State v. Beliveau

• Decision Date: 30 March 1999
• Docket Number: (AC 16215)
• Citation: 52 Conn. App. 475,727 A.2d 737
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. NORMAN J. BELIVEAU

52 Conn. App. 475

727 A.2d 737

STATE OF CONNECTICUT v. NORMAN J. BELIVEAU

(AC 16215)

Appellate Court of Connecticut.

Argued November 9, 1998.

Officially released March 30, 1999.

Lavery, Landau and Sullivan, Js. Louis S. Avitabile, special public defender, with whom, on the brief, was Paul Matasavage, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Norman J. Beliveau, 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 § 14-227a (a) (1) and (2), operating a motor vehicle with a suspended operator's license in violation of General Statutes § 14-215 and reckless driving in violation of General Statutes § 14-222. The state filed a substitute part B information charging the defendant with operating a motor vehicle with a suspended operator's license in violation of General Statutes § 14-215 (c) and, following a trial to the court, the trial court found the defendant guilty as to that offense. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress (1) all of the statements he made after his arrest for breach of the peace because the arrest was pretextual as well as the statements he made after the police used deception to elicit incriminating information, (2) two incriminating statements he made while on his porch prior to his arrest for breach of the peace because the police elicited those statements during a custodial interrogation without first advising him of his Miranda¹ rights and (3) incriminating statements he made immediately prior to the administration of several field sobriety tests. We affirm the judgment of the trial court.

The following facts and procedural history are pertinent to a resolution of the issues on appeal. On July 14, 1994, at approximately 5:30 p.m., Richard Stebar observed the defendant driving a white van erratically on Route 8. Stebar followed the van until it stopped in front of 52 Hotchkiss Street in Naugatuck. Stebar watched the defendant exit the van and stagger toward the house. At approximately 6 p.m., Stebar relayed that information to two police officers from the Naugatuck police department. On the basis of that information, the officers went to the defendant's home. Officer Jeremiah Scully and the defendant discussed Stebar's allegations and, when the defendant disregarded Scully's admonitions to calm down, Scully arrested him for breach of the peace.

The defendant was transported to the police station and, prior to being advised of his Miranda rights, he agreed to perform several field sobriety tests, each of which he failed. After the defendant was advised of his Miranda rights, he agreed to submit to a Breathalyzer test. The Breathalyzer results indicated that at 6:42 p.m., the defendant's blood alcohol content was 0.175 percent, and at 7:17 p.m. his blood alcohol content was 0.162 percent.

The defendant filed a pretrial motion to suppress the incriminating statements he had made to the police while he was in his kitchen, on his porch, in the police cruiser and at the police station. On April 25 and 26, 1996, the trial court held an evidentiary hearing to decide the defendant's motion. On April 29, 1996, the trial court denied the defendant's motion to suppress. The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, operating a motor vehicle while his license was under suspension for operating a motor vehicle while under the influence of intoxicating liquor and reckless driving, and this appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress (1) all of the statements he made after his arrest for breach of the peace because this arrest was pretextual and (2) the statements he made after the police utilized deception to elicit incriminating information. Specifically, the defendant first claims that "Officer Scully had no right or reason to wrongfully arrest [him] for breach of [the] peace other than as a pretext or subterfuge to avoid having to leave the property and to be able to continue talking to [him] about Stebar's claims that [he] was driving in an erratic manner...." Second, he claims that "Scully lied to [him] about the state police having his plate number" and that this deception constituted a "coercive act of subterfuge" that enabled the police to elicit incriminating information. We decline to review either of these claims. At oral argument, the state questioned whether the defendant had distinctly raised these claims at the suppression hearing. "This court will not review issues of law that are raised for the first time on appeal." State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). "We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim." Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985). "Claims that were not distinctly raised at trial are not reviewable on appeal." State v. Pickles, 28 Conn. App. 283, 286-87, 610 A.2d 716 (1992).

We conclude that the defendant failed to raise either of these claims distinctly during the suppression hearing. At the suppression hearing, although the defendant questioned "whether or not the breach of peace occurred as a result of an illegal arrest," he neither cites, nor can we locate in the transcript of the suppression hearing, any reference to his claim that the police used his arrest as a pretext to continue their investigation of Stebar's allegations. We decline the defendant's invitation to transform this cryptic reference into the claim now raised on appeal. Additionally, the defendant neither cites, nor can we locate, any reference to his claim that the police used deception to obtain incriminating statements. On appeal, the defendant did not contend that these claims were reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),² or subject to plain error review. Consequently, we decline to review these claims.

Were we to assume that the defendant distinctly raised both of these claims at the suppression hearing, we would reach the same conclusion. Although the trial court denied the defendant's motion to suppress, it did not comply with Practice Book § 64-1 (a) because it neither issued a written memorandum of decision nor signed the transcript of its oral decision. See Practice Book § 64-1 (a);³ State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994). "While we do not condone the court's failure to comply with [Practice Book] § 4059 [now § 64-1 (a)], and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court's ruling, we would not exalt form over substance if the deficiency were of a technical nature." State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993); see State v. Rosedom, supra, 143.

In the present case, although there is an unsigned transcript of the trial court's oral decision, it is devoid of any reference to either of the defendant's claims. "It is the appellant's duty to take the necessary steps to provide us with an adequate record for appellate review.... The defendant could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 4051 [now § 66-5] asking the trial court to set forth the basis and reasoning for its decision, or by filing a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 4183 [now § 60-2]." (Citations omitted.) State v. Rosedom, supra, 34 Conn. App. 144-45. The defendant elected to do neither. Accordingly, we decline to review these claims.

II

The defendant next claims that the trial court improperly denied his motion to suppress two incriminating statements he made while on his porch prior to his arrest for breach of the peace because the police elicited these statements during a custodial interrogation without first advising him of his Miranda rights. We also decline to review this claim.

"Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation." (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 267, 681 A.2d 922 (1996). "Two discrete inquiries are essential to the determination [of custody]: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.... The first inquiry ... is factual and will not be overturned unless it is clearly erroneous.... The second inquiry ... requires an application of the controlling legal standard to the historical facts. This ultimate determination ... presents a mixed question of law and fact qualifying for independent review." (Citations omitted; internal quotation marks omitted.) State v. Walton, 41 Conn. App. 831, 835-36, 678 A.2d 986 (1996); see State v. Tomasko, supra, 267-69. In the unsigned transcript of its oral decision, the trial court did not indicate whether the defendant was in custody when, prior to his arrest for breach of the peace, he was standing on his porch and made these two incriminating statements.⁴ Of greater significance is that the trial court failed to articulate the factual circumstances surrounding...