State v. Bothwell

• Decision Date: 15 July 2003
• Docket Number: (AC 21920).
• Citation: 78 Conn. App. 64,826 A.2d 182
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. RICHARD F. BOTHWELL

78 Conn. App. 64

826 A.2d 182

STATE OF CONNECTICUT v. RICHARD F. BOTHWELL

(AC 21920).

Appellate Court of Connecticut.

Argued March 31, 2003.

Officially released July 15, 2003.

Bishop, West and Stoughton, Js.

Russell S. Palmer, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, Colleen Zingaro, deputy assistant state's attorney, and Proloy K. Das, former special deputy assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Richard F. Bothwell, appeals from the judgment of conviction, rendered following a jury trial, of operation of a motor vehicle while under the influence of liquor or drugs or while having an elevated blood alcohol content in violation of General Statutes (Rev. to 1999) § 14-227a, as amended by Public Acts 1999, No. 99-218, and Public Acts 1999, No. 99-255. He also appeals from the judgment, rendered following a trial to the court, convicting him of being a third time offender under § 14-227a(g).¹ The defendant claims that (1) the state engaged in prosecutorial misconduct as a result of several comments made during the trial, (2) the court improperly admitted into evidence certain documents that were not properly authenticated and (3) the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt under the second part of the information.

The following facts are relevant to our resolution of the defendant's appeal. At approximately 10:30 p.m. on December 3, 1999, off-duty police Lieutenant William Ferri was traveling north on Route 106 on his way to work when he encountered a traffic jam. After being delayed in traffic for approximately five minutes, Ferri decided to investigate the situation to determine the cause of the traffic delay. Ferri subsequently discovered that a stalled tractor-trailer was blocking the entire southbound lane and a portion of the northbound lane. A brown pickup truck, driven by the defendant, also was blocking the southbound lane. Ferri approached the pickup truck and yelled to the defendant to move his vehicle. The defendant did not respond. When Ferri was within three feet of the defendant, he again told the defendant to move the vehicle. The defendant mumbled something that Ferri could not understand. Ferri observed that the defendant's eyes were bloodshot and that there was a strong odor of alcohol emanating from the vehicle.

At that point, Ferri ordered the defendant to stop the vehicle, which was moving slightly, and to exit from the vehicle. The defendant's truck rolled another fifteen feet before coming to an abrupt halt. The defendant then got out of the vehicle, and Ferri noticed that he was unsteady on his feet, his speech was slurred and he smelled strongly of alcohol. Ferri told the defendant to wait where he was, and Ferri then returned to his vehicle to retrieve his police equipment belt. As Ferri returned to his vehicle, the defendant walked away from the scene, up a driveway and disappeared into a wooded area. As he left the scene, the defendant ignored multiple orders from Ferri to stop.

After several on-duty police officers arrived at the scene, Ferri left to report for the beginning of his shift. One of the remaining officers, Lieutenant Steven Wood, noticed that one of the vehicles leaving the scene was traveling south on Old Stamford Road. He heard what sounded like a shout come from that direction and observed a figure climbing into the passenger side of the vehicle. The officer realized that the person entering the vehicle might be the suspect and pursued the vehicle. Wood caught up with the vehicle and stopped it. The officer observed that the passenger matched the suspect's description and called police headquarters for Ferri's assistance with the identification. Ferri arrived at the scene and positively identified the passenger as the suspect who had fled from the scene. The defendant was then taken to police headquarters, arrested and charged.

At the station house, the defendant was subjected to four field sobriety tests: The horizontal gaze nystagmus test; the walk and turn test; the one-leg stand test; and the alphabet test. On the basis of the defendant's performance on those tests, the administering officer concluded that the defendant was intoxicated and that his blood alcohol content was greater than 0.10. The defendant refused to submit to a Breathalyzer test. Additional facts will be set forth as necessary.

I

We first address the defendant's claim that certain of the prosecutor's comments during the trial were improper and amounted to prosecutorial misconduct. Specifically, the defendant claims that the prosecutor introduced improper and extraneous commentary during an objection to a certain line of questioning posed by defense counsel during cross-examination, that the prosecutor improperly commented on the defendant's fifth amendment right not to testify, and that the prosecutor explicitly appealed to the jurors' emotions, biases and prejudices during closing argument by suggesting that the defendant could have killed someone while driving under the influence of an intoxicating substance.

The standard of review for a claim of prosecutorial misconduct is well settled. "[T]o deprive a defendant of his constitutional right to a fair trial ... the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

"Prosecutorial misconduct may occur in the course of cross-examination of witnesses and during closing argument. . . . In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. . . . Those factors include (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state's case." (Citations omitted; internal quotation marks omitted.) State v. Stevenson, 70 Conn. App. 29, 33-34, 797 A.2d 1, cert. granted on other grounds, 261 Conn. 918, 806 A.2d 1057 (2002).

"We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial.... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted. . . .

"A statement within closing argument is blatantly egregious as to implicate the fundamental fairness of the trial itself where in light of all of the facts and circumstances . . . no curative instruction could reasonably be expected to remove [its] prejudicial impact.. . . In reviewing a claim of prosecutorial misconduct during closing argument, we ask whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Citation omitted; internal quotation marks omitted.) State v. Gentile, 75 Conn. App. 839, 852-53, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

A

The defendant first complains that the prosecutor prefaced one of his objections at trial with an improper comment directed at defense counsel. The alleged improper comment followed a line of cross-examination of a police officer about the officer's description of the defendant's eyes as bloodshot on the night of the arrest. Defense counsel requested permission from the court to have the police officer view the defendant's eyes in the courtroom. The prosecutor objected to that request, stating: "[The defendant], with regard to coming to court prior to this, whether he drank today, whether or not he got sand in his eyes, whether his eyes look bloodshot or not to this officer is irrelevant to the issue that this officer is testifying to. I don't know what kind of show [defense counsel] is trying to put on, but I don't think it's relevant and I don't think it's appropriate." The court sustained the objection.

Following that objection, defense counsel inquired of the witness whether the defendant looked the same as he did when he was in custody following his arrest. The prosecutor again objected to that line of questioning, stating: "Your Honor, I would renew my objection. If counsel would like to put his client on the [witness] stand, and we can question him about whether he has been drinking today. When was the last time he drank? And several other factors with regard to his physical state."

With respect to the prosecutor's comments, we conclude that they did not so infect the trial with prejudice as to deprive the defendant of his right to a fair trial. The prosecutor's comments were no more than legitimate argument in support of his objection. It is true that a party objecting to a question at trial should state only the legal basis for such objection and that argument in support of the objection should be reserved until requested by the court. See Practice Book § 5-5.² We cannot say, however, that the prosecutor's premature offer of support for his objection prejudiced the defendant.

Contrary to the defendant's assertion, the likely import of the prosecutor's comments was not to suggest that the defendant was so habitual a drunkard that he was intoxicated even as he sat in court during his trial. Rather, the essence of the comments was that the condition...