn. 503, 886 A.2d 824 (2005),
overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d
862 (2014). The defendant failed the test and also failed to follow instructions
to refrain from moving his head.
4
The walk and turn test requires the subject to take nine heel-to-toe steps
in a straight line, pivot, and take nine heel-to-toe steps back while counting
aloud. The defendant failed to keep his hands by his side, fell off the line,
and had unsteady balance.
5
The one leg stand test requires the subject to pick a leg and balance on
that leg with the raised leg’s toes pointing upward; this must be done while
keeping their hands to their sides. The defendant was unable to balance
and kept stumbling.
6
According to Troche, ‘‘[t]he [i]ntoxilyzer room has a state calibrated
[i]ntoxilyzer machine which calibrates the blood alcohol . . . content and,
in that room, [officers] conduct the A-44s. [Officers] look up the person’s
record, check with [the police] center system, [officers] read [detained
individuals] their rights, and [officers] would perform either the blood alco-
hol test with the breath test or . . . do the urine test all within that room.’’
See footnote 8 of this opinion.
7
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
8
‘‘The A-44 form is used by the police to report an arrest related to
operating a motor vehicle under the influence and the results of any sobriety
tests administered or the refusal to submit to such tests.’’ (Internal quotation
marks omitted.) Winsor v. Commissioner of Motor Vehicles, 101 Conn. App.
674, 678 n.4, 922 A.2d 330 (2007).
9
The defendant claims that, ‘‘[d]uring the state’s rebuttal case, it elicited
evidence from its expert, who testified to the defendant’s BAC. . . . Lock-
wood gave his opinion that he believed the defendant’s BAC to be somewhere
around 0.16 and 0.17 at the time the police officers started questioning him.
. . . This testimony was improper, as it was unscientific, and was a direct
violation of . . . § 14-227a (b), which only permits evidence from chemical
testing of the defendant’s blood alcohol level at the time of the offense if
offered by the defendant. . . . The evidence in this case rises to the level
of extreme unreliability. In consequence, it violated the defendant’s due
process rights . . . .’’ (Citations omitted; emphasis added.) The state
responds to the defendant’s claim by arguing that ‘‘[a] reliability objection
is specifically tied to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) [cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)] . . . .’’
In his reply brief, the defendant attempted to clarify his claim, stating,
‘‘[t]his claim is not based upon an objection to the underlying science but,
rather, an objection to a statutory violation. The defendant has not asserted
that . . . Lockwood’s opinion is not scientifically possible. He has asserted
it violated . . . § 14-227a, as it injected a blood alcohol content measure-
ment into a behavioral prosecution.’’
We observe the following regarding the defendant’s characterization of
his claim on appeal. First, the defendant inaccurately describes Lockwood’s
testimony. Lockwood testified about the BAC of a hypothetical individual
exhibiting certain behaviors and did not opine directly about the BAC of
the defendant. Second, the defendant misidentifies subsection (b) of § 14-
227a as containing the prohibition on the admissibility of the defendant’s
BAC in this case. It is subsection (c) of § 14-227a that limits the admission
of a defendant’s BAC in a behavioral case only to those instances when the
defendant consents to its admission. We read the defendant’s reliance on
§ 14-227a (b), which sets forth requirements regarding the manner in which
BAC testing must be performed to ensure the reliability of BAC evidence,
as another way of asserting his claim that the testimony was scientifically
unreliable. Because the defendant expressly disavows any claim concerning
the scientific reliability of the evidence, we review only the defendant’s
claim that the testimony violated § 14-227a (c).
10
The defendant has not briefed on appeal any claim based on the rele-
vancy of the evidence or the ‘‘lack of definite conclusions.’’ Accordingly,
we deem these claims abandoned. See, e.g., State v. Nieves, 65 Conn. App.
212, 215–16 n.4, 782 A.2d 203 (2001).
11
The relevant colloquy between the prosecutor and Lockwood during
direct examination was as follows:
‘‘Q. Okay. So . . . assume that the following—assume that the following
facts are in evidence. Assume that there was a motor vehicle accident at
8:47 p.m. Assume that the defendant is sober at that time, no alcohol in the
body. Assume fifteen seconds to get home, get out of the car, go upstairs,
sit down in a chair, take a bottle out, and that bottle is—assume that—
in evidence—the bottle is approximately twenty-four ounces, it is filled
approximately half with rum, and then leaving one inch, it is approximately—
assume that it is a mixture of port wine and some other alcohol and then
one inch remaining for cranberry juice. Assume that the defendant then
sips from a bottle—a pint of vodka and assume this drink is—it’s drank
quickly, and that the defendant walks four minutes, and at—assume at
approximately 9:05, the defendant has slurred words and is stumbling. Do
you, based on your opinion, your training and experience, do you have an
opinion on the rate of absorption?
‘‘A. Yes.
‘‘Q. And what is that opinion?
‘‘A. So, the drinking scenario described is a large volume of alcohol in a
very short amount of time. The absorption is, again, the process by getting
a drug into the blood system. So, we have to think about how are we getting
the alcohol from the stomach into the small intestine, and, in this scenario,
studies have shown that it takes about thirty to forty minutes for an individual
to absorb to the peak—peak alcohol concentration of the drinks they’ve had.
‘‘Q. Okay, and let’s assume again, assume that . . . the defendant in these
set of facts are—was approximately five feet, ten inches, let’s say 190. Does
that have an effect on your opinion on the rate of the absorption?
‘‘A. On the rate of my absorption—just on the rate of absorption, no.
‘‘Q. Okay, and do you have an opinion on how much time it would take
to absorb the alcohol?
‘‘A. Yes, as I mentioned it—I would estimate between thirty and forty
minutes.
‘‘Q. Okay. Does that change—does that opinion change if the person has
a full stomach or an empty stomach?
‘‘A. If the person has a full stomach, we have to push back the absorption
time; so, it actually would take a little bit more—more time to reach the peak.
‘‘Q. Okay, and now, based on your training and experience, if somebody
has—assume that somebody has slurred words. Do you have a BAC that
you associate with slurred words based on your training and experience?
‘‘A. Yes.
‘‘Q. Okay, and what is that?
‘‘A. So, slurred speech, when we talk about slurred speech, we’re actually
talking about the musculature around the mouth being affected, and this
means that we have a significant amount of alcohol. When we see slurred
speech, we usually think of a BAC around 0.16, 0.17 or higher.
‘‘Q. Okay, and do you have an opinion on how many drinks you would
have to drink in order to get to that level of a BAC?
‘‘A. Yes.
‘‘Q. And what is that?
‘‘A. Given the parameters—
‘‘Q. Hm-hmm.
‘‘A. —of the previous question?
‘‘Q. Yes.
‘‘A. Okay. So, for an individual that weighs around 190 pounds, each drink
would raise the BAC about 0.02 parts per deciliter or percent. So, if we
give—if we take the BAC of 0.16, that would be about eight drinks. As I
mentioned to you, this process of metabolism or breaking down is always
occurring, so we’ll give eight or nine drinks.
‘‘Q. Okay, and let’s assume that somebody that—there’s somebody stum-
bling, slurring words, at approximately 9:05. What time would they have to
stop drinking in order to show those—have slurred words at 9:05? How
long—how long ago prior would they have to start showing those symptoms?
‘‘A. I’m looking—estimating, not given the time of absorption, somewhere
around 8:30—I’m sorry 8:35.’’
12
The defendant relies on Rowe v. Superior Court, 289 Conn. 649, 663,
960 A.2d 256 (2008), and State v. Fernando A., 294 Conn. 1, 31 n.26, 981
A.2d 427 (2009), to support his argument that his claim is preserved. In
those cases, our Supreme Court found that a claim was preserved when
the objection raised at trial and those raised on appeal were related, meaning
‘‘there [was] substantial overlap between [the] theories under the case law.’’
(Internal quotation marks omitted.) State v. Fernando A., supra, 31 n.26. In
the present case, the general relevance and ‘‘definite conclusions’’ objections
raise completely different legal grounds than an assertion that the testimony
violated a prohibition on admissibility contained in § 14-227a (c). If the
defendant had raised § 14-227a (c) during his objection at trial, the trial
court would have been alerted to the need to consider the nature and
application of the statutory prohibition.
