State v. LopezState v. Lopez
The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On March 3, 2013, at approximately 1:50 a.m., the defendant was stopped on Interstate 95 in Fairfield by state police Trooper Colin Richter after Richter observed the defendant driving erratically and speeding. Richter performed a series of standard field sobriety tests on the defendant, which the defendant failed. Thereafter, Richter arrested the defendant, and charged him with operating a motor vehicle while under the influence of alcohol in violation of General Statutes
At trial, the state pursued a drunken driving prosecution under
Richter testified regarding his interactions with the
Richter instructed the defendant to exit his vehicle in order to undergo the field sobriety tests. These tests included the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. Before performing each test, Richter gave the defendant detailed instructions and demonstrations, asked if the defendant understood the instructions, and asked if the defendant had any medical conditions or physical impairments that would impact the results. Each time, the defendant stated that he understood the instructions and did not have any medical or physical conditions that would affect his performance on the tests.
The first test Richter performed on the defendant was the horizontal gaze nystagmus test. Richter testified that the test looks for nystagmus, which is an involuntary jerking of the eyes that is indicative of intoxication. The test required the defendant to track Richter‘s pen2 with his eyes only while Richter held his pen a few inches in front of the defendant‘s eyes and moved his pen from side to side. When officers perform this test, they look for lack of smooth pursuit of the eyes, onset of nystagmus prior to 45 degree turn of the eyes, and nystagmus at the maximum deviation of the eye turned from center. Richter testified that the presence of these symptoms indicates intoxication. The defendant failed the test because Richter observed all three factors indicative of intoxication in the defendant‘s performance on the test.
The second test Richter performed on the defendant
The third and final test that Richter performed on the defendant was the one leg stand test. Richter testified that this test consists of the defendant counting out loud as he stands on one foot while raising the other foot approximately six inches off the ground and counting, keeping his arms at his sides. The defendant failed this test because he put his foot down three times, he swayed, and he was unable to properly count.
Richter testified that he determined that the defendant was intoxicated and could not safely operate a motor vehicle because the defendant failed the field sobriety tests, and because Richter had observed other indicators of intoxication, including glassy and bloodshot eyes, the odor of alcohol on his breath, and erratic driving. Additionally, Richter testified that the defendant admitted drinking mojitos earlier that evening, although the location of where the defendant stated he drank this alcohol was not consistent with where the defendant initially told Richter he was coming from when Richter stopped him on the highway.
Subsequently, Richter placed the defendant under arrest and transported him to the state police barracks to be processed. Richter testified that, at the barracks, the defendant still smelled of alcohol and had bloodshot and glassy eyes, and acted intoxicated throughout the booking process by exhibiting belligerent behavior. Also during the booking process, the defendant refused to submit to a breath test to determine his blood alcohol level.
Following Richter‘s testimony, the state called Powers to testify. As previously noted, Powers was qualified by the court as an expert in forensic toxicology. Powers testified that the field sobriety tests performed by Richter on the defendant are reliable indicators of whether a person is likely intoxicated or impaired because they seek to identify involuntary symptoms that are commonly caused by intoxication.
The state then asked Powers to opine on a series of hypotheticals that involved a hypothetical person exhibiting the same behaviors and performance on the field sobriety tests as Richter testified the defendant had exhibited. Powers testified that, on the basis of the behaviors described, he would expect that person to be under the influence of a central nervous system
The defendant objected to the state‘s questions regarding the blood alcohol level of the hypothetical person. First, the defendant objected on the ground that there was inadequate foundation regarding “how much alcohol” for the state to ask: “And if these same symptoms, based upon the [hypothetical] . . . and based on the assumptions that we‘ve talked about here in court, were caused by alcohol, could you opine as to how much alcohol it would take to achieve those symptoms?” The court overruled the objection because the question asked only whether Powers could form an opinion on the information provided to him on the basis of his education, training, and experience. Powers answered that he could form an opinion, and the state then asked Powers to give his opinion. The defendant objected again on the ground that there was inadequate foundation regarding “how much alcohol.” The court overruled the objection because there was proper foundation for Powers to offer his opinion as a forensic toxicologist because he had been qualified as an expert witness in the field of forensic toxicology.
