State v. Perkins

purposes appeal justified. as final of an judgment I therefore would conclude that case is moot and that it does not fall within capable repetition yet exception. review evading Accordingly, I respectfully dissent.

STATE OF CONNECTICUT v. BENJAMIN J. PERKINS

(SC 17099) Borden, Norcott, Katz, Vertefeuille, Palmer and Js. officially released September 28, Argued March 9 Grudberg, Grudberg, was Ira B. David T. with whom appellant (defendant). for the attorney,

Timothy Sugrue, state’s J. senior assistant Cohen, I. state’s whom, brief, with on the were David Colangelo, attorney, Jr., senior assistant and Richard attorney, appellee (state). for the state’s

Opinion provides “waiver rule” BORDEN, J. The so-called acquittal judgment [a of] at that, “when motion may denied, the state’s case is the close of appellate ruling trial not secure review of the court’s put [forgoing] right in his without remedy behalf. The defendant’s sole is to or her own and, convicted, if to seek reversal of remain silent insufficiency evi- because of of the state’s conviction evidence, If the defendant elects to introduce dence. encompasses appellate the evidence in toto.” review

221 A.2d 1209 Rutan, 438, 440, 479 judgment from the trial court’s appeals1 The defendant jury trial, manslaugh after a conviction, rendered a motor vehicle in ter in the second with degree 53a-56b miscon (a),2 violation of General Statutes § of General duct with a motor vehicle in violation responsibility evasion of Statutes 53a-57 (a),3 § operation in the of a motor vehicle violation claims, General Statutes 14-224 The defendant (a).4 § that the waiver rule is unconstitu- among things,5 other appealed Appellate we transferred the The defendant Court and appeal pursuant (c) § this 51-199 and Practice court to General Statutes § Book 65-1. (a) provides: person guilty manslaugh § General Statutes 53a-56b “A is when, operating degree ter in the second with a motor vehicle while a motor any intoxicating liquor drug both, vehicle under the influence of or or he person consequence causes the death of another as a of the effect of such liquor drug.” (a) provides: person guilty § General Statutes 53a-57 “A of misconduct when, operation negligence with a motor vehicle with criminal in the of a vehicle, person.” motor he causes the death of another (a) provides: person operating § General 14-224 Statutes “Each a motor knowingly vehicle who is involved in an accident which causes serious physical injury, 53a-3, any as defined section to or results in the death of person may stop other shall at once and render such assistance as be give name, operator’s needed and shall his address and license number and registration person injured any number to the or to officer or witness to physical injury any person, operator the death or serious if of and such of physical injury any person causing the motor vehicle the death or serious of name, operator’s give is unable to his address and license number and registration person injured any officer, number to the or to witness or any cause, operator immediately report reason or such shall such death or physical iqjury any person police officer, constable, serious of to a a a state police inspector police officer or an of motor vehicles or at the nearest precinct station, report and shall state in such the location and circum physical injury any causing stances of the accident the death or serious of person name, address, operator’s registration Iris and license number and number.” (1) improperly The defendant also claims: that the trial court excluded relating immediately certain evidence to his conduct and state of mind accident; (2) improperly after the that the trial court refused to strike the testimony expert witnesses; (3) of one of the state’s and that his conviction engaged prosecutorial should be reversed because the in state misconduct. disagree We with each of these claims. that the trial court end, argues to this he tional, and, acquit- a of judgment his motion for improperly denied to the respect the state’s case with tal at the close of in second with degree manslaughter of charges vehicle. misconduct with a motor motor vehicle and waiver claim that the with the defendant’s disagree We the basis of all of the and, on rule is unconstitutional affirm jury, judgment we presented the trial corut. of Benjamin Perkins, charged J. was defendant,

The in with a motor degree the second manslaughter with with of 53a-56b misconduct (a), vehicle in violation § and evasion (a), vehicle in violation of 53a-57 § a motor in operation of a motor vehicle responsibility case, of the state’s 14-224 At the close (a). violation of § for a judg- the defendant’s motion the trial court denied case, of the defendant’s acquittal. At the close ment acquittal, judgment moved for again motion. reserved decision on that and the trial court of all jury guilty charges, found the defendant The of conviction in accor- judgment trial court rendered trial court jury’s Thereafter, verdict. dance with the acquit- for a judgment the defendant’s motions denied appeal trial.6 This followed. tal and for a new reasonably following could have found the The presented during of the evidence facts on the basis evening On the of November state’s case-in-chief. La restaurant defendant was at Cucina 2000, the Novack, and other victim, Fairfield with the Michael The defendant friends, Medvegy. Jason including approximately at evening arrived at La Cucina manslaughter on the trial sentenced the defendant as follows: The court years; years imprisonment suspended charge, after six on the misconduct ten years; years imprisonment suspended charge, and on the after four five years imprisonment. charge, run These sentences were to evasion three years imprisonment concurrently, sus a total effective sentence of ten for years, years probation. pended five after six with after thereafter, and, shortly arrived

p.m. Medvegy that the defen- noticed he exchanged, were greetings victim defendant, the The scotch. drinking dant was approxi- until La Cucina remained inside Medvegy and in they conversed and then p.m., or 10:45 mately 10:30 fif- approximately lot of the restaurant parking p.m., approximately At teen minutes. automobile, in defendant’s departed

and the victim in the the victim seated and driving with the defendant front seat. passenger the defen- p.m., and 11:50 between 11:45

Sometime per fifty-five miles traveling was at automobile dant’s then Westport. in The vehicle Wilton Road hour along damp evening, which was road, skidded off into eventually crashed and through fencing, went some occurred, the crash of road where portion a tree.7 The elevation, curvy changes and has several which is twenty-five per miles hour. limit of posted speed had a accident scene arrived at the personnel Emergency who was victim, thereafter, and discovered shortly of the vehicle. front seat already dead, passenger trauma,8 force cerebral of death was blunt The cause that could have injuries with which was consistent stationary striking from an automobile resulted object, such as a tree. not be vehicle, however, could

The driver of the which detects camera, imaging located. a thermal Using a one-half scanned sources, firefighters human heat unable scene and were mile area around the accident points progression speed off the road at various in its The of the vehicle hour; skid, forty-seven per began (1) miles when it first was as follows: twenty-four per hour; dirt, skidding grass miles (2) and while it was on the per just striking tree, (3) hour. fourteen miles before face, injuries to his head and had suffered severe external The victim forehead, including large other facial his as well as laceration across injuries to his brain and The victim also had suffered internal lacerations. skull. anyone may

to locate else who have been involved addition, the crash. In it was clear to emergency personnel that, on the basis of the accident configura- tion, the victim had not been the driver of the vehicle.

Shortly after 12 a.m. on November 21,2000, the defen- dant, telephone, his cellular called using supervisor, his Habetz, Steven who was home in bed. After getting dressed, proceeded Habetz in his car toward Wilton in Westport, whereupon Road he discovered that a por- tion of the road had been blocked off, and he was able to see flashing lights the distance. According telephone records, telephone Habetz also received calls from the defendant at 12:13, 12:25, 12:29 and 12:30 a.m. directions, On the basis of the defendant’s Habetz picked up the defendant on street approximately at 12:30 a.m. The defendant, appeared who disheveled and dirty, head, was from his was bleeding limping, looked like he had been in a brawl. After concluding that the defendant needed an Habetz attorney, drove the defendant back to Habetz’ home. police

The determined that the defendant was the owner of the wrecked automobile. On the fol- morning lowing accident, November after trying unsuccessfully to locate the defendant at the accident scene and place employment, at his Sergeant Anthony Westport police Guinta of the department con- tacted Habetz. Habetz indicated that he had received a call telephone from the defendant the night before, but did not disclose his whereabouts Approxi- Guinta. mately later, one hour attorney, Philip defendant’s Russell, day, contacted Guinta. Later that one of Rus- police sell’s associates brought clothing worn by the defendant on the evening accident. police

The later determined that the defendant had injuries been treated for at Hospital Greenwich day November after the accident. In addi- that of the tissue, which matched brain tion, human worn the defen- jacket on the victim, was discovered of the accident. evening dant on the five testimony of presented the trial, At the state the of the relevant to issue was arguably witnesses that X. Grosner testified Francis defendant’s intoxication. working he accident, of the was evening that, the on the Main restaurant at the Tavern as a bartender he began He that had Westport. testified downtown and he recalled p.m. evening, at 4:30 that work about identify not the men. could to two Grosner serving beer evening. of the men he had served that one defendant as Cucina, at that, when he arrived La Medvegy testified in front of him.” When “had a scotch the defendant “was scotch that drinking night,” if asked Finally, although Medvegy “Yes.” Medvegy responded, many had con- drinks the defendant did not know how did he stated that the defendant evening, sumed that intoxicated. appear to be as a bartender at La Cuc- Ralph working Fidaleo was he When asked if evening ina on the accident. G.Q. stated, Fidaleo serving looking guy,” “recall[ed] he that I also that served “Yes, do.” Fidaleo testified the scotch, individual individual glasses three ordinarily pours he two [th]em,” “was drinking he In into drink that serves. ounces alcohol each “G.Q. the look- addition, that, testified if he saw Fidaleo pick he would not “be able to him out.” ing guy” again, appeared if the to be Finally, when asked individual at all.” intoxicated, replied, Fidaleo “Not In an effort to show that the defendant’s conduct immediately after the accident warranted the inference presented state the intoxicated, that he had been the testimony who that he received Ilabetz, stated had telephone shortly from after five calls in his that, opinion, also testified midnight. Habetz defendant needed an attorney. Finally, even though Habetz testified that the appeared defendant had to be injured, he drove the defendant back to Habetz’ home rather than hospital.

Finally, presented testimony state of Joel Mil- zoff, a toxicologist employed by the toxicology and controlled substances section of the Connecticut department public an safety, expert witness the field of Milzoff toxicology. testified that alcohol is a depressant, which inhibits reflexes, ability respond to situations, ability operate machinery, ability and the perform complex tasks. In addition, Milzoff testified a dose of single alcohol, i.e., twelve ounces of beer or one ounce of eighty proof scotch, affects an individual to a “slight degree,” and that as alcohol consumption increases, so do the resulting effects from the alcohol.

At the close of the state’s case, the defendant moved for a judgment acquittal on all three charges arguing that the state’s evidence was support insufficient a verdict of The guilty. trial court denied the motion.

The presented defendant then several witnesses,9 and also testified on his own behalf. The defendant testified that he had met the victim at Tavern on the shortly Main p.m., after 7 where he drank one beer.10Thereafter, defendant and the victim arrived at La Cucina sometime p.m. before 9 to meet friends. The defendant testified that, although glasses three of scotch had been ordered for him Cucina, at La he drank two glasses, but, after having sip from the third glass, he left it on the counter and exited the restaurant.

9In good character, addition to witnesses who vouched for the defendant’s the several testified, witnesses who had been with the defendant at La Cucina appear all of whom indicated that he did not to be intoxicated. that, although The beers, testified he had ordered two he only consumed one because the victim and he were late. the defen- p.m., 11:30

Thereafter, approximately at defendant’s left La Cucina in the dant and the victim raining, testified that it had been car. The defendant in an and, out from the right, and that a deer came he lost control of the vehicle. deer, effort to avoid the waking defendant recalled was The next that the thing the victim’s name. The defen- up yelling his car and woods, lost in the being calling dant also recalled Habetz. calling then expert presented In the defendant testi- addition, psychiatrist, who had mony Selig, of Kenneth forensic weeks after approximately examined the defendant two accident. testified that the defendant had suf- Selig injury accident, a result of the fered a traumatic brain memory On cross- may which have contributed to loss. examination, testified that the defendant had told Selig him that one and one-half beers and he had consumed glasses evening three of scotch on the of the accident. Finally, that, upon also testified a review of the Selig never hospital records, defendant’s the defendant men- hospital personnel tioned to that he had been trying immediately avoid a deer before accident.

At the close of the defendant’s case, moved acquittal respect for a of with to the judgment with a motor and the manslaughter charge vehicle evad- responsibility ing The trial court reserved deci- charge. motion, sion on that and the returned a verdict of guilty respect with to all the The trial charges. court rendered in judgment of conviction accordance with jury’s procedural the verdict. Additional facts and his- tory will presented necessary. be as

The defendant presents appeal. several claims on First, the defendant claims that there was insufficient presented, either the during state’s case-in- chief or during entirety trial, support the jury’s verdict. Second, defendant claims that the trial relating certain evidence improperly court excluded immediately after the and state of mind his conduct claims that the trial court Third, accident. the defendant expert testimony of refused to strike the improperly defendant claims that his conviction Finally, Milzoff. prose- state in engaged be reversed because the should reject claims, these misconduct. We cutorial address each seriatim.

I AND THE OF THE EVIDENCE SUFFICIENCY WAIVER RULE sufficiency the evidence attacks the The defendant respect to the First, charges on two fronts. with with a motor vehicle degree in the second manslaughter vehicle, a motor and misconduct with his motion improperly the trial court denied claims that at the close of the state’s acquittal for a judgment presented the state insufficient evidence case because the waiver rule a matter of law. Recognizing of such ordinarily precludes appellate rulings, review that the waiver rule is unconsti- the defendant contends alternative, the defendant asks this tutional, or, supervisory authority apply and not court to exercise its the defen- present Second, rule in the case. the waiver applied, there even if the waiver rule is that, dant claims the entire presented during was insufficient evidence jury’s respect verdict with support trial to with a degree in the second manslaughter charge waiver rule is not vehicle. We conclude that the motor persuasive see no reason not unconstitutional, and we case. We further conclude apply it presented to the basis of all of the evidence that, on support to the jury, the there was sufficient evidence defendant’s conviction.

