State v. Frazier

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STATE OF CONNECTICUT v. JOHN A. FRAZIER
(AC 38880)
Keller, Prescott and Bishop, Js.
Syllabus
Convicted of the crime of operating a motor vehicle while under the influence
of intoxicating liquor, and of having previously been convicted of
operating a motor vehicle while under the influence of intoxicating
liquor, the defendant appealed to this court. He claimed, inter alia, that
the evidence was insufficient to prove that he was intoxicated due to
alcohol consumption. The defendant had been found by a police officer
in the driver’s seat of his vehicle, which was stopped in the left turn
lane of a road at a traffic signal with the engine running. The defendant
initially did not respond to the officer’s inquiries as to whether he was
alright. The officer was able to rouse the defendant after he entered
the vehicle and shook the defendant’s shoulders. The defendant replied
affirmatively to the officer’s inquiry as to whether he was diabetic but
did not respond when the officer asked what, if any, medication he was
taking for his condition. The defendant also told the officer that he had
consumed a couple of drinks and was very tired, and he asked the
officer not to arrest him. After the defendant failed to satisfactorily
complete certain standard field sobriety tests administered by the offi-
cer, he was arrested and the contents of his vehicle were inventoried.
Another officer discovered a cup in the vehicle’s center console that
contained ice and a beverage that smelled like it contained alcohol. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to prove that he was intoxicated due to alcohol consumption,
as there was ample evidence from which the jury reasonably could have
concluded beyond a reasonable doubt that alcohol was the cause of his
condition: the defendant, who was found stopped at an intersection
with his vehicle’s engine running, was unable to perform the sobriety
tests administered by the police, he told the police that he had consumed
a couple of drinks and was very tired, testimony from the police officer
who administered the sobriety tests supported an inference that the
defendant was under the influence of alcohol, as the officer testified
that he smelled a sweet aroma when he entered the defendant’s vehicle,
and the police later discovered in the defendant’s vehicle a cup that
contained ice and what smelled to them like an alcoholic beverage;
moreover, the defendant’s conduct during the encounter with the police
reflected that he knew that he had done something wrong, as he repeat-
edly asked for leniency and not to be arrested, and the jury reasonably
could have inferred from his refusal to submit to a breath test that he
had consumed alcohol and that if he truly had been suffering from a
medical condition, he would not have repeatedly asked the police to
give him a break and would have taken whatever steps he could to
obtain medical attention.
2. The trial court did not abuse its discretion by concluding that defense
counsel opened the door to the admission of testimony by a police
officer about the cup that contained the alcoholic beverage: although
that court had excluded inquiry with respect to the inventory form or
the contents of the defendant’s automobile, during cross-examination
defense counsel delved into the subject of what the officer had discov-
ered in the defendant’s automobile by asking if any contraband had been
found, as it would have been reasonable for the jurors, as laypersons,
to interpret defense counsel’s questions about whether the police had
found any contraband in the defendant’s vehicle as being related to
anything that would have implicated the defendant in illegal conduct,
and because defense counsel’s inquiry and the officer’s answer reason-
ably could have left the jury with the false impression that the officer
did not find any incriminating evidence in the automobile, and defense
counsel, aware of the court’s previous ruling, had attempted to selec-
tively introduce parts of that excluded inquiry in an attempt to advantage
the defense, that selective approach was prejudicial to the state; more-
over, the prosecutor’s brief inquiry during redirect examination did not
exceed the questioning necessary to remove the unfair prejudice that
was caused by defense counsel’s inquiry, and even if the admission of
the evidence was an abuse of discretion, the defendant did not demon-
strate that the court’s ruling affected the jury’s verdict, as the state
presented a strong case that the defendant was intoxicated.
3. The defendant’s unpreserved claim that the trial court infringed on his
right to testify was unavailing, as the defendant waived his claim that
he was prematurely forced to make a decision about whether to testify
when the court canvassed him prior to the conclusion of the state’s
case-in-chief; defense counsel’s representation to the court, prior to the
close of the state’s case-in-chief, that he had asked the defendant to
come to court early so that he could be canvassed prior to the beginning
of the case that day, reasonably implied that it was appropriate for the
canvass to take place before the jury was expected to be in court to
resume hearing evidence in the state’s case-in-chief, and the defendant
was unable to demonstrate that a constitutional violation existed
because he did not affirmatively state that he wanted to testify or that
he did not know that he could testify.
Argued December 5, 2017—officially released April 10, 2018
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
Britain, geographical area number fifteen, where the
first part of the information was tried to the jury before
D’Addabbo, J.; thereafter, the court granted in part the
defendant’s motion for a judgment of acquittal as to
the first part of the information; verdict of guilty; subse-
quently, the defendant was presented to the court, Had-
den, J., on a plea of nolo contendere to the second part
of the information; thereafter, the court, D’Addabbo, J.,
rendered judgment in accordance with the verdict and
plea, from which the defendant appealed to this
court. Affirmed.
Deborah Del Prete Sullivan, director of legal counsel,
Public Defender Services Commission, for the appel-
lant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Elizabeth M. Moseley, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, John A. Frazier, appeals
from the judgment of conviction, rendered following a
jury trial, of operating a motor vehicle while under the
influence of intoxicating liquor in violation of General
Statutes § 14-227a (a) (1). Additionally, following a plea
of nolo contendere, the defendant was convicted under
a part B information of being a second offender in
violation of General Statutes § 14-227a (g) (2).1 The
defendant claims that (1) the evidence was insufficient
to prove his guilt under § 14-227a (a) (1), (2) the trial
court improperly admitted certain evidence in the
state’s case, and (3) the court infringed on his right to
testify. We affirm the judgment of the trial court.
On the basis of the evidence admitted at trial, the
jury reasonably could have found the following facts.
On the evening of August 20, 2011, the defendant was
seated in the driver’s seat of a sedan-type automobile
that was stopped in a left turn only lane on the south-
bound side of the Berlin Turnpike at its intersection
with New Park Drive in Berlin. At that time, sixteen
year old Dakota Kibby, Kibby’s boyfriend, and Kibby’s
friend were passengers in an automobile that was being
operated by Kibby’s mother. Kibby’s mother, who was
traveling southbound on the Berlin Turnpike and
intended to turn left at the intersection with New Park
Drive, stopped behind the defendant’s automobile. The
white-colored backup lights on the defendant’s automo-
bile were illuminated and the automobile’s engine was
running. Despite the fact that the traffic signal at the
intersection turned green, however, the automobile
remained stationary. After the defendant failed to pro-
ceed through the intersection, Kibby’s mother drove
around him.
As they passed the defendant’s automobile, the occu-
pants of the automobile being driven by Kibby’s mother
observed the defendant hunched over his steering
wheel. Kibby’s mother stopped her automobile a safe
distance away from that of the defendant. Concerned
for the defendant’s well-being, Kibby, her boyfriend,
and her friend got out of their automobile and
approached the defendant. They attempted to get the
defendant’s attention by yelling to him. The defendant
appeared to be dazed and confused, as though he was
waking up. Then, his automobile started moving in
reverse. Kibby and her companions alerted the defen-
dant to stop the automobile, at which point it stopped
moving and the defendant appeared to fall back to sleep.
