Argued March 5, 2015
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Two part substitute information charging the defendant, in the first part, with the crime of operating a motor vehicle while under the influence of intoxicating liquor or drug and the crime of operating a motor vehicle while his license was suspended, and, in the second part, with having previously been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drug, brought to the Superior Court in the judicial district of Litchfield, geographical area number eighteen, where the matter was tried to the jury before Marano, J.; verdict of guilty; thereafter, the defendant was presented to the court on a plea of guilty to the second part of the information; judgment of guilty in accordance with the plea and verdict, from which the defendant appealed to this court.
Convicted of the crimes of operating a motor vehicle while under the influence of intoxicating liquor or drug, operating a motor vehicle while his license was under suspension, and, in a part B information, with having previously been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drug, the defendant appealed to this court. Two state troopers, H and B, were conducting a traffic stop when H heard the sound of tires screeching and observed a vehicle make an abrupt U-turn and then pull over to the side of the road. H entered his police cruiser, made a U-turn, and parked behind the vehicle, which contained only the defendant, who was sitting in the driver's seat. After failing to perform adequately during three field sobriety tests, the defendant was arrested for driving under the influence and, subsequently, he was transported to the state police barracks where he was advised of his Miranda rights and then refused to submit to a breath test. The primary issue at trial was whether the defendant was the driver of the vehicle on the night in question. The defendant's witness testified that, consistent with his usual practice when driving the defendant home from work, he drove the vehicle to the area in question, made a U-turn, placed the vehicle's keys in the cup holder, and left the area in another vehicle. On appeal, the defendant claimed that his due process right to a fair trial was violated when the court improperly admitted testimony regarding his post- Miranda silence, and as a result of prosecutorial impropriety. Held :
1. The defendant could not prevail on his unpreserved claim that his constitutional right to due process was violated because the trial court improperly admitted testimony, which reasonably could have been understood as implicating his post- Miranda silence, when the prosecutor asked the state troopers at trial whether the defendant had ever denied driving the vehicle on the night in question: the state troopers' answers to the prosecutor's question did not implicate the defendant's post- Miranda silence, as their testimony either did not affirmatively respond to the prosecutor's question and therefore did not admit evidence of silence, or the testimony related to events that occurred during the traffic stop and prior to the time the defendant was arrested and advised of his Miranda rights, and our Supreme Court has held that prearrest silence under circumstances where one would naturally be expected to speak may be used as an admission; furthermore, the prosecutor's line of inquiry leading up to the allegedly improper questioning related only to the defendant's conduct at the scene rather than at the state police barracks, and, therefore, given the context in which the question was asked, it was more probable that it related to the defendant's prearrest silence.
2. This court found unavailing the defendant's claim that the prosecutor engaged in impropriety during the trial and closing argument, which deprived him of a fair trial:
a. This court declined to review the defendant's claim that the prosecutor's questions during trial amounted to impropriety by implicating his post- Miranda right to remain silent, as this court previously concluded that the defendant failed to establish a due process violation in this respect; furthermore, the defendant's claim of impropriety with regard to the prosecutor's statements at closing argument concerning the defendant's silence was without merit, as once the testimony was admitted at trial without objection, the prosecutor was permitted to base her closing argument on that evidence.
b. The prosecutor's statements during closing argument that urged the jury to make the reasonable inference based on the evidence that the defendant was the driver of the vehicle on the night in question were permissible as commenting on the weakness of the defendant's case, and were not naturally and necessarily intended as a comment on the defendant's failure to testify.
c. The defendant failed to set forth how the prosecutor's statements, which challenged the defendant's alternative view of the events, went beyond permissible argument and actually shifted the burden of proof to the defendant.
d. The prosecutor's comments during closing argument asking the jurors how they would react if they weren't drinking or driving and an officer started to administer field sobriety tests, or if they would refuse to take a Breathalyzer test knowing that their license would be suspended for six months, requested that the jury draw inferences from the evidence based on how a reasonable innocent person would act under the circumstances and, therefore, did not violate the prohibition against golden rule argument.
e. The prosecutor's comment that she would have left the keys in the center console and not thrown them on the floor if she were not the driver of the vehicle, which the defendant claimed he had done, and the prosecutor's reference to public transportation in the area, constituted permissible appeals to the jurors to apply their common knowledge and common sense when considering the credibility of the witnesses and the evidence in the case, and did not constitute improper argument.
f. The defendant failed to establish that the prosecutor's statements that H followed the defendant's vehicle for seventy-five yards and that the troopers' vehicles had their lights on were misleading or otherwise incorrect, and amounted to prosecutorial impropriety.
g. The prosecutor's closing argument did not improperly imply that the defendant's witness was a liar or provide a personal opinion regarding the witness' credibility, but, rather, properly attacked the credibility of the witness on the basis of the reasonable inferences that could have been drawn from the evidence, which included the witness' testimony that he was a convicted felon, worked with the defendant, and spent time with the defendant socially.
Mary A. Beattie, assigned counsel, for the appellant (defendant).
Sarah Hanna, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Meredith Blake, special deputy assistant state's attorney, for the appellee (state).
Gruendel, Prescott and Bishop, Js.
GRUENDEL, J. In this opinion the other judges concurred.
[159 Conn.App. 563] GRUENDEL, J.
The defendant, Dominick J. Devito, appeals from the judgment of conviction, rendered after a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor or drug in violation of General Statutes § 14-227a (a) (1) and one count of operating a vehicle while his license was under suspension in violation of General Statutes § 14-215 (a). On appeal, the defendant claims that (1) the trial court improperly admitted testimony regarding his post- Miranda  silence and (2) the prosecutor engaged in impropriety during the trial and in closing argument. We affirm the judgment of the court.
The following facts reasonably could have been found by the jury at trial. At approximately 2 a.m., on August 21, 2011, Robert Hazen, Jr., a state trooper, was assisting Christopher Barone, another state trooper, in effecting [159 Conn.App. 564] a traffic stop on Route 44 in North Canaan. At the time, Hazen's marked police cruiser was parked on the side of the road, facing eastbound, with its overhead flashing lights activated. While assisting Barone, Hazen heard the sound of tires screeching. As he turned, he observed a dark sports utility vehicle, approximately seventy-five yards away, make an abrupt U-turn and then pull over to the side of the road. Hazen then proceeded to enter his car, make a U-turn, and drive his police cruiser to within two car lengths of the dark sports utility vehicle. Hazen testified that he was able to move his vehicle in less than one minute and only lost visual contact with the sports utility vehicle for a second or two.
Hazen then approached the vehicle and observed one occupant, the defendant,
seated in the driver's seat. At this point, the vehicle was turned off and the keys were on the floor. Hazen requested the defendant's license and registration. During this discussion, Hazen detected the smell of alcohol emanating from the vehicle. He asked the defendant if he had consumed any alcohol that evening, to which the defendant replied that he had had " 'three or four drinks.'" Hazen observed that the defendant's speech was slurred and his eyes appeared glassy. Hazen then proceeded to conduct three field sobriety tests on the defendant. The defendant failed to perform adequately ...