A supra, In 194Conn. Rutan, validity challenged rule, of the waiver and claimed the improperly for a denied his motion that the trial court acquittal judgment case. at the close of the state’s determining claim was In whether the defendant’s rule, the waiver when a reviewable, we stated: “Under acquittal judgment of] at the close of may [a motion for denied, case is a defendant not secure state’s appellate ruling [for review of the trial court’s without put going] right on evidence his or her own remedy behalf. The defendant’s sole is to remain silent and, convicted, if to seek reversal of the conviction insufficiency because of of the state’s evidence. If the appellate evidence, defendant elects to introduce encompasses review the evidence in toto. The defen testimony dant then runs the risk that the of defense evidentiary gap witnesses will fill an in the state’s case. rule, therefore, The waiver forces the defendant to [present] waiving right choose between a defense waiving right put proof. the state to its It is placed doubtful whether a criminal defendant should be “Accordingly, in such a Id., dilemma.” 440-41. in an appropriate may case, we well conclude that the denial acquittal of a defendant’s motion for at the close of the may assignable appeal state’s case be as error on from a conviction, whether or not the defendant has intro duced Id., his or her own behalf.”11 444. unnecessary validity

It was for us to reach the of the waiver rule in Rutan, however, because we concluded gives The defendant too much credence to this last sentence of the quoted passage language not, sug from Rutan. This does as the defendant gests, legal dinosaur, mean that this court viewed the waiver rule as “a extinction,” entirely; rather, ticketed for and intended to abandon the rule merely that, appropriate itself, filis court noted should an case we might Thus, simply reserved, conclude the rule is unconstitutional. we appropriate, question constitutionality a case in which it was the waiver rule.

230 dur presented been sufficient evidence that there had By token, 445. the same Id., the state’s case-in-chief. ing validity defendants have attacked the criminal although has been decided, waiver rule since Rutan was it of the rule, or reconsider its unnecessary apply for us to the cases, the state also had validity, because, those See, evidence in its case-in-chief.12 presented sufficient A.2d Calonico, 135, 139-40, v. 256 Conn. 770 State e.g., Cassidy, 112, n.25, v. 236 Conn. 135 454 State (2001); 910, 273, 519 U.S. 117 S. Ct. 899, denied, A.2d cert. 672 281, 228 Conn. (1996);State v. Medina, 136 L.Ed. 2d 196 Williams, v. 202 (1994); 636 A.2d 351 State n.28, 302-303 Lizzi, v. n.3, 521 A.2d 150 State 349, (1987); Conn. 351 A.2d 16 but see State 462, 465, (1986); Conn. 508 199 A.2d 1039 113, 118-19, (1986) 200 Conn. 509 Simino, v. case, how In the toto). (reviewing case presented during the state’s ever, the evidence pivotal especially respect thin with in-chief was case, namely, how much alcohol element of the state’s on the of the evening the defendant had consumed express we no conclu- although accident.13Accordingly, 12 Appellate of the waiver rule in the Court has noted our criticism The context, the rule because has nevertheless continued to follow criminal but Larson, it. See Elliott v. explicitly 81 Conn. this court has not abandoned questioned (“[a]lthough App. (2004) we the A.2d 59 have 840 viability continuing ... have waiver rule in the criminal context we quotation questioned applicability its in the civil context” [internal never Rodriguez, App. 779, 786, State v. omitted]); 796 A.2d 611 Conn. marks Supreme rule, (“[d]espite Court has not of the waiver our its criticism denied, 938, (2002); expressly it”), 260 Conn. 802 A.2d 91 abandoned cert. Wright, App. 743, n.5, (“[w]e are mindful State v. 774 A.2d 1015 62 Conn. criticized”), application rule in criminal cases has been that the of the waiver Roy, App. (2001); denied, 774 A.2d 142 34 Conn. cert. 256 Conn. Supreme acknowledged 751, 766 13, 643 (1994) (“our Court has n. A.2d 289 represents rule and . . . because the waiver rule criticism of the waiver subject state, apply existing it in this case” law on this in our we [citations omitted]), grounds, 658 A.2d 566 rev’d on other only consumption related to Indeed, evidence that defendant’s testimony Medvegy, who indicated that of alcohol was the not, Medvegy evening drinking of the accident. could scotch on the was evening. however, had to drink that how much the defendant had recall Fidaleo, working at Tavern who were as bartenders Neither Grosner nor case-in-chief,14 sufficiency of state’s as to the

sion question jurisprudence in our lingering because 12 of rule; see footnote the waiver validity claim that the defendant’s we now address opinion; this that We conclude is unconstitutional.15 waiver rule the waiver rule we that the Furthermore, reaffirm it is not. pres- in the state, apply we it in this is followed case.16 ent so, identify could, Cucina, respectively, when asked to do Main and La on the a defendant—except “G.Q. served as Fidaleo testified that he inasmuch

the ” respect testimony addition, he looking guy. that recalled In with to Grosner’s Main, serving evidence that at Tavern the there was no beer to two men suggested had to Tavern on the that the defendant or the victim been either Thus, notwithstanding evening the defendant’s on the of the accident. Main heavily immediately following accident, so the on which the state conduct proposition person not fled the accident that a sober would have relies for its presented scene, guided the was no evidence that could have there evening determining had had to drink on the of how much the defendant the accident. 14 presented argues that, The state because there was sufficient evidence validity during case-in-chief, the we need address the of waiver its not say point, belaboring to that the defendant has rule. Without the it suffices respect sufficiency of the state’s a sufficient doubt with demonstrated validity waiver rule. See in order to warrant a discussion of the of the case addition, opportunity opinion. to of In we take this resolve footnote 13 this uncertainty Appellate regarding apparent that in the Court the the exists application opinion. See 12 of of the waiver rule. footnote this 15 Appellate Court; parties’ originally Because the briefs were filed in the opinion; from 1 and discussed the waiver rule the see footnote of this court, parties court, upon request, perspective the in this our of that filed addressing validity supplemental the of the waiver rule. briefs 16 clarity, that, if to For the sake we reiterate the defendant elects of judgment following the a a of introduce denial of motion for evidence encompasses acquittal, appellate the all review of defendant’s conviction jury, irrespective sufficiency presented to the of the of the evidence presented Thus, notwithstanding during the case-in-chief. evidence state’s Rutan, previously discussed, affirmed after our cases decided case-in-chief; cf. on the basis of the state’s defendant’s conviction App. 779, 786, (“when addressing Rodriguez, a 69 A.2d 611 claim Conn. judgment challenging propriety ruling a on a for a court’s motion Supreme acquittal case-in-chief, at close of the state’s our Court only customarily granted has review and considered the evidence has case-in-chief, regardless presented by in its of whether the the state been denied, 938, presented evidence”), has cert. A.2d appropriate separately (2002); it is to the state’s case-in- evaluate presented trial; rather, reviewing ail of the at an chief before

B impermissi- The defendant claims that the waiver rule bly burdens a criminal defendant’s constitutional rights, namely: every to prove have the state element right beyond of a crime reasonable In re doubt; Winship, 358, 1068, 397 U.S. 90 S. Ct. 25 L. Ed. 2d 368 (1970) (“[d]ue [p]rocess protects the accused against [c]lause upon proof beyond a except conviction reasonable every necessary doubt of fact constitute crime with which charged”); right he defense in the sixth to the consti- contained amendment first, tution of the United States17 and § article Connecticut;18 privilege against constitution of and the contained in the amendment self-incrimination fifth the constitution the United States19 and article first, appellate directly proceed in court should to the evidence toto. See State directly Simino, supra, (proceeding toto). v. 200 Conn. 118-19 to evidence in 17 provides: The sixth to the constitution of States amendment the United prosecutions, enjoy right speedy “In all criminal the accused shall to a impartial jury public trial, by and an of the State and district wherein the committed, previously crime shall have have been which district shall been by law, ascertained to be and and informed of the nature cause of the accusation; him; compul against to be confronted with the witnesses to have sory process obtaining favor, for witnesses in his have the and to assistance of counsel for his defense.” 18 first, 8, Connecticut, by § Article the constitution of of amended twenty-nine amendments, provides articles of in seventeen and relevant part: prosecutions, right “a. In all criminal the accused shall have a to be by by counsel; heard himself to be the nature and and informed of cause by accusation; against him; of the to be confronted the witnesses to have compulsory process behalf; to obtain witnesses in his to be released on bail upon security, except capital offenses, proof sufficient in is where evident prosecutions by presumption great; information, speedy, or and in all to a jury. public by impartial person compelled give trial an No shall be deprived life, liberty property against himself, nor be of or without process law, required due nor shall excessive bail be nor excessive fines imposed. any crime, by person punishable No shall be held to answer for imprisonment, upon probable hearing death or life shown at a unless cause except procedures prescribed by law, in accordance with in the aimed forces, public or in the when in actual in of war or militia service time danger.” 19 provides: The fifth to the constitution of the States amendment United person capital, “No to answer otherwise shall be held for or infamous Specifically, of Connecticut.20 8, of the constitution

§ impermissibly waiver rule claims that the the defendant these fundamen- to choose between forces We rights.21 disagree. tal way may affect the waiver rule arguably

Although his at conducts defense in which a criminal defendant rule, reasonably that the trial, it be maintained cannot any constitutional matter, right. as a violates general legal system, like process, “The the rest criminal of diffi- replete requiring making situations with Although to follow. cult as to which course judgments may have a even constitutional right, a defendant chooses, course he follow whichever dimensions, always forbid does not that token the Constitution quotation marks him to choose.” (Internal requiring 24, 41, 122 S. Ct. Lile, v. U.S. McKune omitted.) except Jury, crime, presentment in or of a Grand unless on a indictment Militia, forces, arising in the when in actual cases in the land or naval or any person subject public danger; for in War or nor shall be service time of limb; put jeopardy be of life or nor shall the same offense to be twice against himself, compelled any nor be case to be a witness criminal process law; deprived life, liberty, property, nor shall without due compensation.” public just private property use, without be taken for presents arguments Although under both the federal provides constitutions, state he does not contend that the state constitution independent challenging Geisler, See State Conn. an basis for the rule. interpreting constitution). 672, 684-85, 610 (1992) (criteria state A.2d 1225 contemporaneously. Thus, rights we will discuss both sources of 21 that, improperly argues, example, if the trial court The defendant acquittal, grant judgment motion fails to a defendant’s for a defense, thereby unduly present a faces an choice: he can either burdensome prove every waiving process right, to state to element of his due force the beyond doubt; silent, waive the offense a reasonable or he can remain Although agree right sixth to defense. we with his amendment faced with the defendant to the extent that criminal defendant indeed clear, presence choice, foregoing a difficult as the discussion malees mere such a make the rule unconstitutional. See State choice does not waiver 298, Alexander, 290, (2000) (“the v. 254 Conn. 755 A.2d 868 Constitution every process government-imposed does not choice in the criminal forbid discouraging rights” that has exercise of constitutional the effect quotation omitted]), quoting Anderson, v. 447 U.S. marks Jenkins [internal 231, 236, 2124, (1980). L. Ed. 100 S. Ct. 65 2d 86 234 McGautha v. L. Ed.

2017, 2d 47 (2002), quoting California, 213, 402 U.S. 91 S. L. 183, 1454, Ct. 28 Ed. simply myriad 2d 711 The waiver rule is one of a (1971). of considerations that a defendant must take into defense; account when his planning but that does not make the rule unconstitutional.

On a more basic level, merely the waiver rule governs appellate review of a criminal trial; defendant’s it does not the trial govern itself. It is well settled that a criminal defendant does not have a constitutional right appeal; rather, solely by to an exists statute. right v. James, 395, n.12, A.2d County see also Lackawanna Attorney District (2002); v. Coss, 532 U.S. 121 S. Ct. L. 1567, 149 Ed. 2d 608 Put way, another it is axiomatic although may that the state not convict a defendant unless it provides to that defendant certain constitutional safe- is not one of those safe- to guards, right appeal say In this it guards. regard, is difficult to that the waiver implicates, any rule let violates, alone of a criminal defendant’s rights Indeed, various to a fair trial. we pressed would be hard say that, to the consti- although require tution does not that we review the defendant’s conviction, prevents it us from reviewing the defen- totality dant’s conviction on the basis of the of evidence presented at trial.22 22The defendant’s claim that the waiver rule is unconstitutional is not analogous Supreme to those cases in which the United States Court has held that, right appeal instances, once the has been made available in certain may right, presented state not restrict access to that because those cases right appeal others, claims that the was afforded to some and not to equal protection S.L.J., 102, violation of the M.L.B. clause. See v. 519 U.S. 119-21, 555, (1996) (statutory 117 S. Ct. 136 L. Ed. 2d 473 scheme that parent’s appeal right parental rights conditioned from termination of prepayment preparation unconstitutional); decree on of record fees held

Mayer Chicago, 189, 196-97, 410, (1971) v. 404 U.S. 92 S. Ct. L. 30 Ed. 2d 372 (rule appeals nonfelony procurement that conditioned from convictions on transcript unconstitutional); Illinois, of trial held 351 U.S. Griffin 18-19, (1956) (rule appeals 76 S. Ct. 100 L. Ed. 891 that conditioned felony procurement transcript from convictions on of trial held unconstitu-

235 We now specific turn to the provisions constitutional on which the defendant relies. As an matter, initial impact misconstrues of the waiver rule on a process defendant’s due right to have the state prove every beyond element of an offense a reasonable doubt. It is well settled that a criminal defendant is constitutionally jury entitled “to a determination that is guilty every element of the crime with which [he] he is beyond a charged, reasonable doubt.” Apprendi v. New Jersey, U.S. 2348, S. Ct. L. Ed. 2d 435 quotes The defendant State v. Hill, Conn. 512, 523 A.2d 1252 wherein we (1986), stated: “An accused has fundamental right, protected by the process due clauses of the federal and Connecti- cut constitutions, to be acquitted proven unless guilty of each element of the charged beyond offense a reason- able doubt.” That passage, written in the context of the trial duty properly court’s to instruct on the essential elements of a crime, was not intended to mean that, without more, it is a denial of a defendant’s due process rights deny improperly a motion for a judg- ment of acquittal at the close the state’s case-,rather, merely it means that, in order for a verdict guilty be imposed, the state proven must have all of the ele- ments of a charged crime to the trier of fact. See In re Winship, supra, 397 U.S. 363 (criminal defendant “entitled to an acquittal of specific crime charged upon all the evidence there is reasonable doubt if whether he capable was in law of committing crime” [emphasis The added]). waiver rule does not infringe on this right. Even if a trial court improperly denies a motion for a judgment of acquittal, the state still must its case to the trier of fact, with or without presented by the defendant. Put another way, the defendant’s process due right to prove have the state tional); C., see also In re 657-59, Samantha 847 A.2d 883 (2004) (discussing M.L.B.). that, does mean beyond doubt, a not guilt reasonable a he has due argument suggests, as defendant’s the burden evaluated on process have the state’s right to evidence, the exclusion of the evi- state’s to only the that present the chose to the dence that defendant jury heard. reject claim that the waiver also the defendant’s

