May 31, 2017
B. Streeto, senior assistant public defender, with whom, on
the brief, was Ani A. Desilets, certified legal intern, for
the appellant (defendant).
G. Weller, senior assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Mark R. Durso, senior assistant state's attorney, for the
Lavine, Prescott and Harper, Js.
of the crimes of operating a motor vehicle while under the
influence of alcohol in violation of statute (§ 14-227a
[a] ) and operating a motor vehicle while his license was
suspended, the defendant, who also was found guilty of being
a third time offender, appealed to this court. The defendant
had failed three field sobriety tests that were administered
to him by a state police trooper, who had stopped the
defendant's vehicle after observing it swerve on an
interstate highway and estimating that the defendant was
driving above the speed limit. The defendant was charged
under subdivision (1) of § 14-227a (a), the behavioral
subdivision, pursuant to which blood alcohol levels are
generally excluded from evidence without a defendant's
consent. On direct examination, the state's expert
witness, a forensic toxicologist, testified in response to a
set of hypothetical facts that an individual who performed in
a certain way on the three sobriety tests must have had a
blood alcohol concentration higher than the legal limit under
§ 14-227a and, thus, must have been intoxicated. On
cross-examination, the defendant sought make the point that
the expert's opinion was based on a hypothetical, and
that the expert had not and could not express an opinion on
the ultimate issue of whether the defendant was intoxicated
and to what extent, but the court sustained the state's
objections to those questions. On appeal, the defendant
claimed, inter alia, that the trial court improperly
restricted his cross-examination of the state's expert.
trial court abused its discretion in sustaining the
state's objections to the defendant's attempts on
cross-examination to question the state's expert witness
regarding his lack of knowledge as to the defendant's
blood alcohol content level: that court's ruling, which
permitted the expert to testify on direct examination that an
individual who performed in a certain way similar to that of
the defendant on each of the field sobriety tests must have
been under the influence of a central nervous system
depressant such as alcohol and must have had a blood alcohol
concentration higher than the legal limit, but precluded the
defendant from questioning the expert to clarify that his
opinion did not apply to this specific defendant, improperly
allowed the state to open the door unfairly to the jury's
consideration of blood alcohol levels when the defendant was
charged solely under the behavioral subdivision of §
14-227a, without allowing the defendant an opportunity to
defend against that critical evidence by explaining to the
jury that the witness had not and could not express an
opinion regarding the defendant's level of intoxication
or whether he was intoxicated at all, and it was clear from
the context of the expert's full testimony that the
defendant did not ask him to opine on the ultimate issue of
whether the defendant was intoxicated during the traffic
stop; moreover, the defendant met his burden of demonstrating
that the court's undue restriction on his
cross-examination of the state's expert was harmful, as
the jury may have misused the expert's opinion testimony
on the topic of blood alcohol level to find the defendant
guilty of operating a motor vehicle while under the influence
of alcohol when he was charged only under the behavioral
subdivision of § 14-227a (a), which precluded evidence
of the defendant's blood alcohol content without his
consent, of which there was no evidence in the record, and
there was a substantial question regarding the scientific
reliability of the expert's opinion evidence.
defendant could not prevail on his claim that the trial court
abused its discretion by admitting into evidence a DVD that
contained video of the traffic stop, taken from the
trooper's patrol car, which the defendant asserted was
not sufficiently authenticated and was incomplete and
altered: the defendant failed to preserve any claim that the
admission of the DVD was improper on the ground that it was
incomplete or potentially altered, and his unpreserved claim,
which was evidentiary and not constitutional in nature, was
not reviewable pursuant to State v. Golding
(213 Conn. 233), as no due process violation resulted from
the admission of the DVD because that claim was abandoned
when the defendant expressly disavowed, in his reply brief to
this court, any claim for failure to preserve evidence, and
the defendant's right to confrontation was not violated
because he cross-examined the expert as to the segment of the
video that was admitted, as well as about that portion of the
traffic stop that was not captured on the DVD; moreover, the
trooper's testimony that the video was a fair and
accurate representation of the events was sufficient to
authenticate the DVD, and the admission of the DVD did not
constitute plain error, as the defendant presented no
evidence that the video was anything other than an exact copy
of the original footage and the issue of whether the DVD
depicted the entire event concerned the weight of the
evidence, not its admissibility.
