State v. Balbi

• Decision Date: 14 June 2005
• Docket Number: No. 24493.,24493.
• Citation: 89 Conn.App. 567,874 A.2d 288
• Court: Connecticut Court of Appeals
• Parties: STATE OF Connecticut v. Robert E. BALBI.

874 A.2d 288

89 Conn.App. 567

STATE OF Connecticut v. Robert E. BALBI.

No. 24493.

Appellate Court of Connecticut.

Argued January 6, 2005.

Decided June 14, 2005.

David T. Grudberg, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and David M. Holzbach, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, McLACHLAN and McDONALD, Js.

McLACHLAN, J.

The defendant, Robert E. Balbi, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 2001) § 14-227a (a)(1), as amended by Public Acts, Spec. Sess., May, 2002, No. 02-01, § 108, and, after a trial to the court, of having previously been convicted of that crime. The defendant's principal claim on appeal is that the trial court improperly permitted testimony concerning a horizontal gaze nystagmus test without first conducting a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), to determine the reliability of the test.¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 30, 2002, at approximately 10:30 p.m., Officer William Hull of the Newtown police department observed the defendant driving in an erratic manner on Route 302. Suspecting that the driver might be intoxicated, Hull activated his vehicle's overhead lights and initiated a traffic stop. Hull approached the defendant's vehicle and asked the defendant for his driver's license, registration and proof of insurance. The defendant fumbled through some paperwork and handed to Hull the driver's license and two expired insurance cards. Hull informed the defendant that the insurance cards were expired, to which the defendant replied, "You've got to be shitting me." Asked whether he had any medical conditions or was taking any medications, the defendant replied, "no," but stated that he was taking diet pills.

Hull then asked the defendant where he was going and how much he had had to drink. The defendant replied that he was going home to Ridgefield and that he had consumed two beers. A short while later, Hull again asked the defendant the same two questions. This time the defendant responded that he was going home to Bethel and had consumed four beers. During those interactions, Hull observed that the defendant's speech was slurred and that his eyes were bloodshot and glossy. Hull also detected the odor of alcohol on the defendant's breath.

On the basis of those interactions, Hull concluded that the defendant was intoxicated and, in accordance with department procedure, called for a backup officer so that he could administer field sobriety tests. Upon the arrival of Officer Michael Edis, Hull asked the defendant to step out of his vehicle. While performing this task, the defendant appeared somewhat unsteady. When Hull explained to the defendant that he was going to perform several field sobriety tests on him, the defendant responded that he would perform only the horizontal gaze nystagmus test and refused to participate in any other test because he "doesn't have faith in them."

The horizontal gaze nystagmus test is one of several field sobriety tests recommended by the National Highway Traffic Safety Administration to assist law enforcement in determining whether the operator of a motor vehicle is under the influence of alcohol. State v. Dahood, 148 N.H. 723, 728, 814 A.2d 159 (2002); see also annot., 60 A.L.R.4th 1129 (1988). "Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball.... The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nytagmus occurs. To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject's eyes. The stimulus, usually a pen or the officer's finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject's eyes as [the subject tracks the stimulus. The officer] looks for six clues, three for each eye, to determine whether the subject passes or fails the test. The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point. A finding of four clues indicates failure of the test and is a sign of intoxication." (Citations omitted.) State v. Commins, 83 Conn.App. 496, 499, 850 A.2d 1074, cert. granted on other grounds, 271 Conn. 905, 859 A.2d 564 (2004).

Hull testified that the defendant failed to smoothly track movement of the stimulus and that the onset of nystagmus occurred at an angle less than forty-five degrees to the center point. On the basis of his observations and the defendant's performance on the horizontal gaze nystagmus test, Hull placed the defendant under arrest and transported him to the Newtown police station, where the defendant refused to submit to a breath test. The defendant subsequently was charged by information with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a)(1). The defendant also was charged in the second part of the information with being a subsequent offender in violation of § 14-227a (g).

Prior to trial, the defendant filed a motion to suppress the results of the horizontal gaze nystagmus test and requested a Porter hearing to determine the scientific reliability of the test. The state countered that a Porter hearing was not necessary in this case because the court previously had considered the reliability of horizontal gaze nystagmus evidence in Porter hearings conducted in prior cases and could take judicial notice of its determinations therein that such evidence is reliable and satisfies Porter.

The court ruled as follows: "I'm going to take judicial notice of my own decision in the case of State v. Knipe [Superior Court, judicial district of Danbury, Docket No. MV01-0331219]. The state submitted a transcript of the Porter hearing in that case, and I'm going to ask that that be marked as a court's exhibit. And, I'm also going to rely on State v. Carlson [45 Conn. Supp. 461, 720 A.2d 886 (1998)] .... [In] Knipe as well as in Carlson, the court made a determination that the [horizontal gaze nystagmus] test was a scientifically reliable and relevant test. And, in this case, the officer testified, and I've qualified him as an expert. The defense had an opportunity to cross-examine or rather to voir dire, and you can still voir dire if you'd like, in front of the jury, but I'm going to make the determination that he's qualified to administer the test. And, I don't think its necessary to, under the circumstances here, to go through an additional Porter hearing."

On June 11, 2003, the jury found the defendant guilty as charged. The defendant thereafter waived his right to a jury trial on the second part of the information and was found guilty by the court of being a subsequent offender. On July 24, 2003, the court sentenced the defendant to two years incarceration, execution suspended after six months, and five years probation. This appeal followed.

The defendant claims that the court improperly admitted into evidence testimony of the horizontal gaze nystagmus test without first conducting a Porter hearing to establish the test's reliability. We disagree.²

"Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.... The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Internal quotation marks omitted.) State v. Commins, supra, 83 Conn.App. at 502, 850 A.2d 1074. At the urging of counsel and after reviewing the progression of the relevant case law, we now make clear our position regarding the foundational requirements for the admission of horizontal gaze nystagmus evidence.

We have consistently expressed our view that horizontal gaze nystagmus evidence is the type of scientific evidence that may mislead a jury in the absence of a proper foundation. In State v. Merritt, 36 Conn.App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995), this court enunciated the three part test that must be satisfied before such evidence is admissible. That test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test and (3) demonstrate that the test was conducted in accordance with relevant procedures. Id., at 91, 647 A.2d 1021.

At the time Merritt was decided in 1994, the prevailing standard for the admission of scientific evidence was the test enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which required that the party seeking to introduce the evidence of a scientific method or test establish its general acceptance in the scientific community. Seven years after Merritt, we decided State v. Russo, 62 Conn.App. 129, 134-36, 773 A.2d 965 (2001), in which we modified our holding in Merritt to harmonize it with our Supreme Court's decision in State v. Porter, supra, 241 Conn. 57, 698 A.2d 739. Porter changed the applicable...