STATE OF CONNECTICUT v. ROBERT LEMANSKI
(AC 41785)
Connecticut Appellate Court
November 17, 2020
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Bright, C. J., and Cradle and Suarez, Js.
Syllabus
Convicted, after a jury trial, of the crime of operating a motor vehicle while under the influence of intoxicating liquor, the defendant appealed to this court. Held:
- The defendant could not prevail on his unpreserved claim that his constitutional right to confrontation was violated when the trial court allowed C, the state trooper who arrested him, to testify that the defendant‘s son, L, told him that the defendant had consumed two drinks on the night that he was arrested; even if this court assumed that C‘s testimony was inadmissible hearsay that violated the defendant‘s right to confrontation, the defendant‘s claim failed under the fourth prong of State v. Golding (213 Conn. 233) because C‘s testimony was harmless beyond a reasonable doubt, as the state‘s case against the defendant was strong and L‘s statement to C was cumulative and unlikely to have influenced the jury‘s verdict.
- The defendant could not prevail on his unpreserved claim that the trial court improperly instructed the jury regarding his alleged refusal to submit to a breath test at the time of his arrest:
- Contrary to the defendant‘s claim, the trial court did not commit plain error in instructing the jury that it could “make any reasonable inference that follows” from the defendant‘s alleged refusal to submit to a breath test, as the court‘s instruction substantially complied with the applicable statute (
§ 14-227a (e) ) and did not, when read in the context of the court‘s entire instructions, mislead the jury; moreover, the defendant implicitly waived his claim that the court‘s instruction diluted the state‘s burden of proof and violated his constitutional right to due process, as the court provided the defendant with a copy of its instructions thirteen days before the preliminary charge conference, the defendant had ample time to review the instructions, the court reviewed the instructions with counsel on the record, soliciting comments and proposed modifications, and both counsel affirmatively, and repeatedly, expressed their satisfaction with the court‘s instructions. - The defendant‘s claim that the trial court committed plain error when it instructed the jury that his alleged refusal to submit to a breath test could be construed as consciousness of guilt because such an instruction was not factually supported by the evidence in view of the fact that he agreed to a blood test was unavailing; that court did not err in instructing the jury on consciousness of guilt, as C testified, without objection, that the defendant agreed to submit to a breath test, then changed his mind, vacillating several times before he requested a blood test, and, therefore, the court‘s instruction advising the jury of its obligation to determine whether the defendant refused the breath test was not only proper but was necessary; accordingly, the court‘s instructions to the jury pertaining to the consciousness of guilt evidence did not rise to the level of egregiousness and harm that would warrant reversal under the plain error doctrine.
- Contrary to the defendant‘s claim, the trial court did not commit plain error in instructing the jury that it could “make any reasonable inference that follows” from the defendant‘s alleged refusal to submit to a breath test, as the court‘s instruction substantially complied with the applicable statute (
Argued September 16—officially released November 17, 2020
Procedural History
Substitute information charging the defendant with the crime of operating a motor vehicle while under the influence of intoxicating liquor, brought to the Superior Court in the judicial district of Litchfield at Torrington and tried to the jury before Noble, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
Denise B. Smoker, senior assistant state‘s attorney, with whom, on the brief, were Dawn Gallo, state‘s attorney, and Jonathan Knight, supervisory assistant state‘s attorney, for the appellee (state).
Opinion
CRADLE, J. The defendant, Robert Lemanski, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of
The jury reasonably could have found the following facts. On the night of December 30, 2016, Connecticut State Trooper Matthew Costella was on general patrol in the areas of Harwinton and Burlington. At approximately 9 p.m., he was sitting in his police cruiser in a church parking lot at the intersection of Routes 4 and 118, when he observed a passing motor vehicle that did not have its rear registration plate illuminated. Costella pulled out behind the vehicle, onto Route 4 heading eastbound
Costella approached the vehicle and asked the operator, the defendant, for his license, registration and insurance, to which the defendant responded, “That‘s a lot of questions.” Costella then asked the defendant where he was coming from and the defendant stated that he was coming from Harwinton. When Costella asked where in Harwinton, the defendant responded that he was coming from the New Milford area, but then stated that he was coming from Torrington where he had played golf with his son, Steven Lemanski. During the foregoing exchange, the defendant searched for the documents that Costella had requested. Costella requested them a second time and referred the defendant to his wallet, which was located in plain sight on the passenger seat.
