State v. Romanko

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. TODD R. ROMANKO
(SC 19112)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued March 20—officially released August 19, 2014
Jeanne M. Zulick, assigned counsel, for the appel-
lant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Robert Diaz, assistant state’s attorney, for the
appellee (state).
Opinion
ESPINOSA, J. In this certified appeal,1 we consider
whether the Appellate Court properly concluded that
the trial court did not abuse its discretion by precluding
certain demonstrative evidence proffered by the defen-
dant, Todd R. Romanko. The defendant appeals from
the judgment of the Appellate Court affirming the trial
court’s judgment of conviction, rendered following a
jury trial, of operating a motor vehicle while under the
influence of intoxicating liquor or drugs or both, in
violation of General Statutes § 14-227a (a) (1). The
defendant claims that by precluding the proffered
demonstrative evidence, by which the defendant sought
to display to the jury how his alleged disability pre-
vented him from performing two mobility based field
sobriety tests under any conditions, the trial court
deprived him of his constitutional right to present a
defense. The defendant additionally claims that the
state cannot satisfy its burden to prove that the error
was harmless beyond a reasonable doubt. Because we
conclude that, rather than preventing the defendant
from presenting his defense, the court acted within its
discretion in disallowing the defendant from utilizing
a demonstration that the court properly deemed unrelia-
ble to pursue his theory of defense, we affirm the judg-
ment of the Appellate Court.2
The jury reasonably could have found the following
facts. At 10 p.m., on August 14, 2009, Cheryl Byrne was
in the living room of her home in Burlington, when she
heard noises outside. She walked into the kitchen to
look out the window to the backyard and saw the defen-
dant, whom she did not know, on the deck that wraps
around the house. Initially, the defendant did not
respond when Byrne repeatedly asked him what he was
doing there, but eventually he told her he was looking
for ‘‘Gerry.’’ Byrne noticed that something was ‘‘defi-
nitely not right’’ with the defendant, that his eyes were
glossy and he appeared to see with what she termed
‘‘tunnel [vision].’’ She was uncertain whether he was
intoxicated or under the influence of drugs. She told
him that there was no one named Gerry there, and that
he had to leave. The defendant then walked around the
deck and entered the house through the front door.
When Byrne’s German shepherd dog immediately began
barking furiously, the defendant backed out of the home
and walked to where he had parked his car. Byrne
watched him drive away in an older, white Monte Carlo
with a red pinstripe. She made note of the license plate
number, then called 911 to report the incident, providing
the description of the vehicle and the license plate num-
ber to the police.
At approximately 10:30 p.m., Officer Stanley Murak
of the Farmington Police Department was on patrol in
his marked police cruiser when he spotted the defen-
dant’s vehicle turning onto Coppermine Road in Farm-
ington. Murak had been traveling in the opposite
direction, but he turned around and drove back until
he came to an intersection, where the defendant’s vehi-
cle was stopped at a stop sign. Although there were
three vehicles between the defendant’s vehicle and Mur-
ak’s cruiser, Murak could see that the left tires on the
defendant’s vehicle were on the double yellow line in
the middle of the road. The defendant’s vehicle pro-
ceeded through the intersection, then swerved quickly
to the left, crossing at least one foot over the yellow
lines, then swerved back to the right. At that point,
Murak turned on his lights and siren and passed the
three other vehicles to pull over the defendant. As he
pulled behind the defendant’s vehicle, the Monte Carlo
pulled to the right, its right front tire striking the curb,
going over it, then coming back down, whereupon the
vehicle came to a stop.