13
In an attempt to demonstrate that the admission of Lockwood’s testi-
mony violated his due process rights, the defendant cites State v. Johnson,
312 Conn. 687, 94 A.3d 1173 (2014), as authority that his claim is constitu-
tional in nature. The claim in Johnson concerned the admission of an out-
of-court identification of the defendant that was tainted by unnecessarily
suggestive identification procedures. It is well established that the admission
of an out-of-court identification that is unreliable and based on unduly
suggestive identification procedures violates due process. See, e.g., Neil v.
Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The
defendant does not explain how the jurisprudence relating to the admission
of an unreliable out-of-court identification is applicable to the present case.
14
The following exchange occurred between defense counsel and Lock-
wood during cross-examination:
‘‘[Defense Counsel]: All of those estimates you gave [to the prosecutor]
are just estimates, correct?
‘‘[Lockwood]: Yes.
***
‘‘[Defense Counsel]: Okay. Also, you don’t actually know [the defen-
dant], correct?
‘‘[Lockwood]: I do not.
‘‘[Defense Counsel]: You’ve never met him and—right?—before this?
‘‘[Lockwood]: I have not.
‘‘[Defense Counsel]: And you’ve never tested him?
‘‘[Lockwood]: I have not.’’
15
The following exchange occurred between defense counsel and the
defendant on direct examination:
‘‘[Defense Counsel]: . . . Okay. Mr. Waters, then, after drinking the Jamai-
can splash, what did you do?
‘‘[The Defendant]: So, after I drunk the Jamaican splash, I had the half-
pint of vodka, and then I also had a spliff—half a spliff left on my coffee table;
so, I just started smoking that and sipping on—on the half-pint of vodka.’’
Later, during defense counsel’s direct examination of the defendant, the
following colloquy occurred:
‘‘[Defense Counsel]: Okay, and you said that you were also smoking a
spliff that was on your coffee table?
‘‘[The Defendant]: Yes.’’
16
Specifically, the state claims that the record is inadequate to review the
defendant’s statements at the police station because ‘‘[t]he trial court did
not make any factual findings or legal conclusions regarding [those state-
ments],’’ and the defendant failed to seek an articulation from the trial
court. The state also argues that the entirety of his suppression claim is
inadequately briefed. Although we agree with the state that the record is
inadequate to review the defendant’s claim, we do not agree that the defen-
dant’s claim is inadequately briefed. See State v. Buhl, 321 Conn. 688, 724,
138 A.3d 868 (2016) (‘‘[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure to brief the issue
properly’’ (internal quotation marks omitted)).
17
See Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
18
The body camera footage consists of approximately three hours of film
from Correa’s, Stratton’s, and Troche’s body cameras on the night of the
accident. The footage shows the officers’ interaction with the defendant
both at the scene of the accident and in the intoxilyzer room. Some of the
facts in the recordings are undisputed by the parties, such as the fact that
the defendant was handcuffed, asked questions by the police, and failed
three field sobriety tests. Other facts are disputed by the parties, including
the defendant’s statements at the scene of the accident relating to whether he
believed he was being detained or whether he knew he was not under arrest.
19
We note that, after issuing its oral decision on the motion to suppress,
the court marked the DVDs containing the body camera footage as court
exhibits two, three, and four.
20
Practice Book § 66-5 provides in relevant part: ‘‘A motion seeking correc-
tions in the transcript or the trial court record or seeking an articulation
or further articulation of the decision of the trial court shall be called a
motion for rectification or a motion for articulation, whichever is applicable.
Any motion filed pursuant to this section shall state with particularity the
relief sought and shall be filed with the appellate clerk. . . .’’
21
‘‘Two threshold conditions must be satisfied in order to invoke the
warnings constitutionally required by Miranda: (1) the defendant must have
been in custody; and (2) the defendant must have been subjected to police
interrogation.’’ (Internal quotation marks omitted.) State v. Gonzalez, 302
Conn. 287, 294, 25 A.3d 648 (2011). The court may have concluded that,
even if the defendant was in custody, he had not been subjected to police
interrogation and, thus, Miranda warnings were not required.