State v. Burns, 140 Conn. App. 347

Background

Defendant Ellen M. Burns was convicted at a jury trial of operating a motor vehicle under the influence under § 14-227a(a)(1).
She challenged suppression of evidence from the stop and her Breathalyzer refusal statement, and objected to closing argument comments about missing corroborating witnesses, plus prosecutorial impropriety and sentencing as a third offender.
On April 6, 2008 a witness reported a drunk driver at Roy Rogers; police followed Burns after receiving the dispatch and stopped her on Scott Drive, finding beer cans in the car.
Taylor observed Burns intoxicated and failed sobriety tests, leading to her arrest; motion hearings occurred March 15–19, 2010, with memorandum denying suppression issued March 22, 2010; trial verdict March 25, 2010.
Burns received enhanced penalties under § 14-227a(g) after a court found two prior § 14-227a convictions and sentenced May 20, 2010.
Appeal was filed June 22, 2010; issues addressed include stop legality, custodial interrogation, closing argument misconduct, prosecutorial impropriety, and sentencing enhancement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Reasonable suspicion for stop	Burns argues anonymous tips insufficient to justify stop.	State failed to corroborate informants; no observing erratic driving.	Stop supported by reasonable and articulable suspicion based on totality of circumstances.
Refusal statement suppression	Statement to Breathalyzer was coerced after Miranda rights; invoked right to counsel.	Interrogation occurred; custodial statements improper.	No interrogation; refusal admissible; custodial interrogation not demonstrated; Golding claim rejected.
Missing witness closing arguments	State improperly commented on missing defense witnesses without notice or showing availability.	Implied inference against Burns’ credibility; Malave notice requirements violated.	Abuse of discretion found; not, however, harmful error given strong evidence of guilt and limited frequency; cured by Williams factors analysis.
Prosecutorial impropriety	Impropriety alleged due to missing witness comments; due process concerns under Williams.	Comments deprived fair trial.	Balancing Williams factors shows no due process violation; impropriety not substantial enough to render trial unfair.
Sentencing as a third offender	Two prior convictions on same day should count as separate offenses; led to third-offender status.	Ledbetter rationale and § 14-227a(g) history require separate offense-conviction-punishment sequence.	Plain language of § 14-227a(g) controls; two prior convictions on the same day still count; enhanced penalties imposed.

Key Cases Cited

State v. Anderson, 24 Conn. App. 438 (Conn. App. 1991) (corroboration of anonymous tips yields reasonable suspicion)
State v. Torelli, 103 Conn. App. 646 (Conn. App. 2007) (tip corroboration by location supports stop)
State v. Bolanos, 58 Conn. App. 365 (Conn. App. 2000) (observations corroborate tip and legitimate stop)
South Dakota v. Neville, 459 U.S. 553 (U.S. 1983) (breath-test refusal not custodial interrogation; Miranda not triggered)
State v. Malave, 250 Conn. 722 (Conn. 1999) (closing-argument limitations and notice requirements for missing witnesses)
State v. Jordan, 117 Conn. App. 160 (Conn. App. 2009) (Williams factors guide analysis of prosecutorial impropriety)
State v. Silver, 126 Conn. App. 522 (Conn. App. 2011) (custodial interrogation standards; Golding framework)
State v. Ledbetter, 240 Conn. 317 (Conn. 1997) (persistent offender statute context for sequence of offense and punishment)
State v. Surette, 90 Conn. App. 177 (Conn. App. 2005) (statutory interpretation; plain language controls sentencing enhancements)