State v. Velazquez ( 2020 )

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STATE OF CONNECTICUT v. MARCOS
A. VELAZQUEZ
(AC 40224)
Alvord, Bright and Bear, Js.
Syllabus
Convicted, following a bench trial, of operating a motor vehicle while under
the influence of intoxicating liquor or drugs, the defendant appealed to
this court, claiming that there was insufficient evidence to sustain his
conviction and that the trial court improperly admitted certain testimony
of a police officer. The defendant had been involved in an accident in
which the investigating police officers determined that he had been the
operator of the motor vehicle that collided with two other vehicles. At
trial, during the state’s direct examination of D, a police officer who
responded to the scene of the accident, D testified that he smelled the
odor of marijuana in the defendant’s car but he did not smell the odor of
marijuana on the defendant’s person. Following D’s testimony, defense
counsel, claiming that the state committed a discovery violation because
it had not disclosed that D would testify about the odor of marijuana,
moved for a mistrial and a dismissal of the charge. The trial court denied
defense counsel’s motions and found the defendant guilty. Held:
1. This court concluded, on the basis of the evidence presented at trial and
the reasonable inferences drawn therefrom, that there was sufficient
evidence for the trial court to have found the defendant guilty beyond
a reasonable doubt of operating a motor vehicle while under the influ-
ence of intoxicating liquor or drugs, specifically, marijuana or Gabapen-
tin, or both: the defendant did not dispute that he was operating a motor
vehicle on a public road at the time of the accident, and the state elicited
testimony from the investigating police officers that the defendant failed
three field sobriety tests, that he was stumbling around and slow to
respond to questions and directions, appeared dazed and confused,
appeared unaware that he had been in a car accident, refused to provide
a urine sample following his arrest, and admitted to the officers that
he had smoked marijuana approximately one hour before the accident
and that he also had consumed regular prescription medication, Gaba-
pentin, which he had admitted to a medical professional one month
earlier caused him to feel drowsy and unable to function, and a forensic
toxicologist testified that Gabapentin should not be taken prior to
operating heavy machinery, such as a motor vehicle, and that the side
effects of that drug included negative cognitive effects, dizziness and
lack of coordination.
2. The trial court did not abuse its discretion in failing to strike D’s testimony
with respect to the marijuana odor coming from the defendant’s vehicle:
in its oral decision, the court identified the evidence that it relied on
to conclude that the defendant was guilty beyond a reasonable doubt,
and nowhere in that recitation did it rely on any reference to D’s testi-
mony about the odor of marijuana, and, even if the court did abuse its
discretion in allowing that testimony, given the remaining evidence
before the court with respect to the defendant’s guilt beyond a reason-
able doubt, any error was harmless.
Argued February 3—officially released June 2, 2020
Procedural History
Substitute information charging the defendant with
the crime of illegal operation of a motor vehicle while
under the influence of intoxicating liquor or drugs,
brought to the Superior Court in the judicial district of
Hartford, geographical area number twelve, where the
case was tried to the court, Lobo, J.; judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Marcos A. Velazquez, self-represented, the appellant,
filed a brief (defendant).
Melissa Patterson, assistant state’s attorney, Gail P.
Hardy, state’s attorney, and Sara Greene, assistant
state’s attorney, filed a brief for the appellee (state).
Opinion
BEAR, J. The self-represented defendant, Marcos A.
Velazquez,1 appeals from the judgment of conviction,
rendered following a bench trial, of operating a motor
vehicle while under the influence of intoxicating liquor
or any drug or both in violation of General Statutes
§ 14-227a (a) (1).2 On appeal, the defendant claims that
(1) there was insufficient evidence to sustain his convic-
tion and (2) the court improperly admitted the testi-
mony of a police officer with regard to the presence of
a marijuana odor in the defendant’s vehicle at the time
he was involved in an accident. We affirm the judgment
of the trial court.