part substitute information charging the defendant, in the
first part, with the crimes of operating a motor vehicle
while under the influence of intoxicating liquor and
operating a motor vehicle with a suspended license, and, in
the second part, with having previously been convicted of
operating a motor vehicle while under the influence of
intoxicating liquor, brought to the Superior Court in the
judicial district of Fairfield, geographical area number two,
where the first part of the information was tried to the jury
before Dennis, 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 verdict and plea, from which the
defendant appealed to this court. Reversed; new
defendant, Juan C. Lopez, appeals from the judgment of
conviction, rendered after a jury trial, of operating a motor
vehicle while under the influence of alcohol in violation of
General Statutes § 14-227a (a) (1) and operating a motor
vehicle while his license was suspended in violation of
General Statutes § 14-215. On appeal, the defendant
claims, among other things, that the trial court improperly
(1) restricted his cross-examination of the state's
expert witness and (2) admitted an ‘‘incomplete
and altered'' dashboard camera video taken from the
arresting officer's patrol car. With respect to the first
claim, we agree with the defendant that the court improperly
restricted his cross-examination of the expert witness and
that that impropriety was harmful. We thus reverse the
judgment and remand the case for a new trial.
following facts, which the jury reasonably could have found,
and procedural history are relevant to this appeal. In the
early morning of March 3, 2013, state police Trooper Colin
Richter was driving northbound on Interstate 95 in Fairfield
at a rate of speed of seventy-five miles per hour, patrolling
a portion of the highway for motor vehicle violations. At
approximately 1:50 a.m., he observed the defendant's
vehicle in his rearview mirror ‘‘coming up on
[him] very quick.'' The defendant's vehicle
passed Richter and ‘‘began to swerve from the
left lane to the center lane.'' At that point, having
estimated that the defendant was driving above the speed
limit, Richter activated his vehicle's red lights and
conducted a motor vehicle stop. The defendant pulled over
onto the right shoulder of the highway.
approached the defendant's vehicle and, upon speaking
with him, noticed that the defendant was slurring his speech
and had glassy, bloodshot eyes. Richter also detected the
odor of alcohol on the defendant's breath. When asked for
his license and registration, the defendant could not produce
a license. At that point, Richter asked the defendant where
he had come from and whether he had been drinking beforehand.
The defendant replied that he was coming from Stamford and
had not been drinking.
his initial contact with the defendant, Richter went back to
his cruiser and looked up the defendant by his name and date
of birth. Upon running the defendant's information in the
Department of Motor Vehicles (department) database, Richter
learned that the defendant's license had been suspended.
Richter then called into dispatch, stating that he would be
performing tests on the defendant to determine whether the
defendant was intoxicated. He then administered the following
three field sobriety tests: (1) the horizontal gaze
nystagmus test,  (2) the walk and turn test,
and (3) the one leg stand test.
defendant failed all three tests. On the basis of these
results, Richter determined that the defendant could not
safely operate a motor vehicle and placed him under arrest.
Richter then transported the defendant to the police
barracks, where he read the defendant his constitutional
rights and asked if the defendant was injured or suffered
from any medical conditions, to which the defendant replied
in the negative. Richter also asked the defendant, for
a second time, whether he had had anything to drink the night
of March 2, 2013, into the early morning of March 3, 2013.
The defendant responded that he had had two mojitos between
7:30 and 9:30 p.m. at a restaurant in New York City, and then
had stopped at his grandmother's residence in Stamford on
his way home to Bridgeport. After this admission, Richter
asked the defendant to submit to a Breathalyzer test to
measure his blood alcohol content, but he refused.
November 17, 2014, a jury trial commenced against the
defendant. The state called three witnesses to testify on its
behalf: Richter; Dr. Robert H. Powers, a forensic
toxicologist; and department analyst Brian Clarke. After the
state rested, the defendant did not present any additional
evidence. Subsequently, the defendant was found guilty of
operating a motor vehicle while under the influence of
alcohol in violation of § 14-227a (a) (1) and operating
a motor vehicle while his license was suspended in violation
of § 14-215. Thereafter, he pleaded guilty to a part B
information charging him as a third time offender pursuant to
§ 14-227a (g) (3).
court sentenced the defendant to three years of
incarceration, execution suspended after two years, followed
by three years of probation. This appeal followed. Additional
facts and procedural history will be set forth as necessary.
