*1 31 its violated that the did abuse discretion in restricting the cross-examination.11 is affirmed. opinion
In judges the other concurred. STATE OF CONNECTICUT v. FRANCISZEK MARCISZ
(AC 26879) J., Bishop Lavine, Flynn, C. Js. officially released
Argued September January 2, 2007 2006 rights The defendant characterized his claim as a violation of his present analyzed infringe and to confrontation defense but the claim as an right ment of the to confrontation. We therefore address the issue that proрerly. “[Appellate required has been briefed are not to review courts] improperly presented through inadequate issues that have been . . . an Analysis, assertion, required brief. . . . than rather mere abstract in order abandoning properly.” (Internal to avoid an issue brief failure to the issue Colon, n.19, State v. (2004), 848, 126 102, 163 546 U.S. S. Ct. L. Ed. 2d 116 *2 McKay,
Robert J. appellant (defendant). for the attorney, with McCarthy, F. state’s Eileen assistant Thomas, E. brief, were Jаmes state’s whom, on the Jones, former deputy attorney, and Sean assistant appellee (state). for the attorney, state’s
Opinion Marcisz, defendant, Franciszek LAVINE, J. The conviction, rendered after judgment appeals from while court, of motor vehicle operating to the trial liquor in violation intoxicating under the influence appeal, 14-227a. On § of General Statutes evidence for there was insufficient (1) claims that court’s knowl- (2) him guilty trial court to find prior to its deci- rendering B information of a edge process. to due to a fair trial and rights violated his sion affirm the accordingly disagree We trial court.
The following facts are relevant to resolution of appeal. the defendant’s court found that Officer Kenneth Miller the Farmington police department on 177 at a.m. traveling north Route about 1:30 September 2, 2004, when he observed a blue Ford Crown operating erratically, point Victoria at one caus- ing the driver of another car to swerve to avoid being suddenly hit. Miller watched the car as it was driven stopped. to the side of the road and Concerned that might lost, the driver closely be Miller drove his cruiser alongside car, the blue aligning passenger side win- dow with driver’s side window, stopped briefly. *3 The driver turned his head and at looked Miller. Miller perfect “had a “clearly saw the defen- [view]” [the face” of through open window his cruiser. dant’s] The defendant person was in the vehicle. After Miller, seeing the defendant drove ahead a few feet and tinned into driveway. the nearest Miller used the computer in his vehicle to check the license plate of the defendant’s car and it discovered that was owned defendant, аpproximately who lived fifteen minutes away by car. Miller then observed the defendant walk- ing along unsteady road with an and stumbling gait. When he defendant, came closer to the Miller noticed odor strong of alcohol from him emanating eyes observed that his were glassy bloodshot. Miller gave sobriety the defendant a field which test, failed, he and then arrested the defendant.
At trial, the state charged the part defеndant a two information, proceeding part in the first on charges of a motor operating vehicle while under the influence of intoxicating liquor and operating a motor vehicle while his license was suspension. under After state rested, the defendant moved for a judgment acquittal of on the charge of a motor operating vehicle while his license was under suspension, claiming that the state had оffered no in support evidence thereof. The court acquittal rendered the motion and
granted only. court then asked whether the charge on that The was a introduce evidence that planned state to respond to prosecutor The began second offense. question when defense counsel intervened the court’s in the proper it was not the time and asserted that At no time did the priоr convictions.1 trial discuss object purported knowledge to the court’s defendant subsequently found B information. a motor vehicle while guilty operating defendant liquor despite the intoxicating influence of under the operator. was not the assertion that he defendant’s necessary. will set forth as Additional facts be I first the evidence The defendant claims support finding guilt the court’s insufficient under a motor vehicle while operating the charge liquor. intoxicating Specifically, the influence prove beyond state failed to argues operator that he was the reasonable doubt disagree. vehicle. We *4 applicable of forth the standard setting
We begin
in a
employed
“The
of review
suffi-
review.2
standard
well
ciency
apply
evidence claim is
settled.
of the
[W]e
1
colloquy following
appeal
on
that a review of the
The defendant asserts
acquired
part
knowledge
question
indicates that the court
the court’s
charge
operating
rendering
a
B
its decision on the
of
information before
intoxicating liquor. The state
vehicle while under the influence of
motor
transcript
suggest
responds
was
should be read to
that the court
that the
operating
part
charge
a
referring
motor
to the
B information
suspended
with
and that the defendant’s counsel
vehicle
a
license
part
responsible
B
on the other
if the court
learned of
information
speculate
unclear,
charge.