Kibby called 911.
Shortly before midnight, James Gosselin, a lieutenant
with the Berlin Police Department, responded to the
scene. Gosselin encountered the occupants of the auto-
mobile that was driven by Kibby’s mother, all of whom
were standing on the center median of the Berlin Turn-
pike. Then, Gosselin approached the defendant’s auto-
mobile, which was still running with the defendant
seated in the driver’s seat. The rear brake lights as
well as the automobile’s headlamps were illuminated.
Gosselin tapped on the driver’s side window and asked
the defendant whether he was alright, but the defendant
did not respond. The defendant was seated upright with
his eyes closed and his head tilted back against the
headrest. The defendant had his right foot on the
brake pedal.
Initially, Gosselin was concerned that the defendant
was suffering from a medical condition. He opened the
passenger door, called loudly to the defendant, and
shook the defendant’s shoulders. Still, the defendant
did not reply. Gosselin shifted the automobile into park,
turned off the ignition, and removed the keys from
the ignition. After Gosselin shook the defendant some
more, the defendant merely opened his eyes. When
Gosselin asked the defendant if he was a diabetic, he
responded that he was, yet he did not respond when
Gosselin asked him what type of medication, if any, he
was taking for this condition. Gosselin requested that
an ambulance respond to the scene, but the defendant
refused to be evaluated by emergency medical person-
nel. When the ambulance arrived on the scene, Gosselin
motioned to the ambulance driver not to stop. By this
time, Berlin Police Officer Eric Chase arrived on the
scene to provide backup assistance to Gosselin, includ-
ing monitoring oncoming traffic.
The defendant complied with Gosselin’s request to
present his driver’s license and vehicle registration.
Repeatedly, the defendant asked Gosselin not to take
any adverse action toward him2 and, at one point during
the encounter, the defendant showed Gosselin a silver
shield. Gosselin asked the defendant if he had con-
sumed any alcohol, to which the defendant replied that
he had consumed ‘‘a couple of drinks’’ and that he was
‘‘very tired.’’
The defendant complied with Gosselin’s request that
he step out of his automobile, although he was unsteady
on his feet. Gosselin administered three field sobriety
tests to the defendant, namely, the horizontal gaze nys-
tagmus test, the walk and turn test, and the one leg
stand test. The defendant did not complete any of these
tests satisfactorily. Due to the defendant’s unsteadiness
during the testing process, Gosselin was concerned for
the defendant’s safety and took precautions to protect
the defendant from falling to the ground.
After he had administered the field sobriety tests,
Gosselin arrested the defendant, put handcuffs on him,
and transported him to police headquarters. The defen-
dant became angry and, as he had done throughout
their encounter, pleaded with Gosselin to give him a
break and not to arrest him. While being transported
to police headquarters, the defendant told Gosselin that
being arrested was the ‘‘last thing’’ he needed and asked
for ‘‘a last chance.’’ Upon taking an inventory of the
contents of the defendant’s automobile, which was
towed by a private towing company following the defen-
dant’s arrest, Chase discovered a plastic cup in the
center console that contained ice as well as a beverage
that smelled like it contained alcohol. Later, Gosselin
asked the defendant to submit to a breath test, but the
defendant refused.3 Additional facts will be discussed
as necessary.
I
First, the defendant claims that the evidence was
insufficient to prove that he violated § 14-227a (a) (1)
by operating a motor vehicle while under the influence.
We disagree.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a [two part] test. First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [finder of fact] reasonably could have con-
cluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury 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 reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], 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 [finder of fact’s] verdict of
guilty.’’ (Citations omitted; internal quotation marks
omitted.) State v. Campbell, Conn. , ,
A.3d (2018).
In part II of this opinion, we will adjudicate the defen-
dant’s claim that the court improperly admitted certain
evidence, namely, testimony concerning a beverage that
the police discovered in the defendant’s automobile. In
our review of the sufficiency of the evidence, however,
we are free to consider all of the evidence presented
at trial. Claims of evidentiary insufficiency in criminal
cases are always addressed independently of claims
of evidentiary error and do not depend on an initial
determination of evidentiary claims. See, e.g., State v.
Calabrese, 279 Conn. 393, 401–402, 902 A.2d 1044 (2006);
State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994).
Section 14-227a (a) (1) provides in relevant part: ‘‘No
person shall operate a motor vehicle while under the
influence of intoxicating liquor or any drug or both. A
person commits the offense of operating a motor vehi-
cle while under the influence of intoxicating liquor or
any drug or both if such person operates a motor vehicle
(1) while under the influence of intoxicating liquor or
any drug or both . . . .’’ In the present case, the state
alleged in its original long form information that the
defendant committed the crime while he was ‘‘under
the influence of alcohol and drugs . . . .’’ Following
the state’s case-in-chief, the defendant argued that the
evidence did not support a finding that he was under
the influence of either alcohol or drugs, and moved for
a judgment of acquittal. The court denied the motion
with respect to the allegation of alcohol use, but granted
the motion with respect to the allegation of drug use.
At the court’s direction, the state filed a second long
form information in which it alleged that the defendant
had committed the offense while under the influence
of alcohol. The case was submitted to the jury under
the theory that the defendant operated his automobile
while under the influence of alcohol.
Thus, to obtain a conviction in the present case, the
state bore the burden of proving beyond a reasonable
doubt that the defendant operated a motor vehicle while
he was ‘‘under the influence of intoxicating liquor
. . . .’’ General Statutes § 14-227a (a) (1). The defendant
does not claim that the evidence was insufficient to
satisfy the essential element of operation. Instead, he
argues that the evidence was insufficient to prove that
he was intoxicated due to alcohol consumption.
‘‘To demonstrate that a defendant violated § 14-227a
(a) (1), the state is required to show that, as a result
of the consumption of intoxicating liquor, the defendant
had become so affected in his mental, physical or ner-
vous processes that he lacked to an appreciable degree
the ability to function properly in relation to the opera-
tion of his vehicle.’’ (Internal quotation marks omitted.)
State v. Mosback, 159 Conn. App. 137, 157, 121 A.3d 759
(2015); see also State v. Morelli, 293 Conn. 147, 154,
976 A.2d 678 (2009); State v. Fontaine, 134 Conn. App.
224, 227, 40 A.3d 331, cert. denied, 304 Conn. 926, 41
A.3d 1051 (2012).
We begin our assessment of the evidence by observ-
ing that it plainly reflected that the defendant had
become so affected in his mental, physical or nervous
processes that he lacked to an appreciable degree the
ability to function properly in relation to the operation
of his automobile. The defendant does not appear to
dispute this obvious fact. The defendant was found
stopped at an intersection while his automobile’s engine
was running. He was not observing the traffic signal at
the intersection, but instead had become an impediment
to travel. Kibby and other occupants of her automobile
discovered him to be slouched over his steering wheel,
and they were unable to rouse him. Gosselin was unable
to rouse the defendant until he entered his automobile,
yelled at him, and shook him several times. Thereafter,
the defendant was unable to perform the standard field
sobriety tests satisfactorily and was unsteady on his
feet.
