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State v. Frazier

Court of Appeals of Connecticut

April 10, 2018

STATE OF CONNECTICUT
v.
JOHN A. FRAZIER

          Argued December 5, 2017

         Procedural History

         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 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; subsequently, 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 appellant (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).

          Keller, Prescott and Bishop, Js.

          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 southbound 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 automobile 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 proceed through the intersection, Kibby's mother drove around him.

         As they passed the defendant's automobile, the occupants 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 defendant 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 automobile 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 automobile, 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 personnel. 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, including 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 him[2] and, at one point during the encounter, the defendant showed Gosselin a silver shield. Gosselin asked the defendant if he had consumed 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 nystagmus 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 defendant 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 defendant'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 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 [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence 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 evidence 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 defendant'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 vehicle 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 nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation 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 observing 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 reasonably could have inferred that alcohol was the cause of the defendant's condition. The most compelling evidence 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 concerning diabetes. After the defendant refused to answer any questions concerning the treatment of his alleged diabetic condition and refused to be evaluated by emergency 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 probative value because ‘‘[t]he time of consumption was never established.'' The defendant's argument does not take into account the circumstances in which this statement was made. These circumstances afforded the jury a basis on which to conclude that the defendant's statement served as a basis to infer that he was intoxicated due to alcohol consumption. Specifically, we observe that Gosselin asked the defendant about alcohol consumption 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 standardized field sobriety tests, which detailed the defendant'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 horizontal 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 testimony 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 conclusions that Gosselin reached after having had an opportunity 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 defendant'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 consumption 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 testified 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 contained 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 testified that the defendant repeatedly asked that Gosselin not take any action toward him. Chase testified that, during the field sobriety tests, the defendant ‘‘was pleading . . . 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 acknowledgement 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. Moreover, 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 attention 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 defendant 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 administered 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 procedure 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 present 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 company 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, weapons, 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 alcoholic 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 irrelevant 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 ...

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