defendant claims on appeal that the trial court unduly
restricted his cross-examination of Dr. Powers on the subject
of his opinion testimony regarding the blood alcohol level of
a person exhibiting the same behaviors as the state alleged
the defendant exhibited in this case. More specifically, the
defendant argues that once Dr. Powers testified on direct
examination that an individual who performed in a certain way
on each of the field sobriety tests had an extrapolated blood
alcohol content of 0.12 or higher, the court should not have
foreclosed the defendant from later cross-examining him about
this central, relevant issue. We agree with the defendant
that the court's ruling was an abuse of discretion and
conclude that the impropriety was not harmless.
following facts are relevant to the defendant's claim. At
trial, the state's witness, Dr. Powers, was permitted to
testify as an expert in the field of forensic toxicology
without objection. He testified that nystagmus exhibited
during a horizontal gaze nystagmus test is caused by the
presence of a central nervous system depressant, such as
alcohol, in the operator's system. The state then asked
Dr. Powers several hypothetical questions comprised of facts
mirroring those present in the case.
first hypothetical, the state described a man who exhibited
an odor of alcohol on his breath, bloodshot/ glassy eyes, and
who failed the horizontal gaze nystagmus test by exhibiting
the same signs the defendant had-a lack of smooth pursuit in
each eye, a distinct and sustained nystagmus at maximum
deviation, and the onset of nystagmus prior to forty-five
degrees. The second hypothetical went on to posit that the
man described in the first hypothetical had also failed the
walk and turn test in the same way the defendant had. The
third hypothetical described the same man failing the one leg
stand test in the way the defendant had.
each hypothetical, the state asked Dr. Powers whether he
could opine to a reasonable degree of scientific certainty as
to whether the man described was under the influence of a
central nervous system depressant such as alcohol. In each
instance, Dr. Powers responded that he could and answered in
the affirmative that he would expect the individual in
question to have been affected by a central nervous system
state then asked Dr. Powers what he would expect the
hypothetical man's blood alcohol level to be on the basis
of the behavior he exhibited and his performance on each of
the three field sobriety tests. The defendant objected to the
question on the ground that there was not an appropriate
foundation laid as to ‘‘how much
alcohol'' was ingested. The court overruled his
objection. Dr. Powers then responded that he would be looking
for ‘‘blood alcohol concentration of a 0.12 or
higher. How much higher, that's very hard to say. But
I'd be looking for at least a 0.12. Below a 0.12, we tend
not to see complete failures on the standardized field
sobriety tests. . . . [O]ur research actually [that]
we've done recently shows that when basically all the
clues in the . . . standardized field sobriety tests are
being generated, that individuals tend to have a
concentration above 0.12 or 0.15 or even higher. . . . [T]he
ability to operate motor vehicles diminishes with increased
blood alcohol concentration, or with an increase in the
concentration of any central nervous system
during cross-examination, the following colloquy took place
between Dr. Powers, defense counsel, the prosecutor, and the
‘‘[Defense Counsel]: So, if you recall the
question that [the prosecutor] had asked you regarding a-let
me withdraw that question. If a person has driven from
Stamford, Connecticut, to Fairfield, Connecticut, was not
involved in any accidents, was pulled over by a trooper, the
trooper only saw the car swerve once, the operator then
pulled over three lanes from the left lane to the middle lane
to the right lane to the shoulder, parked the car properly,
did not hit any other objects, did not hit a guardrail; and
would those set of facts change your opinion as to the level
of intoxication somebody may have?
‘‘[Dr. Powers]: Probably not; but I recognize
that that level of control and behavior seems inconsistent
with the level of alcohol that I opined on earlier, assuming
this is all referring to the same individual.
‘‘[Defense Counsel]: Okay. So, it is-so, assume
that it's the same individual and-but you just testified
that it doesn't -it doesn't indicate the person that
you just opined to. So, would that-so, would that level of
intoxication be lower, then, if they had that much control
over a vehicle?
‘‘[Dr. Powers]: I'm just saying that-that
the-that the behavior you described seems inconsistent to me
with the behavior described in the performance of the
standardized field sobriety tests. And I heard it as weaving.
But nevertheless, I was responding to your question.
‘‘[Defense Counsel]: Okay. And would that change
your answer as to the level of intoxication if the person was
able to do that much?
‘‘[Dr. Powers]: No, I don't think so. It does
make me think about it, but I don't-I think I would stick
with what I've said so far based on the descriptions of
the performance on the field testing as described.