As
record is
we decline
as to whether
B
court learned of
information.
prevail
unpreserved
v.
claim under State
defendant seeks to
on his
233,
(1989). Golding
Golding,
239-40,
At evidence in support of an alternative factual scenario of the Sep- events of tember 2004. He Sophia Chorazy claims that he called from the Haller Post, a Polish club in New Britain, because he had been drinking needed ride home. Chorazy and her son drove Chorazy’s to the club in car picked up the defendant. The got son into the driver’s seat of the defendant’s car and began to drive the defendant home while the asleep fell in the passenger’s Chorazy seat. followed behind the defendant’s point, vehicle. At some the son saw a police car. He drove to the side of road, exited the defen- dant’s got vehicle and into mother’s vehicle because he was concerned driving about withоut a license. The *5 son asleep left the defendant in the passenger’s seat. The up, defendant woke exited car and started to prongs Golding), denied, meet 905, the four cert. 263 Conn. (2003). 840 by Miller. At apprehended walk home when he was testified to trial, Chorazy, her son and the exculpatory version of events. to he attempted prove Although the defendant vehicle, the court was free to disbe operate did testimony witnesses’ and to credit the lieve the defense testimony officer, who testified that he police right “It is driving. saw the defendant [fact finder’s] presented. some, none or all of the evidence accept . . insufficient . Moreover, . . . is not [e]vidence conflicting it is or inconsistent. because court] [The of events and juxtapose versions conflicting free to It ... is the which is more credible. determine [finder province weigh conflicting exclusive of fact’s] credibility witnesses.” evidence and determine quotation marks omitted.) internal omitted; (Citation Pranckus, 678, A.2d State App. 80, v. A.2d 840 Conn. “[A]s noted, proof beyond a reasonable doubt we have often . possible . . proof beyond all doubt does not mean require beyond reasonable doubt proof nor does posed by of innocence every hypothesis acceptance it been found credible that, had fact], acquittal.” would have resulted an [finder Gary, (Internal 406. supra, explained in its decision that it found oral events lacked credence
that the defendant’s version of police officer was certain that due to the fact that the when the driving at the defendant “got he a clear look” drove his vehicle down his window and officer rolled The court аlso based next defendant’s vehicle. to the ability on Miller’s to iden- credibility its determination as months later at trial tify the defendant several seat and on sitting he in the driver’s person had seen Chorazy’s Sophia testimony that he had never seen it did not Moreover, the court stated son before.
37 believe the defendant’s version events because the by element, time as testified to witnesses, defense was with time arrest, nоt consistent or date of the testimony sequestered nor was the of the defense wit- nesses consistent. record,
Our therefore, persuades review of the us reasonably that the court could have concluded that the cumulative of the beyond force evidence established a reasonable doubt that the defendant was indeed the operator of the motor vehicle. are Accordingly, wе not persuaded by insufficiency the defendant’s evi- dence argument.3 improperly gave special weight that the dissent contends operator Miller’sidentification of the defendant as the of the motor vehicle solely police acknowledges, however, because he was a officer. The dissent only insufficiency
that the
defendant briefed
issue
on a claim of
presented
Therefore,
thе evidence.
the sole issue
our
for
determination is
whether the record reveals that
there
sufficient evidence
which
from
guilt.
Jones, supra,
App.
the trier
find
could
See State v.
Conn.
203-204.
Moreover,
challenge adequately
in his
brief failed to
regarding
weight given
court’s statement
to Miller’sidentification of the
language
defendant. He
mentioned
once in his facts
section
neglected
any legal
present
аrgument. “Assignments
of error which are
merely
beyond
mentioned but not briefed
a statement of the claim will be
quota
(Internal
deemed abandoned
will not
be reviewed
this court.”
Abraham,
App. 551,
tion
561,
v.
Conn.
89,
938,
(2004).
II *7 pur- claim is that the court’s The defendant’s second prior information to part the B ported knowledge of of the part its on the first information rendering decision and a fair trial. The process his due rights violated to reviewability. The is defendant dispositive issue one claim, as he neither raised the рreserve failed disqualification when he became of the issue court’s any bias or at other potential the for aware of claimed defendant, seeks accordingly, trial. The during time the 239-40, Conn. Golding, v. review under State plain See and the error doctrine. (1989), 567 A.2d claim, We the Book 60-5. decline address Practice § is before us. properly we that it not as conclude prevail a claim Golding, “a defendаnt can on Under at trial if all preserved error not of constitutional are met: the record is conditions following (1) error; (2) claim of adequate alleged review the viola- [magnitude] alleging of constitutional claim is alleged constitu- right; (3) tion of a fundamental clearly clearly deprived the exists and tional violation trial; subject if to harmless (4) of a fair to demonstrate harm- analysis, the state has failed еrror beyond constitutional violation of the alleged lessness require- . . two Golding . The first a reasonable doubt. and the reviewable, whether the claim is ments involve involve whether there was constitutional second two internal added; a new trial.” (Emphasis requiring error v. Fagan, State A.2d 1101 69, 89-90, Golding We to review this claim under decline in to an information two right the defendant’s because 37-11, parts Practice Book 36-14 §§ is based on сredibility improper even if that issue that the court’s determination properly. us were before such, not a right.4 as is constitutional We therefore satisfy has failed to conclude that the defendant prong Golding, second as the claim the viola- alleging right tion a fundamental of constitutional mag- nitude.