We his to a impermissibly right burdens rule the it is the fact that defendant did Indeed, defense. objectionable finds present a that he now defense pre- was to nor The defendant neither forced appeal. pre- case-in-chief; the he rebutting from state’s vented so a matter trial sumably strategy. did as rule claim that the waiver vio- Lastly, defendant’s simply is against lates the self-incrimination privilege contrary law. The waiver rule does to well established “compel” defendant, sense, in a fifth amendment not merely court to testify reviewing at all. It allows testimony part as of the record, consider a defendant’s testimony just able to consider that as the was acquittal “A motion for at evidence. defendant whose case is denied must then the close of the government’s put on his motion or to on a elect whether to stand doing with risk that in so defense, accompanying he will case him. augment government’s against v. In California, [supra, 402 U.S. each McGautha 215]. pressures— situations, of these there are undoubted case generated strength government’s testify. the criminal defendant to against him—pushing pressures But it has been such suggested never pur- Fifth Amendment ‘compulsion’ constitute poses.” Authority Woodard, Ohio Parole Adult Ed. 287, S. Ct. 140 L. 2d 387 U.S. enlight- it is inconsistent with the “Again, thought justice require ened administration of criminal pros such and cons weigh deciding testify.” quotation omitted.) whether to marks (Internal Ohler v. United 529 U.S. States, 753, 759-60, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000), McGautha v. quoting California, supra, 215. concluded

Having application of the waiver constitutionally rule is permissible, explain we now briefly why we follow it.23The waiver supports rule 23Every Appeals presently federal Circuit Court of follows the waiver Barnes, 545, (1st 1989); rule. See v. United States 890 F.2d 549 Cir. United Velasquez, F.3d 364, 370 (2d 2001); Trotter, v. States 271 Cir. United States v. 806, (3d 1976); Thomas, 82, 529 F.2d 809 n.3 Cir. United States v. 52 F.3d (4th 1995); Perry, 862, (5th 85 n.* Cir. United States v. 638 F.2d 870 Cir. 1981); Black, 668, 669 (6th 1975); United v. States 525 F.2d Cir. United States Roman, 846, (7th denied, Cir.), 977, v. 728 F.2d 858 cert. 466 U.S. 104 S. Ct. 2360, (1984); Wetzel, 175, 80 L. Ed. 2d 832 v. United States 514 F.2d 177 (8th denied, Cir.), 844, 80, (1975); cert. 423 U.S. 96 S. Ct. L. 46 Ed. 2d 65 Martinez, 334, (9th 1975); United States v. 514 F.2d 337 Cir. United States Boss, 396, (10th 1982); Contreras, v. 671 F.2d 401 Cir. United States v. 667 976, (11th Cir.), denied, 849, 109, F.2d 980 cert. 459 U.S. 103 S. Ct 74 L. Ed. (1982); Foster, 1082, 2d 97 (D.C. United States v. 783 F.2d 1085-86 Cir. 1986). addition, pointed thirty-one In the state has out that at least states apply Eastlack, 243, 258, the waiver rule. See State v. 180 Ariz. 883 P.2d 999 (1994), denied, 1118, 1978, cert. 514 (1995); U.S. 115 S. Ct. 131 L. Ed. 2d 866 Key State, 73, 75-76, v. 325 (1996); People, Ark. 923 S.W.2d 865 v. Silcott 442, 445, (1971); 176 States, Colo. 492 P.2d 70 Guishard v. United 669 A.2d 1306, (D.C. 1995); Halemanu, App. 300, 1312 303, State v. 3 Haw. 650 P.2d (1982); People Clark, App. 303, 310, 587 v. 221 (1991); Ill. 3d 581 N.E.2d 722 State, 238, (Ind. 1991); Blue, Davidson v. 580 N.E.2d 242 State v. 225 Kan. 576, 577-78, (1979); Smith, 592 P.2d 773, (La. 897 v. State 332 So. 2d 775 1976); Pottle, 55, (Me. State v. 1978); Simpson State, 384 A.2d 56-57 v. 77 App. 184, 188-89, Md. (1988); Currie, 549 160, A.2d 1145 State v. 274 Minn. 162, (1966); State, 143 1171, N.W.2d 58 (Miss. Shelton v. 853 So. 2d 1186 2003); Purlee, 584, (Mo. v. 1992); Gray, State 839 S.W.2d 587 State v. 239 1024, 1027, Neb. (1992); Aranda, 479 784, 786, N.W.2d 796 v. State 94 N.M. (1980); People Hines, 617 P.2d 56, 61, 329, 173 v. 97 N.Y.2d 762 N.E.2d 736 (2001); Graves, 274, N.Y.S.2d 643 277-78, State v. 343 N.C. 470 S.E.2d 12 (1996); VanNatta, 63, (N.D. State v. 1993); State, 506 N.W.2d 70-71 Snow v. 291, (Okla. 876 1994); P.2d 295-96 Wallace, Crim. Commonwealth v. 522 Pa. 297, 315, (1989); Marini, 507, 561 A.2d 719 (R.I. 1994); State v. 638 A.2d 511 Harry, 273, 277, State v. (1996); Goff, 321 S.C. 468 S.E.2d 76 State v. 292 311, (S.D. 1980); Campbell, N.W.2d 311-12 608, v. State 904 S.W.2d 611 (Tenn. App. 1995); Velasquez State, 842, Crim. (Tex. App. v. 815 S.W.2d 845 1991); Stockton, 212, 215, State v. (1957); Sheppard 6 Utah 2d 310 P.2d 398 Commonwealth, v. 386, 464 (1995); 250 Va. Pietrzak, S.E.2d 131 State v. App. 670, 680, 110 (2002); Simplot, Wash. 41 P.3d 1240 State v. 180 Wis. 2d 383, 399-400, (1993); State, 509 (Wyo. N.W.2d 338 v. Newell 548 14 P.2d 1976). equation, On the other side of the we are aware of seven states that 238 seeking

fact-finding and the ultimate truth function 710, 727-28, 267 Christian, Cf. v. Conn. a trial. State (testimonial privilege (2004) be A.2d 1158 “must 841 cautiously circumspection applied . . and with . impedes truth-seeking function of the it because process” quotation adjudicative [internal marks omit Nguyen, ted]); 639, 649, v. 253 Conn. 756 A.2d State sequestered (2000) (“right is an to have witnesses truth-seeking important right that facilitates quotation fact-finding [internal of a trial” functions omitted]); Morales, Conn. marks State (1995) (“the is a A.2d 585 criminal trial search quotation omitted]); v. Jar [internal truth” marks (1987) zbek, 683, 692-93, A.2d 1245 testimony permissible videotaped (allowing of minor confrontation), truth-seeking goals of because it advances Ct. 98 1061, 1017, 484 U.S. 108 S. denied, rt. ce regard, (1988). In the waiver rule L. Ed. 2d 982 this in its the bizarre result that could occur eliminates namely, absence, a conviction be reversed could despite evidentiary insufficiency, in the for sufficiently establishing guilt. record present example. provides case an the such Indeed, present to state failed The defendant claims the he but the alcohol, sufficient evidence that consumed testified to that fact his direct examina- unprompted by apply the the state. The failure to tion, force court waiver rule in the case would this ignore relating reliable evidence to how the most much alcohol the defendant had consumed before State unrelated N.W.2d ^{[865] [604]} do not (Ala. 149-50, So. 2d (2004); v. 1999); apply ^[547] Bacheller, ^[346] 475, Cline (1976); In N.E.2d the constitution. See the waiver 476-77 re v. Anthony J., State v. State, ^[368] N.J.L. 433, 434-37, (fla. 1992); rule, (1976); ^[720] C.H., and A.2d 117 Cal. People Garcia, 264 N.J. Ex all Commonwealth v. 891, parte Hardley, have v. ^[892] App. Super. 112, 128, 624 98 A. 829 elected n.6 4th (Del. 1998); 718, ^[398] (N.J. 766 So. 2d Kelley, 730, to do so Mich. Super. ^[11] Walker A.2d 53 370 Mass. 147, Cal. for 154, 1916). Rptr. v. reasons (1993); 157-58 State, ^[247] 3d recog error doctrine Just as the “harmless accident. a criminal purpose principle that the central nizes of the defendant’s question the factual trial is to decide omitted) marks innocence”; quotation (internal guilt Correction, 444, 222 Conn. Commissioner Bunkley v. does the waiver rule.24 A.2d 598 so too 460, (1992); in that doctrine is rooted harmless error (“appellate Id. justice system— purpose of our criminal fundamental acquit innocent”). guilty to convict the by defendant’s claim persuaded also are not We with Practice Book that the waiver rule is inconsistent which motions for 42-40, 42-42,25 govern 42-41 and §§ against mindful, course, analogies that can be drawn We are exclusionary rule, from the which often can exclude otherwise waiver rule acquittal. evidence, resulting “Because the exclu reliable in a defendant’s reliable, probative evidence, sionary precludes it . . . rule consideration of many undeniably truthfinding process detracts from the and allows who escape consequences of their actions. would otherwise be incarcerated to Although bearing in . . . we have held these costs to be worth certain circumstances, repeatedly emphasized costly our cases have that the rule’s upon objectives presents truth-seeking high toll and law enforcement urging application (Internal quotation obstacle for those of the rule.” marks Foster, omitted.) (2001), quoting v. 782 A.2d 98 Pennsylvania Scott, 357, 364-65, Board Probation & Parole 524 U.S. 2014, 141 L. 118 Ct. Ed. 2d 344 We conclude that whatever costs the S. imposes outweighed waiver rule on criminal defendants are its benefits meaningful appellate the ultimate search for truth and review of the suffi ciency key of the evidence. The difference between the waiver rule and the exclusionary rule, exclusionary however, under the is that evidence excluded constitution, and, therefore, rule had been seized in violation of the policy reasons, by not be considered a finder of fact in various should by appellate determining guilt. considered an the defendant’s Evidence not rule, hand, simply court in the absence of the waiver on the other removes jury finding guilty. that was in its of evidence considered the provides: acquit § Book for a directed verdict of Practice 42-40 “Motions during a tal and for dismissal when used the course of trial are abolished. place. judgment acquittal the Motions for a of shall be used their After prosecution’s evidence, case in chief or at the close of all the close upon motion, judicial authority upon the own the motion of defendant or its any entry judgment acquittal principal shall order the of a of as to offense any charged as for which the evidence would to lesser included offense reasonably permit acquittal finding guilty. judgment shall not a of Such of apply any lesser included offense for which the evidence would reasonably permit finding guilty.” a of provisions provide, Those acquittal.26 of judgments prose- the the close of things, that, other among “[a]fter evidence, all the in chief or at the close of cution’s case upon motion, or its own upon motion of the defendant entry the of a judicial authority judgment shall order the . . . any principal charged offense acquittal of as reasonably a permit would not for which the evidence Practice Book added.) finding guilty.” (Emphasis with the defendant that that 42-40. we Although agree § grant is obliged means that the trial court language proper should a acquittal for a judgment a motion sheds no on present itself, light the rule circumstance sufficiency of required is to review the how this court provides: made after the close of § 42-41 “If the motion is Practice Book judicial authority grant chief, prosecution’s shall either case in the the upon deny calling the defendant to the defendant’s the motion before may granted, offer case in chief. If the motion not right having to do so.” without reserved provides: made at the close of all 42-42 “If the motion is § Practice Book judicial authority may jury case, reserve decision on in a the evidence jury, motion, before and decide the motion either submit the case to they they guilty a verdict of or after return a verdict or after return discharged having returned a verdict.” are without point disagreement with the defendant’s contention We also out our the Federal Rules of Criminal Procedure a amendment to rule 29 of that 1994 application rule in the federal courts. of the waiver “rendered moot” however, only play, if the comes into The effect of that 1994 amendment acquittal judgment for a its decision on the motion trial court reserves case; government’s presented if the trial court denies at the close of the present case, applies motion, it the waiver rule as it did in the Velasquez, ordinarily (2d 271 F.3d See United States would. 2001). Cir. practice permit rules, Moreover, do not the federal our rules of unlike acquittal judgment decision on a motion for the trial court to reserve its opinion. presented case. See footnote 25 of this at the close of the state’s apply Thus, the waiver rule on cases that have “refused to those federal improperly ruling appeal such a had reserved its when the trial court opinion; light motion”; dissenting shed no on our 7 of the see footnote situation, namely, interpretation court’s trial of the waiver rule because acquittal, judgment of cannot occur in a a motion for a reservation on only persuasive gleaned can be from The fact that Connecticut state court. universally applied practice the waiver rule is on this issue is that federal opinion. See footnote 23 of this in the federal courts.

241 of such court’s denial the trial following the evidence There undoubt- verdict of jury’s guilty.27 and a a motion minds could in which reasonable situations edly will be at the close particular differ facts whether the regarding but guilty, a verdict of support could of the state’s case erroneously, juiy, a however submitted to once a case is review guilty, a verdict of jury and the returns that evidence that on the basis of evidence to be ought Hines, 97 N.Y.2d 56, People v. jury. was before the See 643 329, (2001) (“[c]onsis- N.E.2d 736 N.Y.S.2d 61, 762 jury of a function truth-seeking tent with the overall is that rule underlying the rationale trial, [the waiver] by a verdict guilty court should not disturb reviewing a based on insufficient judgment a reversing jury all of the evidence the without into account taking verdict, proof reaching including considered in appeal on an claim- by all, adduced After defense”). jury’s ver- insufficiency of the evidence ing following jury’s verdict propriety dict of it is the of guilty, propriety of the trial reviewing, that we are jury. simply We of the case to the court’s submission acquittal, course, grant judgment The decision to a motion for a appellate lightly because the state cannot obtain review should not be taken history “Perhaps most fundamental rule in the of that determination. acquittal jeopardy jurisprudence verdict of . . . of double has been that [a] reviewed, otherwise, putting be on error or without [a defendant] could not thereby jeopardy, violating . . . United States twice in the Constitution. 1349, Supply Co., 564, 571, 51 L. Ed. 2d v. Linen U.S. 97 S. Ct. Martin [430 acquittal, (1977)]. judgment whether based on a verdict of not A convict, guilty ruling by insufficient to or on a the court that the evidence is may appealed prosecution and terminates the when a second trial not be Scott, 82, U.S. would be necessitated a reversal. United States [437 65, denied, 883, 2187, L. Ed. 2d reh. 439 U.S. 99 S. Ct. 98 S. Ct. omitted; quotation (1978)].” (Citation 2d internal marks 58 L. Ed. Paolella, omitted.) 554 A.2d 702 In this State v. regard, give rule the defendant the the failure to follow the waiver would acquittal granted, judgment best of both worlds: if his motion for Ihe has ended and the state cannot obtain review of the trial court’s trial appellate ruling; denied, review if his motion is he would be able to secure ultimately denial, irrespective of that of the evidence that was submitted jury. that, conclude when a court is faced with a reviewing choice between two records—one some encompassing and presented encompassing of the evidence at trial one presented at trial—the latter is the all of the evidence preferable record on which to determine whether a defendant is entitled to a reversal of his conviction. supervisory exercise our

Finally, we decline to in the authority by apply to the waiver rule refusing that, case. The defendant because he argues multiple crimes, namely, was with vehicular charged vehicular misconduct manslaughter, evading responsibility, present exculpatory he could not evi- respect evading responsibility charge dence with to the or the state to draw introducing, allowing without also potentially inculpatory respect evidence with to out, persuaded. the other We are not charges.28 position The defendant’s does not differ from that of multiple any charged with crimes. It was his inject a matter of trial into the choice, strategy, as trial whatever issues that he concluded would be benefi- Conversely, cial the defendant was free to his defense. any he did to avoid issues on direct examination that State Ramos, by out not want drawn state. Conn. 801 A.2d 788 is a well (2002) (“[i]t rule of evidence that cross-examination is established restricted matters covered on direct examination”). to, not, request The defendant also was free and did pursuant severance of the him to Prac- charges against points aside, tice Book 41-18.29Those it suffices to § 28Specifically, sought the defendant claims that he to introduce the testi mony injury Selig regarding his traumatic brain that he demonstrate necessarily purposefully accident, did not leave the scene of the which opened Selig regarding consumption the door to what the defendant told his of alcohol. provides: appears preju § Practice Book 41-18 “If it that a defendant joinder judicial authority may, upon offenses, diced its own defendant, separate motion or the motion of the order trials of the counts provide justice may require.” or other relief whatever discussed, pressures

say that, previously opening into pushed introducing, consumption his of alcohol at trial to, door evidence of interest, appeal, truth outweigh seeking do not jury. presented as it was reviewing the record that the waiver rule dissent, although agreeing The supervisory that we exercise our constitutional, urges “places it because it a criminal defen- power to abolish dilemma, of an unfair him to forcing dant on the horns equally two fundamental rights: choose between defense, and the to have the right present right every burden of each and element proving state bear' the beyond doubt.” Thus, of a crime a reasonable charged “presents the rule a defendant contends, the dissent erroneously whose motion to dismiss has been denied sacrificing with a Hobson’s choice:30 and resting a defense out of fear that his or her right testimony may prosecution’s defects in the case, cure thereby possibly or on such evidence and putting prosecution its case.” assisting proving (Internal quotation omitted.) disagree. marks We

First, agree presents we that the waiver rule although a difficult we dilemma, disagree the defendant with it is an “unfair” dilemma. In addition to the foregoing constitutionality discussion of the waiver regarding justice system puts criminal defendants rule, our choices, namely, choosing particular similar between a constitutional and on evidence of his or right putting her but none of these own; choices ever has been example, as unfair. For regarded defendant must always choose between on his constitutional standing to remain silent and the stand in right taking presenting his for defense, may, example, exposure which result in 30 agreement, however, dissent, which, We note our with footnote 2 of the relying properly Messler, App. 432, n.3, on State v. 19 Conn. 562 A.2d has, all, expect, (1989), once and l'or we clarified the true nature of a “Hobson’s choice.” purposes criminal record for prior of his cross- may expose himself to

impeachment, simply case or will the state’s strengthen examination jury. addition, In if his credibility with the diminish his his confession or suppress motion to either must choose between rest- been he granted, seized has properly were granted the motions on his claims that ing stand, thereby by taking the his defense presenting suppressed impeachment himself to subjecting Burge, 232, 250-51, evidence. See v. may be admissible 532 (1985) (“Evidence 487 A.2d it was obtained though even purposes impeachment require- or the fourth amendment in violation of the Arizona, Miranda 436, 478-79, 384 U.S. ments of [v. See United (1966)]. 16 L. Ed. 2d 694 1602, 86 S. Ct. 100 S. Ct. Havens, States v. 620, 627-28, 446 U.S. Hass, 420 U.S. Oregon L. Ed. 2d 559 (1980); Harris Ed. 2d 570 1215, (1975); S. Ct. 43 L.

723-24, 95 S. Ct. 28 L. York, v. New U.S. see also omitted.]); . . . .” 2d 1 (1971) Ed. [Citations v. Scott, & Parole Board Probation Pennsylvania of 2014, 141 L. Ed. 2d 344 n.4, 118 S. Ct. 524 U.S. by the instances, question the faced In both in both nature, and essentially is tactical of the criminal function seeking instances the truth of the on the ruling vel non trumps propriety trial the defendant’s motion. on our the dissent’s reliance view, in our

Second, of crimi authority over the administration supervisory authority, that misplaced and, fact, justice nal is judicial the protect integrity designed which judicial sys fairness of the system perceived and “the marks quotation omitted) whole”; (internal tem as a Valedon, (2002); A.2d 836 381, 386, 802 the waiver rule. We rather than for, against, counsels purpose “fundamental of our have stated that the often to convict the justice system guilty criminal [is] Bunkley acquit Cor v. Commissioner innocent.” the supra, Like the harmless error 222 Conn. 460. rection, public respect purpose “promotes the doctrine, by focusing underlying process fairness criminal virtually pres inevitable than on the of the trial rather (Citation omitted; internal error.” ence of immaterial respect quotation omitted.) for that Id. Public marks process diminished, rather than enhanced, will be validity by requiring suggests, that the the dissent by jury’s guilty all of the evidence verdict be measured only that evidence relied, rather than on which preceded of the defendant’s an erroneous denial acquittal, judgment followed motion for presentation evidence.31 of his own rests, the waiver rule at bot- In the abolition of sum, perception sporting as a on a of the criminal trial tom, trump game the search in which the rules of the event implied invitation to We decline the dissent’s for truth. join perception. in that

C applies Having in the that the waiver rule concluded sufficiency of the evidence case, we turn to jury’s support that, verdict. The defendant claims respect charge manslaughter in the sec- with degree was insufficient vehicle, with a motor there ond support presented during trial to the entire jury’s guilty.32 disagree. We verdict of which, denial, Consider, example, in after such a the defendant a case cross-examination, admits, explicitly and, either testifies under skillful implicitly, charged. hardly public respect guilt of the crime It can increase his appellate process that defendant free for the criminal for an court to set erroneously judgment a because the trial court denied his motion for of case, view, acquittal stage of trial. In such a in our at an earlier the by evidence, becomes, “immaterial denial virtue of the defendant’s own quotation omitted.) Bunkley (Internal marks v. Commissioner error.” of Correction, supra, 222 Conn. 460. challenge sufficiency pre does not the of the evidence The defendant respect during charges of misconduct sented the entire trial with responsibility operation evading vehicle and in the of a motor with a motor apply we to a claim of insuffi “The standard of review In reviewing well established. suffi cient evidence is support a criminal conviction ciency of the evidence we construe the evidence apply two-part First, we test. the verdict. sustaining in the most favorable to light upon whether the facts so con Second, we determine reasonably inferences drawn therefrom strued and the reasonably could have concluded of fact] [finder established force of the evidence that the cumulative . . . State v. New doubt. beyond a reasonable guilt some, 588, 616, 682 A.2d 972 every proven jury must find element

“We note that to find the defen- beyond a reasonable doubt order offense, each of the charged dant guilty [but] facts those conclusions underlying basic and inferred . . . beyond a reasonable doubt. proved need not be jury and for the to conclude logical If it is reasonable true, is a basic fact or an inferred fact proven may fact consider permitted to consider the proven determining facts in it in combination with other proves effect of all the evidence whether the cumulative elements of the crime of all the guilty . . Id., doubt. . 617. beyond reasonable charged probative force “Moreover, it does not diminish consists, part, in whole or of the evidence that it . . . rather than direct. evidence that is circumstantial a multi- impact but the cumulative fact, It is not one in a involving facts which establishes case guilt tude of ... In evaluating substantial circumstantial evidence. required accept of fact is not evidence, the [finder] are consistent with dispositive those inferences that . . . The the defendant’s innocence. [finder fact] inferences from the evidence or may draw whatever it deems to be reason- facts established the evidence only discussion, therefore, charge man- vehicle. We confine our slaughter degree with a vehicle. in the second motor

247 McMahon, 544, 257 . . State v. . Conn. able and logical. 566-67, A.2d 847 (2001). proof beyond a noted, we have often

“Finally, [a]s beyond possi- all proof does mean doubt reasonable a beyond reasonable proof . . nor does ble . doubt inno- every hypothesis of acceptance of require doubt had it been found that, posed by cence have of would resulted fact], the credible [finder not ask whether On we do acquittal. appeal, an ... evidence that would view of the there a reasonable ask,We hypothesis of innocence. support a reasonable view the evi- there is a reasonable of instead, whether the verdict supports dence that fact’s] [finder Meehan, 372, . 567.” v. Conn. Id., . . guilty. 377-79, A.2d 1191 (2002). a of manslaughter

In convict defendant order to a vehicle 53a- the with motor under degree § second the required (1) defendant 56b, prove the state is while person (2) operating caused of another the death under influence of intoxicating a motor vehicle the (3) liquor any the victim’s death was drug (4) liquor or See consequence drug. of the effect of such context, opinion. 2 of this In this “under footnote that, means as a result intoxicating liquor,” influence of intoxicating liquor, such defendant’s drinking mental, processes or nervous “have become physical, appreciable so that he lacks to an degree affected ability properly operation function in relation quotation of his vehicle.” omit (Internal motor marks Sanko, State 771 A.2d ted.) App. Conn. cert. 772 A.2d 599 denied, sufficiency

The does not dispute defendant respect to whether he caused the death evidence with rather, while motor operating vehicle; victim prove contends that the state failed to liquor. that he under the influence of intoxicating was inquiry The becomes, therefore, whether there was suf- jury ficient evidence for the to find that, as a result of consuming alcohol, the defendant was affected to the extent that he lacked an appreciable to the degree abil- ity properly to function in operation relation to the his motor vehicle. jury reasonably

The could have found that, on the testimony basis of the of the defendant, and Fida Selig the leo, defendant had consumed one and one-half beers at Tavern on the Main and three two glasses ounce scotch at La Cucina. In addition, Milzoff testified that one twelve ounce beer or one proof ounce of eighty equals scotch alcohol, one dose of and that as one consumes more alcohol, doses of the resulting effects, namely, the inhibition reflexes, of one’s become more Thus, severe. viewing evidence the light most verdict, favorable to sustaining jury reasonably could have found that the defendant had consumed seven and one-half preced doses alcohol the hours ing the crash. It was not jury unreasonable for the consider this evidence and infer, on the basis of its general awareness of drinking and that these driving, seven doses of adversely alcohol affected the defen ability operate dant’s Craig a motor vehicle. See v. Driscoll, 262 Conn. 813 A.2d 1003 (2003) (“we are mindful of the horrors that result from drinking horrors to driving, unfortunately which we have grown more accustomed”); id., 337 n.17 (discussing alcohol State v. related traffic accident Jones, statistics); Conn. 664, 667, A.2d 374 (1938) (“condition of intoxi cation and its common accompaniments are a matter of general McNally, State knowledge”); 39 Conn. App. 419, 427, 665A.2d 137 (O’Connell,J., dissenting) (same), cert. denied, 235 Conn. 931, 667 A.2d 1269 (1995); v. Lamme, App. 594, 606, 563 A.2d 1372 (1989) (same), aff'd, 261 Conn. 172, 579 A.2d 484 (1990). as well. inference this supported

Other facts found that have reasonably could First, of driv- were indicative crash itself with the associated requisite alcohol influence of under ing per miles hour thirty driving was The defendant degree. wet, curvy on a traveling limit while speed above the road, trav- off the vehicle skidded The defendant’s road. twenty-four per miles at a rate grass on dirt and eled hit a tree. stop until it and did not hour, have found that reasonably could Second, immediately after the crash conduct the defendant’s the fact to conceal trying that he was was indicative alcohol. See influence of been under the that he had (2001) A.2d 1091 854, 892,776 Pappas, and is relevant guilt consciousness of evincing (conduct testimony that he Despite the defendant’s admissible). and called Habetz he fled the accident scene called personnel waiting emergency rather than ride, for a extensive despite the defendant’s addition, arrive. In until the not seek medical attention injuries, he did next afternoon.