On cross-examination of Powers, the defendant asked numerous questions regarding the state‘s hypotheticals, and Powers’ underlying scientific knowledge regarding field sobriety tests and how such tests relate to a person‘s ability to operate a motor vehicle under certain blood alcohol levels. The defendant also twice attempted to ask Powers to opine on the ultimate issue of the case—specifically, whether the defendant was intoxicated. On his first attempt, the defendant made a rambling statement that could be viewed as either asking about the defendant‘s blood alcohol level or about whether the defendant was so intoxicated as to be legally impaired: “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 court sustained the state‘s objection to this question, and the defendant attempted to ask the question again by rephrasing it: “As you sit here today, do you know if [the defendant] was intoxicated that day?” The court again sustained the state‘s objection to this question.
Following the testimony of Richter and Powers, the state rested, and the defendant called no witnesses. The jury found the defendant guilty of operating a motor vehicle while under the influence of alcohol in violation of
I disagree with the majority‘s conclusion that the defendant‘s right to cross-examine Powers was improperly restricted and that the restriction was harmful to a degree requiring reversal of the defendant‘s conviction. The defendant argues, and the majority agrees, that once Powers opined on direct examination that a hypothetical individual who performed in a certain way on each of the field sobriety tests would be expected to have a blood alcohol level of 0.12 or higher, the court should not have foreclosed the defendant from later cross-examining him about this central, relevant issue. A thorough review of the trial transcripts shows that the court did not prevent, improperly or otherwise, the defendant from cross-examining Powers regarding his testimony as to the blood alcohol level of a person described in the hypotheticals posed by the prosecutor. Rather, the questions that he was prohibited from asking sought Powers’ opinion on the ultimate issue of the case—whether the defendant was intoxicated—and it is only on appeal that the defendant casts these questions as an attempt to undermine Powers’ testimony regarding blood alcohol content.
“[R]estrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution].” (Internal quotation marks omitted.) State v. Daniel B., 164 Conn. App. 318, 341, 137 A.3d 837, cert. granted on other grounds, 323 Conn. 910, 149 A.3d 495 (2016). This sixth amendment right is satisfied “when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Id. “The defendant‘s sixth amendment right . . . does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence . . . .” (Internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 424, 870 A.2d 1039 (2005). It is well established that “[a]n expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.” (Internal quotation marks omitted.) State v. Taylor G., 315 Conn. 734, 761, 110 A.3d 338 (2015).
The defendant‘s claim that his cross-examination of Powers was improperly restricted concerns two questions only, and each time the defendant asked these
There are three primary reasons why the prohibition on these two questions did not improperly restrict the defendant‘s right to cross-examine Powers. First, in the context of the cross-examination as a whole, there is no basis to support a claim that the defendant‘s right to cross-examine was improperly restricted on the basis of the court‘s sustaining objections to only two questions. When the cross-examination is viewed as a whole, it is clear that the defendant was afforded an opportunity to thoroughly cross-examine Powers regarding his blood alcohol content testimony.
As previously noted, to satisfy the defendant‘s right to cross-examine the state‘s witnesses under the sixth amendment, he must be “permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Daniel B., supra, 164 Conn. App. 341. The defendant was afforded an ample opportunity to do so. On cross-examination, the following colloquy took place:
“[Defense Counsel]: Now, so you had testified that regarding the horizontal gaze nystagmus, how many types of nystagmus are there?
“[Powers]: Well, I think medical personnel parse it down quite a bit. In terms of forensic work, we really only pay attention to horizontal and vertical.
“[Defense Counsel]: Okay. But as an expert in forensic toxicology and the effects of depressants on the central nervous system, you should know the different
“[Powers]: I should?
“[Defense Counsel]: But you don‘t know all of the types of nystagmus?
“[Powers]: No, I don‘t know all the medical classifications of nystagmus.
“[Defense Counsel]: Okay. And so are you familiar with optokinetic nystagmus?
“[Powers]: I‘m sorry?
“[Defense Counsel]: Are you familiar with optokinetic nystagmus?
“[Powers]: Optokinetic nystagmus. I may have read the term, but I couldn‘t define it for you.
“[Defense Counsel]: Okay. But you‘ve done research on . . . the effects of depressants on the central nervous system and the horizontal gaze nystagmus, yet you don‘t know what optokinetic nystagmus is?
“[Powers]: Correct.
“[Defense Counsel]: Okay. And so you don‘t know that there possibly might be another forty-seven types of nystagmus?
“[Powers]: Again, I would indicate that the medical community parses this down quite a little bit. For my purposes, I focused on horizontal and vertical gaze nystagmus.
“[Defense Counsel]: So—and that is only based upon interpretations from police officers on the road for the . . . horizontal gaze nystagmus?
“[Powers]: The observations that we utilize are generally acquired by that fashion, yes.
“[Defense Counsel]: Okay. And have you ever consulted . . . with any neurologists or doctors that are specialized in neurology that could affect the nystagmus of the eye? Have you ever consulted with anybody like that in any of your studies?
“[Powers]: I had a question that has led me to do so.
“[Defense Counsel]: Okay. But you don‘t think that it‘s necessary to know about the different types of nystagmus if you‘re going to be an expert in nystagmus?
“[Powers]: I guess that would depend on the level of expertise with regard to nystagmus that one is claiming.
“[Defense Counsel]: So, you don‘t think that you have the certain level of expertise, then, if you‘ve never studied it?
“[Powers]: I‘m not offering . . . an understanding of nystagmus that one would expect from a medical person who has trained in that field.
***
“[Defense Counsel]: . . . 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?
“[Powers]: Probably not; but I recognize that that level of control and behavior seems inconsistent with the level of alcohol that I opined 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 indicate the person that you just opined to. So, would that . . . level of intoxication be lower, then, if they had that much control over a vehicle?
“[Powers]: I‘m just saying . . . 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]: And were you on [Interstate] 95 on March 3rd, 2013, at 1:52 am?
“[Powers]: I can say no.
“[Defense Counsel]: And so you were not present when any field sobriety tests were administered to [the defendant]?
“[Powers]: Correct. I was not.”
The majority attempts to belittle this examination by referring to it in footnote 10 of its opinion as “quantity” over “quality.” While quantity over quality certainly is not determinative, nor do I assert that it is, this line of questioning, with accompanying responses, clearly demonstrates that the defendant was permitted to thoroughly cross-examine Powers and used that cross-examination to undermine Powers’ credibility on his interpretation of field sobriety tests and the accuracy of his blood alcohol content testimony regarding the hypothetical person. On this basis alone, this court should affirm the defendant‘s conviction.
Second, when the defendant‘s cross-examination of Powers is considered in its entirety, it is clear that the two questions he was prevented from asking are of a different nature than the other questions he asked, and these two questions should be considered as being outside the proper scope of cross-examination. Indeed, as support for the assertion that the ambiguous phrase, “level of intoxication,” in the first question should be understood as a reference to a blood alcohol level,
The state did not, however, ask Powers to speculate as to the defendant‘s blood alcohol level. Rather, the state merely asked Powers to opine as to the blood alcohol level of a person exhibiting the behaviors described in the posed hypotheticals. In fact, no evidence of the defendant‘s blood alcohol level was offered at trial.3 Indeed, it would have been impossible to offer such evidence because the defendant refused to submit to a breath test on the night of his arrest.4
By contrast, the two questions highlighted by the defendant were outside the proper scope of cross-examination because they asked Powers to opine on whether the defendant was intoxicated. In the first question, the defendant called on Powers to refute the statement, “you do not know what [the defendant‘s] level of intoxication was.” Similarly, in the second question, the defendant asked Powers, “do you know if [the defendant] was intoxicated that day?” Independent of the trial court‘s proper conclusion that these questions inappropriately called on Powers to opine on an ultimate issue, I also conclude that these questions could have been properly barred as outside the scope of direct examination.
