State v. Cooper

• Decision Date: 13 September 1995
• Docket Number: No. 12762,12762
• Citation: 38 Conn.App. 661,664 A.2d 773
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James COOPER.

Page 773

664 A.2d 773

38 Conn.App. 661

STATE of Connecticut v. James COOPER.

No. 12762.

Appellate Court of Connecticut.

Argued Feb. 16, 1995.

Decided Aug. 8, 1995.

Certification Denied Sept. 13, 1995.

James B. Streeto, Special Public Defender, for appellant (defendant).

David J. Sheldon, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael Zuk, Deputy Assistant State's Attorney, for appellee (State).

Before SCHALLER, SPEAR and FRANCIS X. HENNESSY, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a)(1) and one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a)(2). ¹ The defendant claims (1) that the trial court improperly instructed the jury in several respects: (a) in directing the jury to find that Interstate Route I-84 was a public highway, (b) in instructing the jury that it could consider the results of the defendant's blood alcohol tests in determining whether to convict him for a violation of § 14-227a(a)(1), (c) in failing to instruct the jury that facts essential to proof of an element of a crime must be proven beyond a reasonable doubt, (d) in failing to relate the facts to the law, and (e) in instructing the jury in a manner that deprived the defendant of a fair trial. The defendant also claims that the trial court improperly denied a motion to suppress and that the defendant's convictions under both subdivisions of § 14-227a(a) violate the double jeopardy provisions of the federal and state constitutions. We reverse the judgment of the trial court only as to the conviction under § 14-227a(a)(1).

The jury reasonably could have found the following facts. At approximately 8:25 p.m. on December 21, 1991, Sergeant William Marchand of the state police saw a pickup truck traveling without lights on I-84. Marchand drove behind the vehicle and signaled the driver to pull over. After it had come to a stop, Marchand approached the vehicle, which was operated by the defendant, James Cooper.

On the basis of his observations, Marchand had the defendant exit the vehicle and called for another officer to conduct field sobriety tests. About ten minutes later, Trooper Michael Smart arrived. Smart conducted five field tests on the defendant, including several after his initial determination that the defendant was intoxicated. Smart arrested the defendant and drove him to the state police barracks in Southbury where he conducted two breathalyzer tests of the defendant. The first test, performed at 9:28 p.m., measured the defendant's blood alcohol level at 0.261 percent. The second test, at 10:15 p.m., measured the level at 0.228 percent.

The defendant originally was charged with operating a motor vehicle while under the influence of intoxicating liquor pursuant to § 14-227a. The state subsequently filed a substitute information containing two counts of operating a motor vehicle while under the influence of intoxicating liquor pursuant to subdivisions (1) and (2) of § 14-227a(a). The jury found the defendant guilty of both counts.

I

A

The defendant first claims that the trial court improperly instructed the jury "that the highway in question is a public highway. So you need not deal with that element and you need not make that finding." The defendant claims that the trial court thereby violated his right to trial by jury pursuant to the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 19, of the Connecticut constitution. ² Because the defendant did not preserve this claim at trial, to prevail he must meet the conditions set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

"In State v. Golding, [supra, 213 Conn. 233, 567 A.2d 823], our Supreme Court reformulated the test of reviewability in [State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973) ]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt...." (Citations omitted; internal quotation marks omitted.) State v. Velez, 30 Conn.App. 9, 20-21, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993); see also State v. Gamble, 27 Conn.App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). If any one of these conditions is not established, the defendant's claim will fail.

We find the defendant's claim reviewable. In examining the first prong of Golding, we note that it was designed to avoid remands for the purpose of supplementing the record. State v. Stanley, 223 Conn. 674, 690, 613 A.2d 788 (1992). Our review of the record indicates that the facts are sufficiently clear and unambiguous for this court to determine whether a constitutional violation has occurred.

The second prong of Golding is also satisfied. "An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Improper jury instructions on an essential element of the crime charged implicate a fundamental constitutional right. See State v. Wilkinson, 176 Conn. 451, 408 A.2d 232 (1979); State v. Kwaak, 21 Conn.App. 138, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

We must consider next whether the defendant met his burden as to the third requirement of Golding. "We must inquire whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial." State v. Leroy, 33 Conn.App. 232, 236, 635 A.2d 305 (1993), rev'd, 232 Conn. 1, 653 A.2d 161 (1995). The defendant claims that the trial court improperly instructed the jury by removing from the jury's consideration a necessary element under both offenses of driving while intoxicated, in violation of the defendant's constitutional rights to a fair trial.

According to § 14-227a(a), a necessary element of the charged offense is that the defendant operate a motor vehicle on a public highway. In its instructions to the jury, the trial court charged the jury as follows: "The second element is that the defendant operated the motor vehicle on a public highway of the state. I am going to charge you that the highway in question is a public highway. So you need not deal with that element and you need not make that finding."

The defendant argues that this instruction violated the Sandstrom doctrine against a mandatory presumption; Sandstrom v. Montana, 442 U.S. 510, 517-24, 99 S.Ct. 2450, 2456-59, 61 L.Ed.2d 39 (1979); ³ thereby rendering "irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence." Connecticut v. Johnson, 460 U.S. 73, 85, 103 S.Ct. 969, 976-77, 74 L.Ed.2d 823 (1983). We need not decide whether the Sandstrom doctrine applies to this case because the defendant waived his right to require the state to prove the public highway element of the offense beyond a reasonable doubt.

In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. The due process clause prescribes that the defendant has a right to require the fact finder to determine each element of an offense charged beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, ----, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). " 'It is the duty of the Government to establish ... guilt beyond a reasonable doubt. This notion--basic in our law--is a requirement and a safeguard of due process of law in the historic, procedural content of "due process." ' " In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), quoting Leland v. Oregon, 343 U.S. 790, 802-803, 72 S.Ct. 1002, 1009-1010, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting). Under the circumstances, however, the record reveals that the defendant conceded the element in question, and, therefore, waived his right to require the fact finder to determine the element.

In this case, the state offered evidence that I-84 is public. Marchand testified without objection that I-84 is a public highway, that the general motoring public has access to the road, and that the state department of transportation maintains the highway, plows the road when it snows and is responsible for cleaning oil spills. The defendant did not challenge that testimony either by cross-examination or by presenting evidence to the contrary. The defendant's attorney, in fact, referred to the highway as the "interstate" in the course of cross-examination. Moreover, in arguing a motion for judgment of acquittal, the defendant's attorney argued that the second officer "didn't actually testify that he was unfit to operate upon the public highways." Counsel moved for a "directed verdict of acquittal concerning the opinion by those officers as to the inability to operate on the public highway." Further, the defendant's attorney stated that the tests were given in "a flat area maybe slightly downhill but it certainly wasn't in the grass off the side of the public highway." In short, failure to prove the public highway element...