State v. Legrand

• Decision Date: 07 June 2011
• Docket Number: No. 30577.,30577.
• Citation: 20 A.3d 52,129 Conn.App. 239
• Parties: STATE of Connecticutv.David Paul LEGRAND.
• Court: Connecticut Court of Appeals

129 Conn.App. 239

20 A.3d 52

STATE of Connecticut

v.David Paul LEGRAND.

No. 30577.

Appellate Court of Connecticut.

Argued Oct. 29, 2010.Decided June 7, 2011.

Jon L. Schoenhorn, Hartford, with whom, on the brief, was Sara J. Packman, for the appellant (defendant).Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony J. Spinella, assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and BEAR and STOUGHTON, Js.DiPENTIMA, C.J.

The defendant, David Paul Legrand, appeals from the judgment of conviction, following a court trial, of operating a motor vehicle under the influence of drugs in violation of General Statutes § 14–227a, failure to keep a narcotic drug in the original container in violation of General Statutes § 21a–257 and being a repeat offender pursuant to General Statutes § 14–227a (g)(2). On appeal, the defendant claims that (1) the use by the state of a subpoena, rather than a search warrant, to obtain his medical records violated his federal and state constitutional rights, (2) the trial court improperly found that his medical records were not privileged statutorily, (3) there was insufficient evidence to support his conviction under General Statutes § 21a–257 and (4) General Statutes § 21a–257 is unconstitutionally vague as applied to his conduct. We are not persuaded and, accordingly, affirm the judgment of conviction.

In an oral decision, the court found the following facts. On May 18, 2007, the defendant operated a motor vehicle in an erratic manner in South Windsor. A police officer observed the defendant as he failed to obey a stop sign, followed another vehicle too closely and swerved into a lane of oncoming traffic. The officer then effectuated a stop of the defendant. The defendant claimed that his erratic driving was the result of attempting to locate a cellular telephone that he had dropped on the floor of his vehicle. While speaking to the defendant, the officer noticed his slurred speech.

The defendant was unable to perform the horizontal gaze nystagmus sobriety test because he failed to follow the officer's directions. At one point, his eyes rolled back into his head, and he nearly fell to the ground. The defendant also failed both the one leg stand and the walk and turn sobriety tests. At this point, the defendant was taken into custody.

The police officers conducted a search of the defendant's vehicle and discovered seven pills in the center console. The defendant admitted that he had been carrying the pills in his pocket and that he placed the pills, five of which were narcotics, in the console. At the police station, the defendant stated that he was physically unable to provide a urine sample. ¹ The defendant fell asleep both in the police vehicle and at the station.

In its decision, the court addressed the defense that any narcotics in his system did not have an intoxicating effect because he had become stabilized and tolerant of the medications. In support of this theory, the defendant presented the testimony of Herbert Reiher, his treating physician and an expert regarding the effect of the defendant's medication on his ability to operate a motor vehicle safely, and Howard Mendelson, a clinical pharmacologist and physician.² Mendelson never examined the defendant or reviewed his medical records; instead he testified as an expert on the pharmacological effects of medication on patients, including their ability to operate a motor vehicle safely.

Both Reiher and Mendelson testified that the narcotics taken by the defendant would not have affected his ability to operate a motor vehicle safely if he had been taking the medications for longer than one month, was stabilized on the medications and had been taking the medications as prescribed. The court noted that it did not credit much of Reiher's testimony, specifically, that the defendant was stabilized on medications and that he was taking them as prescribed as of the date of the motor vehicle incident. “In fact, the court finds that Dr. Reiher's testimony, in conjunction with the other established facts in the case, demonstrates precisely the opposite conclusion, that the defendant was in fact abusing the medications.”

In support of this finding, the court pointed to the evidence that the defendant had attempted to obtain early refills, he twice had reported his narcotic medication had been stolen and, when he requested a change from the generic to a name brand narcotic, he failed to return most of the unused generic brand. Additionally, the court found that at the time of his arrest, the defendant was carrying quantities of medication that he would not have needed for a short trip out for something to eat. The court expressly found that the defendant “was not taking his medication as prescribed, but was in fact taking them in excess of the amounts prescribed.”

