State v. Barone

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STATE OF CONNECTICUT v. STEPHEN
JOHN BARONE
(AC 35244)
Gruendel, Beach and Lavery, Js.
Argued October 8, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Danbury, geographical area number three, Pavia, J.)
Sean P. Barrett, with whom, on the brief, was Peter
G. Billings, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, were Deborah P. Mabbett, senior assistant state’s
attorney, and, on the brief, Stephen J. Sedensky III,
state’s attorney, and Jason Germain, senior assistant
state’s attorneys, for the appellee (state).
Opinion
LAVERY, J. The defendant, Stephen John Barone,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of one count of operating a motor
vehicle while under the influence of intoxicating liquor
and one count of operating a motor vehicle while having
an elevated blood alcohol content in violation of Gen-
eral Statutes § 14-227a (a) (1) and (2), respectively.1
The defendant claims that the court improperly (1)
denied his motion to suppress evidence that the police
obtained during their allegedly unlawful stop of his
automobile in violation of the fourth amendment to
the federal constitution, and (2) denied his motion to
confront witnesses, or, in the alternative, to suppress
evidence regarding certain breath tests in violation of
the confrontation clause of the sixth amendment to the
federal constitution.2 We affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
At approximately 9:16 p.m. on February 11, 2011, the
Redding Police Department received a 911 emergency
telephone call from Meredith Hettler. Hettler was a
passenger in a vehicle being driven by her husband,
Mike Sherman. Hettler and Sherman had departed from
a restaurant on Route 53 in Redding and were returning
to their home in Bethel. Hettler became concerned
when the vehicle in front of them swerved across the
double yellow line in the center of the road. Hettler
called 911 and identified herself by providing her name,
address, and telephone number. She described the vehi-
cle as a blue Subaru Outback, and provided the vehicle’s
license plate number to the 911 operator. Hettler
observed the Subaru traveling at approximately twenty-
five to thirty miles per hour in a forty-five mile per hour
zone. Hettler and Sherman followed the motorist for
approximately one half of a mile before the Subaru
pulled off the roadway and onto the side of the road.
Hettler did not describe the physical characteristics of
the driver to the 911 operator, nor did she indicate if the
driver was distracted. The Redding Police Department
contacted the Bethel Police Department, and the dis-
patcher issued a police radio broadcast for officers
to ‘‘be on the lookout’’ for the vehicle. Officer James
Christos of the Bethel Police Department was dis-
patched to Route 53 where the Subaru last was seen.
Christos was unable to locate the vehicle and he eventu-
ally left the immediate area.
Approximately forty-five minutes later, at about 9:55
p.m., the Bethel Police Department received a tele-
phone call from Todd Sterling, another concerned
motorist. Sterling testified that he informed the 911
operator that he was approaching the intersection of
Routes 107 and 58, entering Bethel, when he observed
a blue Subaru at ‘‘a stop sign . . . parked there, just
stopped, totally stopped and not going.’’ Sterling told
the 911 operator that he had sounded his car horn
because he believed that the driver of the Subaru had
fallen asleep at the wheel. After he sounded his horn,
the vehicle continued driving and Sterling drove behind
the Subaru for approximately two miles as it proceeded
down Route 58, ‘‘going twenty [miles per hour in a forty
to forty-five mile per hour zone], swerving all over the
double yellow [line].’’ Sterling became concerned that
someone was ‘‘going to get killed’’ and, accordingly, he
called 911. Sterling identified himself to the 911 opera-
tor by providing his name, address, and telephone num-
ber. He also provided the vehicle’s make and license
plate number. The license plate number that Sterling
provided was identical to the one reported by Hettler.
At around 10 p.m., approximately five minutes after
Sterling called 911, Officer Frank O’Farrell of the Bethel
Police Department, was traveling north on Maple Ave-
nue in an unmarked police vehicle. O’Farrell saw a
vehicle stopped for an extended period of time at a stop
sign at the intersection of Maple, Hickok and Milwaukee
Avenues ‘‘for no apparent reason.’’ He indicated that
there were no other vehicles at the intersection at that
time. O’Farrell then realized that the stationary vehicle
fit the general description of the vehicle that had been
the subject of the earlier ‘‘be on the lookout’’ alert.
Upon confirming with the police dispatcher that the
make, model, and license plate of the vehicle he
observed was the subject of the earlier alert, O’Farrell
activated his lights in order to pull the vehicle over.
The Subaru proceeded slowly through the intersection,
traveled an additional one hundred yards past the first
area where it could have safely pulled over, then gradu-
ally pulled off the road on to a grassy shoulder. The
driver subsequently was identified as the defendant.
O’Farrell approached the driver’s side of the Subaru and
requested the defendant’s license, vehicle registration,
and insurance information. O’Farrell detected the smell
of alcohol on the defendant’s breath and he observed
the defendant’s ‘‘slow and slurred speech.’’ After three
requests were made, the defendant, who was ‘‘[f]um-
bling around’’ and ‘‘[s]eemed confused,’’ located his
driver’s license, which had been on his lap, and provided
it to O’Farrell. The defendant told O’Farrell that he had
consumed three glasses of wine that evening.
At this time, Christos, who had responded to the first
911 report, arrived at the scene. On the basis of his
conversation with O’Farrell, Christos had reason to
believe that the operator of the vehicle was intoxicated.
Christos approached the vehicle to interview the defen-
dant and detected the odor of alcohol on the defendant’s
breath. He noticed that the defendant’s speech was
‘‘very slow and deliberate.’’ The defendant exited the
vehicle upon request, but ‘‘had a lot of trouble balancing,
standing, [and] walking.’’ Christos administered three
standardized field sobriety tests to the defendant, all of
which he failed.3 Christos concluded that the defendant
was operating his vehicle while under the influence of
alcohol and placed him under arrest. The defendant
was then transported to the Redding Police Department
for breath test sampling using the ‘‘Draeger Alcotest
9510’’ (Draeger machine).4 The first sample, taken at
10:38 p.m., indicated that the defendant’s blood alcohol
concentration (BAC) was 0.1778. The second sample
was taken at 11:02 p.m. and produced a BAC of 0.1627.
Both of the tests performed indicated that the defen-
dant’s blood alcohol concentration was above the legal
limit set forth in § 14-227a (a) (2).5 The defendant was
then transported back to the Bethel Police Department
where he was fingerprinted and photographed.
The defendant was charged by way of a two part
substitute long form information. In part A, count one
charged the defendant with operation of a motor vehicle
while under the influence of intoxicating liquor, in viola-
tion of § 14-227a (a) (1). Count two charged the defen-
dant with operation of a motor vehicle while having an
elevated blood alcohol content, in violation of § 14-227a
(a) (2). The defendant was not charged with a motor
vehicle infraction.
On September 13, 2011, the defendant filed a ‘‘Motion
to Suppress Defendant’s Statements and Field Sobriety
Tests,’’ seeking suppression of all evidence obtained
after the stop of the defendant’s automobile, including
observations by the police officers and any statements
made by the defendant. The court denied the motion
after a hearing. Subsequently, the defendant filed a
‘‘Motion in Limine Requesting Confrontation or, in the
Alternative, Suppression,’’ and an accompanying memo-
randum of law, requesting suppression of the breath
test results if the state did not present the testimony
of the breath test operator, the calibration analyst, the
quality assurance specialist, and the ethanol breath
standard analyst. On the second day of trial, the court
denied the motion, concluding that the defendant’s right
to confrontation would not be violated because
Christos, who had operated the Draeger machine, and
Robert H. Powers, the Director of the Controlled Sub-
stances and Toxicology Laboratory at the Department
of Emergency Services and Public Protection, were pre-
sent for ‘‘full, fair, and complete cross-examination [by
the defendant] on all issues relating to the accuracy of
the [Draeger machine].’’
At trial, the state presented Powers with a hypotheti-
cal situation that contained certain relevant facts identi-
cal to those relied on by the state in the present case.
Powers testified with a reasonable degree of scientific
certainty that, in his opinion, the defendant’s BAC was
above 0.168 at 10 p.m. on the night of his arrest. When
presented with the same hypothetical, Michael P. Hlas-
tala, a doctor called as a defense expert, opined that
at 10 p.m. the defendant’s BAC would still be over the
legal limit of 0.08. At the conclusion of the evidence,
the defendant moved for a judgment of acquittal that
the court denied.
On September 14, 2012, the jury found the defendant
guilty of operating a motor vehicle while under the
influence of intoxicating liquor and operation of a motor
vehicle while having an elevated blood alcohol content.
The defendant was charged in part B of the information
with previously having been convicted of one count of
the crime of operating a motor vehicle while under the
influence of intoxicating liquor or drugs, in violation of
§ 14-227a. Following the guilty verdict as to part A, the
defendant pleaded guilty to part B of the information
and, on November 20, 2012, the court sentenced the
defendant to two years imprisonment, execution sus-
pended after six months, a $2000 fine, and three years
probation with various conditions. On December 6,
2012, the defendant filed the present appeal.
I
The defendant first claims that the court improperly
denied his motion to suppress evidence from the motor
vehicle stop because O’Farrell did not have a reasonable
and articulable suspicion that the defendant was
engaged in or about to commit criminal activity, as
required by the federal constitution to effectuate the
stop. We disagree.
‘‘Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968), a police officer has authority,
under the fourth amendment to the United States consti-
tution, to stop the driver of a car if the officer has a
reasonable and articulable suspicion that the driver has
engaged in illegal conduct.’’ State v. Torelli, 103 Conn.
App. 646, 648, 931 A.2d 337 (2007). ‘‘Our review of Terry
stop claims is governed by a well established standard
of review. The determination of whether reasonable
and articulable suspicion exists rests on a two part
analysis: (1) whether the underlying factual findings of
the trial court are clearly erroneous; and (2) whether
the conclusion that those facts give rise to such a suspi-
cion is legally correct.’’ (Internal quotation marks omit-
ted.) Id., 650; see also State v. Cyrus, 297 Conn. 829,
837–38, 1 A.3d 59 (2010).
At the conclusion of the hearing on the defendant’s
‘‘Motion to Suppress Defendant’s Statements and Field
Sobriety Tests,’’ the court made the following factual
findings and denied the motion. ‘‘[T]he court, having
heard the testimony of the officer in this case, Officer
O’Farrell, does find the officer to be credible in his
account of what occurred on [February 11, 2011] in
that, just before or at 10 p.m. on that particular evening,
he saw a vehicle that was at a stop sign for a prolonged
period of time. Although there were no vehicles cross-
ing through that [intersection], this particular vehicle
seemed to remain at the stop sign with no movement for
a long enough period of time that it drew his attention to
the vehicle.
‘‘After kind of observing the vehicle and trying to see
why the vehicle was not moving and realizing that, in
fact, there was no traffic that should have been stopping
this vehicle, the officer then did call in and was able
to confirm that this particular vehicle was consistent,
and had a consistent plate number, with [the vehicle]
that they had received information on [from Hettler and
Sterling’s 911 calls]. That the information the police had
was that at 9:16 and at 9:55 [p.m.] two separate and
independent callers had taken the time to call in by
way of 911 their concern about this particular vehicle
in terms of its operation.
‘‘[W]hile this officer was not clear in terms of his
belief that at least one of the callers was [reporting] an
erratic operation of the vehicle, I know that that was
an argument . . . whether they both said erratic or
whether one said erratic. But there was information
given to the police that was relayed to this officer in
terms of some type of erratic behavior, certainly enough
that it warranted two separate callers to call in.
‘‘That this officer, then, in the court’s view, did have
reasonable and articulable suspicion to at least inquire,
for several reasons; and, as the officer indicated . . .
[there are] several issues that are involved. One is
whether an infraction has occurred or some type of
violation of the law. The [second] is whether this person
is in distress and needs some type of treatment, and
the third is, obviously, that now we have the callers
[reporting] the erratic operation, which this officer is
also confirming in terms of hi[m] personal[ly] . . .
seeing the defendant stopped for no reason at all for a
prolonged period of time at the stop sign.
‘‘[T]he calls are within a short window, in a similar
area, and that the 9:16 [p.m.] call, although in Redding,
is consistent with the vehicle being at the particular
location that it’s in at that 10 p.m. timeframe.
‘‘When the officer then goes to inquire . . . his inves-
tigation is heightened by what he describes as slow and
slurred speech, a confusion on the defendant’s part, the
odor of alcohol, his inability to follow instructions in
that he’s attempting to obtain his driver’s license but
is unable to do so, even though, ultimately, his driver’s
license is on his lap, and that is eventually pointed out
to him. All of those things then are permissible in terms
of allowing the police to continue [investigating] what
was a reasonable and articulable suspicion . . . of
whether or not a crime has occurred.
‘‘Having said that, the court denies the defendant’s
motion to suppress the statements and the evidence
obtained [from the stop of the defendant’s motor vehi-
cle]. Now, that does not mean that all of these things
come into evidence at trial. I’m not suggesting that. My
only issue for right now is whether or not the court is
finding that the initial stop of the defendant’s vehicle
was illegal and in violation of the constitution, and the
court’s ruling is that, based on the circumstances at the
time . . . it was not; and, therefore, the motion to sup-
press is denied.’’
On appeal, the defendant argues that the court erred
in concluding that O’Farrell had a reasonable and articu-
lable suspicion to effectuate the stop.6 The defendant,
thus, challenges the propriety of the court’s legal con-
clusion that the facts provided a sufficient basis for
O’Farrell to form a reasonable and articulable suspicion
that the defendant was engaged in illegal conduct, justi-
fying a Terry stop, because O’Farrell did not personally
witness any erratic operation of the defendant’s vehicle,
and the defendant did not commit a motor vehicle
infraction. We do not agree.
Having set forth the court’s findings, our standard of
review, and the defendant’s arguments, we turn to an
examination of the applicable principles of substantive
law. ‘‘Under the fourth amendment to the United States
constitution . . . a police officer is permitted in appro-
priate circumstances and in an appropriate manner to
detain an individual for investigative purposes if the
officer believes, based on a reasonable and articulable
suspicion that the individual is engaged in criminal
activity, even if there is no probable cause to make
an arrest.’’ (Internal quotation marks omitted.) State v.
Lipscomb, 258 Conn. 68, 75, 779 A.2d 88 (2001); see
also Terry v. Ohio, supra, 392 U.S. 21. ‘‘Reasonable
and articulable suspicion is an objective standard that
focuses not on the actual state of mind of the police
officer, but on whether a reasonable person, having the
information available to and known by the police, would
have had that level of suspicion.’’ (Internal quotation
marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692
A.2d 1233 (1997). Whether a reasonable and articulable
suspicion exists depends on the totality of the circum-
stances. State v. Nash, 278 Conn. 620, 641, 899 A.2d
1 (2006).
‘‘[I]n justifying [a] particular intrusion the police offi-
cer must be able to point to specific and articulable
facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.
. . . In determining whether a detention is justified in
a given case, a court must consider if, relying on the
whole picture, the detaining officers had a particular-
ized and objective basis for suspecting the particular
person stopped of criminal activity. When reviewing
the legality of a stop, a court must examine the specific
information available to the police officer at the time
of the initial intrusion and any rational inferences to
be derived therefrom. . . . A recognized function of
a constitutionally permissible stop is to maintain the
status quo for a brief period of time to enable the police
to investigate a suspected crime. . . .
‘‘[E]ffective crime prevention and detection . . .
[underlie] the recognition that a police officer may in
appropriate circumstances and in an appropriate man-
ner approach a person for purposes of investigating
possibly criminal behavior even though there is no prob-
able cause to make an arrest. . . . Therefore, [a]n
investigative stop can be appropriate even where the
police have not observed a violation because a reason-
able and articulable suspicion can arise from conduct
that alone is not criminal. . . . In evaluating the valid-
ity of such a stop, courts must consider whether, in
light of the totality of the circumstances, the police
officer had a particularized and objective basis for sus-
pecting the particular person stopped of criminal activ-
ity.’’ (Citations omitted; internal quotation marks
omitted.) State v. Lipscomb, supra, 258 Conn. 75–76.
‘‘In cases in which a police stop is based on an infor-
mant’s tip, corroboration and reliability are important
factors in the totality of the circumstances analysis.
[I]nformants do not all fall into neat categories of known
or anonymous. Instead, it is useful to think of known
reliability and corroboration as a sliding scale. Where
the informant is known from past practice to be reliable
. . . no corroboration will be required to support rea-
sonable suspicion. Where the informant is completely
anonymous . . . a significant amount of corroboration
will be required. However, when the informant is only
partially known (i.e., [informant’s] identity and reliabil-
ity are not verified, but neither is [informant] completely
anonymous), a lesser degree of corroboration may be
sufficient to establish reasonable suspicion.’’ (Empha-
sis omitted; internal quotation marks omitted.) State v.
Torelli, supra, 103 Conn. App. 653. ‘‘When an informant
provides sufficient information so that he may be
located and held accountable for providing false infor-
mation, the officer is justified in assuming the caller
is being truthful in so identifying himself.’’ (Internal
quotation marks omitted.) State v. Bolanos, 58 Conn.
App. 365, 369, 753 A.2d 943 (2000).
The defendant specifically claims that the court erred
in concluding that O’Farrell had formulated the requi-
site level of suspicion to stop the defendant’s vehicle
in accordance with the constitution because O’Farrell
‘‘did not have any specific knowledge about the identi-
ties of the callers or their specific observations [of the
defendant]’’ as reported to the 911 operator, and he did
not personally observe the defendant drive erratically
or commit a motor vehicle infraction, which would have
corroborated the tips from Hettler and Sterling. We are
not persuaded.
The defendant argues that O’Farrell’s ‘‘[reliance] on
the callers to formulate his basis for stopping the defen-
dant’s vehicle’’ is insufficient to establish a reasonable
and articulable suspicion because he ‘‘only knew that
there had been two calls about this vehicle; he neither
knew anything about the driver nor did he know what
specific conduct that had been observed.’’ We disagree.
The evidentiary record supports the court’s legal con-
clusion that O’Farrell had a reasonable and articulable
suspicion to stop the defendant. At trial, O’Farrell testi-
fied that he did not speak to the callers and he did not
know specifically what information Hettler and Sterling
reported to the police dispatchers. O’Farrell, however,
was aware of the ‘‘be on the lookout’’ alert issued by
the Bethel Police Department regarding the defendant’s
vehicle. Our Supreme Court has noted that ‘‘[t]he collec-
tive knowledge of the [law enforcement] organization
as a whole can be imputed to an individual officer when
he is requested or authorized by a superior or associates
to make an arrest.’’ (Internal quotation marks omitted.)
State v. Watson, 165 Conn. 577, 586, 345 A.2d 532 (1973),
cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d
311 (1974). In the present case, the police received two
calls from identified informants, made approximately
forty-five minutes apart, reporting the same information
regarding the make, model, color, direction, and license
plate number of the defendant’s car. The police received
the second 911 call from Sterling just four to five
minutes before O’Farrell stopped the defendant’s vehi-
cle. Before pulling the vehicle over, O’Farrell called the
police dispatcher and confirmed that the license plate
number matched that provided in the alert. The court
further found that the vehicle’s location at 10 p.m. in
Bethel was consistent with the distance that could be
traveled from the vehicle’s alleged location as reported
in Hettler’s 911 call. The collective knowledge of law
enforcement can be imputed to O’Farrell because he
contacted the police dispatcher to confirm that the vehi-
cle was indeed the subject of the earlier ‘‘be on the
lookout’’ alert and he was authorized to make an investi-
gatory stop. See id. We, thus, conclude that, considering
the specific information available to O’Farrell at the
time of the stop and the reasonable inferences derived
from that information, O’Farrell had a particularized
and objective basis for suspecting the defendant was
driving under the influence of intoxicating liquor. See
State v. Lipscomb, supra, 258 Conn. 76.
