State v. Gordon

• Decision Date: 17 August 2004
• Docket Number: (AC 23623).
• Citation: 854 A.2d 74,84 Conn. App. 519
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SCOTT GORDON.

84 Conn. App. 519

854 A.2d 74

STATE OF CONNECTICUT v. SCOTT GORDON.

(AC 23623).

Appellate Court of Connecticut.

Argued March 22, 2004.

Officially released August 17, 2004.

Foti, Dranginis and McLachlan, Js.

Louis S. Avitabile, special public defender, for the appellant (defendant).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Vernon D. Oliver, assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Scott Gordon, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1). He also challenges his conviction on part B of the information, rendered by the court, of being a third time offender in violation of General Statutes (Rev. to 1999) § 14-227a (h) (3), now (g) (3). On appeal, the defendant claims that (1) the court improperly denied his motion to suppress evidence of his statements and conduct that were made to and in the presence of the police, (2) his conviction under § 14-227a (a) (1) is not supported by sufficient evidence, (3) the court improperly instructed the jury and (4) his conviction as a third time offender under § 14-227a (h) (3), now (g) (3), is not supported by sufficient evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 13, 2000, between four o'clock and six o'clock in the afternoon, the defendant drank several beers on an empty stomach. He then entered his motor vehicle and began driving from Waterbury, where he had been drinking, to his home in Bristol. At approximately 7:30 p.m., the defendant, traveling north on Union Street in Bristol, passed John McNellis, an officer in the Bristol police department, who was patrolling the area in his police cruiser. The defendant drove to the side of the road, which was marked clearly with several no parking signs, and remained stationary for approximately three minutes. McNellis was concerned about the hazard posed by the defendant's vehicle, which obstructed part of the road and was parked in a no parking zone. He also was concerned that the operator of the vehicle might need assistance and, therefore, drove his police cruiser behind the defendant's vehicle and activated his overhead strobe lights. Peter Dauphinais, another officer with the Bristol police department who was also present in the area, parked his police cruiser behind McNellis' vehicle. McNellis then approached the defendant's vehicle and spoke with the defendant, who was in the driver's seat.

While engaging the defendant in a discussion to determine whether he required assistance, McNellis smelled alcohol on the defendant's breath and asked the defendant whether he had been drinking. The defendant, who was slurring his words, responded that he had had a couple of beers, at which point McNellis requested that the defendant recite the alphabet so that McNellis could make a preliminary assessment regarding the defendant's capacity to operate the motor vehicle. When the defendant was unable to perform the test adequately, McNellis asked to see his license, registration and insurance information. The defendant fumbled when retrieving those documents, and McNellis asked the defendant to step out of his vehicle in order to undergo several more field sobriety tests. McNellis evaluated the defendant's performance on the walk and turn test and the one leg stand test, both of which the defendant failed. Dauphinais, who observed the tests, additionally noticed that the defendant's eyes were glassy and bloodshot.

After determining that the defendant lacked the capacity to operate his vehicle safely, McNellis arrested him and took him to the police station for processing. At the police station, the defendant consented to taking an Intoxilyzer test, commonly referred to as a Breathalyzer test. While performing the test, however, the defendant covered the mouthpiece with his tongue, thereby failing to provide an air sample for the machine to evaluate. McNellis recorded the defendant's failed attempt as a refusal.

The state charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1). At trial, the defendant filed a motion to suppress evidence that was gathered by the police when they approached his vehicle and spoke with him on the ground that the approach constituted a seizure that was not based on a reasonable and articulable suspicion. After an evidentiary hearing, the court denied the defendant's motion, finding that on the basis of the totality of the circumstances, the officers had a reasonable and articulable suspicion to approach the defendant's vehicle, which was parked in a no parking zone. During trial, the defendant also filed motions for a judgment of acquittal, which the court denied. The defendant subsequently was convicted and appealed to this court.

I

The defendant claims that the court improperly denied his motion to suppress the evidence that the police officers had gathered as a result of approaching his motor vehicle and speaking with him. The defendant argues that the officers lacked a reasonable and articulable suspicion to conduct an investigatory stop. In denying the defendant's motion to suppress, the court specifically found that the defendant was parked illegally in violation of General Statutes § 14-251 when the officers approached his vehicle and concluded that that violation provided the officers with a reasonable and articulable suspicion that a crime was being committed.

"Our 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. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." (Internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

During the evidentiary hearing on the defendant's motion to suppress, the court heard testimony from McNellis, Dauphinais and the defendant. All three witnesses testified that the defendant's car had been traveling north on Union Street when the defendant, despite the presence of no parking signs, stopped his car for several minutes. In addition to being in a designated no parking zone, there was evidence that the defendant's car created a hazard, as it obstructed part of the road. On the basis of that evidence, the court found that the defendant "was in a no parking area." The defendant does not suggest that the court improperly found that he was in a no parking area, but rather argues that this type of traffic violation is not one on which the police may base an investigatory stop.

"An investigatory stop is authorized if the police officer has a reasonable and articulable suspicion that a person has committed or is about to commit a crime." (Internal quotation marks omitted.) State v. Bolanos, 58 Conn. App. 365, 368, 753 A.2d 943 (2000). Our Supreme Court has held that even minor traffic violations, such as the one at issue in this case, constitute crimes for which a valid investigatory stop may be made. See State v. Lamme, 216 Conn. 172, 175-76, 579 A.2d 484 (1990) (police made valid investigatory stop when defendant driving without headlights at night in violation of General Statutes § 14-96a); State v. Donahue, 251 Conn. 636, 742 A.2d 775 (1999) (en banc) (where there was no traffic violation or other independent indicia of criminal conduct, no reasonable and articulable suspicion existed to support investigatory stop), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). The court, therefore, properly concluded that McNellis had a reasonable and articulable suspicion to approach the defendant's vehicle because it was parked in a no parking zone.

Once McNellis approached the defendant's vehicle because of the traffic violation, he discerned the odor of alcohol on the defendant's breath, leading McNellis to request that the defendant engage in several field sobriety tests. "Once a lawful stop is made, a police officer's suspicions may become further aroused and the stop may be prolonged and the scope enlarged as required by the circumstances . . . ." (Internal quotation marks omitted.) State v. Lamme, 19 Conn. App. 594, 597-98, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990). Because he smelled alcohol on the defendant's breath, McNellis had a reasonable and articulable suspicion that the defendant had been operating his motor vehicle while under the influence of intoxicating liquor, which warranted an extension of the initial investigatory stop. That further investigation was a warranted extension of the initial investigatory stop. The court, therefore, properly denied the defendant's motion to suppress the evidence that was obtained pursuant to the investigatory stop.

II

The defendant also claims that the court improperly denied his motions for a judgment of acquittal. He argues that under § 14-227a (a) (1), the state could not meet its burden without (1) proof of erratic operation and (2) expert testimony on the effects of alcohol on the human body.¹ We conclude that the evidence, as presented, was sufficient to sustain the defendant's conviction.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative...