State v. Comollo

• Decision Date: 10 April 1990
• Citation: 21 Conn.App. 210,572 A.2d 1037
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard COMOLLO. 7693.

Page 1037

572 A.2d 1037

21 Conn.App. 210

STATE of Connecticut v. Richard COMOLLO.

7693.

Appellate Court of Connecticut.

Argued Dec. 12, 1989.

Decided April 10, 1990.

Christopher W. Bromson, with whom were Francis S. Holbrook II and Donald G. Leis, Jr., Windsor Locks, for appellant (defendant).

Jacqueline J. Footman, Deputy Asst. State's Atty., with whom, on the brief, were John Bailey, State's Atty., and Warren Gower, Asst. State's Atty., for appellee (state).

Before DALY, NORCOTT and FOTI, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, after a plea of nolo contendere, pursuant to General Statutes § 54-94a ¹ and Practice Book § 4003, ² of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a). ³ The defendant claims that the court erred in denying his motion to dismiss and his motion to suppress. We find no error.

The facts are as follows. At 2:23 a.m. on March 22, 1987, Officer Steve Madden of the Connecticut state police received a dispatch that a one car accident had occurred on Interstate 84 approximately 200 feet east of exit 56. He arrived at the scene of the accident within minutes after he received the call. He observed an automobile on the right side of the road, resting against a guardrail in the eastbound lane. The damage to the car was consistent with its striking the guardrail before coming to a stop. The officer also observed that the car was stationary, the motor was not running but the engine compartment was warm. The headlights were off, the keys were not in the ignition, and there was no operator behind the wheel. The officer did not observe any skid marks at the scene and he was unable to locate any additional witnesses to the accident. There were no pedestrians in sight, a fact consistent with the type of highway.

When the officer approached, the defendant was standing next to the vehicle. Although it had been raining, the defendant's clothes were dry, leading Madden to conclude that the defendant had not been out in the rain for any appreciable length of time. Madden asked the defendant if he had been the driver of the car and whether he had been injured. The defendant replied that he was the driver and that he had not been injured. The defendant told the officer that another vehicle had struck his car, forcing him off the highway. At Madden's request, the defendant retrieved his driver's license, registration and insurance information from the vehicle's glove compartment. The registration indicated that the car was owned by General Motors Acceptance Corporation.

As the defendant and Madden spoke, the officer detected a strong odor of alcohol on the defendant's breath. During the course of their conversation, the defendant first stated that he was coming home from the movies. He later stated that he had been drinking before he went to the movies. Finally, the defendant stated that he had been drinking at a lounge and restaurant prior to the accident.

The officer administered a field sobriety test that confirmed his suspicions that the defendant was intoxicated. The defendant was arrested and transported to the state police barracks where he consented to an alcohol breath test. The defendant was given two intoximeter tests that morning. The first, administered at 3:31 a.m., resulted in a blood alcohol reading of .191. The second intoximeter test was administered at 4:06 a.m. and showed a blood alcohol reading of .185.

I

The defendant claims that the court erred in denying his motion to dismiss, which was filed pursuant to General Statutes § 54-56 and Practice Book § 815(5). He asserts that there was insufficient evidence to warrant a finding that the defendant was operating the motor vehicle. It is the defendant's position that any admission or statement he made at the time of the arrest is inadmissible unless the state first produces sufficient independent corroborative evidence to establish that he was operating the motor vehicle. Specifically, the defendant claims that the state failed to offer sufficient preliminary proof of the corpus delicti of the element of operation to allow his admission to be used by the trier of fact as proof that he was, in fact, the driver of the car. We do not agree.

General Statutes § 14-227a provides that "[n]o person shall operate a motor vehicle while under the influence of intoxicating liquor...." "The state must prove each of the two essential elements of the crime charged [that the defendant was the operator and that he was under the influence of intoxicating liquor] beyond a reasonable doubt.... The court was entitled to draw all fair and reasonable inferences from the facts established by the evidence, but the conclusion based on them must not be the result of speculation and conjecture." (Citations omitted.) State v. DeCoster, 147 Conn. 502, 504, 162 A.2d 704 (1960).

