State v. Lemanski
| Decision Date | 17 November 2020 |
| Docket Number | AC 41785 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Robert LEMANSKI |
Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).
Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and Jonathan Knight, supervisory assistant state's attorney, for the appellee (state).
Bright, C.J., and Cradle and Suarez, Js.
The defendant, Robert Lemanski, 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 § 14-227a (a) (1). On appeal, the defendant claims that (1) his constitutional right to confrontation under the sixth amendment to the United States constitution was violated when the trial court improperly admitted testimonial hearsay into evidence, and (2) the trial court improperly instructed the jury regarding his alleged refusal to submit to a breath test at the time of his arrest. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On the night of December 30, 2016, Connecticut State Trooper Matthew Costella was on general patrol in the areas of Harwinton and Burlington. At approximately 9 p.m., he was sitting in his police cruiser in a church parking lot at the intersection of Routes 4 and 118, when he observed a passing motor vehicle that did not have its rear registration plate illuminated. Costella pulled out behind the vehicle, onto Route 4 heading eastbound toward Burlington, and followed it for approximately one mile, when he observed the vehicle cross over the white fog line. On the basis of his observations, the registration plate light infraction and the manner of operation of the vehicle, Costella turned on the emergency lights of his cruiser and pulled the vehicle over to the right side of the road. Another vehicle also pulled over ahead of the vehicle that Costella was stopping.
Costella approached the vehicle and asked the operator, the defendant, for his license, registration and insurance, to which the defendant responded, "That's a lot of questions." Costella then asked the defendant where he was coming from and the defendant stated that he was coming from Harwinton. When Costella asked where in Harwinton, the defendant responded that he was coming from the New Milford area, but then stated that he was coming from Torrington where he had played golf with his son, Steven Lemanski. During the foregoing exchange, the defendant searched for the documents that Costella had requested. Costella requested them a second time and referred the defendant to his wallet, which was located in plain sight on the passenger seat.
Costella asked the defendant if he had had anything to drink, and the defendant responded, "no, nothing." Costella noticed that the defendant's speech was slurred and his eyes were glassy. He advised the defendant that he could smell alcohol on his breath. When Costella asked the defendant if he had any medical conditions, the defendant responded that he did not. Costella conducted a test that he referred to as a "brief" or "modified" horizontal gaze nystagmus test
, looking for an involuntary jerking of the eyes, to determine if the defendant had been drinking. Costella told the defendant that he could see his eyes bouncing.
Costella asked the defendant if he knew who was in the vehicle that had pulled over ahead of them, and the defendant told Costella that it was Steven Lemanski. At Costella's request, the defendant used his cell phone to call Steven Lemanski and asked him to back his vehicle up to them. Once Steven Lemanski had backed up, Costella approached his vehicle and asked him if the defendant had any medical conditions, and he told Costella that the defendant did not. Steven Lemanski confirmed that they had been playing golf in Torrington and, when Costella asked if the defendant had consumed any alcohol that night, Steven Lemanski told him that the defendant had two drinks while he was with him.
After speaking with Steven Lemanski, Costella returned to his cruiser and called for backup so that he could conduct the standard field sobriety tests to determine if the defendant was intoxicated. After two additional troopers arrived, Costella performed three field sobriety tests—the horizontal gaze nystagmus test
, the walk and turn test and the one leg stand test. When the defendant emerged from his vehicle, Costella observed that he was having trouble maintaining his balance. The defendant failed to perform any of the three tests to standard. On the basis of his observation of the defendant's operation of his vehicle, his observations of the defendant after he stopped the vehicle, and the results of the field sobriety tests, Costella determined that the defendant was under the influence of alcohol. Costella arrested him and transported him to the state police barracks for processing.
Upon arriving at the barracks, Costella advised the defendant of his rights and informed him that he would be requested to submit to a blood, breath or urine test, which must be administered within two hours of the time of his operation of the motor vehicle.1 The defendant asked that he be allowed to contact an attorney, and he was permitted to call his wife to ask her for a telephone number of an attorney. Costella also looked up an attorney on the Internet at the defendant's request and provided him with telephone books so he could look up other attorneys. The defendant was unable to contact an attorney, and Costella asked him to submit to a breath test. The defendant first indicated that he did not want to take a breath test, then changed his mind and agreed to take a breath test, then changed his mind again and stated that he did not want to take a breath test. The defendant eventually told Costella that he wanted to take a blood test. Because the administration of a blood test must be done at a hospital, blood tests generally are not offered due to the two hour window during which the test must be conducted. Costella thus continued to offer the defendant a breath test, while the defendant continued to request a blood test. Eventually another officer, Trooper Matthew Cashman, also offered the defendant a breath test, and the defendant refused.
The defendant was charged with and tried for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). Following trial, the jury found him guilty, and the court sentenced him to six months of incarceration, execution suspended after ten days, and eighteen months of probation. This appeal followed.
The defendant first claims that his sixth amendment right to confrontation was violated when the court allowed Costella to testify that Steven Lemanski told him that the defendant had consumed two drinks on the night that he was arrested.2 We disagree.
The defendant claims that Costella's testimony regarding Steven Lemanski's statement constituted testimonial hearsay, the admission of which violated his constitutional right to confrontation and deprived him of a fair trial. The defendant did not object to Costella's testimony regarding Steven Lemanski's statement at trial. Because the defendant's claim is unpreserved, we review it pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015),3 as the defendant requests in his appellate brief. Even if we assume, arguendo, that Costella's testimony regarding Steven Lemanski's statement was inadmissible testimonial hearsay that violated the defendant's right to confrontation, we conclude that his claim fails under the fourth prong of Golding because any alleged violation was harmless.
(Internal quotation marks omitted.) State v. Smith , 156 Conn. App. 537, 561–62, 113 A.3d 103, cert. denied, 317 Conn. 910, 115 A.3d 1106 (2015).
Here, the state's case against the defendant was strong. Costella testified that, when he initially approached the defendant's vehicle, he noted a strong and distinct odor of alcohol emanating from the defendant, the defendant's eyes were glassy and his speech was slurred. The defendant had difficulty recounting where he was driving from and locating the documents that Costella requested, even though his wallet was in plain sight on the passenger seat. The defendant also failed all three of the field sobriety tests administered by Costella. The state presented expert testimony that, when an individual fails those three field sobriety tests, the likelihood of the impairment of that individual is between 91 percent and 95 percent. The video recording from the dashboard camera of Costella's cruiser was admitted into evidence, so the jury was able to observe the defendant when Costella stopped him, when he exited his vehicle and while he performed the field sobriety tests. Furthermore, Costella testified only that Steven Lemanski told him that the defendant had two drinks. He did not say that the...
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