We are not persuaded by the defendant’s contention
that the record does not support the court’s conclusion
that the information alleged by Hettler and Sterling was
sufficiently corroborated so as to provide a particular-
ized and objective basis for O’Farrell to stop his vehicle
because the present case is distinguishable from State
v. Burns, 140 Conn. App. 347, 59 A.3d 819, cert. denied,
308 Conn. 918, 62 A.3d 1132 (2013). In Burns, this court
held that a police officer, who was aware of three
reports alleging that the operator of a motor vehicle
had been driving under the influence, had a reasonable
and articulable suspicion to effectuate a motor vehicle
stop. Id., 359. The defendant claims that the present
case is factually distinguishable because there were
only two reported calls from concerned motorists,
made approximately forty-five minutes apart, and
O’Farrell did not independently corroborate the allega-
tions of erratic driving. We do not agree.
In denying the defendant’s motion to suppress, the
court reasonably found that O’Farrell had corroborated
the reports of erratic operation by personally observing
the defendant’s prolonged and unjustified stop at the
traffic sign. O’Farrell testified that, given the fact that
no other cars were approaching the area, the prolonged
stop at the traffic sign was unusual and, in his experi-
ence, indicative of intoxication. The court specifically
found that O’Farrell confirmed the information alleged
in the tips from ‘‘hi[m] personal[ly] . . . seeing the
defendant stopped for no reason at all for a prolonged
period of time at the stop sign.’’ The court agreed that
the defendant’s behavior was unusual when ‘‘there were
no vehicles crossing through that [intersection] . . . .’’
When viewed in its totality, the information provided
to O’Farrell by the police dispatcher was sufficiently
corroborated to give a reasonable police officer the
requisite level of suspicion to justify a Terry stop on
the basis of driving under the influence of intoxicat-
ing liquor.
Our review of the record indicates that the court
properly concluded that O’Farrell had a reasonable
basis for the investigative stop. Therefore, the introduc-
tion of the defendant’s statements and the other evi-
dence at trial obtained during the stop did not result
from a violation of the fourth amendment to the United
States constitution. At the time he pulled the defendant
over, O’Farrell possessed a reasonable and articulable
suspicion that the defendant was operating a motor
vehicle while under the influence of intoxicating liquor.
See Terry v. Ohio, supra, 392 U.S. 21. Accordingly, we
conclude that the court properly denied the defendant’s
motion to suppress evidence that the police obtained
during the stop of his automobile.
II
The defendant also claims that his right of confronta-
tion under the federal constitution was violated when
the court denied his motion to suppress the Draeger
machine reports. The defendant specifically argues that
four witnesses were required to testify in order to satisfy
the confrontation clause: (1) the breath test operator;
(2) the calibration analyst; (3) the quality assurance
specialist; and (4) the ethanol breath standard analyst.
At trial, the state presented the testimony of Christos,
the breath test operator, and Powers, the quality assur-
ance specialist.7 The defendant argues, however, that
his conviction should be reversed due to the state’s
failure to call additional witnesses who might have had
information relevant to the reliability of the Draeger
machine. At oral argument before this court, the state
argued that State v. Buckland is legally and factually
on all fours with the present case, and that it is disposi-
tive of the defendant’s confrontation clause claim. See
State v. Buckland, 313 Conn. 205, 216, 96 A.3d 1163
(2014) (holding opportunity to cross-examine breath
test operator and expert to explain test results, together
with uncontested admission of document certifying
machine as an evidential breath test instrument, satis-
fied defendant’s right of confrontation). We agree with
the state.
‘‘The right to confrontation is fundamental to a fair
trial under both the federal and state constitutions. . . .
It is expressly protected by the sixth and fourteenth
amendments to the United States constitution . . . .
‘‘The primary interest secured by the confrontation
clause of the sixth amendment is the right to cross-
examination. . . . The confrontation right, however, is
not absolute and is subject to reasonable limitation.
. . . [T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reason-
able limits on such cross-examination . . . or interro-
gation that is repetitive or only marginally relevant.’’
(Citations omitted; internal quotation marks omitted.)
State v. Kimber, 48 Conn. App. 234, 248, 709 A.2d 570,
cert. denied, 245 Conn. 902, 719 A.2d 1164 (1998).
Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress
is well defined. ‘‘A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [When] the
legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether
they are legally and logically correct . . . .’’ (Internal
quotation marks omitted.) State v. Stenner, 281 Conn.