II EVIDENCE EXCLUSION OF CERTAIN improp- next claims that the trial court The defendant he did not to show that erly tending excluded evidence thereby accident, intentionally leave the scene of responsibility evading certain elements of the rebutting theory. of guilt and the state’s consciousness charge that the trial court the defendant claims Specifically, hearsay and excluded, on relevance improperly made to Habetz the defendant’s statements grounds: (1) wanted to return to that the defendant indicating that Habetz demonstrating scene; accident evidence (2) to the accident returning the defendant from prevented why Habetz was demonstrating scene; (3) attorney, needed an that the defendant opinion of the police well as evidence of Habetz’ as a background commissioner to demonstrate his basis for such tending opinion. an We conclude that none of this evidence was improperly excluded. necessary

The additional facts are following previously resolve this issue. As discussed, Habetz testi- fied during state’s case-in-chief that he received telephone immediately several calls from the defendant accident, picked up after the and that he shortly cross-examination, thereafter. On the defen- dant’s counsel asked Habetz what the defendant had telephone said him, including over the where the defendant had said that he go. wanted to The state objected hearsay grounds, and, colloquy after a out- presence jury,33 side the the trial court sustained objections. the state’s this During time, defendant’s if he suggested counsel also asked Habetz had police, defendant that the defendant contact the any whether Habetz and the defendant had had dis- objected while Habetz’ car. The state on agreements questions beyond scope the that the were the ground examination, direct and the trial court sustained the objections. Finally, recross-examination, state’s on the prevented defendant’s counsel asked Habetz if he had the “from doing things.” defendant certain The state objected beyond on the that the ground question was scope examination, and, prof- direct after a brief fer presence jury, the defendant outside the objection.34 the trial court sustained the state’s sought The defendant to admit his statement as evidence that he did report person not fail to the accident insofar as Habetz was the first that he saw after the accident. 34Specifically, originally the trial court concluded that the state had asked prevented leaving vehicle, whether Habetz had the defendant from Habetz’ whereas, proffer, asking as revealed in the defendant’s the defendant was prevented doing, namely, returning what else Habetz had the defendant from checking to the accident scene and on the condition of the victim. that, and testified took the stand

Later, the defendant he he told Habetz that picked up, had him after Habetz victim. happened out what had wanted to find he had that, after testified addition, In the two accident, been in a car told Habetz that he had to house and waited back to Habetz’ of them went anyone else. attorney contacting before contact an testify. Habetz to defendant recalled Thereafter, if the defendant counsel asked Habetz The defendant’s any place.” him The defen- Habetz to “take had asked purpose of rebutting dant’s counsel for the sought, to admit this evidence to responsibility charge, evading intention to it was the defendant’s demonstrate objected on return to the accident scene. The state objec- hearsay and the trial court sustained grounds, objections, tion. The trial court also sustained the state’s any testimony nonspecific respect with grounds, the defen- given to “advice” that Habetz had relating pres- vein, proffer dant. In a similar after a outside testimony jury, ence of the the trial court disallowed the defendant, to the basis for Habetz’ advice to relating police namely, prior background that Habetz had a of the law. This knowledge commissioner and some counsel was relevant testimony, argued, the defendant’s why control” of the situation and to show Habetz “took from effectively prevented returning court stated clear, the accident scene. To be the trial testimony any relating advice, i.e., to Habetz’ an or that he scene, get attorney, to return to the police commissioner, irrelevant, was and was former any testimony to what the defendant had told relating Habetz, i.e., that he wanted to return to the accident hearsay. scene, was may that it

Finally, the trial court instructed immediately after the consider the defendant’s conduct any “In criminal trial guilt: accident as consciousness the conduct of a permissible it is for the state to show may defendant after the time of the offense alleged fairly by have been influenced the criminal act. That is that the conduct shows a The guilt. [consciousness] crime, a in the scene of a if person leaving conduct of crime, in at the scene of the proven that he was fact in his . . . Here may determining guilt. be considered may all evidence that bears on the you consider but not limited to the residents who Including issue. reported responded scene, police to the crash and testimony personnel arrived, given fire who defendant and as to their conduct the after- [Habetz] . . . .” math our review governs

We first set forth the standard that evidentiary “It is axiomatic that ruling. of a trial court’s admissibility of evidence ruling trial court’s on the [t]he quotation is entitled to deference.” great (Internal C., State v. William 686, marks 267 Conn. omitted.) In this the trial court 700, regard, 841 A.2d 1144 (2004). wide discretion in the admis- determining is vested with sibility issues of relevance and evidence, including Rizzo, State v. scope Id., 701; cross-examination. 266 Conn. 833 A.2d 363 (2003). Accordingly, evidentiary will trial court’s matters be ruling “[t]he only of a abuse of the upon showing overturned clear quotation court’s discretion.” marks (Internal omitted.) C., supra, State v. William determining 701. In whether every discretion, there has been an abuse of reasonable presumption should be made favor of the correctness will upset ruling of the trial court’s and we ruling, State v. only Id.; for a manifest abuse of discretion. Rizzo, supra, 285. “This deferential standard is [gener- ally] applicable evidentiary questions hear- involving Lopez, say.” quotation marks (Internal omitted.) 757 A.2d 542 (2000). In addition, require[s] federal constitution “[t]he opportu- be afforded a meaningful criminal defendants nity complete defense. . . . The sixth includes the process compulsory to right

amendment version . . . the defendant’s right to may decide where the juiy ... to the so that it facts amendment right, . . . The defendant’s sixth truth lies. com- require forgo does not the trial court however, admissibility of evidence. . . . on the pletely restraints only relevant therefore, may A introduce defendant, relevant, and, proffered if the evidence is not evidence, is not proper right exclusion is and the defendant’s its violated. . . . has a ten- logical

“Relevant evidence is evidence that of an issue. dency to aid the trier the determination . is relevant if it tends to make the exis- . . Evidence probable more any tence or nonexistence of other fact it be without such evidence. probable or less than would all relevant, To be the evidence need not exclude ... support possibilities; other it is sufficient if it tends offered], slight the conclusion which it is even to a [for quotation internal marks degree.” (Citations omitted; Cerreta, 260-62, omitted.) A.2d claims,

In it is order to understand defendant’s evidence, pro- its necessary parcel out each item and reason for exclud- posed relevancy, the trial court’s essentially it. The defendant the trial ing challenges (1) court’s exclusion of two items of evidence: to Habetz indicating defendant’s statements made scene; to return accident and (2) he wanted that Habetz advised the defendant indicating accident, not to return to the scene of the Habetz’ Moreover, reasons for so. the defendant does not doing the trial court’s that certain evidence challenge rulings beyond scope was of the state’s direct examination Habetz, as the same evidence also was ruled inadmis- examination of during sible the defendant’s direct Finally, argues Habetz. to the extent that the defendant evidence was relevant to refute challenged theory, guilt we decline to the state’s consciousness admitting because that basis review that contention argued in the trial court. See State was not the evidence (1990). Moye, n.6, 570 A.2d 209 v. 214 Conn. respect statements made to to the defendant’s With indicating to return to the acci- that he wanted Habetz evidence on court excluded such scene, dent the trial hearsay sought grounds. to introduce The defendant testimony not intend to that he did this to demonstrate inquire and that he wanted to scene, the accident leave evidence was of the victim. This as to the condition did not not, he did or at least offered to establish that responsibility after the accident. He to, evade intend hearsay, argues are not but are that such statements they independent gestae have as res because admissible argues legal significance. also that such The defendant exception state of mind to fall within the statements hearsay although that, the defen- rule. We conclude exception within the state of mind dant’sstatements fell hearsay they improperly were not excluded rule, to the they were irrelevant to the trial court because responsibility. charge evading offered to establish the “An out-of-court statement hearsay. gen- ... As a matter asserted is truth of the hearsay statements are inadmissible rule, eral such exception they recognized unless fall within quotation omitted.) hearsay (Internal marks rule.” (2004); see 351, 360, 844 A.2d 191 Rivera, 268 Conn. (3). § out of 8-1 “A statement made Conn. Code Evid. hearsay it is offered to establish the court is not unless (Internal of the facts contained the statement.” truth quotation omitted.) Rogers v. Board Educa- marks A.2d 1173 In the tion, sought into case, the defendant introduce wanted to that he had told Habetz that he was offered return the accident scene. This evidence return prove wish to did, fact, that the hearsay. This was scene. to the accident disagree that this state claim the defendant’s with We a ver constitutes A statement a “verbal act.” ment was simply because is relevant if statement bal act irrespective it was whether made, was statement (3d Evidence Connecticut Tait, See C. or false.35 true p. 2001) § is an out-of-court “Averbal act 8.8, 575. Ed. consequences, legal or, causes certain statement differently, the law to which utterance it is an stated . . is admissible [and] . and liabilities duties attaches being nonhearsay truth for the offered it is not because 157 Mortoro, v. See State therein. contained of the facts (1969) (statement that A.2d 574 396, 254 Conn. job committing person good not admitted crime did a parties relationship between show truth but to for its Gyro witness); prosecution hindering Brass state’s Agricul Corp. Mfg. & Automobile, v. United Aircraft Implement AFL-CIO, 147 America, Workers tural (1959) (testimony about 241 157 A.2d Conn. agreement admissible was of sales oral modification testimony being nonhearsay offered was because only prove truth of made, not for was that utterance utterance); any Tolisano, within statements (1949) (statements 118 210, 214, 70 A.2d apartment suspected anonymous bookie’s callers not for truth of offered because statements admissible placing bet) proof as of verbal act their content but quotation (Citation marks internal omitted; . . . .” presumably example dead act is evidence that a A of a verbal textbook veracity statement, Irrespective of that of the “I am still alive.” man had said is, fact, sow,etKing he not dead. indicates that the fact that the man said 1999) pp. (9th Park, Ed. and Materials & R. Evidence: Cases See J. Waltz depends, instance, relevance the [statement] 96-97. In such an “[t]he credibility . . . but on therefore, out-of-court declarant not. on Id., p. 102; Biologicals, testifying Inc. v. Bank Ries witness.” that of the 1986). Fe, (10th Cir. Santa 780 F.2d omitted.) Fish, 575,584-85, 804 Urich v. 261Conn. A.2d

The defendant’s statement that he wanted to return to the accident scene cannot be considered a verbal prove just namely, it offered to that, act because was that the defendant wanted to return to the accident prove statement, therefore, scene. The was offered to truth asserted, of the matter and the trial court properly hearsay. categorized it as

We whether, contends, now turn to exception within the state statement falls of mind hearsay (4).36 § to the rule. See Conn. Evid. Code 8-3 although that, We conclude this statement within fell exception hearsay rule, this the trial court did improperly it because it exclude was irrelevant for purpose namely, introduced, for which it was demonstrate that the defendant’s conduct after the acci- evading responsibility dent did not constitute under (a). § DeLoreto, 14-224 See State v. 265 Conn. 145, 153, (2003) (“[w]here 827A.2d 671 the trial court a reaches grounds, correct decision on [mistaken] but this court repeatedly has sustained the trial if court’s action proper support grounds quotation exist to it” [internal omitted]). marks previously discussed, “[a]n

As out-of-court statement that is offered to establish the truth of the matter hearsay asserted is inadmissible unless the statement recognized exception hearsay falls within a to the rule. exception provides . . . such One that statements present expressing may a declarant’s state of mind be offered for the truth asserted, of the matter relevant. if 36 hearsay exception pursuant (4) § The to the rule to 8-3 of the Connecticut provides: then-existing of “A Code Evidence statement of the declarant’s condition, present including indicating mental or emotional a statement particular future, provided intention to do a act in the immediate that the expression statement is a natural of the condition and is not a statement memory prove or belief to the fact remembered or believed.”

257 Rev. (Chadbourn Evidence Wigmore, See . . . 6 J. of the state of p. 99 assertions 1976) (direct § I I am did not ill, I that know mind [and] as] [such satisfy hearsay must state are injure Doe, intend admissible).” (Citation to be exception to rule mind marks added; quotation internal emphasis omitted; 336, 355-56, 803 Dehaney, State omitted.) 123 537 S. Ct. denied, U.S. A.2d 267 cert. (2002), v. Wargo, Ed. 2d see also (2003); L. 1318, 154 out-of-court (“An A.2d (2000) Conn. hearsay] against the rule is not statement [excluded . . . the declarant’s then if it offered to illustrate any course, Of for such of mind .... present state it must be rele admissible, be statement out-of-court omitted; internal case.” vant to an issue [Citations quotation omitted.]). marks wanted to return statement he

The defendant’s plainly fits within state the accident scene 8-3 the Connecticut exception pursuant to (4) § mind exception provides, because, Evidence Code of particular do a it intention to “indicated] future,” namely, to return to the act in the immediate To court’s ruling scene. the extent the trial accident hearsay we that it was rested on conclude grounds, mistaken. evidence, was relevant it however,

The because respect evading did to aid the with nothing which the responsibility charge, purpose defen- Specifically, dant the defendant’s offered evidence. approximately minutes after the thirty state of mind with he had accident had to do whether violated nothing 14-224 (a). § part: 14-224 “Each provides

Section relevant (a) person motor who is operating knowingly a vehicle in an which . . . in the death involved accident results person at once and render any stop other shall such may assistance as be needed and shall give name, his operator’s address and license number and registration person injured number to the any or to officer or witness physical injury death or serious any person, operator and if such ... is unable to give name, his operator’s address and license number and registration person number to the injured any or to witness or offi- cer, any for reason or cause, operator such shall imme- diately report physical such death or serious injury of any person police to a officer, constable, a police state officer or an inspector of motor vehicles or at the near- police est precinct or station, and shall state in such report the location and circumstances of the accident . . . and name, operator’s his address, license number number.” registration Essentially, the statute requires, therefore, aperson involved in an accident required to stop, assistance, render and immediately report the if accident, or, unable to do so, report must the accident as possible soon as thereafter.37 37 Appellate recently explained (a) The Court § the elements of 14-224 as (a), prove follows: “To establish a § violation of 14-224 the state first had to (1) operating vehicle, (2) the defendant was a motor the defendant was knowingly (3) involved in an accident and that accident caused the death physical injury any person. predicate or serious other Once those elements established, prove (a) proved were § state could a violation of 14-224 if it any that the following defendant failed to fulfill one or more of the duties required (4) stop of him the statute: that the defendant failed to at once may needed; and render (5) such assistance as have been or unless there unable, any cause, was evidence that the defendant was for reason or provide statutorily required scene, information at the that the defendant give name, address, operator’s registration failed to his license number and person injured, any accident; number to the officer or a witness to the or (6) unable, any if there was evidence that the defendant was reason or cause, provide statutorily required scene, information at the that the report immediately physical injury defendant failed to the death or serious police officer, constable, police inspector to a a state officer or an vehicles, police precinct station, give motor or at the nearest and name, address, operator’s same information to his license number and registration police officer, constable, police number to the state officer or inspector together of motor vehicles with additional information that would required report accident, not have been had the been made at the scene of the namely, Rosario, the location and circumstances of the accident.” State v. person the notion that a

Implicit these directives is the acci lawfully involved in an accident cannot leave stop obligations dent scene until he has fulfilled his purpose evading “The of the statute on report. and is to ensure that when the driver of responsibility will accident, vehicle is involved in an he or she motor necessary and promptly stop, any render assistance of the offense identify himself or herself. The essence responsibility is the failure of the driver to evading stop Johnson, 534, and render aid.” State v. 227 Conn. 544, 630 A.2d 1059 (1993). addition,

In we previously have held that whether a injury defendant has that an caused knowledge accident responsi- is irrelevant to the crime of damage evading it “a bility; rather, mandatory ‘stop, ascertain and statute, provides penalties assist’ which criminal for the Id., Thus, failure to do so.” 543. in the case, once the defendant left the accident scene and called Habetz instead of police, he had violated the direc- tive of 14-224 (a). § Evidence that the defendant wished to return to the accident scene, therefore, was not rele- vant to the crime of evading responsibility.

We decline to review the defendant’s contention that his statements made to Habetz were relevant to refute the state’s evidence of the defendant’s consciousness That guilt. basis for the evidence was admitting not argued court; in the trial rather, the defendant’s sole puipose for the evidence related introducing evading responsibility Thus, say we charge. cannot the trial court abused its discretion not admitting the evidence for purpose. that alternate See Moye, supra, 214 Conn. appeal, 98 n.6 we will (“On evidentiary review an claim not raised below. Once authority counsel states the ground objection, his App. 621, 634, denied, 81 Conn. 841 A.2d cert. 848 A.2d asserted.” ground will limited to the any appeal be v. William State marks quotation omitted.]); [Internal A.2d is well C., App. 47, 67, (2002) (“It expected only to rule trial court can be settled that the it. . . . To review put are before on those matters that appeal first time on and articulated for the claims would be more nothing the trial court raised before trial judge.” ambuscade of the than a trial [Internal Williams, rev’d, quotation omitted.]), marks Conn. 686. supra, 267 respect with to the defen- same can be said

Much the improperly excluded, that the trial court dant’s claim that Habetz advised grounds, on relevance scene, as well to the accident not to return defendant doing reasons for Habetz’ demonstrating as evidence introduce this evidence sought to so. The defendant prevented returning him from that Habetz demonstrate to the victim. rendering aid the accident scene was relevant that this evidence argues The defendant with comply unable to that he was because it shows reject this claim. We (a). 14-224 § provides that, 14-224 discussed, (a) previously § As provide vehicle is “unable” to operator if possible do so as soon as information, he must certain opinion. this Evidence See footnote 37 of thereafter. defendant not to return Habetz advised the that the defendant would not render accident scene evidence would rather, that anything; “unable” to do chose not to why as to the defendant merely elaborate already explained We have accident scene. return to the accident intent to return to the the defendant’s that responsibil- evading to the crime of scene was irrelevant for not so.38 doing too were his reasons ity, and so Further, most of the issues was able to consider we note that appeal. challenges testified The defendant twice now scene, and Habetz testified that return to the accident that he wanted to attorney, needed an that he took that he he had advised home, going to Habetz’ home was and that back defendant back to Habetz’ ” “ ‘first choice.’ not the defendant’s contention to review the defendant’s Finally, we decline to refute the state’s also was relevant this evidence it was because guilt his consciousness of evidence of in the trial court. not raised

Ill OF MILZOFF STRIKE THE TESTIMONY REFUSAL TO that the trial the defendant’s claim We now turn to testimony of Mil- refused to strike the improperly court reject this expert We zoff, toxicology. the state’s claim. necessary to additional facts are following

The trial, this Prior to the defendant moved resolve issue. expert testimony all to the issue preclude relating to was sub intoxication, and that such evidence argued analysis ject Porter, to an under State v. cert. U.S. 118 S. (1997), denied,

698 A.2d 739 L. Ed. 2d 645 The trial court denied 1384,140 Ct. addition, this motion. In the defendant moved in limine in the preclude to evidence that he was intoxicated expert opinion. an absence of blood alcohol data or this motion should The trial court reserved decision on attempt evidence, to such and indi the state introduce required to conduct a full cated that the state would be presence jury. proffer outside the of the testimony presented before the state Accordingly, respect of Milzoff in its case-in-chief with to the issue consumption, proffer of alcohol was held outside presence jury. proffer, asking and after During Milzoff questions alcohol, the state general some about presented following hypothetical: to Milzoff that an individual has six ounces of alcohol “Assuming period time, a one and one-half hour what effect over system have on nervous would that his or her central replied: one hour later?” Milzoff “The central nervous system depressed would be to some extent.” proffer, Milzoff was during

On cross-examination upon hypothetical, the state’s and esti- asked to build with individual, alcohol content of an mate the blood question the individual assumptions further that the alcohol was consumed pounds, weighed that the blood alcohol p.m., 9 and 10:30 between p.m. replied 11 Milzoff that the was measured at content approximately alcohol content would be between blood that Milzoff should argued 0.02 and 0.07. The defendant say testify because he could permitted not be certainty the defendant was drunk any with whether impaired. eventually testify Milzoff to The trial court allowed . . . I consider the com- expert, stating: as an “[W]hen . . and the defendant . there proffer bined of the state jury certainly respect with hear, for the enough then asked the trial the misconduct count.” The state hypotheti- required if be to ask the same court it would during it had asked cal in front of the “Well, you I think have replied: The trial court proffer. you if But materiality problems don’t. relevance and to rise to the occa- that’s for defendant’s counsel] [the on.” sion testi- presence jury, in the of the Milzoff

Thereafter, depressant, examination that alcohol is a fied on direct reflexes, ability respond the to to situa- which inhibits ability machinery, ability and the tions, operate the to Milzoff also testified that a perform complex to tasks. twelve ounces of beer or alcohol, i.e., dose of single affects an individual proof scotch, ounce of eighty one consumption and that as alcohol “slight degree,” to the effects from the alcohol. increases, resulting so do hypotheti- Milzoff the state, however, The never asked during proffer. cal that it had asked the and examination, the of Milzoff s direct At conclusion jury, of the the defendant’s counsel presence outside the that the testimony, arguing Milzoffs moved to strike gen- was within the because it testimony was irrelevant that the state did and knowledge laypersons eral testimony into the facts of the to tie Milzoffs nothing hypothetical. to i.e., ask the present case, by failing required to the state had been With to whether regard I “I think trial court stated: hypothetical, ask the the are that I think there said in sum and substance materiality problems, but defen- relevance and [the he on that if dant’s would rise occasion counsel] Iwhat said.” necessary. felt it were I think that’s the evidence The court stated that it viewed trial then if state about relevant, goes as even the “marginally way, opposed hitting in a to doing it circumstantial . . . way, direct it’s still the nail on head the [but] likely tending tending prove the trier in or not to aid does not come in?” The issue, why a fact in it [then] hypothetical not ask the state also stated that it did prevent was the issue of blood because it trying jury. coming from before the alcohol content to consider the matter over- The trial court decided it denied defendant’s night, and, morning, next testimony. The motion to strike Milzoffs allow him to test the relia- requested that trial court bility supra, under testimony Porter, Milzoffs request. trial court denied that Conn. thereafter, cross-examined counsel, The defendant’s jury. Milzoff indicated that presence Milzoff in the was say “slightly he could whether lacked or whether the defendant alcohol,” effected ability an to function in rela- appreciable degree motor operation tion to the of a vehicle.

We set forth our review governs first the standard issue, ruling and reiterate “that trial court’s this [t]he entitled admissibility great on the of evidence is marks (Internal quotation omitted.) deference.” v. William C., supra, 267 Conn. 700. expert “Concerning testimony specifically, we note that the trial court has wide discretion in ruling admissibility of expert testimony and, unless that discretion has been abused or the involves a ruling misconception clear of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the special witness has a skill directly or knowledge appli cable to a matter in issue, (2) that skill or knowledge is not common to the average person, and the testi (3) mony helpful jury would be to the court or in consider ing quotation the issues.” (Internal marks omitted.) Hayes Decker, 263 Conn. 677, 683, 822A.2d 228 (2003); Rizzo, see State v. supra, 266 Conn. 302. Finally, and previously discussed, in order for evidence to be it relevant, “need not exclude all possibilities; other it is sufficient if it support tends to the conclusion [for which it offered], even to a slight . . . degree. [See] Conn. Code Evid. 4-1 relevant (defining § evidence as any evidence having tendency to make the existence any fact that is material to the determination of the probable more proceeding probable or less than it would be without the evidence).” (Citation omitted; quotation internal marks State v. omitted.) Peeler, Conn. 611, 635, 841 A.2d 181 (2004).

We conclude that the trial court did not abuse its discretion refusing to strike testimony. Milzoffs First, testimony Milzoffs was relevant, very at the least, as the trial court suggested, charge of misconduct with a motor vehicle. See State v. Ortiz, App. 825, 836, 618 A.2d 547 (1993) (risks associated with vehicle with operating elevated blood alcohol content may constitute criminal negligence under Mil- 53a-57). § testimony zoffs that alcohol indicating inhibits one’s reflexes, coupled with the evidence that the defendant thirty was driving per speed miles horn above the limit immediately before crash, could have aided the conduct constituted

in that the defendant’s concluding ordinary of care. from standard deviation the gross a id., 836-37. See testimony effects of Milzoff s the addition,

In an con- on much individual dependent alcohol are how how much the defendant helpful was to establish sumes discussed, the may previously have effected. As been lacked, was to show that the defendant required state ability properly to function appreciable an the degree, to vehicle. It operation of his motor in relation to the testimony not aid the be that Milzoff s did cannot said in this regard. suggests, that, We are as the defendant persuaded not excluded because testimony s should have been Milzoff layper- an average not the of beyond knowledge it was that, is contention The short answer to this son. testimony s could be classified of Milzoff although some testimony his was knowledge, some of as common par- beyond average juror, likely knowledge the testimony specific effects ticularly regarding his constitutes a “dose.” and how much alcohol alcohol by the token, persuaded not By the same we are supra, 39 McNally, defendant’s reliance App. that Milzoff s testi proposition Conn. “ it was ‘a mony have been stricken because should put like superfluous attempt gloss expertise, persons which upon lay bit of inferences frosting, ” from the equally capable were evidence.’ drawing First, McNally from the case. distinguishable in affirmed the trial court’s Appellate McNally Court testimony. it expert Simply because ruling exclude in not an for the trial court was abuse discretion testimony necessarily does expert case to exclude mean that would have an abuse of discretion it been Second, if allowed the court had it.

McNally, police officer who observed the victim on evening question, expert opin- an sought give ion that the victim was intoxicated on the basis of his training police Appellate as a officer. Id. The Court person’s concluded “a determination of a intoxication solely interpreta- based on observation and not on an tion within sobriety general tests is knowledge jury.” in 424. (Emphasis original.) Id., Thus, McNally merely stands for the proposition that, unless the wit- provide something ness can more merely than his particular individual, expert testimony observation of a ordinarily appro- on the issue of intoxication is not priate. In present case, expressly Milzoff did not any opinion offer as to whether the defendant was intox- icated; rather, only he testified typical as to the effects system of alcohol on the central nervous on the basis of his in background toxicology.

Finally, reject we whatever claims the defendant regarding makes the trial court’s failure to hold a hear- pursuant v. ing Porter, supra, to State 241 Conn. 57, before it testimony received the of Milzoff. from Aside inadequate the defendant’s briefing contention, of this say it suffices to that a Porter hearing required is not expert for an in testify, essence and in general terms, that alcohol affects one’s central system. nervous See Quest Diagnostics, Inc., Maher Conn.

847 A.2d principles scientific (2004) (“[Sjome have become so well established that threshold admissibil- [a ity] analysis necessary is not for admission of evidence thereunder. . . . princi- Evidence derived from such ples clearly would analysis, withstand [such an] may simply thus be admitted of rele- showing quotation vance.” marks omitted.]). [Internal

IV PROSECUTORIAL MISCONDUCT Finally, the defendant claims that his conviction should be reversed because the state twice in engaged

prosecutorial misconduct. First, the defendant claims that, with respect testimony Milzoff, it was improper for the state repeat proffered not to its hypo- thetical in jury. front of the part See III of opinion. this Second, the defendant claims that the in state, its clos- ar ing guments, improperly commented on the veracity of some of the defendant’s reject witnesses. We these claims. respect

With to the hypothetical question that the state did not ask Milzoff front of the jury, we can find nothing the record to suggest this constituted misconduct part on the prosecutor. the The state specifically asked the trial court if it repeat needed to proffered the hypothetical jury, to the and the court indicated if that, the state repeat chose not to the hypo- thetical, the defendant’s counsel could the challenge evidence. In addition, the trial court noted that it was the state’s choice if it wished to the evidence circumstantially rather directly. than Finally, the state indicated in the trial court that it did not hypo- ask the thetical because it was to trying avoid the issue of blood alcohol content. to

Turning the defendant’s second claimed instance prosecutorial misconduct, prosecutor the com- jury mented to the during closing arguments: “The judge to going you instruct on credibility. You’re going to have to judge the credibility of all the witnesses that came you. before I submit you to that the [defendant’s friends from La Cucina that night] lied to you, and told you half the truth to help their they friend. If came in and said, we were with him and he appeared okay, but he was scotch. drinking That would make more sense. Not that appeared he okay I and don’t know what he was I drinking. never saw him drink. Bull.39That doesn’t

make sense.” (Emphasis added.) strong disapproval We prosecutor’s note our of the use of the word “ ” ‘bull,’ previously which we Rizzo, supra, criticized in State v. socially linguistically 259-60. “We would be and naive if we did not read that are common to principles first set forth the

“We credibility on comments the improper all of the alleged may express his own prosecutor of witnesses. [A] credibility indirectly, opinion, directly or expressions personal opin . . . Such the witnesses. testimony, and ion a form of unsworn unchecked are ignore for the to particularly are difficult and special position.” prosecutor’s (Internal because Thompson, quotation marks omitted.) improper is not 440, 462, 832 Conn. A.2d 626 (2003). “[I]t prosecutor upon to comment the for the [however] at and inferences presented argue trial to .... We must jurors draw therefrom might that jury the credit of able differentiate give being attempts and on the evidence argument between favor, draw in the state’s persuade them to inferences testimony, improper unsworn with hand, on one of secret other hand. suggestion knowledge, attorney put not be the rhetorical The state’s should or always using passive voice, con straitjacket of emphasizing simply he is I sub tinually saying shows, you this is what the evidence mit omitted; added; internal (Citation emphasis the like.” Id., 465-66; see v. quotation marks State Ste omitted.) 583-84, A.2d 626 venson, 563, 269 Conn. slang expletive ‘bullshit,’ the as for the of term ‘bull’ a shorthand th[ís] [use] likely jury in same and if we did not conclude that the heard the sense.” [it] objected Id., present The in the case neither to this remark 259. defendant court, inappropriate specifically it was in trial nor does he claim that on the prosecutor’s appeal; rather, simply asserts that the comments indirectly credibility. the defendant’s Because the defendant has attacked otherwise, appeal, presume not at trial on we that the state’s claimed “ ” materially the of the trial. use the term ‘bull’ did not affect outcome of Stevenson, (“[w]hen (2004) See v. 849 A.2d object, request a or move for defense counsel does not curative instruction impropriety prejudicial mistrial, presumably alleged the a he does not view seriously jeopardize enough right to a fair trial” the defendant’s [internal prosecutor’s quotation omitted]). Moreover, use of marks the isolated the ” “ pales comparison repeated in the

term ‘bull’ the case Rizzo, supra, in State of 255-64. instances misconduct In present case, prosecutor explicitly the the told the jurors credibility. that it was their task to The access jury submitted prosecutor that, then on the basis evidence, the the properly could infer that the say witnesses were credible. We cannot that these deprived remarks the defendant of a fair trial.