Third, the light in which the defendant attempts to cast these questions on appeal is contrary to his objections to their exclusion during trial. On appeal, he argues that these questions did not seek an opinion on an ultimate issue, but rather that these questions were an attempt to clarify Powers’ earlier testimony opining as to a blood alcohol level in order to help the jury understand that Powers was not testifying as to his opinion of the defendant‘s blood alcohol level.5 There is no connection between this asserted purpose of the questions and the questions themselves, both of which asked Powers whether he knew if the defendant was intoxicated. It is a matter of common sense that a question seeking to clarify an issue must make clear on which issue clarification is sought. Neither of the two questions at issue here made reference to Powers’ earlier testimony regarding the blood alcohol level of the hypothetical person. Neither question asked Powers to distinguish between the hypothetical person and the
Although, as noted previously, I do not agree that the defendant‘s right to cross-examine Powers was improperly restricted, I continue my analysis in order to address the majority‘s conclusion that this restriction on cross-examination caused the defendant harm requiring reversal. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [O]ur determination [of whether] the defendant was harmed by the trial court‘s . . . [evidentiary ruling] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the . . . testimony in the [state‘s] case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony . . . on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the [state‘s] case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Emphasis added; internal quotation marks omitted.) State v. Rodriguez, 311 Conn. 80, 89, 83 A.3d 595 (2014). Even assuming arguendo that there was an improper restriction on the cross-examination of Powers, after applying these factors to the present case, I cannot agree with the majority that the record supports the conclusion that Powers’ blood alcohol content testimony, and therefore the restriction on the defendant‘s questions on cross-examination, had any impact on the trier of fact and the result of the trial.
As an initial matter, in the context of the evidence presented as a whole, the result of the trial would have been the same, even if the defendant had been permitted to ask the two questions on cross-examination. The jury heard Richter‘s testimony as to his observations of the defendant‘s driving—that the defendant‘s car was swerving and speeding. The jury heard Richter‘s observations that the defendant had slurred speech, his eyes were glassy and bloodshot, and he had the odor of alcohol on his breath. The jury heard Richter‘s testimony that the defendant had admitted to drinking alcohol earlier in the evening. The jury heard Richter‘s lengthy testimony that the defendant failed all three field sobriety tests. The jury also heard testimony that the defendant refused to submit to a breath test. On the basis of this evidence alone, even without Powers’ testimony, the jury reasonably could have found the defendant guilty of operating a motor vehicle while
Further, the majority‘s conclusion to the contrary relies on assumptions that are unsupported by the record and requires the court to ignore established precedent regarding analysis of whether a jury has complied with the trial court‘s instructions. The majority‘s conclusion that the restriction on cross-examination was harmful relies on the assumption that the jury viewed Powers’ testimony regarding the blood alcohol level of the hypothetical person as conclusive of the defendant‘s blood alcohol level. But this assumption itself relies on several additional assumptions that are equally unsupported by the record.
First, the majority‘s conclusion necessarily assumes that Powers’ blood alcohol content testimony regarding a hypothetical person influenced the jury‘s determination of whether the defendant was intoxicated. This assumption rests on the additional assumptions that the jury was either unable to distinguish between the hypothetical person and the defendant, or somehow viewed an opinion regarding a hypothetical person‘s expected blood alcohol level as conclusively determinative of the defendant‘s intoxication status.6 It is unnecessary to address these assumptions further than to note that there is simply nothing in the record to support them.
Second, the majority is clear that it presumes that the jury was aware that Connecticut law specifies a particular blood alcohol level as constituting per se intoxication. In footnote 12 of its opinion, the majority states that it “is likely within the common knowledge of most jurors” that a “specific blood alcohol level . . . constitutes per se intoxication in this state for purposes of operating a motor vehicle under the influence . . . .” The record contains no evidence, testimony, arguments from counsel, or instructions from the court regarding the fact that Connecticut law identifies some blood alcohol level as per se intoxication or explaining what specific level constitutes per se intoxication. While I certainly agree with the majority that many people are aware that the law designates some blood alcohol level as constituting per se intoxication, I do not agree that the average lay person could recite, without reference to a statute or conducting cursory independent research, which specific blood alcohol level constitutes per se intoxication. The record contains no indication that the jury was provided with the information necessary to conclude that the defendant was per se intoxicated based on a 0.12 or higher blood alcohol level.