Costella asked the defendant if he had had anything to drink, and the defendant responded, “no, nothing.” Costella noticed that the defendant‘s speech was slurred and his eyes were glassy. He advised the defendant that he could smell alcohol on his breath. When Costella asked the defendant if he had any medical conditions, the defendant responded that he did not. Costella conducted a test that he referred to as a “brief” or “modified” horizontal gaze nystagmus test, looking for an involuntary jerking of the eyes, to determine if the defendant had been drinking. Costella told the defendant that he could see his eyes bouncing.
Costella asked the defendant if he knew who was in the vehicle that had pulled over ahead of them, and the defendant told Costella that it was Steven Lemanski. At Costella‘s request, the defendant used his cell phone to call Steven Lemanski and asked him to back his vehicle up to them. Once Steven Lemanski had backed up, Costella approached his vehicle and asked him if the defendant had any medical conditions, and he told Costella that the defendant did not. Steven Lemanski confirmed that they had been playing golf in Torrington and, when Costella asked if the defendant had consumed any alcohol that night, Steven Lemanski told him that the defendant had two drinks while he was with him.
After speaking with Steven Lemanski, Costella returned to his cruiser and called for backup so that he could conduct the standard field sobriety tests to determine if the defendant was intoxicated. After two additional troopers arrived, Costella performed three field sobriety tests—the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. When the defendant emerged from his vehicle, Costella observed that he was having trouble maintaining his balance. The defendant failed to perform any of the three tests to standard. On the basis of his observation of the defendant‘s operation of his vehicle, his observations of the defendant after he stopped the vehicle, and the results of the field sobriety tests, Costella determined that the defendant was under the influence of alcohol. Costella arrested him and transported him to the state police barracks for processing.
Upon arriving at the barracks, Costella advised the defendant of his rights and informed him that he would be requested to submit to a blood, breath or urine test, which must be administered within two hours of the time of his operation of the
hour window during which the test must be conducted. Costella thus continued to offer the defendant a breath test, while the defendant continued to request a blood test. Eventually another officer, Trooper Matthew Cashman, also offered the defendant a breath test, and the defendant refused.
The defendant was charged with and tried for operating a motor vehicle while under the influence of intoxicating liquor in violation of
I
The defendant first claims that his sixth amendment right to confrontation was violated when the court allowed Costella to testify that Steven Lemanski told him that the defendant had consumed two drinks on the night that he was arrested.2 We disagree.
The defendant claims that Costella‘s testimony regarding Steven Lemanski‘s statement constituted testimonial hearsay, the admission of which violated his constitutional right to confrontation and deprived him of a fair trial. The defendant did not object to Costella‘s testimony regarding Steven Lemanski‘s statement at trial. Because the defendant‘s claim is unpreserved, we review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), as the defendant requests in his appellate brief.3 Even if we assume, arguendo, that Costella‘s testimony regarding Steven Lemanski‘s statement was inadmissible testimonial hearsay that violated the defendant‘s right to confrontation, we conclude that his claim fails under the fourth prong of Golding because any alleged violation was harmless.
“Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence
Here, the state‘s case against the defendant was strong. Costella testified that, when he initially approached the defendant‘s vehicle, he noted a strong and distinct odor of alcohol emanating from the defendant, the defendant‘s eyes were glassy and his speech was slurred. The defendant had difficulty recounting where he was driving from and locating the documents that Costella requested, even though his wallet was in plain sight on the passenger seat. The defendant also failed all three of the field sobriety tests administered by Costella. The state presented expert testimony that, when an individual fails those three field sobriety tests, the likelihood of the impairment of that individual is between 91 percent and 95 percent. The video recording from the dashboard camera of Costella‘s cruiser was admitted into evidence, so the jury was able to observe the defendant when Costella stopped him, when he exited his vehicle and while he performed the field sobriety tests. Furthermore, Costella testified only that Steven Lemanski told him that the defendant had two drinks. He did not say that the defendant was intoxicated, what he drank, or when he consumed such drinks. Consequently, Steven Lemanski‘s statement was less probative than the evidence the jury heard and saw about the defendant‘s appearance, condition and conduct at the time his vehicle was pulled over by Costella. Because there was ample other evidence on which the jury could have based its guilty verdict, Steven Lemanski‘s statement to Costella, at most, was cumulative and was unlikely to have influenced the jury‘s verdict. We thus conclude that the admission of Costella‘s testimony regarding Steven Lemanski‘s statement that the defendant had consumed two drinks on the night of his arrest was harmless beyond a reasonable doubt. The defendant‘s claim thus fails under the fourth prong of Golding.
