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State v. Lopez

Court of Appeals of Connecticut

October 31, 2017

STATE OF CONNECTICUT
v.
JUAN C. LOPEZ

          Argued May 31, 2017

          James B. Streeto, senior assistant public defender, with whom, on the brief, was Ani A. Desilets, certified legal intern, for the appellant (defendant).

          Ronald 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 appellee (state).

          Lavine, Prescott and Harper, Js.

         Syllabus

         Convicted of the crimes of operating a motor vehicle while under the influence of alcohol in violation of statute (§ 14-227a [a] [1]) 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.

         Held:

         1. The 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.

         2. The 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.

         Procedural History

         Two 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 trial.

          OPINION

          PRESCOTT, J.

         The 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.[1] We thus reverse the judgment and remand the case for a new trial.

         The 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.

         Richter 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.

         After 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:[2] (1) the horizontal gaze nystagmus test, [3] (2) the walk and turn test, [4] and (3) the one leg stand test.[5]

         The 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.[6] 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.

         On 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).[7]

         The 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.

         I

         The 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.

         The 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.

         In its 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.

         After 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 active agent.

         The 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 depressant.''

         Subsequently, during cross-examination, the following colloquy took place between Dr. Powers, defense counsel, the prosecutor, and the court:

‘‘[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 your opinion?
‘‘[Dr. Powers]: I think I just said it would not.
‘‘[Defense Counsel]: Right. But you don't want-
‘‘[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 your opinion.
‘‘[The Prosecutor]: Objection; that's argumentative.
‘‘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 defendant]?
‘‘[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 intoxication was.
‘‘[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.)

         Turning 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. . . .

         ‘‘Although [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 (2012).

         With 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 amendment.

         We thus 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, [8] the defendant should not have been foreclosed ...


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