After notifying dispatch of the motor vehicle stop,
Murak exited his cruiser, approached the driver’s side
of the defendant’s vehicle and asked the defendant for
his license, registration and insurance card. As the
defendant looked for his registration and insurance
card, Murak observed that the defendant’s movements
were slow and deliberate. Observing that the defen-
dant’s vehicle was emitting steam, Murak asked the
defendant if that was normal. When the defendant
responded, Murak smelled the odor of alcohol on his
breath and noticed that the defendant’s speech was
slurred. He could see into the passenger compartment
of the vehicle, where he observed an empty, twenty-
four ounce beer can on the rear floor of the driver’s
side. He asked the defendant how much alcohol he had
consumed that night, and the defendant replied that
he had had one twelve ounce beer. Seeing that the
defendant’s pants were unzipped, Murak asked him why
his zipper was down. The defendant responded that he
must have forgotten to zip it back up, but then left his
pants unzipped.
Suspecting at this point that the defendant was under
the influence of alcohol, Murak asked the defendant to
step out of the vehicle. The defendant complied, and
Murak began to administer three standard field sobriety
tests, beginning with the horizontal gaze nystagmus
test,3 which the defendant failed. Murak next proceeded
to administer the walk and turn test, also known as the
heel to toe test.4 Before asking the defendant to perform
the test, Murak explained it verbally, then demonstrated
it. The defendant failed the test. Finally, Murak adminis-
tered the one leg stand test.5 The defendant expressed
concern about the gravel on the side of the road, where-
upon Murak allowed him to select a different location.
The defendant failed that test as well.
At that point, Murak placed the defendant under
arrest. He handcuffed the defendant, verbally advised
him of his Miranda6 rights and searched his person. He
then performed an inventory search of the defendant’s
vehicle, and discovered, in addition to the twenty-four
ounce empty beer can he already had seen, another
empty twenty-four ounce beer can, an empty eight
ounce beer can, and a full eight ounce can of beer. At
the precinct, the defendant was again advised of his
Miranda rights and he signed a notice of rights form.
Murak informed the defendant of Connecticut’s implied
consent law; General Statutes § 14-227b; and requested
that the defendant submit to a breath test on a machine
called an Intoxilyzer 5000, which the defendant refused
to do. Murak then summoned another officer, Sean
Bailey, to witness the defendant’s refusal to submit to
the breath test. Murak then questioned the defendant
using an A-44 form.7 The defendant again stated that
he had consumed one beer that evening, and that when
Murak stopped him, he had been coming from Murphy &
Scarletti’s, a bar in Farmington. The defendant admitted
that he took prescription medication, and Murak recov-
ered a bottle of a generic form of Ativan from the defen-
dant’s person.
The defendant was charged with operating a motor
vehicle while under the influence of intoxicating liquor
or drugs or both in violation of § 14-227a (a) (1).8 During
the trial, the defendant testified that he was unable to
perform the walk and turn and the one leg stand field
sobriety tests because of a knee injury that he had
sustained during an accident on his dirt bike five years
earlier. In connection with that testimony, the defen-
dant sought to perform those tests in front of the jury.
After a hearing outside the presence of the jury during
which the court heard the defendant’s offer of proof,
the court precluded the evidence on the basis that it
was not possible to replicate in court the conditions
on the night of the arrest, and because ‘‘[i]t would be
inappropriate to have the defendant demonstrate what
he thinks occurred on that night.’’ The court added,
however, that it would give the defendant ‘‘every lee-
way’’ to present his theory of the defense by other
means.
Following his conviction, the defendant was sen-
tenced to three years incarceration, execution sus-
pended after one year, and three years probation. The
defendant appealed from the judgment of conviction
to the Appellate Court, which affirmed the judgment on
the basis of its conclusion that the trial court correctly
determined that the proffered demonstration was unre-
liable. State v. Romanko, 139 Conn. App. 670, 675, 56
A.3d 995 (2012). This certified appeal followed.
The defendant claims that in precluding the proffered
demonstrative evidence, the trial court violated his con-
stitutional right to present a defense. We disagree.
Because the court acted within its discretion in preclud-
ing the proposed demonstration on the basis of its find-
ing that the conditions were not substantially similar
and because the court allowed the defendant to prove
his theory of defense by other means, we conclude that
the court did not abuse its discretion in precluding the
demonstrative evidence.