Although the defendant was not behind the wheel of the car when Madden came upon the scene of the accident, he later told the officer that he was the driver of the car. ⁴ At common law, a confession of an accused could not be admitted until the corpus delicti, or prima facie proof that a crime had been committed by someone, was proven by extrinsic evidence. "In [State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964), our Supreme Court] adopted Professor Wigmore's definition of the term 'corpus delicti,' and stated: 'The corpus delicti consists of the occurrence of the specific kind of loss or injury embraced in the crime charged.' ... The confession, then, as evidence tending to prove both the crime charged and the corpus delicti, is not sufficient of itself to prove the former, and without evidence aliunde of facts tending to prove the corpus delicti, is not enough to warrant a conviction. There must be such extrinsic corroborative evidence as will, when viewed in connection with the confession, establish the corpus delicti ... in the mind of the trier beyond a reasonable doubt." (Citation omitted.) State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980). Applying this rule of law to the present case, it was necessary for the state to present sufficient corroborative evidence that, when viewed in connection with the defendant's admission, would lead the trier of fact to conclude, beyond a reasonable doubt, that the defendant was, in fact, operating the vehicle.

While it is true that the trial court here applied an incorrect standard when it neglected to resolve the question of corpus delicti and found that the element of operation was satisfied by viewing only the extrinsic corroborative evidence presented in complete isolation from the defendant's admission of operation, ⁵ that error was harmless. When we apply the correct standard of law to the facts at hand, and view the extrinsic facts in connection with the defendant's admission, we also conclude that sufficient evidence existed to satisfy the element of operation. In reaching this conclusion we have considered the following: The motor of the car had recently been turned off, as evidenced by the warmth of the car's hood; there were no other individuals within view either walking for assistance or leaving the scene of the accident on foot; the defendant had just been inside the car as evidenced by the dry condition of his clothing on a rainy day; this car was the only one in sight; the defendant knew where to find the car's registration and insurance information and he did not question the officer's interest in his driver's license. Further, although the defendant is correct in his assertion that the car was not registered in his name, it was not registered to another person, but to a corporate entity which is consistent with the assumption that it was a vehicle within the defendant's complete control at the time of the accident.

These facts and the defendant's admission must be viewed for their cumulative impact. When they are taken together with the inferences that could reasonably be drawn from them, it becomes clear that the corpus delicti of operation was sufficiently proven for the prosecution to proceed with the proof of its case.

II

The defendant next claims that the trial court erred in denying his motion to suppress the results of both of the breathalizer tests administered to the defendant.

The facts relevant to this claim are as follows. Officer Madden administered a breathalizer test to the defendant on an Intoximeter 3000, an instrument certified by the department of health services. At the hearing on the defendant's motion to suppress, Madden produced a photocopy of the instrument's certification bearing the signature of Abraham Stolman, chief toxicologist for the state toxicological laboratory. The copy was allowed into evidence, over the defendant's objection that it was not the best evidence. In addition, Madden testified that he himself was certified by the department of health services to administer alcohol breath tests on the Intoximeter 3000 and had performed between fifty and one hundred tests. A photocopy of the officer's recertification was allowed into evidence over the defendant's objections that it too was not the best evidence, that no evidence of the officer's written application to perform such testing had been introduced pursuant to § 14-227a-5 of the Regulations of Connecticut State Agencies ⁶ and that Madden did not personally receive his recertification in writing prior to administering the test to the defendant pursuant to § 14-227a-6 of the Regulations of Connecticut State Agencies. ⁷

The defendant's claims with respect to the court's denial of his motion to suppress are twofold. First, the defendant contends that the court erred in allowing photocopies into evidence, and second that the court erred in not suppressing the results of the intoximeter tests because the state failed to comply with department of health regulations §§ 14-227a-5 and 14-227a-6.

A

The defendant...