‘‘[Defense Counsel]: But it could possibly change
‘‘[Dr. Powers]: I think I just said it would not.
‘‘[Defense Counsel]: Right. But you don't
‘‘[Dr. Powers]: It certainly is-
‘‘[Defense Counsel]: -you don't want to
change your opinion.
‘‘[Dr. Powers]: I'm sorry?
‘‘[Defense Counsel]: You don't want to change
‘‘[The Prosecutor]: Objection; that's
‘‘The Court: The objection is sustained. You may
disregard the question.
‘‘[Defense Counsel]: Okay. . . . And were you on
[Interstate] 95 on March 3, 2013, at 1:52 a.m.?
‘‘[Dr. Powers]: I can say no.
‘‘[Defense Counsel]: And so you were not present
when any field sobriety tests were administered to [the
‘‘[Dr. Powers]: Correct. I was not.
‘‘[Defense Counsel]: And with any level-with any
degree of certainty with you not being there, do you-
‘‘[Dr. Powers]: I'm sorry?
‘‘[Defense Counsel]: Without-with any degree of
medical certainty with you not being present at this scene on
[Interstate] 95 on March 3, 2013, at 1:52 a.m., you-you do
not know what [the defendant's] level of
‘‘[The Prosecutor]: I'm going to object. That
calls for a legal conclusion or a conclusion at this point.
That's the jury's responsibility.
‘‘The Court: The objection is sustained.
‘‘[Defense Counsel]: Okay. . . . As you sit here
today, do you know if [the defendant] was
intoxicated that day?
‘‘[The Prosecutor]: Objection.
‘‘The Court: The objection is sustained.
‘‘[Defense Counsel]: I have no further
questions.'' (Emphasis added.)
now to the governing legal principles and the standard of
review, we note that ‘‘[t]he sixth amendment to
the [United States] constitution guarantees the right of an
accused in a criminal prosecution to confront the witnesses
against him. . . . The primary interest secured by
confrontation is the right to cross-examination . . . .
Compliance with the constitutionally guaranteed right to
cross-examination requires that the defendant be allowed to
present the jury with facts from which it could appropriately
draw inferences relating to the witness' reliability. . .
. However, [t]he [c]onfrontation [c]lause guarantees only an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish. . . . Thus, [t]he
confrontation clause does not . . . suspend the rules of
evidence to give the defendant the right to engage in
unrestricted cross-examination. . . .
[t]he general rule is that restrictions on the scope of
cross-examination are within the sound discretion of the
trial [court] . . . this discretion comes into play only
after the defendant has been permitted cross-examination
sufficient to satisfy the sixth amendment.''
(Internal quotation marks omitted.) State v.
Leconte, 320 Conn. 500, 510-11, 131 A.3d 1132
(2016). If that constitutional standard has been satisfied,
then ‘‘[t]he trial court's ruling on
evidentiary matters will be overturned only upon a showing of
a clear abuse of the court's discretion. . . . [That is
to say] [t]he court's decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law.''
(Internal quotation marks omitted.) State v.
Favoccia, 306 Conn. 770, 785-86, 51 A.3d 1002
these principles in mind, we turn to the present case. First,
we note that ‘‘[i]t is well established that this
court has a basic judicial duty to avoid deciding a
constitutional issue if a nonconstitutional ground exists
that will dispose of the case.'' (Internal quotation
marks omitted.) State v. Brown, 309 Conn.
469, 478-79 n.11, 72 A.3d 48 (2013). Because the present
appeal properly may be resolved on evidentiary grounds, we
need not address the defendant's argument that the
restrictions that the court placed on defense counsel's
cross-examination of Dr. Powers did not comply with the
minimum constitutional standards required by the sixth
consider whether the court abused its discretion in
sustaining the state's objection to defense counsel's
question to Dr. Powers regarding his lack of knowledge as to
the defendant's blood alcohol level on the ground that it
sought to elicit his opinion on a legal conclusion belonging
to the jury. The defendant contends that it was an abuse of
discretion, arguing that once the state improperly asked Dr.
Powers on direct examination to draw a legal conclusion for
the jury, i.e., that the defendant was ‘‘per
se'' intoxicated with an elevated blood alcohol
content on the basis of his performance on the field sobriety
tests,  the defendant should not have been