We review a trial court’s evidentiary ruling for abuse
of discretion. State v. Iban C., 275 Conn. 624, 634, 881
A.2d 1005 (2005). In a criminal case, ‘‘[w]hen defense
evidence is excluded, such exclusion may give rise to
a claim of denial of the right to present a defense. . . .
A defendant is, however, bound by the rules of evidence
in presenting a defense. . . . Although exclusionary
rules of evidence should not be applied mechanistically
to deprive a defendant of his rights, the constitution
does not require that a defendant be permitted to pre-
sent every piece of evidence he wishes.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997). The
trial court retains the power to rule on the admissibility
of evidence pursuant to traditional evidentiary stan-
dards. Id.
We have recognized that ‘‘the trial court has broad
discretion in determining whether to admit or exclude
demonstrative evidence.’’ Barry v. Quality Steel Prod-
ucts, Inc., 280 Conn. 1, 20, 905 A.2d 55 (2006); see also
Friedler v. Hekeler, 96 Conn. 29, 32, 112 A. 651 (1921)
(holding that trial court acted within its discretion in
allowing demonstration of extent to which plaintiff in
personal injury action could close her eye). The general
rule is that demonstrative evidence must be helpful to
the fact finder in order to be admissible. C. Tait & E.
Prescott, Connecticut Evidence (5th Ed. 2014) § 11.18,
pp. 744–45. The particular type of demonstrative evi-
dence, and the purpose for which it is offered, deter-
mine the specific inquiry that a court engages in to
determine the admissibility of the proffered evidence.
Id., § 11.15.1, p. 736 (explaining that ‘‘[b]efore demon-
strative evidence is admitted, the purpose of the evi-
dence should be clearly stated,’’ and enumerating
different foundational requirements depending on
stated purpose of proffer). Where the proffered evi-
dence, as in the present case, is a physical demonstra-
tion that is offered for the purpose of recreating the
events at issue at trial, ‘‘the demonstration must be
performed under substantially similar conditions so
that the rendition is reasonably fair and accurate.’’ Id.,
§ 11.18, pp. 744–45; see also State v. Holota, 2 Conn.
Cir. Ct. 45, 49, 194 A.2d 69 (1963) (holding that trial
court properly precluded defendant’s proposed demon-
stration of his performance of sobriety tests, because
‘‘[t]he conditions were not the same; the tests could
not be reproduced’’); State v. Martin, 182 Vt. 377, 388,
944 A.2d 867 (2007) (no abuse of discretion to preclude
videotaped reenactment of accident where conditions
in reenactment were ‘‘not substantially similar’’ to those
that existed during actual event).
The trial court in the present case properly grounded
its ruling on its determination that the conditions of
the defendant’s proposed demonstration were not sub-
stantially similar to those that existed on the night of
the defendant’s arrest. The colloquy between the court
and the parties reveals that both the court and the
parties understood that the purpose of the proposed
evidence was to reenact the walk and turn and the
one leg stand tests.9 During the offer of proof, defense
counsel explained that the purpose of the proposed
demonstration was to ‘‘show the jury how the [defen-
dant] performed [those tests] physically.’’ The state
objected on the basis that a present demonstration of
the defendant’s performance of the tests would not be
able to show how he performed them on the night of
the arrest, more than one year earlier. In response to
the court’s inquiry as to how the defendant’s present
performance of the tests could fairly and accurately
represent what happened on the night of the arrest,
defense counsel responded that the jury could take into
account that they were viewing the tests in the present
time, and that the performance was similar, but not
identical to the way that the defendant performed them
on the night of the arrest, and that the purpose was to
show that ‘‘in a sober condition [the] defendant per-
forms the test[s] the same way.’’ When the court ques-
tioned how the jury would be able to compare the two
performances, since they were not present on the night
of the arrest, defense counsel responded that the jury
could compare the defendant’s in-court demonstration
with the description that Murak had given during his
testimony of the defendant’s performance of the tests
on the night of the arrest. The state reiterated its objec-
tion on the basis that the in-court performance of the
tests could not accurately represent the defendant’s
performance ‘‘a year ago, at a different location, out-
door[s], [on the] side of the road.’’ The court asked
defense counsel if he claimed that the defendant was
somehow an expert on the tests. Defense counsel
responded no, and added that he believed, because the
defendant suffers from a disability, that the jury should
be able to view him performing the tests.
