State v. McNally , 39 Conn. App. 419 ( 1995 )

O’CONNELL, J.,

dissenting. I disagree with the portion of the majority opinion relating to opinion evidence concerning the intoxication of the victim and his two companions. I believe the testimony at issue should have been treated as lay opinion testimony, not as expert testimony.

The common law has long recognized intoxication as an exception to the general rule that witnesses may testify only to facts that they have observed and not to their opinions. Sydleman v. Beckwith, 43 Conn. 9, 12, (1875). It is elementary evidentiary law that any lay witness may testify that a person is intoxicated. D’Amato v. Johnston, 140 Conn. 54, 58, 97 A.2d 893 (1953); State v. Jones, 124 Conn. 664, 668-69, 2 A.2d 374 (1938); State v. Katz, 122 Conn. 439, 442, 189 A. 606 (1937). “The condition of intoxication and its common accompaniments are a matter of general knowledge. The statement that a person is intoxicated is not so much the expression of an opinion as it is the statement of a conclusion drawn from observation.” 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 117d (3).

The majority confuses intoxication with the condition of being under the influence of liquor. “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Despite the apparently clear language of Sanders, a later case from this court leaves it unclear as to whether the legislature intended to create a level of inebriation less than intoxication when it used the expression “under the influence of intoxicating liquor” in General Statutes § 14-227a. State v. McKenna, 11 Conn. App. 122, 129-32, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 931 (1987). Notwithstanding this uncertainty, the phrase “under the influence of intoxicating liquor” is a statutory term of art of concern to the law only in so far as it relates to the operation of a motor vehicle.

The defendant relies on State v. Lamme, 19 Conn. App. 594, 563 A.2d 1372 (1989), aff'd on other grounds, 216 Conn. 172, 579 A.2d 484 (1990), but the majority distinguishes the two cases because in Lamme, the police officer qualified as an expert when he testified as to the defendant’s inebriation based on field sobriety tests administered and interpreted by the officer, and there were no such tests conducted in this case. There was, however, a second police officer involved in Lamme, and that officer’s testimony as to the defendant’s inebriation was admitted as lay opinion because it was based, not on the officer’s expertise, but simply on what he had observed. Id., 605. The example of the second officer’s testimony is closer to the situation here.

The point I am making is that in the present case no motor vehicle was involved; the defendant¹ sought to give his opinion only as to whether the victim and his companions, who were the state’s three key witnesses, were intoxicated, not whether they were under the influence of liquor. As such, his testimony was admissible as lay opinion. Whether he could also have qualified as an expert is irrelevant, as are case authorities concerning motor vehicle operation.

The majority properly states the rule that expert evidence is not appropriate when the jury is capable of determining the issue based on its own knowledge and experience. That rule, however, does not apply to exclude lay opinion evidence of intoxication. Such evidence is admissible under the principle that all relevant evidence is admissible unless specifically excluded by some rule of law. State v. Bryant, 202 Conn. 676, 688, 523 A.2d 451 (1987). No rule excludes lay opinion of intoxication.

The exclusion of this evidence was prejudicial to the defendant. The identification of the defendant was critical here. The events occurred suddenly and lasted only a few seconds. Whether the state’s key witnesses were intoxicated to the extent that their powers of observation and perception might have been dulled or distorted was vital to the defense in this case.

For these reasons, I respectfully dissent from the majority opinion. I would reverse the conviction and grant a new trial.

1 The defendant was a Danbury police officer and the son of the owner of McNally’s Pub, where the assault occurred.