742, 761, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S.
Ct. 290, 169 L. Ed. 2d 139 (2007). ‘‘The court’s ruling
that the admission of [a breath test report] did not
violate the constitutional mandates of Crawford [v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004)] . . . raises a question of law over which
we exercise plenary review. [I]f an [evidentiary] impro-
priety is of constitutional proportions, the state bears
the burden of proving that the error was harmless
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Randolph, 284 Conn. 328, 377, 933
A.2d 1158 (2007).
Our Supreme Court recently decided the precise issue
raised by the defendant in this appeal. In Buckland, the
defendant claimed that the trial court improperly denied
his motion to suppress breath test reports, violating his
right to confrontation under the sixth amendment to
the United States constitution. State v. Buckland, supra,
313 Conn. 208. As with the defendant in the present
case, the defendant in Buckland claimed that the testi-
mony of the breath test operator, the calibration analyst,
the quality assurance specialist, and the ethanol breath
standard analyst was required to satisfy his rights under
the confrontation clause, as defined in Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009). State v. Buckland, supra, 208, 214.
Our Supreme Court rejected the defendant’s claim, rul-
ing that the presence, at trial, of the person who per-
formed the breath test and the expert who explained
the results of that test, together with the uncontested
admission of a document certifying the machine as an
evidential breath test instrument, satisfied the require-
ments of Melendez-Diaz and Bullcoming v. New Mex-
ico, U.S. , 131 S. Ct. 2705, 180 L. Ed. 2d 610
(2011). State v. Buckland, supra, 216. Although this
holding was dispositive, the Buckland court alterna-
tively held that raw data generated from a machine,
such as a breath test machine, does not constitute testi-
monial evidence for the purposes of the confrontation
clause and, therefore, the admission of such data into
evidence is not subject to the restrictions imposed by
Melendez-Diaz. Id., 214–15.
On appeal, the defendant claims that the record in
the present case is ‘‘strikingly different’’ from the record
in Buckland for three reasons. First, the defendant
argues that, in addition to two exhibits containing the
raw data from the Draeger machine, which were pre-
sented in Buckland and found to be not testimonial in
nature,8 the record in the present case contains addi-
tional evidence which is testimonial in nature; specifi-
cally, an image of the calibration solution bottle, service
records for the Draeger machine, and a certificate of
accuracy from Draeger Safety Diagnostics, Inc., the
manufacturer. Consequently, the defendant argues that
the state was required to present the calibration analyst,
the quality assurance specialist, and the ethanol breath
standard analyst, in addition to Powers and Christos,
for cross-examination by the defendant. Second, the
defendant points to testimony in the present case, not
elicited from Powers when testifying as the state’s
expert witness in Buckland, indicating that he is not
certified to operate the Draeger machine. The defendant
argues that the confrontation clause analysis is conse-
quently affected by this additional testimony, because
the ‘‘testimony [of Powers] was not sufficient’’ to satisfy
the defendant’s right to confront ‘‘MM,’’ the individual
whose signature appears on the certificate of accuracy.
Lastly, the defendant argues that his right to confront
the individuals who altered the Draeger machine report
to omit four calibrations was violated. We are not per-
suaded.
We conclude that the confrontation clause claim
raised in the present case is identical to the one raised
in Buckland. The evidence presented by the state in
the present case to ensure that the admission of the
Draeger machine reports, which appears to be almost
identical to the evidence presented in Buckland, satis-
fied the requirements of Melendez-Diaz. In the present
case, the state called as witnesses Christos, who per-
formed the breath tests, and Powers, an expert, who
explained the results of the breath tests. The defendant
effectively cross-examined Christos and Powers regard-
ing their knowledge of the Draeger machine and its
operation. Powers was also called by the state as an
expert witness in Buckland. State v. Buckland, supra,
210–11.
Additionally, the state presented three documents
concerning the certification, maintenance, and accu-
racy of the breath test machine used in this case. One
of these documents, which was a full exhibit, indicated
that the Draeger machine ‘‘was evaluated and certified
for use as an evidential [b]reath [a]lcohol [t]est [i]nstru-
ment on August 18, 2010 . . . .’’ The state also intro-
duced as a full exhibit the printed report from the
Draeger machine that pertained to the two samples
collected from the defendant at the Redding Police
Department.