II
The defendant also claims that the court improperly instructed the jury regarding his alleged refusal to submit to a breath test. The defendant‘s challenge to the court‘s instruction to the jury regarding his alleged refusal to submit to a breath test is twofold. First, he argues that the court improperly instructed the jury that it could ” ‘make any reasonable inference that follows’ ” from his refusal to take a breath test. Second, he contends that the court erred in instructing the jury on consciousness of guilt based on his alleged refusal to submit to a breath test. We are not persuaded.
On February 1, 2018, the court e-mailed counsel a copy of the instructions that it intended to give to the jury. On February 14, 2018, the court held a preliminary charge conference on the record, during which it indicated its intention to instruct the jury on consciousness of guilt. The court held a final charge conference, also
Later that same day, the court instructed the jury. The court explained, inter alia: “You may draw reasonable inferences from the facts you find established in the case, the inferences that you draw, however, must not be from a guess upon the evidence, but they must be from a fact or facts which the evidence has established. In drawing inferences from the established facts, you should use your reason and common sense. The inferences that you draw must be logical and reasonable and not the result of speculation or conjecture.”
As to consciousness of guilt, the court instructed the jury as follows: “This is a limiting instruction. In any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt. For example, acts or statements made in an attempt to avoid detection of a crime or responsibility for a crime or [were] influence[d] by the commission of the criminal act. Such acts or statements do not, however, raise a presumption of guilt. If you find the evidence proved and also find that the acts or his statements were influenced by the criminal act and not by any other reason, you may, but are not required to infer from this evidence that the defendant was acting from a guilty conscience. The state claims that the defendant was acting from a guilty conscience.
“The state claims that the following conduct is evidence of consciousness of guilt . . . the defendant‘s refusal to submit to the Breathalyzer test while at the police station. It is up to you as judges of the facts to decide whether the defendant‘s acts or statements, if proved, reflect the consciousness of guilt and to consider such in your deliberations and conformity with these instructions.”
The court instructed the jury in detail on the elements of operating a motor vehicle while under the influence of intoxicating liquor and then summarized that “the state must prove beyond a reasonable doubt that [1] the defendant was operating a motor vehicle at the time and place alleged, and [2] he was under the influence of intoxicating liquor.” The court also explained: “Evidence of the defendant‘s refusal to submit to a breath test has been introduced. If you find that the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact.” After instructing the jury, the court asked counsel if they had any exceptions or issues with the final charge, and both expressly confirmed that they did not.