There was ample evidence from which the jury rea-
sonably could have inferred that alcohol was the cause
of the defendant’s condition. The most compelling evi-
dence in this regard came in the form of the defendant’s
statements to Gosselin. Gosselin testified that after he
entered the defendant’s automobile and the defendant’s
condition had improved to the extent that he was able
to respond to questions, Gosselin asked him whether
he had a medical condition and, specifically, whether
he was a diabetic. The defendant responded, ‘‘yes,’’ but
did not respond to Gosselin’s further inquiries concern-
ing diabetes. After the defendant refused to answer
any questions concerning the treatment of his alleged
diabetic condition and refused to be evaluated by emer-
gency medical personnel, conduct from which the jury
reasonably could have inferred that his condition was
not the result of any type of medical emergency,
Gosselin asked him if he had consumed any alcohol.
The defendant replied that he had consumed a ‘‘couple
of drinks’’ and that he was ‘‘very tired.’’
The defendant argues that his admission that he had
consumed a couple of drinks lacked substantial proba-
tive value because ‘‘[t]he time of consumption was
never established.’’ The defendant’s argument does not
take into account the circumstances in which this state-
ment was made. These circumstances afforded the jury
a basis on which to conclude that the defendant’s state-
ment served as a basis to infer that he was intoxicated
due to alcohol consumption. Specifically, we observe
that Gosselin asked the defendant about alcohol con-
sumption while he was on a public roadway evaluating
the defendant. This was soon after he had arrived at the
scene. In light of the circumstances, the jury reasonably
could have inferred that, by the time he was answering
questions and repeatedly asking the police for leniency,
the defendant would have understood the inquiry to
be related directly to the cause of his then-existing
condition. Thus, it would have been reasonable for the
jury to have inferred that the defendant’s reply that he
had consumed ‘‘a couple of drinks’’ and was ‘‘very tired’’
was an admission to Gosselin that his consumption of
alcohol occurred close enough in time to have caused
his then-existing condition.
Additionally, Gosselin testified that on the basis of
his observations as well as his training and experience,
the defendant was intoxicated. Gosselin’s testimony
concerning the defendant’s performance on the stan-
dardized field sobriety tests, which detailed the defen-
dant’s difficulty in following instructions and
completing relevant tasks, supported an inference that
he was under the influence of alcohol. Gosselin testified
on the basis of his training that the National Highway
Traffic Safety Administration had concluded that the
three tests that he administered were considered to be
reliable predictors of intoxication and that the hori-
zontal gaze nystagmus test, in particular, was 77 percent
accurate in predicting intoxication.
In arguing that the evidence did not support a finding
of intoxication, the defendant relies on Gosselin’s testi-
mony that, when he first arrived on the scene and was
unable to wake the defendant, he was concerned for
the defendant’s safety and believed that the defendant
might have been suffering from a ‘‘diabetic emergency
. . . .’’ The defendant strongly relies on Gosselin’s first
impressions upon his arrival at the scene. He seemingly
downplays, however, the significance of the conclu-
sions that Gosselin reached after having had an opportu-
nity to observe and evaluate the defendant in greater
detail. Certainly, it would have been reasonable for
the jury to have found that the opinion that Gosselin
reached, on the basis of additional facts, was more
accurate than his initial impression and, thus, more
persuasive. It is not compelling in our evaluation of the
evidence that Gosselin initially may have considered
the possibility that the defendant was suffering from
a diabetic emergency because, subsequently, Gosselin
learned a great deal more information about the defen-
dant’s condition and, on the basis of this additional
information, ultimately concluded that the defendant
was intoxicated.
There was yet additional evidence before the jury
that reasonably bolstered an inference that alcohol con-
sumption was the cause of the defendant’s condition.
Gosselin testified that, upon entering the defendant’s
automobile, he ‘‘was immediately hit with the smell of a
sweet aroma of something . . . .’’ Chase testified that,
following the defendant’s arrest, he took an inventory
of items inside of the defendant’s automobile. He testi-
fied in relevant part: ‘‘While I was in the vehicle, I saw
in the center console a plastic cup with ice, and it was
[a] drink that I smelled, and it [smelled] like an alcoholic
beverage.’’ This evidence, viewed in isolation, was not
conclusive evidence of alcohol consumption. In light
of the evidence in its entirety, however, it bolstered a
finding that the sweet smell that Gosselin detected
when he entered the automobile was the result of the
defendant’s breath and that the cup in the console con-
tained intoxicating liquor. Such subordinate findings
supported a finding that the defendant was intoxicated.
Additionally, the defendant’s conduct throughout his
encounter with Gosselin reflected that he knew that he
had done something wrong. Gosselin and Chase testi-
fied that the defendant repeatedly asked that Gosselin
not take any action toward him. Chase testified that,
during the field sobriety tests, the defendant ‘‘was plead-
ing . . . that he receive a break and that we not arrest
him.’’ A video recording from Gosselin’s police cruiser
reflected that the defendant stated that an arrest was
the ‘‘last thing’’ he needed and that he wanted ‘‘a last
chance.’’4 In light of similar circumstances, this court
has observed that statements that reflect an acknowl-
edgement of wrongdoing support a finding of operating
under the influence of intoxicating liquor. See, e.g.,
State v. Fontaine, supra, 134 Conn. App. 228–29. More-
over, Gosselin testified that, in an attempt to escape
punishment, the defendant showed him a silver shield.
Certainly, the defendant was under no obligation to
prove his innocence or to disprove the state’s case. We
observe, however, that his theory of defense was that
his condition was attributable to a diabetic emergency.
In applying its common sense, the jury reasonably could
have inferred that, if he truly had been suffering from
a medical condition, he would not have repeatedly
asked the police to give him a break and would not
have displayed a silver shield, but that he would have
taken whatever steps he could to obtain medical atten-
tion and alert the police to his condition. All of the
evidence suggesting that the defendant was aware of
his wrongdoing further supported a finding by the jury
that his conduct and condition on August 20, 2011, was
attributable to alcohol intoxication.
Additionally, it was permissible for the jury to infer
from the defendant’s refusal to submit to a Breathalyzer
test that he had consumed alcohol. See, e.g., General
Statutes § 14-227a (e);5 State v. Weed, 118 Conn. App.
654, 664–65, 984 A.2d 1116 (2009). ‘‘It is reasonable to
infer that a refusal to take such a test indicates the
defendant’s fear of the results of the test.’’ State v.
Seekins, 123 Conn. App. 220, 229, 1 A.3d 1089, cert.
denied, 298 Conn. 927, 5 A.3d 487 (2010). The parties
stipulated, and the jury was instructed, that the defen-
dant refused Gosselin’s request that he submit to a
Breathalyzer test.
