State Of Conn. v. Gregory S. Seekins.

• Decision Date: 10 August 2010
• Docket Number: No. 28830.,28830.
• Citation: 123 Conn.App. 220,1 A.3d 1089
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gregory S. SEEKINS.

123 Conn.App. 220

1 A.3d 1089

STATE of Connecticut

v.Gregory S. SEEKINS.

No. 28830.

Appellate Court of Connecticut.

Argued Jan. 8, 2009.

Decided Aug. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Carlos E. Candal, special public defender, for the appellant (defendant).

Melissa Patterson, deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Susan W. Hatfield, deputy assistant state's attorney, for the appellee (state).

FLYNN, C.J., and HARPER and McDONALD, Js. ^*

McDONALD, J.

The defendant, Gregory S. Seekins, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a(a)(1). On appeal, the defendant argues that the court improperly denied his request to add language to the court's jury instruction under § 14-227a(e) ¹ that the jury might draw an inference from the refusal of the police to conduct a Breathalyzer test after the defendant requested it. We affirm the judgment of the trial court.

In considering the propriety of a jury instruction, an appellate court considers the evidence in the record before the jury most favorably to giving the instruction. State v. Carter, 232 Conn. 537, 546-47, 656 A.2d 657 (1995).

With Carter in mind, we recount the following evidence the jury heard at trial. On the early morning of April 29, 2005, Officer Douglas Gamache, of the University of Connecticut police department in Storrs, while on patrol, observed the defendant's vehicle traveling with a broken tail light. Gamache followed the defendant's vehicle and observed that it was traveling forty-five miles per hour in a thirty mile per hour zone. Gamache also noticed that the defendant's vehicle drove very slowly around a slight turn and veered off to the right side of the roadway, although the vehicle did not veer off the pavement or into another lane of travel. At 12:40 a.m., Gamache stopped the defendant's vehicle and saw that the defendant's eyes were red and glassy and that his speech was slurred. Gamache also noticed that the car smelled of alcohol, although the defendant denied having consumed alcohol that night.

Gamache then asked the defendant to exit his vehicle to perform field sobriety tests, which Gamache believed he had failed. Thereafter, at 12:56 a.m., Gamache, concluding that the defendant was intoxicated, placed the defendant under arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs and transported him to the University of Connecticut police headquarters. At 1:20 a.m., in the presence of a video camera, Gamache advised the defendant of his Miranda rights. ² Then at 1:27 a.m., Gamache read to the defendant an advisory regarding an operator's implied consent to take a Breathalyzer test and the consequences of refusing to take the test. Gamache advised the defendant that he was being requested to submit to a Breathalyzer test and that his driver's license would be suspended if he refused to submit to that test.

The defendant stated that he would not do anything until he called an attorney and had an attorney present. Gamache offered the defendant an opportunity to contact his attorney and permitted the defendant to speak with his father by telephone while his father located an attorney's telephone number. The defendant repeatedly stated that he would not do anything without an attorney present. Because the defendant was ultimately unable to contact his attorney by calling his office at 1:48 a.m., Sergeant Scott Sleeman of the University of Connecticut police department and Gamache witnessed the defendant's refusal to blow into the Breathalyzer machine. This was recorded on a form A-44, ³ which Sleeman signed as required by law. ⁴ The defendant later stated that he would take the test, but Gamache did not administer it, stating that it was too late. The defendant also wanted his willingness to blow into the Breathalyzer machine documented before he was released at 2:44 a.m. The defendant's request to take the Breathalyzer was within two hours of when the defendant operated his vehicle, and the test would have been valid if Gamache had then given the defendant the test.

Following the evidence at trial, the court informed counsel of the court's proposed jury instruction that evidence of the defendant's refusal to submit to the Breathalyzer test had been introduced and that if the jury concluded that the defendant had refused to take the test, it could draw any reasonable inference that followed from that fact. The defendant orally asked the court to instruct the jury that if the jury found that the police had refused to administer the Breathalyzer test after he had requested the test, the jury could draw a reasonable inference that follows from that fact. ⁵ The court denied the defendant's request, and the defendant took an exception to the charge as given. ⁶ The jury returned a verdict of guilty, and this appeal followed. ⁷

On appeal, the defendant argues that the court's instruction improperly deprived him of a theory of defense and was imbalanced in favor of the state. The defendant argues on appeal that the instruction improperly focused on his refusal to take the test without focusing on evidence that later he did request to take the test. The defendant argues that the court's failure to deliver the requested instruction deprived him of the opportunity to have the jury draw the inference that he knew he was innocent and was seeking to prove it by submitting to the test. This argument focuses on the issue of a defendant's consciousness of innocence in a jury charge regarding consciousness of guilt.

Our Supreme Court has stated that a defendant must assert a recognized legal defense to be entitled, as a matter of law, to a theory of defense instruction. Id., at 545, 656 A.2d 657. We conclude that the defendant cannot do this.

This court repeatedly has refused to apply the consciousness of innocence principle to jury instructions regarding a consciousness of guilt. In State v. Holley, 90 Conn.App. 350, 364-66, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005), this court upheld the trial court's refusal to give a consciousness of innocence instruction because the defendant voluntarily turned himself into the police after he fled the scene of the crime. This court held that the relevant precedent did not support the claim.

In State v. Timmons, 7 Conn.App. 457, 464, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987), a similar argument and request to charge was made and rejected by the trial court. This court concluded that the surrender after flight of an accused is a factual argument that may be made in summation but does not support a theory of defense after flight, from which, as a matter of law, an inference of innocence may be drawn by the jury. Id., at 466, 509 A.2d 64. The court stated that it had been unable to find any authority for such an instruction allowing such an inference. Id. Our Supreme Court dismissed the appeal in that case because this court's opinion fully and carefully considered the defendant's claims. See State v. Timmons, 204 Conn. 120, 526 A.2d 1340 (1987). A claim that absence of flight supports such an instruction was also rejected by the trial court and affirmed by this court in State v. Jennings, 19 Conn.App. 265, 271-73, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Accordingly, we conclude that the defendant was not entitled to the theory of defense instruction that he sought because he did not assert a recognized legal defense at trial.

With respect to the defendant's claim that the court's jury instruction was imbalanced in favor of the state, our Supreme Court has held that a claim of impropriety as to an instruction concerning a permissive inference of consciousness of guilt is a claim of an evidentiary nature rather than a constitutional one. State v. Luster, 279 Conn. 414, 421-22, 902 A.2d 636 (2006).

It is well established that when a challenge to a jury instruction is not of constitutional magnitude, as here, “the charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn.App. 238, 253, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

When giving a jury instruction, a trial court is not required to read verbatim applicable statutory language, so long as the court's instruction substantially complies with the statutory language and it is not reasonably possible that the jury was misled. See State v. McCarthy, 63 Conn.App. 433, 439, 775 A.2d 1013, cert. denied, 258 Conn. 904, 782 A.2d 139 (2001). A court, however, must deliver a jury instruction in a manner calculated to give the jury a clear understanding of the issues presented, under the offenses charged and on the evidence. State v. Pinnock, 220 Conn. 765, 789-90, 601 A.2d 521 (1992). A proper jury instruction must be balanced and fair. Id., at 788, 792, 601 A.2d 521.

In State v. Pinnock, supra, 220 Conn. at 791-93, 601 A.2d 521, our Supreme Court held that it was improper, although harmless, for the jury instruction not to include the defendant's request for language that would result in a more balanced instruction as to the absence of evidence of motive to commit an offense for which the...