State v. Buckland

• Citation: 313 Conn. 205,96 A.3d 1163
• Decision Date: 19 August 2014
• Docket Number: No. 19240.,19240.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Howard M. BUCKLAND.

313 Conn. 205

96 A.3d 1163

STATE of Connecticut

v.Howard M. BUCKLAND.

No. 19240.

Supreme Court of Connecticut.

Argued May 19, 2014.

Decided Aug. 19, 2014.

Sean P. Barrett, New Haven, with whom, on the brief, was Peter G. Billings, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Charles W. Johnson, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

EVELEIGH, J.

The defendant, Howard M. Buckland, was convicted, following a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor and one count of operating a motor vehicle while having an elevated blood alcohol content, in violation of General Statutes (Supp.2014) § 14–227a (a)(1) and (2), respectively.¹ The defendant was also convicted, after a trial to the court, Baldini, J., of speeding in violation of General Statutes § 14–219(b)(3).² Subsequently, the defendant entered a plea of nolo contendere to the charge of having previously been convicted of operation of a motor vehicle while under the influence of intoxicating liquor in violation of § 14–227a. The trial court imposed a total effective sentence of two years of incarceration, execution suspended after eight months, a $2090 fine, and two years probation. On appeal,³ the defendant argues that: (1) the trial court improperly denied his motion to suppress evidence regarding certain breath tests in violation of the confrontation clause as defined in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); and (2) the constable who made the arrest lacked the requisite authority. The state contends that: (1) the state experts who testified fulfilled the requirements of Melendez–Diaz; and (2) the constable who made the arrest in the present case was a duly qualified special constable with the power of arrest. We agree with the state and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 11, 2010, Sergeant James Desso, a special constable employed by the town of Stafford, was operating a radar gun along Route 190. At approximately 10:40 p.m., Desso observed a car operated by the defendant traveling at a rate of fifty-nine miles per hour in a thirty-five miles per hour zone. Desso pulled out behind the defendant's vehicle and activated his emergency lights and siren. The defendant traveled approximately seven-tenths of one mile before stopping his vehicle.

Desso approached the driver's side of the defendant's vehicle and detected the odor of alcohol through an open window. Desso observed that the defendant's “face seemed to be a little flushed, his speech was a little bit slurred, and his eyes were a little glossy.” Desso asked the defendant for his license, registration and insurance information. According to Desso, the defendant had difficulty gathering these documents from both the glove compartment and his wallet. The defendant told Desso that he had consumed two glasses of wine at a nearby restaurant.

Desso then asked the defendant to exit the vehicle. Desso observed that the defendant had difficulty walking and that he was using the side of the car to steady himself. While instructing the defendant on certain field sobriety tests, Desso noticed that the defendant was “swaying.” Desso then administered a number of field sobriety tests, including the horizontal gaze nystagmus test, the one leg stand test, and the walk and turn test, all of which the defendant failed. Desso also asked the defendant to recite the alphabet and the defendant missed three letters. Thereafter, Desso concluded that the defendant was operating his vehicle while under the influence of alcohol and, accordingly, placed the defendant under arrest. The defendant was then transported to a police station for booking. Another police officer, who observed the defendant at the station later that evening, testified that the defendant smelled of alcohol, slurred his speech and generally acted in a manner consistent with inebriation.

At the station, Desso informed the defendant of his right to refuse a breath test. With the defendant's permission, Desso began to conduct a breath test using a “Draeger Alcotest 9510” (Draeger machine). After the Draeger machine indicated that it was functioning properly, Desso took two breath samples from the defendant in accordance with the standard procedures. The first sample was taken at 11:48 p.m. and produced a reading of 0.2217. The second sample was taken at 12:07 a.m. and produced a reading of 0.2173.

The state entered into evidence, as full exhibits, documents containing the results of these samples during Desso's testimony at trial. Specifically, the state introduced exhibits 6 and 7, which consist of printed reports from the Draeger machine that pertain, respectively, to the two samples collected at the station. The state also introduced a document, marked as exhibit 4, indicating that the Draeger machine used in the present case “was evaluated and certified for use as an [e]vidential [b]reath [a]lcohol [t]est [i]nstrument.” Although Desso testified that he operated the Draeger machine, he did not testify as to how it was calibrated.

The state next presented the testimony of Robert Powers, the director of the Controlled Substances Toxicology Laboratory for the Department of Emergency Services and Public Protection. Powers testified at trial that the laboratory oversees the training of instructors for breath alcohol instruments, the repairs of old instruments, and the selection of new instruments. Powers testified that alcohol slows the function of the central nervous system, causing behavioral changes and that, for example, slurred speech tends to begin when the blood alcohol content reaches 0.17. He also explained the history of breath test machines and gave an overview of how they function, the science upon which they are based, and the correlation between the breath test results and blood alcohol content. He testified about the control tests the Draeger machine performs automatically, describing how the Draeger machine tests air and gas samples before and after the subject's breath test. He testified that the Draeger machine reports, which returned results indicating a blood alcohol content of 0.2217 and 0.2173, indicated that the defendant had consumed as many as eleven drinks by the time of his arrest. Powers further testified that the ratios used to correlate between the breath test results and blood alcohol content actually err in the average person's favor by tending to show a lower blood alcohol content than is actually present. Powers also testified that, accounting for the possibility that the defendant's blood breath ratio was not the same as an average person, his true blood alcohol content could have been as low as 0.17 or as high as 0.32.

On June 30, 2011, the defendant filed a “Motion in Limine Requesting Confrontation or, in the Alternative, Suppression” claiming that his rights under the confrontation clause would be violated by the admission of the Draeger machine reports.⁴ On December 12, 2011, the defendant filed a second motion to suppress, claiming that the evidence resulting from his arrest should be excluded from the trial because Desso lacked authority to make a warrantless arrest. After a hearing, the court denied the defendant's motions. Trial commenced on December 15, 2011, the jury returned its verdict on December 19, 2011, and the defendant was sentenced on February 16, 2012. This appeal followed. Additional facts will be furnished as necessary.

I

The defendant contends that the trial court improperly denied his motion to suppress the Draeger machine reports. He argues that, since the state did not produce four witnesses regarding the Draeger machine and its calibration, the testimony was insufficient to meet the requirements of Melendez–Diaz.⁵ The state maintains that the production of the two witnesses who testified at the trial were sufficient to meet the requirements of Melendez–Diaz. We agree with the state.

We start with the applicable standard of review. “[O]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct....” (Internal quotation marks omitted.) State v. Stenner, 281 Conn. 742, 761, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S.Ct. 290, 169 L.Ed.2d 139 (2007).

Prior to addressing the defendant's precise claim in this matter, it is instructive to review some recent Supreme Court decisions regarding the issues raised by the defendant. “In Crawford v. Washington, [541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ], the [United States] Supreme Court substantially revised its approach to confrontation clause claims. Under Crawford, testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross-examination and the witness is unavailable to testify at trial. Id. [at], 68 . In adopting this ‘categorical’ approach, the court overturned existing precedent that had applied an ‘open-ended balancing [test]’; id. [at], 67–68 ; conditioning the admissibility of out-of-court statements on a court's determination of whether the proffered statements bore ‘adequate indicia of reliability.’ ... Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Although Crawford's revision of the court's confrontation clause jurisprudence is significant, its rules govern the admissibility...