The judgment affirmed. In this opinion NORCOTT, PALMER and VERTEFEU- ILLE, Js., concurred.

KATZ, J., dissenting. majority that, The concludes when a motion for judgment acquittal is denied at the close of the case, subsequently state’s and defendant produces own evidence his the behalf, defendant thereby appellate waives review of denial. In other words, applying rule,” so-called “waiver majority appellate concludes that review encompasses all of the trial, evidence at including presented by Although defendant. I agree majority’s with the con clusion that the waiver rule is constitutional, I cannot ignore impact the serious that the application of this rule will system have on our justice. my criminal In view, the waiver places rule a criminal the horns of an unfair dilemma, him to choose forcing equally between two fundamental rights: right present a defense, and the right to have state bear the burden of proving each and every element of a charged beyond crime a reasonable doubt. As this court previously stated, has is doubtful whether a crimi “[i]t nal defendant should be placed in such dilemma.” Rutan, State v. Conn. 438, 441, 479A.2d 1209 (1984). I Accordingly, believe this court should exercise supervisory its authority over the administration jus to reject application tice the of the waiver rule in crimi nal cases. Rutan,

In this court rule, stated: “Under the waiver a when motion for [judgment acquittal at the close of] may denied, a not secure state’s case is defendant of the court’s without ruling review of the trial appellate [for- in his or her own put the to on evidence going] right remedy remain silent sole to behalf. The defendant’s reversal of the conviction convicted, if to seek and, insufficiency the evidence. If the state’s because of the evidence, appellate introduce defendant elects to in toto. The defen- encompasses the evidence review testimony of defense risk that the dant then runs the evidentiary in the state’s case. gap witnesses will fill an therefore, to rule, waiver forces The [present] to a defense waiving right the choose between proof.” state to its put waiving right and of this choice that recognition 440-41. It was the Id., wisdom of prompted question placing the court to Although a in such a dilemma. criminal reject Rutan did opportunity an that, appropriate “in an rule, waiver the court indicated a defen- that the denial of case, may we well conclude at close of the state’s case acquittal dant’s motion conviction, appeal as error on from may assignable be not the defendant has introduced evidence whether or Id., 444. in his or her own behalf.” in Rutan noted that stating, In so the court “[o]ur the waiver rule without previous applied cases [had] on the defendant’s the rule’s effect any discussion of beyond a guilt his or her prove to have the state right . . . law arose under for- doubt. Our case reasonable practice which made no distinction rules of mer in a civil trial for directed verdict between the motions In prosecution. courts, our in other a criminal imported waiver rule was from the jurisdictions, with the motion for sphere along civil the criminal proce- . . . Our current rules of verdict itself. directed however, heightened awareness dure, reflect between civil and criminal differences constitutional the survival of the waiver fact under which finding

271 Id., 441-42; see (Citations omitted.) rule is doubtful.” Cir. 324 F.2d 893, (D.C. 896-97 Cephus States, v. United A Acquittal: Neglected “The Motion for comment, 1963); W. Malt Yale L.J. 1151-52 (1961); Safeguard,” 1957) Procedure Ed. Appellate (2d Connecticut bie, 262-63. 212, pp. § 42-40, which motions governs

Practice Book § in relevant acquittal provides in judgment general, of acquittal for a directed verdict of part: “Motions the course of a trial are during for dismissal when used acquittal shall be judgment abolished. Motions for a of prosecution’s place. used in their After the close of evidence, upon case in chief or at the close of all motion, the upon motion of the defendant or its own judicial authority entry judgment shall order the of a acquittal any principal as to offense and as charged any lesser included offense for which the evidence reasonably permit would not . . .” finding guilty. words, “permits In other 42-40 the defendant to make § acquittal pre- a motion for and thus avoid judgment prima a defense if not made out a senting the state has v. Allen, facie case.” State 533 A.2d As an additional Practice Book safeguard, provides part that, 42-41 relevant the motion § “[i]f case in prosecution’s is made after the close of the chief, judicial authority grant deny shall either upon the motion before the defendant to calling the defendant’s case in chief. ...” (Emphasis added.) unlike a for a directed verdict made Therefore, motion in a civil plaintiffs trial; after the close of the case see 16-37;1 judgment Practice Book when a motion for § provides part: § 16-37 “Whenever a motion for Practice Book relevant any plaintiffs case in a directed verdict made at time after the close of any judicial authority granted, chief is denied or for reason is not jury subject submitted the to a later determina deemed to have action to the questions may legal tion of the raised the motion. The defendant offer granted, having evidence in the event the motion is not without reserved right to do so and to the same extent as if the motion had not been .” made. . . case in a the close of the state’s

acquittal is made at reserve its decision trial court cannot trial, criminal must rule on that motion motion, rather, but on that with the defendant’s case-in-chief. proceeding before 42-41. Practice Book § See practice the rules of 42-40 and 42-41 of

Implicit in §§ criminal defen principle of the is a recognition “[a] and state to its burden put to right dant has the presented the state has until and unless need not defend Allen, supra, facie case.” State v. 205 Conn. prima a introduce prosecution must way, another “the 376. Put before the justify to a conviction sufficient evidence Rutan, State v. may required respond.” to defendant be safe greatest 442-43. “One of the supra, system of criminal under our for the individual guards prosecution must justice requirement is the by own evidence before facie case its prima establish a his defense. ‘Ours is the may put be system. inquisitorial opposed as accusatorial society carries the burden system . . . our Under his own the accused not out of its proving charge against case, by interrogation It must establish its mouth. by but judicial safeguards, accused even under skillful inves through secured independently ” States, supra, 324 F.2d 895, Cephus v. United tigation.’ Indiana, S. Ct. Watts v. 49, 54, 338 U.S. quoting Rutan, supra, see also 443. 93 L. Ed. 1801 (1949); in a criminal however, applied rule, The waiver principles well established cuts these case, against presenting to choose between forcing the prosecution, the state in its defense, aiding at the risk of that the defense, hope with the and not presenting appellate an acquit will him or that jury nonetheless evidence was insuffi- that the state’s court will conclude recently As one court support a verdict. guilty cient to whose “presents a defendant the waiver rule stated, with a erroneously denied to dismiss has been motion resting sacrificing right Hobson’s choice:2 and testimony or her a defense out of fear that his may prosecution’s case, putting defects in the cure thereby possibly assisting evidence and on such its case. This choice essence prosecution proving compels prosecution a defendant to aid in his own every prosecutor’s prove lessens the burden to each and It beyond element of the case a reasonable doubt. protections govern- denies a defendant the of the statute Anthony J., App. motions to dismiss.” In re 117 Cal. ing Rptr. 4th 11 Cal. 3d 865 (2004). Essentially, unduly the waiver rule restricts the right an a prosecution prove prima of accused to have the required present facie case before he is a defense. acquittal defendant’s on willingness ask “[T]he the [prosecution’s] willingness evidence is not a to gam- prediction ble on a the appellate that court will find that evidence Moreover, insufficient. there is that under the waiver danger prosecutions may rule pursued inadequate hope be with evidence in the defendants will supply missing Cephus evidence.” v. States, United 324 F.2d 896.3In supra, words, other 2 passing, In I note that this is an inaccurate use of the term “Hobson’s signify choice.” That term does not a in either situation which alternative may illusory unfavorable; rather, represents is, fact, be it an choice that in Messier, 432, n.3, App. no choice at all. State v. 19 Conn. 436 562 A.2d 1138 (1989) (“We note that the defendant’s use of the term ‘Hobson’s choice’ as synonym for a choice of evils is inaccurate. The term is derived from the practice English liveryman, requiring of Thomas Hobson ... an of each Thus, usage customer to take the next available horse. in modern a Hobson’s apparent choice is freedom of choice with no real alternative.’ American ‘[a]n Heritage Dictionary English Language, College Edition, [p.] New 626. required The defendant does not claim that he was to take the next available horse, nags.”). Therefore, but that he had to choose between two it is more appropriate Benjamin case, to state 1hat the defendant in the J. Perkins, wedged Scylla Charybdis. was between and 3 Cephus States, supra, 895-97, In v. United 324 F.2d the United States Appeals expressed, dictum, Court of for the District of Columbia Circuit strong disapproval applied Cephus its the waiver rule. The court later holding States, 129, dictum as a in Austin v. United 382 F.2d n.20 (D.C. Cephus 1967). regard, Cir. In this was at the forefront of what one an rale, appeal, on application generates of the waiver patently criminal trial that underlying effect on the Allen, State v. supra, 205 Conn. 379 unfair. See function of a trial is important ... an (“[although fair” ... a trial must also be for facts and truth search quotation marks omitted; omitted]). internal [citation “merely rule majority governs The reasons that the trial; it appellate review of a criminal defendant’s (Emphasis original.) the trial itself.” govern does applies appeal waiver rule on it is true that the Although reviewed, to be this scope of evidence to determine case, trial of a criminal has recognized court “[t]he conviction, from a ensuing appeal judgment and the from proceedings and distinct divorced separate are not of the continuum of the They part another. are one quotation marks process adjudication.” (Internal Correction, Bunkley v. Commissioner omitted.) árale 459, Accordingly, 610 A.2d 598 444, Conn. on appeal can have a definite effect applied that is on Burns, Curry trial. See underlying verdict general (1993) (“although 626 A.2d the consideration of applies appeal preclude rule trial”); effect on the see claims, certain it has a definite A. Whitley, also Ziman v. 108, 114-15, 110 Conn. requires a defendant’s trial The waiver rule (1929). in anticipate application appeal and, its counsel to present a defense hurry trial, of decide whether decision could have remain silent. The result of this jury’s verdict, should impact a on either the substantial “sharp a attack” on the rule. See 2A C. commentator has characterized as 463, p. (3d 2000) Wright, 287. The § Practice and Procedure Ed. Federal Austin, Appeals its earlier decision in and has Court of has since overruled joined applying in the waiver rule in criminal cases. the other federal circuits Foster, (D.C. 1986) (en United States v. 783 F.2d 1085-86 Cir. See Cephus principles banc). Although recognize I that the enunciated in are circuit, principles longer of the law of that federal the discussion those no reject Cephus persuades in court should the waiver rule Con- me this necticut. defense, appeal, or on present decline to a defense, a unwit- defendant, in presenting

should the of the prosecution.4 This effect aid in his own tingly both the my view, integrity undermines rule, waiver trial, pres- in the Benjamin J. Perkins’ of the defendant judicial sys- fairness of our case, perceived ent and the whole. tem as a I herein, agree have stated previously as I

Although, constitutional, rule is majority with the that the waiver analysis because, in does not end the this determination dissenting in this my view, for all the reasons articulated defen- places nevertheless the criminal opinion, the rule utmost seriousness.5 dant in a dilemma that is of the impact of the rule’s on the overall Therefore, in light I would invoke this court’s proceedings, fairness of the administration authority over the supervisory inherent possess courts justice reject “Appellate the rule. the administra- supervisory authority an inherent over are exercised justice. Supervisory powers tion of . . . adopt judicial procedures courts to to direct trial 4 majority that, judgment acquittal when a motion for at the 5 examples Unlike the of other difficult choices that a defendant confronts majority points, trial the dilemma in the course of a criminal to which the essentially the defendant faces because of the waiver rule occurs as a result judgment acquittal failing grant to motion for of trial court error in his at the close of the state’s case.

276 seriousness, that are of utmost not will address matters for only particular of a trial but also integrity judicial system as a whole. perceived fairness of the Valedon, 381, 386, . . . v. 261 Conn. 802 A.2d 836 authority is a form of free- supervisory (2002). [0]ur . . principle. to . justice, legal untethered floating Pouncey, State v. 802, 812-13, 241 699 A.2d 901 Conn. judicial system of the serves Rather, integrity disparate principle seemingly as a behind unifying Hines, See State v. powers. 243 supervisory use of our supervisory 709 A.2d 522 796, 815, (1998) ([o]ur Conn. only in the rare circumstance where powers are invoked protections inadequate traditional are ensure [the] .” just of the . . . courts) the fair and administration omitted; quotation internal marks (Citation omitted.) Higgins, State v. A.2d n.26, 265 Conn. 1126 (2003). we addition, supervisory authority,

In our “[u]nder the lower courts adopted guide have rules intended to justice aspects in all of the in the administration of omitted; quota internal process.” (Citations criminal Valedon, supra, State v. marks 261 Conn. omitted.) tion why 386. I see no reason this court should not invoke conjunction super in with its supervisory authority, its visory power appeal; over on see Practice proceedings procedure 60-2;6 adopt appellate Book a rule of § Appellate and the Court in the guide that will this court See State appeals. criminal fair administration of Madera, A.2d 136 (1985) (this supervision provides part: § Practice Book 60-2 in relevant “The appeal having appellate proceedings on shall be in the court control of the and, jurisdiction appeal filed, earlier, appropriate, from the time the is or if any purpose except provided rules, as otherwise in these motion complete perfect presentation or the trial court record for which is appeal appeal pending. The court shall be made to the court which the modify any upon any party, may, own motion of or vacate on its motion thereof, prosecution court, judge order made the trial or a relation to appeal. . . .”