Although the court did credit most, if not all, of Mendelson's testimony regarding the disappearance of the intoxicating effect of narcotics when taken properly, it noted that “this [phenomenon] does not occur if the patient takes the medications in amounts above those prescribed....” Because Mendelson neither treated the defendant nor reviewed his medical records, he could not opine on whether the defendant was stabilized on the medications or whether he taking them in accordance with the prescriptions.

The court found the defendant guilty of violating § 14–227a and § 21a–257. The defendant then admitted to being a subsequent offender. The court sentenced the defendant to a total of two years incarceration, suspended after 200 days, and three years of probation.³ This appeal followed.

I

The defendant first claims that the state's use of a subpoena, rather than a search warrant, violated his federal and state constitutional rights. Specifically, he argues that the state seized his medical records in violation of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. We are not persuaded.

On August 5, 2008, the state served a subpoena on Reiher seeking both his presence and “all medical records of treatment and medications for [the defendant] from [January 1, 2007, to August 1, 2008].” As a preliminary matter, the prosecutor indicated that he had subpoenaed Reiher, whom he expected to testify on behalf of the defense. With respect to the medical records that had been subpoenaed and delivered under seal to the court clerk, the prosecutor requested that they be unsealed in anticipation of Reiher's testimony.

Defense counsel indicated that he had been unaware of the state's subpoena. He did not consent to disclosing the defendant's medical records, although he did agree to allow Reiher to testify only once, rather than being called by each party. Defense counsel then noted that the defendant had not waived his right to privacy under either federal law or the medical privilege regarding the prescriptions used by Reiher in treatment. In a discussion with the court, defense counsel indicated that he was unsure as to whether psychiatric records were included in the medical records submitted by Reiher.

The prosecutor stated that through the defendant's responses to the state's discovery requests,⁴ he learned that the defendant intended to call Reiher as a witness who would render an opinion and therefore he was entitled to the documents upon which the opinion was based. The prosecutor presumed that Reiher would testify that because the defendant had been on certain medications “over a number of years, and he has grown a tolerance for those drugs, which allow him to drive a motor vehicle properly.”

Defense counsel indicated that neither he nor the defendant had been contacted by Reiher prior to his complying with the subpoena. The court inquired whether the medical records were confidential. Defense counsel argued first that he was unsure as to the scope of the records sought by the state's subpoena. Defense counsel suggested that the time period of January through May, 2007, would be relevant and, therefore, any records from 2008 would be irrelevant. The defense counsel then turned to the physician-patient privilege. Last, he argued that the state had engaged in a “fishing expedition” in the hope of finding material to cross-examine Reiher.

When asked by the court, defense counsel stated that the defendant would not consent to an in camera review. Defense counsel argued that he did not know precisely what records had been submitted by Reiher and requested that a different judge review the materials.

The court ordered the medical records turned over to both the state and defense. It further ordered that they not be disclosed beyond the proceeding to a third party except as necessary to develop a claim in the case or to address an evidentiary or factual issue. The court then explained the rationale for its ruling. “My ruling is based upon a lack of sufficient showing by the defendant that the records contained therein are privileged in this proceeding. I've heard no—I've been given no authority that the state is not entitled to these records in light of the fact that one of the defendant's witnesses is going to testify as to the defendant's tolerance to certain medications. Obviously, that's going to be a critical issue in this case. And medical records that involve the defendant's medications, what types of medication he had been prescribed, for [how] long he has been prescribed those medications—it seemed to me it would be plainly relevant to some of the factual issues in this case. Accordingly, I'm ordering that they be disclosed.”

Later that day, defense counsel indicated that he had discovered that certain psychological reports had been included in the materials furnished by Reiher. These records were returned to the court. The next day, the court noted that some of the records contained psychiatric...