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State v. Smith

Court of Appeals of Connecticut

February 20, 2018


          Argued October 23, 2017

          Jennifer B. Smith, assigned counsel, for the appellant (defendant).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Charles W. Johnson, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Keller and Prescott, Js.


          KELLER, J.

         In these consolidated appeals, [1] the defendant, Brian J. Smith, appeals from the judgments of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or any drug in violation of General Statutes § 14-227a (a) (1), and tampering with a witness in violation of General Statutes § 53a-151 (a). The defendant claims that (1) the evidence was insufficient to convict him of operating a motor vehicle while under the influence of intoxicating liquor or any drug and (2) the court erroneously admitted certain evidence relating to the witness tampering count. We affirm the judgments of the trial court.

         The jury reasonably could have found the following facts. At approximately 1:50 a.m. on March 7, 2014, James Grimes, a state police trooper, was patrolling near the intersection of Route 44 and Route 195 in Manchester when he observed a stationary motor vehicle in the eastbound travel lane of Route 320, which intersects with Route 195 a short distance from the intersection of Route 44 and Route 195. The motor vehicle, a tan colored Volvo, was impeding travel. Grimes observed the vehicle for a few minutes and saw that the vehicle's brake lights were on and that the vehicle remained stationary.

         Grimes positioned his police cruiser behind the stationary vehicle and activated his vehicle's emergency lights. At that time, he observed that ‘‘the brake lights [on the stationary vehicle] went off because you could see the parking lights go on as the vehicle was shifted into park.'' Grimes exited his cruiser and knocked on the passenger window. The sole occupant and operator of the vehicle, the defendant, rolled down the passenger window. Immediately, Grimes smelled burnt marijuana. Grimes asked the defendant ‘‘what was going on, '' to which the defendant replied, ‘‘I'm just stopped, '' and that he was trying to use his cell phone. Grimes, after concluding that the defendant was not experiencing a medical issue and that there were not any mechanical issues with the vehicle, told him that he could have chosen a more suitable location. Grimes then asked the defendant for his driver's license and his vehicle's registration. The defendant, however, did not have his driver's license with him.

         While the defendant was searching for his license and registration, Grimes asked him several questions to gauge whether he was impaired. Grimes observed that the defendant's speech was slurred and that his eyes were bloodshot and ‘‘glazed over . . . .'' The defendant's responses were ‘‘kind of slow and kind of spacy, '' and the defendant was ‘‘struggling'' to understand or was not fully engaged in the conversation. For example, the defendant first told Grimes that he was traveling from Willimantic, but then told Grimes that he was coming from his place of employment at a restaurant in Waterford.

         Grimes walked to the driver's side of the defendant's vehicle and the defendant complied with his request to roll down the window. Grimes smelled not just burnt marijuana, but also alcohol. Grimes asked the defendant if he had been drinking or smoking marijuana, and the defendant denied that he had used either substance.

         Grimes then asked the defendant, who was still in the vehicle, to complete two tests to gauge his sobriety and coordination. The defendant was asked to recite specified portions of the alphabet and to complete a ‘‘finger dexterity test'' that required him to count aloud while touching each of his fingertips with his thumb. The defendant failed these tests.

         Grimes returned to his cruiser to inform his dispatcher that he was going to administer standardized field sobriety tests to the defendant. When he walked in the direction of the defendant's vehicle, he observed the defendant quickly ‘‘shoving'' candy into his mouth. In Grimes' experience, ‘‘this was a way for people that are driving under the influence to try and mask their breath or try to get something in their system that's going to dilute the alcohol concentration in their system.'' Grimes instructed him to stop.

         At Grimes' direction, the defendant exited the vehicle. He moved slowly and kept his right hand closed. Grimes ordered him to open his hands and to keep them raised, but the defendant did not comply fully as he continued to keep his right hand closed. Grimes opened the defendant's hand to reveal a small brown pipe. The pipe, like the defendant's vehicle, smelled like burnt marijuana. The pipe contained marijuana residue.

         Grimes then administered three standard field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. The defendant failed all of these tests.

         At 2:10 a.m., Grimes arrested the defendant after which the defendant was handcuffed, seated in the police cruiser, and transported to the state police barracks for Troop C in Tolland. After Grimes advised the defendant of his Miranda rights, [2] the defendant pleaded with Grimes to let him go because ‘‘he didn't need this, '' and that he was worried about losing his job. He stated that ‘‘he just was going to see this girl and just wanted to . . . sleep it off . . . .''

         At the state police barracks, Grimes searched the defendant's clothing. In a pocket of the defendant's jacket, he discovered a cigar holder containing marijuana. Grimes requested that the defendant submit to a breath test. He advised the defendant of his rights in this regard, as well as the significance of a refusal to submit to the test.[3] The defendant then spoke with his attorney by telephone.

         Grimes asked the defendant for his decision with respect to the breath test. The defendant stated that he wanted to talk to his attorney again. Grimes informed the defendant that his indecision constituted a refusal to submit to the test. Grimes summoned another state police trooper, Jonathan Neihengen, to the processing room. At that time, Neihengen witnessed the defendant's failure to cooperate with respect to the test, which constituted his refusal. Grimes again permitted the defendant an opportunity to use the telephone to inform his attorney that he had refused to submit to the test.

         As the defendant turned to use the telephone, he inserted a candy or a breath mint into his mouth. Earlier, while Grimes was transporting the defendant to the state police barracks, one of the things he discussed with the defendant was that he could not have anything to eat or drink until after he had completed the test. When Grimes informed the defendant that his conduct, which included eating candy, amounted to a refusal to submit to a breath test, the defendant replied that he had sustained injuries to his wrists as a result of the handcuffs and that he wanted medical treatment at a hospital. Emergency medical personnel arrived on the scene, but they declined to transport him to the hospital to treat what they considered to be an ‘‘extremely minor'' abrasion. When Grimes told the defendant that he would not be going to the hospital, he then complained for the first time that he wanted to go to the hospital because he was experiencing heart problems and trouble breathing. The defendant's outward appearance was normal, yet, on the basis of the defendant's new complaints, the emergency medical personnel at the scene made the decision to transport the defendant to Rockville General Hospital for examination.

