State v. McKenna

• Decision Date: 26 May 1987
• Docket Number: No. 3728,3728
• Citation: 11 Conn.App. 122,525 A.2d 1374
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. David M. McKENNA.

Page 1374

525 A.2d 1374

11 Conn.App. 122

STATE of Connecticut v. David M. McKENNA.

No. 3728.

Appellate Court of Connecticut.

Argued Dec. 4, 1986.

Decided May 26, 1987.

Richard Emanuel, Bridgeport, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty. and Peter Ponziani, former Asst. State's Atty., Hartford, for appellee (State).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

SPALLONE, Judge.

The defendant is appealing from a judgment of conviction, after a trial to a jury, of the crime of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b (a). The defendant contends that the trial court erred (1) in failing to find that General Statutes § 53a-56b is void for vagueness, (2) in charging the jury erroneously, (3) in admitting into evidence the results of an intoximeter test, and (4) in admitting into evidence certain photographs of the victim.

From the evidence introduced at trial, the jury could reasonably have found the following facts. On April 12, 1983, shortly before 10 p.m., on a night when the weather was dry and clear, the victim was operating her motor vehicle in a westerly direction on Route 84 in Manchester. The highway, at the time and place concerned, consisted of three westbound lanes and was well illuminated. The defendant, who was driving at a speed of seventy-five to eighty-six miles per hour, struck the victim's vehicle from behind causing it to flip over onto the grassy center median, where it came to rest on its roof, with the victim pinned under the car. The victim, who was sixty-six years of age, died as a result of the accident. When the defendant was approached by an investigating police officer, he stated, "I was driving. I killed her." The defendant had no external injuries and was rude, obscene and somewhat confused in his interplay with witnesses at the scene. He showed poor coordination and swayed and staggered as he walked. The defendant's breath indicated he had been drinking alcoholic beverages. When given performance tests by a state trooper, he was hesitant in the finger-to-nose test, was unable to follow the trooper's instructions when asked to walk a straight line, and could not complete a recitation of the alphabet. Both the trooper and an ambulance medical technician who responded to the accident testified that, based on their observations of the defendant at the scene of the accident, he was intoxicated. The defendant was given an intoximeter breath test at 10:48 p.m., which indicated that his blood alcohol level at that time was .152 percent. Expert testimony revealed that at 10 p.m., the time of the accident, the defendant's blood alcohol level would have been .17 percent.

The defendant was charged with manslaughter in the second degree with a motor vehicle while intoxicated, a violation of General Statutes § 53a-56b (a), operating without insurance, a violation of General Statutes § 14-213b, and following too closely, a violation of General Statutes § 14-240. Subsequently, the defendant pleaded nolo contendere and was fined on the latter two charges. He elected a jury trial on the first count and was found guilty and sentenced. This appeal followed.

The defendant's first claim, that General Statutes § 53a-56b is void for vagueness, was not raised at trial. "Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). " 'The policy behind this rule is both ancient and sound and "does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on appeal." ' " State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). Nevertheless, because the defendant's vagueness claim implicates a fundamental constitutional right; State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980); State v. Liebowitz, 7 Conn.App. 403, 405, 509 A.2d 43 (1986); and the record provides adequate support to review the claim; State v. Evans, supra; we will review this claim to determine whether a fundamental constitutional right was actually violated. State v. Huff, 10 Conn.App. 330, 333-34, 523 A.2d 906 (1987); State v. Thurman, 10 Conn.App. 302, 306-307, 523 A.2d 891 (1987); cf. State v. Liebowitz, supra (no Evans review of vagueness claim where record did not clearly support that allegedly vague statute was the basis for the defendant's conviction).

The defendant does not claim that General Statutes § 53a-56b is vague on its face, but only as applied to his particular conduct. ¹ His claim is that the term "intoxication," an essential element of General Statutes § 53a-56b, ² is unconstitutionally vague as applied to him. In reviewing this claim, we must determine whether the term "intoxication" as used in the statute "has a meaning sufficiently precise for a man of average intelligence to 'reasonably understand that his contemplated conduct is proscribed.' " United States v. Mazurie, 419 U.S. 544, 553, 95 S.Ct. 710, 715, 42 L.Ed.2d 706 (1975), quoting United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561, reh. denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d 13 (1963); see also State v. Cavallo, supra. Where, as here, the complainant challenges the statute as applied to his particular conduct rather than on its face, "the complainant must prove that the enactment is vague ' "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614 [91 S.Ct. 1686, 1688, 29 L.Ed.2d 214] (1971).' " Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186, 71 L.Ed.2d 362, reh. denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982).

We find that General Statutes § 53a-56b is not unconstitutionally vague as applied to the defendant. The defendant essentially claims that because the statute provides no definition of the term "intoxication," even though the term has been defined in more than one manner, ³ the statute does not adequately define the conduct that it purports to prohibit. There can be no question, however, that under the facts of this case the defendant's conduct was proscribed under any of the interpretations he has suggested. At the time of the accident, the defendant had a blood alcohol level of approximately .17 percent; two eyewitnesses testified that he was intoxicated; he had been driving his car somewhere between seventy-five and eighty-six miles per hour when he struck the victim; although he had no apparent injuries other than a back sprain, his speech was slurred and he staggered and weaved as he walked; he admitted to having consumed alcoholic beverages before the accident; and his breath smelled of alcohol at the accident site. A reasonable person would know that the drinking and driving behavior engaged in by the defendant is encompassed by the reference in § 53a-56b to "intoxication while operating a motor vehicle." The defendant was therefore a "hard-core" violator to whom the statute was not vague. See State v. Pickering, supra, 180 Conn. 65, 502 A.2d 388; see also State v. Katz, 122 Conn. 439, 442-43, 189 A. 606 (1937) (term "intoxicated person" in statute prohibiting sale of liquor to intoxicated person not so indefinite as to render statute unenforceable).

The defendant's second claim focuses on alleged errors in the jury instructions. He claims that the court (1) incorrectly defined "intoxication" as an element of the crime, (2) failed to give the defendant's requested charge on the lesser included offense of negligent homicide, and (3) diluted the jury's perception of the state's burden of proof by instructing that an inference could be drawn if it was "more probable than not that the fact to be inferred is true."

The defendant neither submitted a request to charge on the element of intoxication nor did he object to the court's charge on this issue. Consequently, we will review this claim of error only if it qualifies for review under State v. Evans, supra. The defendant claims that his right to due process of law was violated because the court's definition of intoxication was actually a definition of the less stringent standard of "under the influence," thereby allowing the jury to convict the defendant on less than proof beyond a reasonable doubt of every essential element of the crime. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Because this claim on its face raises an issue that implicates a fundamental constitutional right, the defendant has satisfied the first requirement of Evans review. See State v. Huff, supra, 10 Conn.App. at 334, 523 A.2d 906; State v. Thurman, supra, 10 Conn.App. at 306, 523 A.2d 891. We therefore will "review the record in a limited way and determine, on the basis of that limited review, whether the defendant's claim is truly of constitutional proportions or is simply characterized as such by the defendant." State v. Huff, supra; State v. Thurman, supra. Our limited review of the record reveals that this claim is not truly of constitutional proportions.

The court instructed the jury as follows: "With respect to the second element regarding intoxication, in view of the statute and in view of all the other evidence in this case you have to determine was the amount of liquor consumed by the accused of such an amount more or less...