We conclude our analysis by observing that there is
no mathematical formula by which the state is bound
to satisfy its burden of proving intoxication beyond a
reasonable doubt. Instead, we, as a reviewing court,
must examine the evidence in its totality, viewed in the
light most favorable to sustaining the jury’s finding
of guilt, to determine whether the jury reasonably could
have determined that the state satisfied its burden of
proof. A careful analysis of the evidence necessarily is
case specific. Thus, the defendant’s attempts to point
to what he perceives to be weakness in the state’s case,
or parallels between the present case and other cases,
are not compelling. The jury reasonably could have
concluded that the evidence presented by the state
proved beyond a reasonable doubt that the defendant
was intoxicated.
II
Next, the defendant claims that the court improperly
admitted certain evidence, namely, Chase’s testimony
related to a beverage that he found in the center console
of the defendant’s automobile.
The following additional facts are relevant to the
present claim. During his direct examination by the
prosecutor, Chase testified that, after Gosselin adminis-
tered the field sobriety tests and arrested the defendant,
his responsibility was to inventory the contents of his
automobile and to arrange to have it towed away. He
testified that, in such a situation, it is standard proce-
dure for a police officer to inspect the automobile and
to create a written log that details its contents. He
testified that these tasks are performed by the police
as part of its community caretaker function. Chase
explained: ‘‘Many times, a defendant will get out of the
vehicle, they’ll leave their wallet or cell phone or purse
or an item of value. Many times, we’ll remove that. I’ll
note that on the form if it’s something in the vehicle,
like, they may have a book of compact discs that could
be valuable, you’ll note that on the form, that way when
the person goes to pick up their car, if there’s something
missing at the [wrecker] service, there’s documentation
that those items were, in fact, in the vehicle.’’ Chase
testified that he followed this procedure in the pre-
sent case.
The prosecutor showed Chase an exhibit marked for
identification purposes.6 Chase stated that the exhibit
was the ‘‘possessed vehicle inventory form’’ that he
completed and signed with respect to the defendant’s
automobile. He stated that the form ‘‘lists the owner of
the vehicle, the vehicle information, the towing com-
pany where the vehicle went, and items that were inside
of the vehicle.’’ When the state asked that the form
be admitted into evidence, the defendant objected and
asked the state to make an offer of proof with respect
to the relevance of the form. Defense counsel also asked
for an opportunity to conduct a voir dire examination
of Chase.
Outside of the presence of the jury, defense counsel
argued that the form was not relevant and had ‘‘no
evidentiary value whatsoever.’’ The prosecutor stated
that the form was an admissible business record and
that it was relevant with respect to an item listed on
the form, specifically, a plastic cup containing ice and
an alcoholic beverage.
In relevant part, defense counsel conducted a voir
dire examination of Chase, as follows:
‘‘Q. If there were items of contraband, drugs, weap-
ons, would those be inventoried or would those be
seized by the department?
‘‘A. Those would be seized.
‘‘Q. So, with respect to the items that you inventoried
and appear on that form, none of those items were
seized, is that correct?
‘‘A. That’s correct.
‘‘Q. So, they were not logged into evidence or saved
or retained for possible evidentiary document?
‘‘A. No sir. . . .
‘‘Q. The state referenced that the inventory form in
front of you references a cup with an alcoholic beverage
in it. Is that what the form says?
‘‘A. It says a drink with ice in the center console.’’
Defense counsel argued that there was no credible
evidence that the cup in the console contained an alco-
holic beverage because the form did not state that fact
and that ‘‘without chemical testing, to allow the jury to
be given the impression that it contained an alcoholic
beverage without the proper foundation . . . is irrele-
vant at this point.’’
The prosecutor conducted a voir dire examination
of Chase in relevant part as follows:
‘‘Q. [W]hat was one of the items of significance that
you found within that vehicle that night, and where was
it located, sir?
‘‘A. The drink with the ice in the center console.
‘‘Q. Okay, and did you pick up that cup?
‘‘A. Yes, I did.
‘‘Q. And exactly what does the form say?
‘‘A. It says a drink with ice in the center console, and
then I note that I removed it and discarded it.
‘‘Q. And did you smell that . . . the contents of
that cup?
‘‘A. Yes, I did.
‘‘Q. And what did it smell [like]?
‘‘A. It smelled like an alcoholic beverage.’’
Defense counsel argued that the prosecutor’s inquiry
with respect to the scent of the beverage called for an
expert opinion. The court stated that a lay witness could
testify with respect to things such as odor and appear-
ance and, thus, permitted the inquiry.
Defense counsel then conducted further inquiry of
Chase:
‘‘Q. Officer, isn’t it true that alcohol has no smell?
‘‘A. I don’t believe that’s true.
‘‘Q. It’s, in fact . . . the flavor that has the smell.
Alcohol itself has no smell.
‘‘A. I believe it does have a smell.
‘‘Q. What did it smell like?
‘‘A. It smelled like an alcoholic beverage.
‘‘Q. What kind of alcohol?
‘‘A. I don’t know what kind of alcohol.
‘‘Q. It smell like beer?
‘‘A. It definitely was not beer. It was a mixed drink,
I would say.
‘‘Q. And officer, just so we’re clear, you didn’t find
any other contraband in the vehicle, did you?
‘‘A. Contraband, no sir.
‘‘Q. No drugs?
‘‘A. No, sir.
‘‘Q. No weapons?
‘‘A. No, sir.’’
Following this additional examination of Chase, the
prosecutor reiterated that the inventory form was
admissible as a business record because it was prepared
according to standard police procedure. The prosecutor
argued that the form reflected Chase’s notation that he
had discovered a cup with a beverage and ice in it, and
that it was proper for Chase to testify with respect to
the fact that he smelled the beverage and believed it
to be alcoholic in nature. Defense counsel argued that
the form did not reflect that Chase found an alcoholic
beverage in the automobile and objected to the state
asking Chase ‘‘what the drink that no longer exists
smelled like.’’ Thus, defense counsel clarified that he
objected to the admission of the form as well as to
Chase’s testimony concerning the beverage.
Following a brief recess, the court issued a ruling
that excluded from the evidence both the inventory
form and Chase’s testimony concerning the cup, as fol-
lows: ‘‘[T]he court has had an opportunity to review
the testimony that was presented and the issues pre-
sented as well as the argument presented. The court
looks at this issue as more of a destruction of evidence
issue . . . which has now been fully litigated. But the
court, in making rulings, in addition to following the
law, also tries to make sure that it follows what it
believes is fundamental fairness. It’s always controlling.
So, what I’m left [with] here is a cup which was in the
inventory with ice in it that was discarded, not saved,
which is in the inventory, which is step one, which, in
and of itself, the court, on an evidentiary basis, doesn’t
have too much of a problem allowing that in, provided
that the foundations of the business record were estab-
lished. However, what the court, also, sees with that
[inventory form] coming in, is the potential of specula-
tion for the jury to think what was in there, and they
would be forced to speculate [about the contents of
the cup], which is not in evidence. And the testimony
by this officer that . . . he believed it to be an alcoholic
beverage [that has been] discarded causes the court to
have some concerns about how the jury will take it as
it relates to fundamental fairness. So, for those reasons,
the court will sustain both objections.’’