         Despite the fact that Grimes already had recorded the defendant's refusal to submit to a breath test, a state police sergeant, Craig Jones, afforded the defendant yet another opportunity to submit to a breath test. The defendant declined this request, but stated that he would provide a blood sample once he was at the hospital. Grimes accompanied the defendant to the hospital. Upon his arrival, the defendant informed hospital staff that he was experiencing chest pains and palpitations. Hospital staff detected an alcohol-like odor being emitted from the defendant. When hospital staff asked to perform an electrocardiogram and lab work, the defendant immediately replied that he needed to speak with his attorney, his pain had subsided, and he was feeling better since his arrival at the hospital. After speaking with his attorney, the defendant told hospital staff that he would submit to an electrocardiogram test and provide a urine sample, but he stated that he would not submit to a blood test because he was afraid of needles.

         Ultimately, at 5:08 a.m., more than three hours after Grimes first encountered the defendant, the defendant provided a blood sample to hospital staff. The defendant's urine sample tested positive for marijuana use, his blood sample reflected a blood alcohol content of 0.10 percent, [4] and the result of his electrocardiogram test was normal. By 6 a.m., the defendant had been discharged from the hospital because he was not suffering from any health issues, and he was returned to the state police barracks. The defendant then gave the police a written statement in which he admitted that when Grimes came upon him earlier that morning, he had pulled his automobile ‘‘over for safety'' and was attempting to complete a telephone call. After the police completed processing the defendant, he was issued a summons to appear in court and was released from police custody.

         The defendant called his girlfriend at that time, Lena Knowles, from the police barracks because he needed to be picked up. Later that day, he stated to her that he was arrested for driving under the influence of alcohol and that he had, in fact, consumed a couple glasses of wine. The defendant stated to her, however, that he had a plan to deal with his arrest because, if he was convicted, he would be separated from his son. Specifically, he planned on claiming that he had not driven his automobile. He asked Knowles to relate the following facts to law enforcement: she had been driving the defendant's automobile on March 6, 2014, while she was out with friends. Meanwhile, the defendant was at home with Knowles' children. A friend of Knowles, Kelly Aston, was following Knowles home when the defendant's automobile began ‘‘acting funny . . . .'' Knowles pulled over the disabled automobile, and Aston drove her home. Later that night, Knowles drove the defendant to the disabled automobile and left him with the automobile so that he could call for roadside assistance. After Knowles departed, the police encountered the defendant in the automobile.

         Despite the fact that no aspect of this story was accurate, Knowles indicated to the defendant that she would relate these facts to the authorities on his behalf because she felt sorry for him. The defendant told Knowles that he had spoken with Aston, who had agreed to corroborate this version of events, and asked Knowles to persuade another friend of hers, Danielle Petsa, to corroborate this version of events.

         Later that day, at Knowles' residence, the defendant spoke with Aston. He told her about the circumstances of his arrest, specifically, that he had consumed wine at his place of employment, began driving to Knowles' residence, and ‘‘was pulled over'' on the road when the police found him in his automobile. The defendant told Aston the version of events that he had fabricated and, initially, Aston agreed to ‘‘go along'' with the defendant's story. Subsequently, she spoke with an investigator working for the defendant's attorney and made statements that were consistent with the defendant's false version of events. After speaking with family members about the matter, however, Aston decided that she would not make any further false statements concerning the incident because she was not comfortable doing something that could get her into trouble with law enforcement.

         Soon after the incident, Knowles called Petsa on the telephone and invited her to her residence to discuss the defendant's plan. Petsa met with the defendant and Knowles at Knowles' residence. The defendant and Knowles discussed the details of her providing information to law enforcement on the defendant's behalf in accordance with his plan. When Petsa was contacted by an inspector working for the defendant's attorney, however, she had difficulty providing facts that were consistent with the defendant's version of events. She had second thoughts about participating in the defendant's plan, experienced panic attacks, and ultimately decided that she would not provide a false statement. In a second conversation with the investigator, she told him that she would not be involved with this any longer and would not ‘‘cover'' for the defendant.

         When the defendant learned that Petsa was apprehensive about providing false statements to the investigator and had difficulty doing so, he communicated with her on Facebook in an attempt to calm her and assure her that she could do what he had asked of her. Later, when the defendant learned from Knowles that Petsa would not provide the information that he wanted her to provide, he sent her one or more messages on Facebook in which he stated, among other things, that if she did not testify on his behalf, he would tell the police that she drives with her children in an unregistered automobile and that he would tell the wife of a married man with whom she was having an affair about the affair.[5]Additional facts will be set forth in our analysis of the defendant's claims.


         First, the defendant claims that the evidence was insufficient to convict him of operating a motor vehicle while under the influence of intoxicating liquor or any drug. We disagree.

         To sustain a conviction under § 14-227a (a) (1), the state bore the burden of proving beyond a reasonable doubt that (1) the defendant operated a motor vehicle and (2) that he did so while under the influence of an intoxicating liquor. The defendant does not argue that the evidence did not support a finding that he was intoxicated when Grimes encountered him in the early morning of March 7, 2014. As he did before the trial court, [6] the defendant argues that the state did not present sufficient evidence to demonstrate that he had operated a motor vehicle at or near the time that he encountered Grimes.

         ‘‘The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded 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 defendant 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 multitude 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 ...

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