State v. NicholsState v. Nichols
- Reporters:
- , ,
- Before:
- Schaller
Opinion
SCHALLER, J.The defendant, Sheryl Nichols, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of alcohol in violation of
The record discloses the following facts. At approximately 5:55 p.m. on March 16, 2001, Clifford Barrows of the Old Saybrook police department stopped the defendant after the vehicle she was driving went through a red traffic signal at a high rate of speed. Barrows smelled alcohol inside the car, heard the defendant slur her speech and saw that she had difficulty with hand-eye coordination. He requested that she exit her car. Once outside the car, she failed three sobriety tests. The defendant’s actions also were captured by the videocamera that was mounted inside Barrows’ cruiser *481and witnessed by fellow officers who had been called to the scene. The defendant was placed under arrest and transported to the Old Saybrook police station. The defendant agreed to be tested by Breathalyzer. The first test administered at 6:44 p.m. indicated a BAC of .135 of one percent, and a second test administered approximately thirty-five minutes later indicated a BAC of .131 of one percent. Both tests were above the .07 of one percent legal limit set by
The jury found the defendant guilty of operating a motor vehicle while under the influence of alcohol in violation of
The defendant claims that the disclosure to the jury of her prior conviction so tainted the entire trial as to require that the judgment of conviction be reversed. Specifically, the defendant argues that the disclosure to the jury of the prior conviction was a violation of
The facts and procedural history relevant to the defendant’s claim are as follows. The defendant, in a two pari; information, was charged in the first part with two counts of operating a motor vehicle while under the influence of alcohol and in part B with having a prior *482conviction pursuant to the same statute. On January 25, 2002, the prosecutor filed a substitute information charging the defendant with violating
Officer Michael Hartón of the North Haven police department testified outside the presence of the jury that he had arrested the defendant in November, 1999, on a charge of operating a motor vehicle while under the influence of alcohol. The state offered into evidence the certified judgment of conviction. The defendant filed a motion in limine to preclude evidence of the prior conviction because her guilty plea was made as a result of ineffective assistance of counsel and without an adequate canvass by the court. The court denied the motion, and the certified judgment of conviction was entered into evidence, but only after the state redacted references in the judgment of conviction that pertained to the nolle prosequi of another charge of making an unsafe start of her vehicle and an order of probation.
During the jury charge, the court instructed the jury not to consider the prior conviction in its deliberations. The court stated that the prior conviction was admitted “for the sole purpose of the attempt to prove the element of the offense within count two of this information *483that the defendant was previously convicted of [having violated]
Following the guilty verdict on the first two counts, the court ordered the jury to remain in the courthouse and then recessed to determine what action was necessary to resolve part B of the information. Thereafter, the defendant entered a guilty plea to the part B information.
The defendant did not properly preserve her claim that the disclosure of the prior conviction to the jury was a violation of our rules of practice and her right to a fair and impartial trial before an unbiased fact finder. The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See
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We must first address the state’s argument that the defendant waived her claim by explicitly agreeing that the evidence of the prior conviction was admissible once the court resolved certain collateral issues pertaining to the judgment of conviction.
“[The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the Plain Error Rule may be applied) and a waiver of that right (to which the Plain Error Rule cannot be applied) *485is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Corona, 69 Conn. App. 267, 274-75, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). In this case, the defendant did not waive her right by explicitly agreeing that the evidence of the prior conviction was admissible. The defendant merely agreed with the court’s order that the state must redact all references in the prior judgment of conviction that pertained to the nolle prosequi of the charge of making an unsafe start of her vehicle and an order of probation, but continued to maintain that she had “other problems with the prior conviction . . . .” Such statements are not an intentional relinquishment or abandonment of a known right. Accordingly, the defendant did not waive her right, and we may conduct review under the plain error doctrine.
We next address whether the disclosure to the jury of the defendant’s prior conviction so tainted the entire trial as to require that the judgment of conviction be reversed.
Our review of the record reveals that any harm caused by the disclosure did not, in any way, undermine the validity of the guilty verdict. The jury found that the evidence presented sufficiently satisfied the state’s burden of proving guilt beyond a reasonable doubt. Our careful review of the evidence supports that conclusion. The defendant failed three sobriety tests, images of which were captured on videotape, and two separate Breathalyzer tests indicated that her blood alcohol level was almost twice the legal limit. We also cannot conclude, as a finding of plain error requires, that the court’s comments and the state’s offering into evidence the certified copy of the prior conviction implicated the public confidence in our judiciary. It would indeed be difficult to avoid mentioning the defendant’s prior con*486viction because of the unique language of
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “It is well established that generally this *484court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned.” (Citation omitted; internal quotation marks omitted.) State v. Harvey, 77 Conn. App. 225, 230, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003).