After the jury returned to the courtroom, the prosecu-
tor concluded her direct examination of Chase. Chase
testified that he had completed an inventory of the
contents of the defendant’s automobile and then it was
towed by a service located on the Berlin Turnpike. The
prosecutor did not ask any questions with respect to the
contents of the automobile. Thereafter, defense counsel
cross-examined Chase. After Chase testified that there
were different tests by which police could determine
drug use and alcohol use, the following examination
occurred:
‘‘Q. Now, you indicated that you inventoried the car
. . . for the purpose of ensuring that the person’s
belongings were available when they picked up the car?
‘‘A. Yes, sir.
‘‘Q. If you, during that inventory, were to find contra-
band, be it weapons, obviously stolen property, or
drugs, what would you do in that situation?
‘‘A. Those items would be seized and brought to the
station as evidence.
‘‘Q. As evidence. In this particular case, when you
inventoried the car, did you find any drugs?
‘‘A. No, sir.
‘‘Q. Thank you, no more questions.’’
The prosecutor began her redirect examination as
follows:
‘‘Q. Now, Officer Chase . . . [defense counsel] just
asked you about when you inventoried the car. Did you
find anything else of significance?
‘‘A. Uh—
‘‘Q. Inside the vehicle, in the center console?
‘‘A. Yes, I found a plastic cup with ice and a—’’
Defense counsel then raised an objection to the
inquiry on the ground that the court already had decided
the issue. After the court excused the jury, defense
counsel, apparently recognizing that the prosecutor
would argue that he had opened the door to the inquiry
during cross-examination, stated that he ‘‘simply asked
[Chase] with respect to the drug issue whether he found
any drugs and he answered no.’’ The prosecutor argued
that defense counsel had opened the door to this inquiry
by asking Chase about the inventory and whether Chase
found contraband or drugs in the automobile. The court
ruled: ‘‘[With respect to] the inventory of the cup with
the ice in—the court was concerned about speculation
of the jury, and the court was, also, concerned about
its loss—its destruction. The court’s ruling was based
primarily upon fundamental fairness, but at the same
time, you can’t use a ruling as a shield and then a sword.
The court believes that by inquiring about the inventory,
and what they would have found and what he could
have found, opened the door of what he found. And it is
unfair, this court feels, to use the court’s ruling because
I wanted to be fair to the defense—to use the court’s
ruling about something that was in the vehicle and not
kept, then not talk about that, but then lead the jury to
another area that was using the court’s ruling, the court
feels inappropriately. Objection is overruled for that
reason.’’
When the jury returned to the courtroom, the prose-
cutor examined Chase in relevant part as follows:
‘‘Q. Officer Chase, you testified a few moments ago
that you inventoried the car, is that correct?
‘‘A. That’s correct.
‘‘Q. And what did you find in the center console of
[the defendant’s] vehicle?
‘‘A. While I was in the vehicle, I saw in the center
console a plastic cup with ice, and it was [a] drink that
I smelled, and it [smelled] like an alcoholic beverage.
‘‘Q. Okay, and what did you do with that drink at
that point?
‘‘A. I poured the drink on the side of the road.’’
The defendant argues that the court abused its discre-
tion by concluding that defense counsel opened the
door to the admission of this testimony. In arguing that
the ruling cannot be considered harmless, the defendant
argues that, for a number of reasons, it was highly
prejudicial to the defense and that the state’s case was
not strong. The defendant argues that, in light of Chase’s
admission that he intentionally destroyed the beverage,
the court was correct in determining that fundamental
fairness to the defense required the exclusion of Chase’s
testimony. Moreover, the defendant argues, Chase’s
‘‘damaging’’ testimony, related to the central issue of
intoxication, ‘‘would absolutely rouse the suspicion and
speculation of the jury’’ against the defendant and, thus,
was highly prejudicial.
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion.’’ State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007). ‘‘Generally, a trial court
abuses its discretion when the court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . When this court
reviews a decision of the trial court for abuse of discre-
tion, the question is not whether any one of us, had we
been sitting as the trial judge, would have exercised
our discretion differently. . . . Rather, our inquiry is
limited to whether the trial court’s ruling was arbitrary
or unreasonable. . . . Accordingly, the abuse of discre-
tion standard reflects the context specific nature of
evidentiary rulings, which are made in the heat of battle
by the trial judge, who is in a unique position to
[observe] the context in which particular evidentiary
issues arise and who is therefore in the best position
to weigh the potential benefits and harms accompa-
nying the admission of particular evidence.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Wright, 320 Conn. 781, 832, 135 A.3d 1 (2016).
‘‘Generally, a party who delves into a particular sub-
ject during the examination of a witness cannot object
if the opposing party later questions the witness on the
same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal
by the opposing party. Even though the rebuttal evi-
dence would ordinarily be inadmissible on other
grounds, the court may, in its discretion, allow it where
the party initiating inquiry has made unfair use of the
evidence. . . . This rule operates to prevent a defen-
dant from successfully excluding inadmissible prosecu-
tion evidence and then selectively introducing pieces
of this evidence for his own advantage, without allowing
the prosecution to place the evidence in its proper con-
text. . . . The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of preju-
dice. . . . The trial court must carefully consider
whether the circumstances of the case warrant further
inquiry into the subject matter, and should permit it only
to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original
evidence. . . . Thus, in making its determination, the
trial court should balance the harm to the state in
restricting the inquiry with the prejudice suffered by
the defendant in allowing the rebuttal. . . . We review
for abuse of discretion the trial court’s determination
that a party has opened the door to otherwise inadmissi-
ble rebuttal evidence.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Brown, 309 Conn. 469,
479–80, 72 A.3d 48 (2013); see also State v. Graham,
200 Conn. 9, 13–14, 509 A.2d 493 (1986).
In the present case, after the court excluded inquiry
with respect to the inventory form or the contents of
the defendant’s automobile, during cross-examination
defense counsel delved into the subject of what Chase
discovered in the automobile. The defendant argues
before this court that defense counsel’s inquiry was
legitimate because it was tailored to the issue of
whether Chase had discovered something that was ille-
gal for the defendant to possess, such as illegal drugs,
in the automobile. In arguing that defense counsel’s
inquiry did not concern the subject of the court’s ruling,
which was alcohol in the automobile, the defendant
focuses on defense counsel’s use of the word ‘‘contra-
band’’ in his questioning of Chase. The defendant relies
on the definitions of ‘‘contraband’’ found in sources
including Black’s Law Dictionary and our statutes,
which generally define ‘‘contraband’’ as property that
is illegal to possess.