Because the defendant did not challenge the court‘s instructions at trial, he seeks relief for portions of his claim under Golding on the ground that a constitutional violation deprived him of a fair trial. See footnote 3 of this opinion. For other portions of his claim, he seeks relief under the plain error doctrine. “The plain error doctrine is . . . reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court‘s judgment, for reasons of policy. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] unless he [or she] demonstrates that the claimed error is both so clear and so harmful
A
The defendant first claims that the trial court erred in instructing the jury that it could “make any reasonable inference that follows” from his alleged refusal to take a breath test. As to this instruction, the defendant claims that (1) the court committed plain error in so instructing the jury because it was “contrary to [
1
The defendant claims that the trial court‘s instruction that the jury could draw any inference from the defendant‘s alleged refusal to submit to a breath test was plain error because it was inconsistent with the language of
This court addressed this issue in State v. Gordon, 84 Conn. App. 519, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004). In Gordon, the trial court instructed the jury, inter alia, as follows: “Evidence of the defendant‘s refusal to submit to a test, to a breath test, has been introduced. If you find that the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact.” Id., 530. The defendant argued that “the instruction permitted the jury to draw the conclusion that he refused to submit to the test and to consider that fact alone when determining guilt” and “failed to impress on the jury the requirement that even when making permissible inferences, to find the defendant guilty, it must have found that the state proved guilt beyond a reasonable doubt.” Id.. In rejecting the defendant‘s claim, this court explained: “We have held that [General Statutes (Rev. to 1999)] § 14-227a (f), now (e), permits the jury to draw reasonable inferences regarding a defendant‘s refusal to submit to a Breathalyzer test. See State v. McCarthy, 63 Conn. App. 433, 437, 775 A.2d 1013, cert. denied, 258 Conn. 904, 782 A.2d 139 (2001). In McCarthy, we also recognized that as long as the court in its instruction properly identified as permissible the inference the jury could draw and clearly instructed as to the state‘s ultimate
As this court held in Gordon, and, earlier in McCarthy, we conclude that the court‘s instruction to the jury that it could “make any reasonable inference that follows” from the defendant‘s alleged refusal to submit to a breath test substantially complied with
2
The defendant also claims that the court‘s instruction permitting the jury to “make any reference that follows” from his alleged refusal to submit to a breath test diluted the state‘s burden of proof and, consequently, violated his right to due process. The state contends that the defendant implicitly waived this claim at trial. We agree with the state.
In State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), our Supreme Court held: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” Id., 482-83.
In this case, the parties were given the court‘s proposed instructions on February 1, 2018, thirteen days prior to the preliminary charge conference on February 14, 2018. During that conference, which was held on the record, the court reviewed the instructions with counsel, proceeding page by page, and soliciting from counsel any questions or concerns about them. Both counsel voiced their satisfaction with each portion of the instructions as the court and counsel reviewed them together. The next day, the court provided counsel with a final copy of its intended instructions to the jury and held a final charge conference
Because the court provided the defendant with a copy of its instructions thirteen days before the preliminary charge conference, he had ample time to review them. The court reviewed the instructions with counsel on the record, soliciting comments and proposed modifications, and both counsel affirmatively, and repeatedly, expressed their satisfaction with the court‘s instructions. We therefore conclude that the defendant implicitly waived his claim that the court‘s instruction diluted the state‘s burden of proof and violated his constitutional right to due process.5 His claim therefore fails under Golding.
B
The defendant also contends that the court committed plain error when it instructed the jury that his alleged refusal to submit to a breath test could be construed as consciousness of guilt because such an instruction was not factually supported by the evidence in view of the fact that he agreed to a blood test. We disagree.
Faced with the same issue in State v. Barlow, 30 Conn. App. 36, 618 A.2d 579 (1993), this court reasoned: “[W]e cannot conclude that the trial court abused its discretion by allowing the jury to consider testimony on the issue of whether the defendant refused to take the breath test. As [General Statutes (Rev. to 1991)] § 14-227a (f) [now (e)] makes abundantly clear, evidence that the defendant refused to submit to a breath . . . test . . . shall be admissible provided that the requirements of subsection (b) of [General Statutes § 14-227b] have been satisfied. Whether the defendant refused to take the breath test was an issue of fact for the jury. . . . Accordingly, the trial court did not abuse its discretion by submitting this factual issue to the jury.
“Furthermore, the trial court prudently instructed the jury on interpreting the evidence surrounding the attempted breath test. [General Statutes (Rev. to 1991)] § 14-227a (f) [now (e)] provides that [i]f a case involving a violation of subsection (a)
As in Barlow, we cannot conclude that the trial court erred in instructing the jury on consciousness of guilt. Costella testified that the defendant agreed to submit to a breath test, then changed his mind, vacillating several times before he requested a blood test. That evidence was admitted without objection from the defendant and, accordingly, the jury was entitled to consider it. The court‘s instruction advising the jury of its obligation to determine whether the defendant refused the breath test, therefore, was not only proper, but it was necessary. See State v. Rodriguez, 182 Conn. App. 115, 123, 217 A.3d 21 (2019). Accordingly, we conclude that the court did not err in so instructing the jury. We further conclude that the instructions pertaining to the consciousness of guilt evidence do not rise to the level of egregiousness and harm that would warrant reversal under the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.