We evaluate the court’s ruling in light of the proposed
purpose of the offer and the court’s finding that the
conditions in court were not substantially similar to
those that existed on the night of the arrest. Our review
of the transcripts, as previously noted, reveals that
defense counsel repeatedly indicated that the purpose
of the offer was to reenact the defendant’s performance
of the tests. In light of that proposed purpose, the trial
court applied the proper standard when it considered
whether the conditions in court were substantially simi-
lar to those on the night of the arrest. Moreover, in
light of the court’s finding that the conditions were not
substantially similar—a finding that the defendant does
not challenge on appeal—it did not abuse its discretion
in precluding the demonstration.10
It is also significant that the court did not prevent
the defendant from presenting his theory of the
defense—that it was his disability rather than his intoxi-
cation that caused him to fail the walk and turn and
one leg stand tests—by other means. By expressly
allowing the defendant ‘‘every leeway’’ to present his
defense theory by means other than the proposed dem-
onstration, the court made clear that it was excluding
only the demonstrative evidence of the defense, and
not the defense itself. The defendant was free to testify
regarding his injury and the effect that the injury had
on his ability to perform the tests, and he did. The
defendant testified that five years prior to the arrest,
he had injured his knee during a dirt bike accident. He
further stated that he had tried to explain to Murak that
his injury would prevent him from performing the tests
properly, but Murak would not listen to him. These two
statements by the defendant represent the sum total of
evidence he presented in support of his theory. He also
was free to present other evidence regarding the effect
that his injury had on his ability to perform the tests.
He could have presented the testimony of a treating
physician, produced documentary evidence, and ques-
tioned his father and his friend, both of whom testified
on his behalf, regarding the injury.11 He did not. Nor
did he mention in closing argument to the jury his claim
that it was his disability rather than his intoxication
that prevented him from passing the two mobility based
field sobriety tests. The mere fact that the trial court
prevented the defendant, on the basis of the court’s
sound application of the rules of evidence, from relying
on an unreliable demonstration to prove his claim does
not support the defendant’s claim that the court’s ruling
violated his constitutional right to present a defense.
The defendant had many other opportunities to present
reliable, admissible evidence to prove his claim, and he
chose not to. The court’s ruling did not infringe on his
constitutional right to present a defense.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH, McDONALD and ROBINSON, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Palmer was not
present when the case was argued before the court, he has read the record
and briefs, and listened to a recording of the oral argument prior to participat-
ing in this decision.
1
The defendant appealed from the judgment of conviction to the Appellate
Court, which affirmed the judgment. State v. Romanko, 139 Conn. App. 670,
675, 56 A.3d 995 (2012). We subsequently granted the defendant’s petition
for certification to appeal, limited to the following question: ‘‘Did the Appel-
late Court properly determine that the trial court did not violate the defen-
dant’s constitutional right to present a defense when it precluded the
defendant from introducing certain demonstrative evidence?’’ State v.
Romanko, 308 Conn. 908, 61 A.3d 530 (2013).
2
In light of our conclusion that the defendant’s constitutional right to
present a defense was not violated, it is unnecessary for us to address
the defendant’s claim that the alleged error was not harmless beyond a
reasonable doubt.
3
‘‘The horizontal gaze nystagmus test measures the extent to which a
person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the understanding
that, whereas everyone’s eyes exhibit some jerking while turning to the side,
when the subject is intoxicated the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme angles becomes more
distinct.’’ (Internal quotation marks omitted.) State v. Morelli, 293 Conn.