The defendant interprets defense counsel’s choice of
words in a legally precise manner, yet it would have
been reasonable for the laypersons on the jury to have
afforded his words a broader interpretation. Thus, in
light of the context of defense counsel’s inquiry, it
would have been reasonable for the jury to interpret
the question as being related not merely to anything in
the automobile that would have been illegal for the
defendant to possess, but anything that would have
implicated the defendant as having engaged in illegal
conduct. Viewed in this manner, defense counsel’s
inquiry and Chase’s answer reasonably could have left
the jury with the false impression that Chase did not find
any incriminating evidence in the automobile. Defense
counsel obviously was aware of Chase’s voir dire testi-
mony and the court’s ruling that limited the state’s
inquiry. Nonetheless, he attempted to selectively intro-
duce parts of the excluded inquiry concerning Chase’s
inventory of the contents of the automobile in an
attempt to advantage the defense. This selective
approach was prejudicial to the state because the
court’s prior ruling had prohibited the state from placing
Chase’s testimony in its proper context by presenting
evidence that he also discovered evidence that unques-
tionably was incriminating with respect to the issue of
whether the defendant was intoxicated, namely, the
cup in the center console that, in Chase’s belief, con-
tained an alcoholic beverage. As this court has
observed, ‘‘[t]he defendant cannot reap the benefits of
inquiry into one subject and expect the state’s ques-
tioning within the same scope to be held impermissi-
ble.’’ State v. Brown, 131 Conn. App. 275, 287–88, 26
A.3d 674 (2011), aff’d, 309 Conn. 469, 72 A.3d 48 (2013);
see also State v. Place, 153 Conn. App. 165, 184, 100
A.3d 941, cert. denied, 314 Conn. 946, 103 A.3d 977
(2014) (same).
To the extent that the defendant currently argues
that the court’s ruling was improper because it was
unfairly prejudicial to the defense, we observe that once
the court permitted the inquiry at issue, the state did
not delve into a lengthy examination of Chase or make
a second attempt to introduce Chase’s written inventory
of the automobile. Rather, the prosecutor’s brief inquiry
of Chase during redirect examination elicited additional
testimony related to the inventory that was necessary
to provide the jury with a complete picture of what
items Chase discovered during his examination of the
automobile. Defense counsel did not conduct any fur-
ther examination of Chase with respect to this issue.
Thus, we are not persuaded that the state exceeded
the questioning that was necessary to remove the unfair
prejudice that was caused by defense counsel’s inquiry.
Relying largely on the reasons cited by the court in its
initial ruling on the admissibility of the evidence at
issue, the defendant argues for the first time on appeal
that its subsequent ruling was unduly prejudicial to the
defense. As we have previously observed, in admitting
evidence pursuant to the opening the door doctrine,
the court has the discretion of admitting evidence that
ordinarily would be inadmissible on other grounds. The
defendant has not demonstrated that the prejudice suf-
fered by the defense as a result of the court’s ruling
was greater than the prejudice that would have been
suffered by the state absent the permitted inquiry.
Even if we were to conclude that the court abused
its discretion in admitting the evidence at issue, the
defendant is unable to obtain relief because he has
failed to demonstrate that the admission of the evidence
affected the jury’s verdict. ‘‘When an improper eviden-
tiary ruling is not constitutional in nature, the defendant
bears the burden of demonstrating that the error was
harmful. . . . [W]hether [an improper ruling] is harm-
less in a particular case depends upon a number of
factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, 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 eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Edwards, 325 Conn.
97, 133, 156 A.3d 506 (2017).
The defendant’s harmlessness analysis follows his
belief that Chase’s testimony concerning the discovery
of the beverage in the cup was the only testimony
regarding alcohol. This, however, is not an accurate
description of the evidence. Kibby described the defen-
dant’s conduct at the traffic intersection as well as his
incapacity. Gosselin provided ample testimony with
respect to several matters, including his observations of
the defendant, the sweet smell inside of the defendant’s
automobile, the defendant’s inability to complete three
standard field sobriety tests, and his belief that the
defendant was intoxicated. Importantly, Gosselin testi-
fied that, when he asked the defendant if he had con-
sumed any alcohol, the defendant replied that he had
and stated that he was tired. Chase testified with respect
to his observations of the defendant on the night in
question. The descriptions provided by Gosselin and
Chase strongly supported a finding of alcohol consump-
tion. Moreover, there was other evidence that supported
a finding that the defendant had consumed alcohol. This
included dashboard camera recordings from Gosselin’s
police cruiser that depicted the defendant’s movements
during his encounter with Gosselin, as well as his con-
duct and speech during his transport to the police head-
quarters. These recordings, which depicted the
defendant’s unsteadiness and his slurred speech, were
strong evidence of alcohol intoxication. Also, the jury
heard the parties’ stipulation that the defendant had
refused to submit to a breath test.
As we already have concluded in part I of this opinion,
on the basis of our consideration of the evidence in
its totality, the state presented a strong case that the
defendant was intoxicated. Although Chase’s testimony
concerning the beverage in the cup was not cumulative
of other evidence of a similar nature, it certainly was
cumulative evidence of the defendant’s alcohol con-
sumption. Moreover, despite the fact that, during clos-
ing arguments, defense counsel argued before the jury
that the evidence merely had reflected that the defen-
dant was suffering from a diabetic coma during the
incident in question, the defendant did not contradict
the state’s evidence in any compelling way. Defense
counsel had an opportunity to cross-examine Chase
with respect to the basis of his belief that the beverage
that he discarded contained alcohol, yet defense coun-
sel did not conduct any subsequent cross-examination
of Chase after the prosecutor had elicited the testimony
at issue during the state’s redirect examination. In light
of all of the evidence, we are not persuaded that Chase’s
testimony concerning the beverage in the cup substan-
tially swayed the verdict.7 Thus, the defendant has not
demonstrated that the ruling was harmful.8
III
Last, the defendant argues that the court infringed
on his right to testify. We disagree.
The following additional facts are relevant to the
present claim. On February 20, 2015, the court held a
charge conference with counsel. At this juncture in the
trial, the state had concluded its direct examination of
its final witness, Gosselin, but had not yet rested its
case-in-chief. The defense had not yet had an opportu-
nity to cross-examine Gosselin. Defense counsel stated
that the defendant had waived his right to be present
at the charge conference. In reviewing its draft jury
charge with counsel, the court stated that it would list
the witnesses who testified on behalf of the state
because it did not believe that the defense intended to
present any testimony. The court stated: ‘‘[J]ust so
you’re aware, I am basing this [decision] on the defen-
dant’s [wishes] thus far, and obviously, he has the ability
to change his mind if he wishes to, that there is not
going to be any evidence presented in the defendant’s
case-in-chief.’’ The court informed counsel that if the
defendant elected to present evidence, it would modify
its charge accordingly. Defense counsel replied,
‘‘[f]ine.’’