The trial court’s oral decision sets forth, and the
record reveals, the following relevant facts and proce-
dural history. On March 24, 2015, while the defendant
was operating a motor vehicle near 914 Silver Lane in
East Hartford, he sideswiped one motor vehicle,
reversed direction, and then rear-ended a second motor
vehicle. Following the second collision, the police
arrived on the scene and interviewed the defendant and
the operators of the other vehicles. The police deter-
mined that the defendant was the operator of the vehicle
that collided with the two other vehicles.
Shortly after the collisions, the investigating officers
found the defendant to be ‘‘dazed and confused, stum-
bling around, [and] unaware of where he came from
and even knowing that [he had] been in an accident.’’
Additionally, ‘‘[h]e overwhelmingly failed the horizontal
gaze nystagmus test, the walk and turn test, and the
one-legged stand test.’’ When speaking with the police,
the defendant admitted to using marijuana approxi-
mately one hour prior to the collisions. The defendant
further admitted taking Gabapentin, a medication that
was prescribed to treat the effects of some of his preex-
isting injuries. He also admitted that Gabapentin made
him drowsy and unable to ‘‘function.’’3
During trial, Sergeant John Dupont of the East Hart-
ford Police Department testified about his interactions
with the defendant at the scene of the accident. Dupont
testified, among other things, that he smelled an odor
of marijuana inside the defendant’s car, but he did not
smell any odor of marijuana coming from the defen-
dant’s person. Following Dupont’s testimony, defense
counsel claimed that the state committed a Brady4 vio-
lation and a discovery violation because it failed to
disclose that Dupont had smelled marijuana in the
defendant’s car and that Dupont would testify about it.
As a result, defense counsel moved for a mistrial and
a dismissal of the charge of operating a motor vehicle
while under the influence. After the court conducted a
Brady hearing, defense counsel admitted that there was
no Brady violation with respect to Dupont’s testimony
about the odor of marijuana. Defense counsel, however,
asserted that, pursuant to his discovery requests, the
state should have disclosed prior to trial that Dupont
would testify about the odor of marijuana in the defen-
dant’s vehicle. The court denied defense counsel’s
requests because it concluded that Dupont’s testimony
about the odor of marijuana in the defendant’s vehicle
constituted neither a Brady violation nor a discovery
violation.
On January 6, 2017, the trial court found the defen-
dant guilty of operating a vehicle under the influence
of intoxicating liquor or any drug or both in violation
of § 14-227a (a) (1). Specifically, the court concluded
that, ‘‘[w]hen considering the defendant’s admission to
marijuana use approximately an hour before the acci-
dent, his admission [to a health care professional] one
month prior as to the side effects . . . [and] impacts
that Gabapentin was having on his functioning, the
nature of the accident, the defendant’s behaviors exhib-
ited following the accident in conjunction with his fail-
ures on the standard field sobriety test, this court finds
. . . beyond a reasonable doubt that the defendant’s
physical and mental capabilities were impaired to a
degree . . . [t]hat he no longer had the ability to drive
a motor vehicle with the caution and characteristic[s]
of a sober person of ordinary prudence.’’
After the court found the defendant guilty, the defen-
dant moved for a continuance, which was granted by the
court, to file a sentencing memorandum and postverdict
motions. Subsequently, the defendant filed a motion for
a judgment of acquittal, arguing that there was insuffi-
cient evidence to meet the requisite standard of guilt
beyond a reasonable doubt. He also filed a motion for
a new trial in which he argued, among other things,
that relief should have been granted pursuant to Prac-
tice Book § 40-55 with regard to Dupont’s testimony
concerning the odor of marijuana in the defendant’s
vehicle. On January 13, 2017, the court denied the defen-
dant’s motions and sentenced him to six months incar-
ceration, execution suspended after four months, fol-
lowed by two years of probation. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that there was insufficient
evidence to sustain his conviction. He argues that both
he and the state produced expert testimony, but that
the toxicologist produced by the state and the toxicolo-
gist that he had produced reached opposite conclusions
as to whether he was under the influence of alcohol or
drugs. The defendant asserts that the state’s toxicolo-
gist testified that he may have been under the influence
only of drugs. He also asserts that the urine test he took
at Hartford Hospital, within three days of the accident,
‘‘indicated that he wasn’t under the influence at the
time of the accident.’’ Finally, he asserts that a blood
test taken by his primary doctor also ‘‘indicated that he
wasn’t under the influence at the time of the accident.’’