We, therefore, agree with the state that the defendant
was not denied his constitutional right of confrontation
under the federal constitution by the admission of the
Draeger machine reports, and that Buckland is disposi-
tive. Thus, we conclude that the court properly denied
the defendant’s motion to suppress the breath test
evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that § 14-227a has been amended by our legislature several
times since the events underlying the present appeal. See, e.g., Public Acts
2013, No. 13-271, § 51. These amendments are not relevant to this appeal
and, for purposes of clarity, we refer to the current revision of the statute.
2
The defendant also argues in his brief that the trial court improperly
denied his motions to suppress in violation of article first, §§ 7, 8, and 9, of
the Connecticut constitution. With respect to his argument under the state
constitution, the defendant simply notes that ‘‘article first, §§ 7 and 9, of
the Connecticut constitution afford greater protection to citizens than does
the federal constitution in the determination of what constitutes a seizure.’’
(Internal quotation marks omitted.) In State v. Donahue, 251 Conn. 636,
645, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148
L. Ed. 2d 240 (2000), our Supreme Court explained that, under the state
constitution: ‘‘Police have the right to stop for investigation short of arrest
where a police officer observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may be afoot.
. . . [I]n justifying the particular intrusion the police officer must be able
to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.’’ (Internal
quotation marks omitted.) See also State v. Oquendo, 223 Conn. 635, 649–50,
613 A.2d 1300 (1992). The defendant contends that the circumstances of
the present case ‘‘do not reach the required showing that is necessary to
establish a reasonable and articulable suspicion as is required by . . . the
heightened level of protection required by article [first], §§ 7 and 9, of the
Connecticut constitution.’’ (Emphasis added.) With respect to his claim
regarding the breath tests, the defendant merely notes that, at trial, he
‘‘sought suppression of the breath test evidence in the absence of testimony
of those individuals that affect the test reports pursuant to . . . [article
first, § 8, of the Connecticut constitution] . . . .’’
Although the defendant refers to violations of his rights under article first,
§§ 7, 8, and 9, of the Connecticut constitution, he has failed to provide an
independent analysis of state constitutional issues. See State v. Eady, 249
Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551,
145 L. Ed. 2d 428 (1999); see also State v. Buckland, 313 Conn. 205, 221 n.6
96 A.3d 1163 (2014). We, accordingly, do not consider the defendant’s state
constitutional claims.
3
Specifically, Christos administered the horizontal gaze nystagmus test,
the walk and turn test, and the one leg stand test.
4
At the time of the defendant’s arrest, the Bethel Police Department’s
breath test machine was out for service. The Bethel Police Department,
accordingly, had an agreement with the Redding Police Department to use
their machine on February 11, 2011.
5
General Statutes § 14-227a (a) (2) provides in relevant part: ‘‘For the
purposes of this section, ‘elevated blood alcohol content’ means a ratio of
alcohol in the blood of such person that is eight-hundredths of one per cent
or more of alcohol, by weight . . . .’’ This ratio corresponds to a BAC of 0.08.
6
At oral argument before this court, the defendant represented that he
was challenging certain findings of fact. Our thorough review of the defen-
dant’s brief reveals that, instead, the defendant challenges only the court’s
legal conclusion that O’Farrell had a reasonable and articulable suspicion
to effectuate a stop of the defendant’s vehicle based on its factual findings.
See State v. Torelli, supra, 103 Conn. App. 650.
7
The defendant does not concede that Powers satisfies the confrontation
requirement with respect to the quality assurance specialist, and argues:
‘‘Only the analyst who was maintaining the machine around the time of the
test will be able to testify as to what maintenance was performed and how
that maintenance was performed. Substitute testimony regarding the care
and maintenance of the machine is not acceptable.’’
8
The record in Buckland, like the present case, included as exhibits the
breath test results and a letter from the state toxicology laboratory certifying
the Draeger machine as an ‘‘evidential [b]reath [a]lcohol [t]est [i]nstrument.’’
See State v. Buckland, supra, 313 Conn. 210.