During the charge conference, the court referred to
previous comments that it had made to the defendant
concerning his right to testify.9 The court stated: ‘‘As I
told [the defendant] before he left [on the preceding
day of trial] . . . one of the reasons he should be here
[today], it’s his choice if he wants to waive [his pres-
ence], is that I will tell the difference between the
instruction concerning the defendant’s testifying and
the defendant not testifying. Again, thus far, and I know
it could change. [Defense counsel] has indicated [that]
the defendant is not going to testify, so I’m going to
eliminate [from the draft charge] the defendant’s testi-
mony instruction and include [an instruction pertaining
to the fact that] the defendant did not testify.’’
The following colloquy occurred:
‘‘[Defense Counsel]: It remains the intention of the
defense not to have [the defendant] testify.
‘‘The Court: But I understand that if things change—
if [the defendant] walks in Monday and says, I want
to testify—
‘‘[Defense Counsel]: Yeah, yeah. Understood.
‘‘The Court: —either way, so.
‘‘[Defense Counsel]: And I actually asked [the defen-
dant], just for the record, I did ask him to come a couple
of minutes early, if that would help the court to canvass
prior to the beginning of the case.’’
The next day of trial was Monday, February 23, 2015.
When the proceeding began, the court addressed the
defendant with respect to his decision not to be present
at the charge conference that had taken place on the
previous Friday, February 20, 2015. The defendant
stated that he had waived his right to be present because
he was unable to take time off from work. After the
court addressed other matters relating to its draft jury
charge, it addressed the defendant with respect to the
issue of whether he would testify. The court stated:
‘‘[T]his is something that was indicated to the court
when you weren’t here on Friday . . . so let me explain
to you what it is. Is that . . . and obviously it’s not
final until [defense counsel] puts it on the record, but
in an effort to take advantage of some time that we
have, as well as making sure that you understand what’s
occurring, [defense counsel] on Friday indicated that
once the cross-examination of . . . Gosselin is com-
plete, it’s the court’s understanding and, again, this is—
he told me on Friday that the state will rest, which
means the state’s through with [its] case-in-chief. Then
the defendant has the opportunity, but is not required—
you heard me say—instruct the law to put on evidence
and [defense counsel] has indicated that there—he is
not intending to put on any evidence. He has, also—
which is fine, that’s your choice. He did, also, indicate
that he anticipates that you will not take the witness
stand, and I don’t know if that’s a final decision or not,
but I wanted to canvass you on that decision if you—
if [defense counsel] stands up—I was going to ask him in
a—if [defense counsel] stands up and says rest without
putting on evidence in front of the jury, I want to make
sure that we’ve covered this area, okay? So, I just want
to make sure, because it is a constitutional right to
testify or not testify; it’s your choice. But I just want
to canvass you, if you will, ask you some questions,
making sure it’s an act of your own free will, okay?’’
During the court’s canvass, the defendant revealed
his date of birth, stated that he had graduated from
college, and stated that he was able to understand
English. The following colloquy then occurred:
‘‘The Court: [W]ithin the last twenty-four to forty-
eight hours, have you taken any medication, drugs, alco-
hol, or anything that would affect your ability to hear
me, to think, to comprehend, to understand?
‘‘The Defendant: No.
‘‘The Court: Now, have you had a full opportunity
to discuss with [defense counsel], your attorney, the
decision-making process and your decision to testify
or not testify in this case?
‘‘The Defendant: Yes, I have.
‘‘The Court: Okay, and I’m not interested in what the
content of the discussion is, I’m only interested in . . .
if you’ve had that opportunity to discuss with him
that issue?
‘‘The Defendant: Yes, I have.
‘‘The Court: Okay, and he has answered any questions
that you have had or continue to have concerning those?
‘‘The Defendant: Yes.
‘‘The Court: Do you need any more time to discuss
with [defense counsel] the decision to testify or not to
testify in this case?
‘‘The Defendant: No.
‘‘The Court: Okay, have you made a decision not to
testify in this case?
‘‘The Defendant: That’s correct.
‘‘The Court: Okay, is anyone forcing you or threaten-
ing you, in any way, to do that?
‘‘The Defendant: No, sir.
‘‘The Court: It’s an act of your own free will or volun-
tary act?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: I want you to understand that if you do
not testify in this case, I will instruct the jury as follows;
the defendant has not testified in this case. An accused
person has the option to testify or not to testify at the
trial. He is under no obligation to testify. He has a
constitutional right not to testify. You must draw no
unfavorable inferences from the defendant’s decision
not to testify. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: If you were to testify . . . the instruction
would be more geared to that [the jury] should not hold
it against you because you are the defendant. They
should treat you like any other witness. But . . . the
important one is . . . this one because you have made
that decision. Do you have any questions concerning it?
‘‘The Defendant: No.
‘‘The Court: Do you need any more time to talk to
[defense counsel] about your decision not to testify?
‘‘The Defendant: No.
‘‘The Court: Okay, do you have any questions that
you wish to ask me?
‘‘The Defendant: Not at this time.
‘‘The Court: Okay, thank you. Have I covered—
[defense counsel]?
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: Okay, thank you, sir. I think we’ve gotten
everything that we need to cover.’’
Following the canvass, the jury was summoned to the
courtroom, and defense counsel conducted his cross-
examination of Gosselin. The prosecutor conducted a
brief redirect examination of Gosselin. Then, the state
rested its case-in-chief. Defense counsel moved for a
judgment of acquittal. As we explained previously in
this opinion, the court granted the motion in part with
respect to the allegation of drug use. After a brief recess,
which was requested by defense counsel, the defense
rested. Then, defense counsel renewed his motion for
a judgment of acquittal, which the court denied. At no
time following the court’s canvass did the court revisit
the issue of the defendant’s expressed decision not to
testify, nor did the defendant bring any concerns or
questions to the court’s attention related to the subject
of his testifying.
For the first time, on appeal, the defendant claims that
the court infringed on his right to testify. The defendant
argues that the court prematurely forced him to make
a decision with respect to his right not to testify by
canvassing him prior to the conclusion of the state’s
case-in-chief. According to the defendant, ‘‘[t]his uncon-
ditional right should only be exercised after all of the
evidence has been presented, not before the state has
even presented its case in its entirety. The current status
of the law does not insure that the waiver of the right
to testify is truly knowing and intelligent and voluntary.’’
Additionally, the defendant argues that any waiver that
occurred was deficient because it was unclear whether
he understood that he could overrule his counsel’s
advice with respect to testifying. Moreover, the defen-
dant argues that the court’s alleged untimely canvass
left him ‘‘no choice’’ but to answer the court’s inquiries
and that he may have believed the subject could not
be raised again at a later time. He also argues that the
lack of any further inquiries by the court about his
decision not to testify unnecessarily ‘‘chill[ed]’’ his free
exercise of his right.