Third, implicit in the majority‘s conclusion is the assumption that the jury ignored or deliberately disobeyed the court‘s instructions on finding intoxication. The court‘s instructions to the jury made no reference to finding the defendant guilty on the basis of any blood alcohol level, but instead made reference to behavioral evidence only.7 Yet, the majority‘s conclusion necessarily assumes that the jury considered Powers’ blood alcohol content testimony as determinative of the defendant‘s intoxication status. As stated numerous times herein, however, no evidence of the defendant‘s blood alcohol level was introduced at trial. Therefore, the jury instructions properly made reference to behavioral evidence only,8 and there is nothing in the record to support a finding that the jury disregarded the court‘s instructions.
“[I]n the absence of evidence that the jury disregarded any of the court‘s instructions, we presume that the jury followed the instructions.” State v. A. M., 324 Conn. 190, 215, 152 A.3d 49 (2016). “Mere conjecture by the defendant is insufficient to rebut this presumption.” State v. Purcell, 174 Conn. App. 401, 413, 166 A.3d 883 (2017). The defendant has the burden of establishing that Powers’ testimony was so prejudicial that the jury cannot be presumed reasonably to have followed the court‘s instructions. See id. The defendant has pointed to no evidence that the jury failed to determine intoxication according to the instructions of the trial court. He also has failed to establish that Powers’ testimony was so prejudicial as to lead the jury to disregard the court‘s instructions—particularly given that his claims of prejudice rely so heavily on the assumptions noted previously, which lack evidentiary support in the record. There is simply no reason to conclude that the defendant‘s conviction was based on any consideration other than the proper behavioral evidence referenced by the court in its instructions on finding intoxication.
For the foregoing reasons, I would affirm the judg
Notes
“[The Prosecutor]: Now, on March 3rd, 2013, did you ask the defendant to submit to a breath test?
“[Richter]: I did.
“[The Prosecutor]: And did he submit to a breath test?
“[Richter]: No.
“[The Prosecutor]: Why is that?
“[Richter]: He refused.”
“The person‘s physical or mental capabilities must have been impaired to such a degree that he no longer had the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. If you find that the defendant was operating a vehicle under the influence of an intoxicating liquor, it is no defense that there was some other cause that also tended to impair the defendant‘s ability to exercise the required caution. Evidence of the manner in which a vehicle was operated is not determinative of whether the defendant was operating the vehicle under the influence of an intoxicating beverage. It is, however, a factor to be considered in light of all the prudent surrounding circumstances in deciding whether the defendant was or was not under the influence.
“In this case, there has been testimony that the defendant was asked and did agree to perform certain acts which are commonly called field—field sobriety tests. It is up to you to decide if those tests give any reliable indication of whether or not the defendant‘s capacity to operate a motor vehicle safely was impaired to such a degree that he no longer had the ability to drive a motor vehicle with caution characteristic of a sober person of ordinary prudence under the same or similar circumstances, or whether they have any rational connection to operating a motor vehicle safely.
“In judging the defendant‘s performance of those tests, you may consider the circumstances under which they were given, the defendant‘s physical condition, the defendant‘s state of mind, and other factors you may deem relevant. Further, in evaluating his testimony, you should consider whether proper instructions and directions were given by the officer to the defendant prior to the commencement of the test, the observations made during the test, and use your common experience in determining whether the defendant was under the influence of intoxicating liquor as I have defined it for you.
“The horizontal gaze nystagmus test is a scientific test. The standardized field sobriety test known as the walk and turn and the one leg stand are not scientific tests, and you should not consider them as scientific tests. You may, however, consider the police officer‘s observations of the defendant while such tests were being performed, and use your common experience in determining the value, if any, of this evidence. Evidence of the defendant‘s refusal to submit to a breath test has been introduced. If you find the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact. Any inference that you draw must be reasonable and logical and not the result of speculation or conjecture or guessing in accordance with my earlier instruction to you regarding inferences. To be clear, the state does not have to prove refusal as an element of the offense of operating under the influence, but if you find that there was a refusal you are permitted to draw inferences in accordance with my earlier instructions regarding inferences. The law does not require that you draw any inference, but rather permits you to do so. Evidence of a refusal by itself cannot support a guilty verdict.”