147, 156 n.6, 976 A.2d 678 (2009).
4
‘‘The walk and turn test requires the subject to walk heel to toe along
a straight line for nine paces, pivot, and then walk back heel to toe along
the line for another nine paces. The subject is required to count each pace
aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Morelli,
293 Conn. 147, 156 n.7, 976 A.2d 678 (2009).
5
‘‘The one leg stand test requires the subject to stand on one leg with
the other leg extended in the air for [thirty] seconds, while counting aloud
from [one] to [thirty].’’ (Internal quotation marks omitted.) State v. Morelli,
293 Conn. 147, 156 n.8, 976 A.2d 678 (2009).
6
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7
‘‘The A-44 form is used by the police to report an arrest related to
operating a motor vehicle [while] under the influence and the results of any
sobriety tests administered or the refusal to submit to such tests.’’ (Internal
quotation marks omitted.) State v. Brown, 309 Conn. 469, 474 n.7, 72 A.3d
48 (2013).
8
In the second part of the information, the defendant was charged with
having two prior convictions for driving while under the influence, for which
the state sought an enhanced penalty. See General Statutes § 14-227a. The
defendant pleaded guilty to this charge.
9
The defendant now claims that the trial court misunderstood the purpose
of his offer. He claims that he did not seek to reenact the tests, but to
demonstrate to the jury that he could not have performed the mobility based
field sobriety tests under any circumstances, due to his disability. Our review
of the record, however, persuades us that the trial court correctly understood
the defendant’s explained purpose of the offer. As we explain herein, the
statements that defense counsel made to the court during the offer of proof
are consistent with the trial court’s understanding that the defendant sought
to reenact the performance of the tests.
Moreover, as the concurring opinion observes, the final statement the
court made on this issue was that it was ‘‘not going to allow that kind of
demonstrative evidence, basically, because we cannot recreate the scene.
It would be inappropriate to have the defendant demonstrate what he thinks
occurred on that night.’’ The defendant did not make any statement sug-
gesting that he disagreed with the court’s interpretation of his proffer, nor
did he later file a motion for reconsideration or articulation that would have
suggested he disagreed with the court’s understanding of the basis for
his proffer.
10
The defendant also suggests that the court’s ruling violated his right to
testify on his own behalf. He claims that the demonstration would have
permitted him to ‘‘present his own version of [the] events . . . .’’ The right
to testify, the defendant explains, is part of his right to present his defense.
He adds that precluding the demonstration because the court deemed it to
be unreliable is akin to precluding a defendant from testifying on the basis
of a determination that the defendant may not be truthful.
Although we agree with the defendant that the constitutional right to
present a defense includes the right to testify on one’s own behalf, we
reiterate that the right to present a defense does not free the defendant
from the bounds of the rules of evidence. State v. Bova, supra, 240 Conn.
236. As we explain in this opinion, the court adhered to the rules of evidence
in precluding the demonstration. Its determination that the proffered demon-
stration would be unreliable, moreover, was not tied at all to a concern that
the defendant may feign injury, but was premised solely on the lack of any
substantial similarity between the courtroom conditions and the conditions
at the scene on the night of the defendant’s arrest. The defendant’s argument,
therefore, that the court’s ruling was comparable to barring a defendant’s
testimony on the basis of suspected untruthfulness, is unpersuasive.
11
The defendant claims that because the demonstrative evidence would
have been superior to any verbal testimony or documentary evidence he
could have offered to prove that he failed the mobility based field sobriety
tests due to his disability, the fact that the court allowed him to prove his
defense by other means did not render the court’s ruling constitutionally
valid. Even taking the defendant’s claim that the demonstration was some-
how superior to other methods of proof, the defendant’s argument fails,
because it ignores the fact that the evidence was inadmissible because the
court found that the conditions were not substantially similar. Therefore,
the demonstration would not have been reliable.