‘‘In reviewing a sufficiency of the evidence claim, 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 con-
strued and the inferences reasonably drawn therefrom
the [fact finder] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the [fact finder] if
there is sufficient evidence to support the [fact finder’s]
verdict . . . .’’ (Internal quotation marks omitted.)
State v. Watson, 195 Conn. App. 441, 445, 225 A.3d 686,
cert. denied, 335 Conn. 912, A.3d (2020).
Additionally, as our Supreme Court often has noted,
‘‘proof beyond a reasonable doubt does not mean proof
beyond all possible doubt . . . nor does proof beyond
a reasonable doubt require acceptance of every hypoth-
esis of innocence posed by the defendant that, had it
been found credible by the trier, would have resulted
in an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [trier’s] verdict of guilty.’’ (Inter-
nal quotation marks omitted.) State v. Morelli, 293
Conn. 147, 152, 976 A.2d 678 (2009).
The court found the defendant guilty of operating a
motor vehicle while under the influence of intoxicating
liquor or any drug or both in violation of § 14-227a (a)
(1). In order for the court to have found beyond a
reasonable doubt that the defendant was guilty, the
state needed to prove that the defendant (1) operated
a motor vehicle (2) on a public road (3) while under
the influence of intoxicating liquor or any drug or both.6
See State v. Gordon, 84 Conn. App. 519, 527, 854 A.2d
74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).
During trial, the state elicited the following testimony
from the police officers who investigated the incident:
(1) immediately after the incident, the defendant
‘‘appeared dazed and confused and did not appear like
he knew where he was . . . he was stumbling around
. . . [and] [n]ot steady on his feet’’; (2) the defendant
was slow to respond to questioning and directions; (3)
the defendant, while at the scene of the incident,
appeared to be unaware that he had been in a car
accident; (4) the defendant admitted to the police that
he smoked marijuana approximately one hour prior to
the accident and that he also consumed regular pre-
scription medication, which he had admitted to a medi-
cal professional one month earlier, caused him to feel
drowsy and unable to function; (5) the defendant failed
three separate field sobriety tests;7 and (6) after he was
arrested, the police attempted to obtain a urine sample
from the defendant, but the defendant refused to pro-
vide one.
The state also elicited the testimony of Robert Pow-
ers, a forensic toxicologist. Powers testified that Gaba-
pentin, the defendant’s prescribed medication, should
not be taken prior to operating heavy machinery, such
as a motor vehicle, and that the side effects of taking
Gabapentin include negative cognitive effects, dizzi-
ness, and lack of coordination.
On the basis of this evidence, and the reasonable
inferences drawn therefrom, we conclude that there
was sufficient evidence for the court to have found the
defendant guilty beyond a reasonable doubt of
operating a motor vehicle while under the influence of
marijuana or Gabapentin, or both.8
II
Next, the defendant claims that the court erred when
it failed to strike Dupont’s testimony with respect to
the marijuana odor coming from his vehicle. Specifi-
cally, the defendant asserts that Dupont did not file
a written report, that he was ‘‘completely surprised’’
because he did not have prior notice that Dupont’s
testimony that there was an odor of marijuana in his
vehicle would be presented during trial, and that the
state’s failure to disclose that testimony prior to trial
constituted a discovery violation.9 The defendant fur-
ther posits that he was prejudiced by Dupont’s testi-
mony because had he known of that testimony in
advance, he would have accepted a plea bargain offer
prior to trial in order to obtain a more favorable result.
