State v. Commins

• Citation: 850 A.2d 1074,83 Conn. App. 496
• Decision Date: 22 June 2004
• Docket Number: (AC 23953).
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. JOHN J. COMMINS.

83 Conn. App. 496

850 A.2d 1074

STATE OF CONNECTICUT v. JOHN J. COMMINS.

(AC 23953).

Appellate Court of Connecticut.

Argued March 25, 2004.

Officially released June 22, 2004.

West, McLachlan and Hennessy, Js.

Darcy McGraw, special public defender, for the appellant (defendant).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Kelly Anne Masi, assistant state's attorney, for the appellee (state).

Opinion

McLACHLAN, J.

The defendant, John J. Commins, 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. He claims that the trial court improperly (1) admitted into evidence testimony concerning a horizontal gaze nystagmus test, (2) permitted the introduction of two prior felony convictions to impeach a defense witness and (3) determined that two prior out-of-state convictions qualified the defendant as a third offender for purposes of General Statutes (Rev. to 2001) § 14-227a (h), as amended by Public Acts, Spec. Sess., May, 2002, No. 02-01, § 108, now § 14-227a (g). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Early in the morning of August 16, 2002, Officer Steven Santucci of the Newtown police department was on patrol on Route 34 in Newtown and observed the defendant, who was driving a truck, approach an intersection, enter a left turn only lane and activate the truck's left turn signal. Instead of turning left at the intersection, however, the defendant continued through the intersection, and drove along the median line and into the oncoming traffic lane. On the basis of those observations, Santucci initiated a traffic stop.

During the traffic stop, the defendant informed Santucci both that he was on his way home and that he was coming from his home. While speaking with the defendant, Santucci detected the odor of alcohol on his breath. In view of the defendant's erratic driving and the odor of alcohol, Santucci proceeded to administer three field sobriety tests to the defendant.

The first test administered was the horizontal gaze nystagmus test. 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. See, e.g., State v. Merritt, 36 Conn. App. 76, 84, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995); see also annot. 60 A.L.R.4th 1129 (1988). 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 nystagmus 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 he tracks the stimulus and 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. Santucci testified that the defendant possessed all six clues and that those results indicated that the defendant was under the influence of alcohol.

Santucci also administered the walk and turn test and the one-leg stand test. Santucci testified that the defendant's performance on both tests indicated that he was under the influence of alcohol.¹

On the basis of the defendant's performance on the three tests, his erratic driving and the odor of alcohol on his breath, Santucci placed the defendant under arrest and transported him to the police station, where the defendant refused to submit to a breath test. The defendant subsequently was charged by information with driving while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). The defendant also was charged in a part B information as a third offender in violation of § 14-227a (h) (3), now (g) (3), on the basis of two previous convictions in New York for operating a motor vehicle while under the influence of intoxicating liquor.²

Prior to trial, the defendant filed a motion for 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 challenge the admission of evidence concerning the horizontal gaze nystagmus test. Specifically, the defendant challenged both the methodology underlying horizontal gaze nystagmus testing and Santucci's qualifications to testify as to his administration and grading of the test.

On November 7, 2002, the court conducted a Porter hearing at which the state called Constantine Forkiotis, a behavioral optometrist, as its sole witness.³ Forkiotis testified that horizontal gaze nystagmus testing is generally accepted in the scientific community, has been comprehensively tested and subjected to peer review, can be explained to jurors in a manner that will assist them in executing their task and was not developed solely for the purpose of use in court. At the conclusion of the hearing, the defendant asked that evidence of the test be excluded on the ground that it does not satisfy the standards enunciated in Porter for the admissibility of scientific evidence in that Forkiotis admitted that a group of ophthalmologists dispute the reliability of horizontal gaze nystagmus testing. The court rejected that argument and denied the defendant's motion in limine, concluding that horizontal gaze nystagmus testing satisfies Porter because it generally is accepted by the scientific community and meets the remaining Porter criteria.

After trial, the jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor. The court, thereafter, heard argument on whether the defendant's previous convictions were substantially the same as a conviction under § 14-227a(a)(1) in order to qualify the defendant for third offender status under the part B information. The court ruled that the two prior convictions were substantially the same as a conviction under § 14-227a (a) (1), and the defendant indicated his intention to enter a nolo contendere plea to the charge of being a third offender. The court accepted the plea and sentenced the defendant to three years incarceration, execution suspended after one year, followed by three years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion in limine to preclude evidence of the horizontal gaze nystagmus test. He argues specifically that the state (1) failed to establish a proper foundation for the admission of horizontal gaze nystagmus evidence as required by State v. Porter, supra, 241 Conn. 57, and (2) failed to establish an adequate foundation for Santucci's testimony as to his administration and grading of the test.⁴ We disagree.

"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. Pjura, 68 Conn. App. 119, 130-31, 789 A.2d 1124 (2002).

In determining whether the court properly admitted the horizontal gaze nystagmus evidence at issue, we employ the three part test set forth in State v. Merritt, supra, 36 Conn. App. 91.⁵ That test requires that the state (1) satisfy the criteria for admission of scientific evidence,⁶ (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. See id.

A

The defendant argues that the evidence adduced at the hearing failed to establish an adequate foundation for the admission of scientific evidence as set forth in Porter and, therefore, fails to satisfy the first prong of Merritt.⁷

Under Porter, before proffered scientific evidence may be admitted, the court must determine that the evidence is scientifically valid and demonstrably relevant to the facts of the case, not simply valid in the abstract. State v. Porter, supra, 241 Conn. 65. In determining scientific validity, the Porter court noted that despite the rejection of the approach under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in which "`general acceptance'" was the sine qua non of admissibility, courts should continue to consider general acceptance in making admissibility determinations. Id., 84. As the court stated: "[W]e suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue. . . . Thus, although Frye may no longer be the standard for admissibility, general acceptance remains a part of the analysis, and in many cases its presence may alone be sufficient to admit the evidence. . . . [I]f a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible." (Citations omitted;...