We also decline to reverse defendant’s conviction under in with plain error doctrine accordance our Supreme ruling Court’s Fitzgerald, 257 Supreme In case, (2001).5 Court reversed the court, concluding the prosecutor’s improper B disclosure information to before trial charge operating a motor vehicle while under the influence of *8 liquor plain did not intoxicating constitute error and was therefore not reviewable. See id.6
As in Fitzgerald,
the
present
in the
case
failed to
judicial disqualification
movе for
and raises
provides
part:
§
Practice Book 36-14
in relevant
“Where the information
alleges,
principal
charged,
in
addition
the
offense
former conviction or
convictions,
separate parts
such
shall
information
be in two
....
In the
part,
particular
first
the
charged
offense with which the accused is
shall be
out,
part
set
and in the other
the former conviction or convictions shall be
alleged.
addition,
provides
part:
. . .” In
§
Practice
37-11
Book
in relevant
trial,
notify
defendant,
to the commencement of
the clerk shall
“[P]rior
the
judicial authority,
part
in the
of the
absence
of the contents of the second
of the information. ...”
points out, plain
reversibility,
As the state
error
rule
is a
of
not reviewabil
ity.
Ramirez,
App. 812, 826,
1032,
State v.
94 Conn.
truly
In this vehicle, and that witness of motor operator as testified that the Miller. Other witnesses was Officer or, operate the motor vehicle did dеfendant they witness officers, that did not police other case of testimony and Miller’s the vehicle. Officer operate him given identification of the eyewitness testimony in case by court over other credence because, “a explained, as the court Officer Miller was professional eyewitness testimony and his has to be citizen, more credence than the who given average can bе mistaken.” my opinion,
In this special could not be weight given properly police testimony, and error could not be deemed harmless because Officer Miller was the necessary witness providing evidence of element crime, namely, operation of the motor vehicle.
It has been in charges jury time-honored to the that testimony the court police instructs: “The of a officer special is entitled no or sanctity merely exclusive police because it comes from a . . officer. . And in the case of police officers, you should not believe nor merely they disbelieve them police because are offi- D. Orland, cers.” Borden & L. 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (1986) 3.11, p. 94. §
“It improper that the suggest should [fact finder] greater testimony accord to the weight pоlice officers occupational on account their status. Indeed, Con- necticut routinely juries they courts instruct should evaluate the credibility police officer in the same way they testimony evaluate the of any other wit- ness, and jury that the should ‘neither nor believe disbe- testimony police lieve the just of a official because he police is a official.’ J. Pellegrino, Connecticut Selected Jury Instructions: (3d 2.29, Criminal Ed. 2001) p. 74.”1 § 1 Pellegrino, Jury Criminal, J. supra, Connecticut Selected Instructions: p. 2.29, following jury § sets forth the standard instruction in cases police testimony presented jury: where has been to the “Police officials credibility have testified in police this case. You must determine the way you officials in the same the same standards as would evaluate testimony any ordinary testimony police witness. The of a оfficial is special weight merely entitled to no or exclusive because it comes from a *10 police official. stand, You should recall his demeanor his manner of testifying, just weigh carefully you it balance as as would the testimony any other witness. You should neither nor believe disbelieve testimony police just police of a official because he is a official.” A.2d 626 Thompson, and time-honored Certainly, clear, direct jury trials. trials as well as
principle apply must to bench the court’s record I would conclude that Accordingly, more credence Officer it was giving statement was police officer testimony he was Miller’s because sole witness Miller improper. Because Officer the motor operating he testify saw I harmless. would impropriety was not vehicle, anew trial. and order conviction reverse defendant’s I dissent. respectfully OF ET AL. v. CITY
DOUGLAS EVANUSKA ET DANBURY AL. 27263)
(AC Lavine, McLachlan, Js. Gruendel