The defendant requests review of his unpreserved
claim under the doctrine set forth in 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), the Golding doctrine provides that ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail. The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever con-
dition is most relevant in the particular circumstances.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 239–40. ‘‘The defendant bears the responsi-
bility for providing a record that is adequate for review
of his claim of constitutional error. . . . The defendant
also bears the responsibility of demonstrating that his
claim is indeed a violation of a fundamental constitu-
tional right. . . . Finally, if we are persuaded that the
merits of the defendant’s claim should be addressed,
we will review it and arrive at a conclusion as to whether
the alleged constitutional violation . . . exists and
whether it . . . deprived the defendant of a fair trial.’’
(Citations omitted.) Id., 240–41.
The record is adequate to review the defendant’s
claim, and it implicates the defendant’s constitutionally
protected right to testify on his own behalf. See Rock
v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed.
2d 37 (1987); State v. Ayala, 324 Conn. 571, 600–601,
153 A.3d 588 (2017). The claim, however, fails under
Golding’s third prong.
The state argues, and we agree, that any claim directly
related to the timing of the court’s canvass was waived
by defense counsel by virtue of his representations to
the court concerning the timing of the canvass. As we
have set forth previously, defense counsel did not
merely acquiesce in the timing of the court’s canvass,
but represented to the court that he had asked the
defendant to come to court early on Monday, February
23, 2015, so that the court could canvass him ‘‘prior
to the beginning of the case’’ that day. Although the
defendant argues that this statement did not reflect that
defense counsel agreed with a canvass occurring ‘‘at
the very start of the proceedings on Monday and prior
to the close of the state’s case,’’ such an interpretation
is not reasonable. Defense counsel made the statement
at issue prior to the close of the state’s case-in-chief,
which was scheduled to resume on Monday. Defense
counsel’s statement that the canvass could take place
‘‘prior to the beginning of the case’’ on Monday reason-
ably implied that it was appropriate for the canvass to
take place before the jury was expected to be present
in court on Monday to resume hearing evidence in the
state’s case-in-chief. It is well settled that ‘‘a valid waiver
calls into question the existence of a constitutional vio-
lation depriving the defendant of a fair trial for the
purpose of Golding review . . . .’’ (Internal quotation
marks omitted.) Mozell v. Commissioner of Correction,
291 Conn. 62, 70, 967 A.2d 41 (2009); see also State v.
McDaniel, 104 Conn. App. 627, 632–35, 934 A.2d 847
(2007) (valid waiver thwarts relief under Golding’s third
prong), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008).
Alternatively, with respect to either the timing or the
substance of the court’s canvass generally, we conclude
that the defendant is unable to demonstrate that a con-
stitutional violation exists because he did not represent
at trial that he either wanted to testify or did not know
that he could testify. Our Supreme Court has held that,
in such a situation, the trial court is under no affirmative
duty to conduct a canvass to determine if a defendant’s
waiver of the right to testify is knowing, voluntary, and
intelligent. See State v. Paradise, 213 Conn. 388, 405,
567 A.2d 1221 (1990), overruled in part on other grounds
by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985,
cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed.
2d 428 (2006).10 ‘‘In Paradise, our Supreme Court held
that the substantive right to testify under federal consti-
tutional law does not contain a corollary procedural
requirement that a trial court canvass a defendant con-
cerning his waiver of his right to testify unless the
defendant affirmatively states that he wishes to testify
or that he did not know he could testify.’’ State v.
Burgos, 170 Conn. App. 501, 515, 155 A.3d 246, cert.
denied, 325 Conn. 907, 156 A.3d 538 (2017). It is not in
dispute that, before the trial court, the defendant did
not affirmatively state that he wanted to testify or that
he did not know that he could testify. In these circum-
stances, the defendant is unable to demonstrate that
the court had a duty to canvass the defendant with
respect to his right to testify at trial. Accordingly, the
defendant is unable to demonstrate that a constitutional
violation exists.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court sentenced the defendant to a two year term of incarceration,
execution suspended following one year (120 days mandatory minimum),
followed by three years of probation.
2
Gosselin testified that the defendant ‘‘just continued to plead with us
not to do anything.’’ Chase testified that the defendant ‘‘was pleading
throughout the [field sobriety testing] that he receive a break and that we
not arrest him.’’
3
At trial, the parties stipulated to this fact.
4
The defendant argues that ‘‘there was no evidence of slurred speech’’
in this case. The video taken inside of Gosselin’s police cruiser, which
recorded the defendant’s statements to Gosselin during his transport to
police headquarters, supported a finding that the defendant was slurring
his speech following his arrest. Such a subordinate finding, of course, further
supported a finding that the defendant was intoxicated.
5
‘‘In any criminal prosecution for a violation of subsection (a) of this
section, evidence that the defendant refused to submit to a blood, breath or
urine test requested in accordance with section 14-227b shall be admissible
provided the requirements of subsection (b) of said section have been
satisfied. If a case involving a violation of subsection (a) of this section is
tried to a jury, the court shall instruct the jury as to any inference that may
or may not be drawn from the defendant’s refusal to submit to a blood,
breath or urine test.’’ General Statutes § 14-227a (e).
6
The exhibit is entitled ‘‘BERLIN POLICE DEPARTMENT POSSESSED
VEHICLE INVENTORY.’’ In the portion of the form for ‘‘Inventory for Con-
tents’’ in ‘‘Glove Compartment or Console,’’ the following is handwritten:
‘‘drink w/ice in center console.’’
7
As part of his analysis of harm, the defendant argues that ‘‘the prejudicial
impact’’ of Chase’s testimony was reflected in the fact that, during its deliber-
ations, the jury asked to rehear that portion of Gosselin’s testimony in which
he asked the defendant about his alcohol consumption. The defendant has
not articulated why this jury note, which did not pertain to the evidence
that is the subject of the present claim, reflected harm connected to the
admission of the evidence that is the subject of the present claim.
8
The defendant does not argue that the claimed error is constitutional in
nature, yet asserts that it is the state’s burden to demonstrate that the court’s
error in admitting Chase’s testimony was harmless. To obtain relief, it is
the defendant’s burden to prove that evidentiary error of a nonconstitutional
nature is harmful in that it substantially swayed the jury in reaching its
verdict. See, e.g., State v. Edwards, supra, 325 Conn. 133.
9
According to the court, its prior comments addressed to the defendant
were not reflected in the transcript of the February 19, 2015 proceeding as
a result of a malfunction of the court monitor’s equipment late that day.
For the purpose of preserving a record of that brief portion of the proceeding,
during which no evidence had been presented, the court summarized what
had transpired and invited counsel to add anything to the record that it
might have overlooked.
10
In his principal brief and his reply brief, the defendant acknowledges
Paradise, yet argues that this court should revisit the issue of ‘‘whether a
defendant should be canvassed on the record in regard to his/her right to
testify.’’ We decline to do so. ‘‘[I]t is well established that this court, as an
intermediate appellate tribunal, is not at liberty to discard, modify, recon-
sider, reevaluate or overrule the precedent of our Supreme Court.’’ (Internal
quotation marks omitted.) State v. Petitt, 178 Conn. App. 443, 457, 175 A.3d
1274 (2017), cert. denied, 327 Conn. 1002, 176 A.3d 1195 (2018).