The state contends that the court did not abuse its
discretion in denying the defendant’s motion to strike
Dupont’s testimony about the marijuana odor. In the
alternative, the state argues that any error in allowing
that testimony was harmless. Because the trial court
specifically stated that it did not consider Dupont’s
testimony about the marijuana odor, we agree that its
admission did not harm the defendant.10
‘‘[W]hether [an improper ruling] is harmless in a par-
ticular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony . . . the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the . . .
evidence on the trier of fact and the result of the trial.
. . . [T]he proper standard for determining whether
an erroneous evidentiary ruling is harmless should be
whether the . . . verdict was substantially swayed by
the error. . . . [A] nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Jackson, 183 Conn. App. 623, 648, 193 A.3d 585, rev’d
on other grounds, 334 Conn. 793, 224 A.3d 886 (2020).
In its oral decision, the court identified the evidence
that it relied on to conclude that the defendant was
guilty beyond a reasonable doubt. Nowhere in the
court’s recitation of the evidence did it rely on any
reference to Dupont’s testimony about the odor of mari-
juana in the defendant’s vehicle. Moreover, during the
trial, the court stated that it did not ‘‘[find] the testimony
that the car smelled of marijuana . . . to be that mate-
rial [to] the case.’’ The court further stated that it was
not drawing the conclusion that the defendant had been
smoking marijuana less than one hour before the colli-
sion. Accordingly, even if the court did abuse its discre-
tion in denying the defendant’s motion for relief, given
the remaining evidence before the court with respect
to the defendant’s guilt beyond a reasonable doubt, we
conclude that any error was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was represented by counsel during his criminal trial.
2
Although the state appeared for oral argument, the defendant did not
appear. Because of the absence of the defendant, the state waived its right
to oral argument. Therefore, this court considers this appeal on the briefs
submitted by the parties. See, e.g., State v. Cotto, 111 Conn. App. 818, 819
n.1, 960 A.2d 1113 (2008).
3
The state’s expert witness testified at trial that side effects associated
with Gabapentin include fatigue, dizziness, lack of coordination, and cogni-
tive effects similar to that caused by other central nervous system
depressants.
4
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963) (‘‘suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution’’).
5
Practice Book § 40-5 provides in relevant part: ‘‘If a party fails to comply
with disclosure as required under these rules, the opposing party may move
the judicial authority for an appropriate order. The judicial authority hearing
such a motion may enter such orders and time limitations as it deems
appropriate . . . .’’
6
The defendant does not dispute the fact that he was driving his vehicle
on a public road at the time of the accident. He denies, however, that he
was under the influence of intoxicating liquor or any drug.
7
During trial, the police officers testified about the results of three field
sobriety tests that they administered to the defendant. Specifically, they
testified that during the horizontal gaze nystagmus test, the defendant’s eyes
moved involuntarily, a typical sign of impairment; during the walk and turn
test, the defendant swayed back and forth and could not remain on the
straight line; and, for the one leg test, he could not keep his balance or
stand on one leg.
8
Although the defendant argues that he presented evidence at trial that
proved he was not under the influence of either marijuana or Gabapentin,
insofar as the defendant challenges the trial court’s determinations of his
or other witnesses’ credibility, we note that ‘‘[i]t is well established . . .
that the evaluation of a witness’ testimony and credibility are wholly within
the province of the trier of fact. . . . Credibility must be assessed . . . not
by reading the cold printed record, but by observing firsthand the witness’
conduct, demeanor and attitude. . . . An appellate court must defer to the
trier of fact’s assessment of credibility because [i]t is the [fact finder] . . .
[who has] an opportunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge the credibility of the
witnesses and to draw necessary inferences therefrom. . . . [Emerick v.
Emerick, 170 Conn. App. 368, 378–79, 154 A.3d 1069, cert. denied, 327 Conn.
922, 171 A.3d 60 (2017)].’’ (Internal quotation marks omitted.) Al-Fikey v.
Obaiah, 196 Conn. App. 13, 18, A.3d (2020).
9
As previously set forth, the defendant originally claimed a Brady violation
but subsequently withdrew that claim.
10
Although we do not rely on it in this opinion, we note that the defendant
has not set forth either the legal basis for his claim or any authority support-
ing it.