277 appellate supervisory powers over has “general court App. 217, 232, Revelo, v. 55 Conn. procedure”); (Shea, J., dissenting) (appellate A.2d 390 (1999) 740 authority proceedings over possess “supervisory courts justice’ ”), advance business and appeal on ‘to facilitate denied, 260, A.2d cert. 494, 775 part, rev’d in L. 558 (2001). Ct. 151 Ed. 2d 1052, 639, 122 S. 534 U.S. exercise this court should I believe that Accordingly, jus- authority the administration over supervisory its the waiver reject join jurisdictions those tice, and cases.7 rule in criminal 7 jurisdictions addition, rule that follow the waiver I that even the In note apply example, apply some courts do the rule in all cases. For do not presented in his has not rule when the defendant the waiver rather, merely behalf, rebutted a has cross-examined or own but or her Belt, 1234, See, e.g., v. 574 F.2d 1236 United States codefendant’s witnesses. Copes, (1989). 1978); 742 In (5th 244 722 P.2d State v. Kan. Cir. presents addition, “a who has concluded that at least one court preserves count, count, his no evidence on another evidence on one but government’s right based on the have the nonrebutted count reviewed 697, Thomas, (11th 1993). Cir. v. 987 F.2d 703 case alone.” United States Moreover, 1994, amended Rules of Criminal Procedure were the Federal judgment ruling permit on a motion for the trial court to reserve its prosecution’s acquittal R. Crim. P. case. See Fed. made at the close of however, ruling, (b). must decide the If the trial court reserves its “it ruling evidence at the time the was reserved.” motion on the basis of the amendment, According commentator, which added sub Id. to one the 1994 “put (b) 29, an end to the waiver doctrine for cases which section to rule Wright, 2A Federal reserves but does not rule on the motion.” C. the court 463, p. Notably, prior 1994, (Sup. 2004) 35. § Practice and Procedure practice, they permit rules in that did not federal rules were similar to our judgment acquittal ruling its on a motion for the trial court to reserve at, prosecution’s Consequently, the close of the case. several federal made appeal apply when the trial court courts refused to the waiver rule ruling See, e.g., improperly had reserved its on such a motion. United States erroneously Rhodes, 43, (5th 1980) (“if the v. 631 F.2d Cir. trial court acquittal presents evidence, ruling and the defendant defers on the motion sufficiency only appellate reviewing will court in of the evidence case-in-chief’); presented in United consider the evidence the Government’s House, 756, (8th Cir.) (“the 551 F.2d entire record should not

States aggressively guilt the defendant has be reviewed for evidence of where sufficiency judge’s sought and was refused the trial view of the denied, evidence”), cert. 434 U.S. 98 S. Ct. 54 L. Ed. 2d 119 correctly see footnote 23 of majority notes; theAs majority the federal courts and a majority opinion; rule in criminal jurisdictions apply the waiver of state however, that do states, are at least seven cases. There in cases. See, e.g., the waiver rule criminal apply Hardley, parte Ex 154, (Ala. 1999) 766 So. 2d 157-58 review the denial of must (“[w]e [the defendant’s] at the close of the acquittal a of judgment motion for of the evi by the state considering State’s case-in-chief In re at that stage trial”); dence as it existed Anthony J., supra, App. 117 Cal. 4th 730 (concluding California”); applicable in that “federal waiver rule ... is not v. State, A.2d 891, 892 1998) n.6 (Del. Cline acquittal motion for must be tested curiam) (“The (per testimony solely the State’s case. The defendant’s State v. Pen considered.”); in his case cannot be nington, banc) 2d 395-96 (Fla. 1988) (en 534 So. a expressly rule states that defendant’s Florida (“[t]he acquittal at the close of the judgment motion for by subsequent case is not waived the defendant’s state’s Platt, Commonwealth v. evidence”); introduction only 400-401, (“The 798 N.E.2d 1005 (2003) Mass. by required finding raised a motion for a of not issue presented suffi is whether the Commonwealth guilty of the defendant’s to submit the guilt cient evidence we jury. determination, case to the ... To make this by the Common only presented look to the evidence any contrary presented evidence wealth, and disregard omitted; quotation internal by the defendant.” [Citations v. People Garcia, 250, 256, 398 Mich. marks omitted.]); denial of 247 N.W.2d 547 review of (1976) (appellate acquittal prose at close of motion for directed verdict of presented by pros e the cution’s case limited “evidenc v. Reyes, ecution” [emphasis 50 N.J. original]); denial of (in reviewing 236 A.2d 385 (1967) acquittal made at conclusion judgment motion for may any be case, given of state’s “no consideration inferences from the defendant’s case”). evidence or of our review to scope I would limit Because I turn now to the state, presented the evidence I reiterate doing, In so sufficiency of that evidence. to a claim apply that we of review the standard sufficiency of reviewing “In insufficient evidence. apply we conviction support a criminal the evidence construe the two-part First, we test. Second, verdict. sustaining favorable to most light so construed and upon the facts whether we determine reasonably drawn therefrom the inferences [finder cumu- reasonably have concluded that the could of fact] beyond guilt of the evidence established lative force Newsome, . . . State reasonable doubt. A.2d every proven the must find element jury

“We note that in defen- order to find the beyond reasonable doubt offense, the each guilty charged dant of [but] those conclusions underlying basic and inferred facts . . . beyond not a reasonable doubt. proved need be jury conclude If it is and for the logical reasonable or inferred fact is the is true, that a basic fact an proven may fact consider permitted to consider the in proven facts determining it in combination with other proves of the evidence whether the cumulative effect all the the defendant of all elements of crime guilty . . . beyond Id., doubt. 617. charged reasonable probative it not diminish the force “Moreover, does consists, part, in whole or in of of the evidence it . . rather than direct. . evidence that circumstantial fact, impact cumulative of a multi- It is one but the of which a case guilt involving tude facts establishes ... In evaluating substantial circumstantial evidence. accept evidence, required fact is not of [finder] are with dispositive those inferences that consistent . . The the defendant’s innocence. . [finder fact] may draw whatever inferences from by deems be reason- facts established the evidence it able and . . . v. logical. State McMahon, 257 Conn.

566-67, 778 A.2d 847 (2001) denied, 534 U.S. [cert. 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002)].

“Finally, we have often noted, proof beyond a [a]s reasonable doubt proof does not mean beyond all possi- ble doubt . . . nor proof beyond does a reasonable require doubt acceptance of every hypothesis of inno- posed by cence that, had it been found credible fact], would have resulted [finder an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a hypothesis reasonable ask, innocence. We instead, whether there is a reasonable view of the evi- dence supports verdict of [finder fact’s] . . . guilty. Id., 567.” (Internal quotation marks omit- ted.) Meehan, 260 Conn. 372, 377-79, 796 A.2d 1191 (2002).

In the present I case, would conclude that the evi- presented dence by the state was insufficient to estab- lish that the defendant had been under the influence of an intoxicating liquor at the time of the motor vehicle accident that caused the death of victim, Michael Novack. Accordingly, I would conclude that the trial court improperly denied the defendant’s first motion for judgment acquittal as to the count of manslaughter in the second degree with a motor vehicle in violation of General Statutes 53a-56b (a).8 § presented

The state X. Francis Grosner, who testified that, on November 2000, he had worked as a bar- tender at the Tavern on Main Westport in approxi- from mately 4:30 p.m. to 1:30 a.m. Grosner recalled seeing (a) provides: person § General Statutes guilty 53a-56b manslaugh “A degree when, ter in the second with a motor operating vehicle while a motor liquor vehicle intoxicating any under the influence drug both, or or he person consequence causes the death of another as a of the effect of such liquor drug.” he that he testified and night, that in the bar men

two p.m. 8 and bar between had left the they that believed bottles two had served that he testified also Grosner however, not, He could men. one of the beer to trial. the time of man at identify that that testified friend, Medvegy, Jason defendant’s The La at the victim and the defendant been with he had approximately Fairfield, from a restaurant Cucina, that testified Medvegy 20. on November p.m. to 11 9:15 didHe night. that drinking scotch was how much scotch however, know, not On cross-examination night. had consumed that the defendant testified Medvegy counsel, defense be intoxicated. appeared to had not testified Cucina, at La a bartender Ralph Fidaleo, he p.m., and 10:30 8:30 approximately between that, G.Q. looking to “a of scotch three glasses had served about contained Fidaleo, glass each According guy.” described Fidaleo Although of scotch. two ounces lookinfg] guy” very cut, good clean as “a customer identify the defendant not early thirties, he could his cross- Further, on time of trial. person at the stated that counsel, Fidaleo by defense examination Fidaleo be intoxicated. appeared the man had “fairly busy” for had been night that the also admitted only bartender had been the that he restaurant, and people. fifteen of twelve to a crowd servicing boss, Steven the defendant’s presented also The state made five had that the defendant Habetz, who testified 12 a.m. phone his cell between telephone calls to accident. after the on November 12:30 a.m. calls, telephone that, these explained through Habetz location. defendant’s to determine the he had been able defendant, up the picked when he testified that Habetz had been “looked like he defendant he noted that the . . . and the head was from bleeding in a brawl. He dirty.” looked On cross-examination defense coun- sel, appeared Habetz testified that the defendant had “very upset,” appeared Indeed, but had not intoxicated. any Habetz stated that he had not smelled alcohol on defendant, “very that the defendant had seemed lucid.” Habetz testified that he had the defen- brought dant back to his own house because he believed that the an attorney, needed to consult with it “[a]nd my attorney.” was intention to him an get Finally, presented Milzoff, the state Joel a toxicologist with department public safety, who testified gen- erally to the effects of Milzoff alcohol. testified that depresses system, alcohol functions of the nervous thereby the reflexes and inhibiting muscle control that are “essential for a motor vehicle.” Milzoff operating equivalent further testified that one dose of alcohol is to one twelve ounce beer, single scotch, one ounce of depress and that even one dose of alcohol could system nervous . . . .” slight degree According “[t]o Milzoff, person this effect as the increases consumes more alcohol. this evidence as a whole and all

Viewing drawing jury’s verdict, inferences in favor of I supporting beyond establishes, cannot conclude that it a reason doubt, able that the defendant had been raider the influ liquor ence of at the time of the accident. intoxicating they Grosner and Fidaleo both testified that Although had served alcohol to a man generally matching description defendant’s on the night November identify neither witness was able to at trial. In addition, Fidaleo testified that the man he appeared had served the scotch to had not intoxicated. who had with La Medvegy, been the defendant at Cucina approximately testify two could not as to hours, how much alcohol the defendant had consumed that night. Moreover, both and Habetz testified that Medvegy appeared Finally, the defendant had not intoxicated. Milzoff testified about the although alcohol, effects of provide expert opinion in he did not an con general, had been intoxicated cerning whether Therefore, on the of accident. I would con night denied the defen improperly clude that the trial court judgment acquittal dant’s first motion in a charge manslaughter degree the second with motor because the failed to vehicle, state suffi cient facie support piima a case on that charge.9 respectfully I

Accordingly, dissent. 9 Inonetheless would conclude that the state’s evidence was sufficient support the defendant’s conviction of misconduct with a motor vehicle provides: person (a), § in violation of General Statutes which “A 53a-57 is guilty when, negligence of misconduct with a motor vehicle with criminal operation vehicle, person.” in the of a motor he causes the death of another (14) negligence part § General Statutes 53a-3 defines criminal in relevant gross person as “a deviation from the standard of care that reasonable addition, “[consumption would observe in the situation In of alco hol, point intoxication, required whether to the of influence prove Ortiz, App. 825, § a violation of 53a-57 . . . .” State v. 29 Conn. n.5, (1993). 618 A.2d 547 Through expert testimony Kassay, sergeant of David with the West- port police presented department, following the state evidence. The roadway accident had occurred on a section of Wilton Road that is a two lane winding rolling roadway “damp” night with curves and hills. The was on the posted speed of the accident. The limit of that section of Wilton Road was twenty-five per accident, miles hour. At the time of the the defendant’s traveling speed forty-seven per vehicle had been at a of at least miles hour. Kassay concluded, on the basis of several methods of accident reconstruc- tion, speed” contributing was a factor in the collision. In “[e]xcessive addition, although I believe that the state’s evidence was insufficient to intoxicating establish that the defendant had been under the influence of an liquor, presented evidence, through the state nonetheless sufficient the testi- mony Medvegy, drinking that the defendant had been scotch less than three hours before the accident occurred. On the basis of the cumulative effect of this evidence and all the inferences reasonably therefrom, jury reasonably concluded, drawn could have beyond doubt, criminally negligent a reasonable that the defendant had been driving speed approximately posted speed limit, at a double the late roadway night, damp, winding hills, rolling at on a two lane with curves and having Ortiz, less than three hours after consumed alcohol. See State v. supra, App. 836-37; Dawson, App. 720, 723-24, State v. 23 Conn. reasonably 583 A.2d 1326 The also could have concluded that negligence which, turn,

the defendant’s criminal had caused the collision PETER SOCCI TARNOWSKYv.

JOSEPH 16992) (SC Zarella, Norcott, Katz, Sullivan, X, Js. Palmer and C. officially released September April Argued Therefore, I would that the state death. conclude had caused the victim’s support presented misconduct with the conviction of sufficient evidence properly and, accordingly, court denied the defen- vehicle the trial a motor acquittal judgment of as to that count. dant’s motion for The notes jeopardy principles prevent granted, close of the state’s case is double Paolella, appellate ruling. obtaining review of that See State state from majority A.2d 702 The therefore reasons that, regard, give rule would this the failure to follow the waiver “[i]n judgment acquittal of both worlds: if his motion for a defendant the best granted, cannot obtain review of the the trial has ended and the state denied, ruling; trial if his motion is he would be able to secure court’s appellate denial, irrespective evidence that was ulti review of that mately jury.” majority opinion. See 27 of the In submitted to the footnote majority that, jeopardy principles pro essence, because double reasons prosecution following judgment acquit successive tect defendant from tal, right he should have less of a to have the state meet its burden somehow required prima against to establish a facie case him before he is majority’s agree with the a defense. I cannot observation.

Case Details

Case Name: State v. Perkins

Court Name: Supreme Court of Connecticut

Date Published: Sep 28, 2004

Citation: 856 A.2d 917

Docket Number: SC 17099

Court Abbreviation: Conn.