State v. Merritt

• Court: Connecticut Court of Appeals
• Writing for the Court: Before DUPONT; SCHALLER
• Citation: State v. Merritt, 647 A.2d 1021, 36 Conn.App. 76 (Conn. App. 1994)
• Decision Date: 29 July 1994
• Docket Number: No. 12377,12377
• Parties: STATE of Connecticut v. Burton E. MERRITT.

Page 1021

647 A.2d 1021

36 Conn.App. 76

STATE of Connecticut v. Burton E. MERRITT.

No. 12377.

Appellate Court of Connecticut.

Argued March 30, 1994.

Decided July 29, 1994.

[36 Conn.App. 77] Conrad Ost Seifert, Old Lyme, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty. and Mary Jean Kanabis, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

The defendant 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). ¹ The defendant claims that the trial court improperly: (1) permitted testimony concerning the results of a horizontal gaze nystagmus (HGN) test without requiring that the state meet the criteria for the admission of scientific evidence as set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and (2) instructed the jury regarding consciousness of guilt on the basis of the defendant's refusal to submit to a breath test. We affirm the judgment.

The jury reasonably could have found the following facts. Early in the morning of February 22, 1992, Officer Matthew Roland of the East Lyme police department was on patrol on Route 156. The defendant, while driving a pickup truck, failed to obey a stop sign and made a left turn onto Route 156, almost colliding with the side of Roland's cruiser. Roland swerved to avoid an accident, and subsequently followed the defendant's vehicle to stop him for failure to obey a traffic sign. Because there were several people in the bed of the defendant's pickup truck, Roland requested backup assistance before pulling over the vehicle. When assistance arrived, Roland pulled over the defendant's vehicle and issued him a ticket for failing to stop at the stop sign.

Roland suspected that the defendant was intoxicated, as his breath smelled of alcohol, his eyes were bloodshot, his clothes were disheveled, he was swaying back and forth, and he spoke slowly. Officer Joseph Dunn, who was assisting Roland at the scene, also noticed that the defendant's breath smelled of alcohol, his face was flushed, he was swaying back and forth, and he appeared to be experiencing difficulty in comprehending instructions. The defendant testified that during the eight hour period prior to Roland's pulling him over, he had consumed four mixed drinks.

Roland conducted three field sobriety tests. He first asked the defendant to recite the alphabet. The defendant skipped letters "U" and "V." Roland next required that the defendant walk in a straight line, heel to toe, with his hands at his sides, for ten steps, and then pivot and return. The defendant staggered when taking the steps, stopped at one point, and raised his arms to maintain his balance. Finally, Roland instructed the defendant to stand straight with his arms at his side and raise either leg six inches off the ground for a thirty count. The defendant had to put his foot down on counts twenty and twenty-eight.

Dunn then conducted a HGN test, in which he made three separate observations of the reactions of each of the defendant's eyes to certain stimuli. On the basis of all his observations, including those derived from the HGN test, Dunn testified that, in his opinion, the defendant had a blood alcohol level well above the legal limit.

Upon the completion of the sobriety tests, Roland prepared to transport the defendant to the state police barracks in Montville. Roland radioed the barracks to determine if it had an operational breath testing machine. The barracks did not have a functioning machine, and the defendant was transported instead to the Jewett City police department. After unsuccessfully trying to contact his attorney, the defendant refused to take a breath test. Additional facts will be set forth as necessary.

I

A REVIEWABILITY

In assessing the defendant's claim regarding the applicability of the standard enunciated in Frye v. United States, supra, 293 F. 1013, ² we first examine whether the defendant properly preserved this issue for appeal. On direct examination, Dunn testified to the general nature of the HGN test. He explained that he conducted the HGN test by placing an object approximately fifteen inches in front of a suspect's nose, moving it from side to side, and observing the reactions of the particular eye being tested in the following three respects: (1) whether the eye exhibited a "smooth pursuit" of the object from the center of the defendant's face to a point at which the object could no longer be seen; (2) whether the eye was bouncing or still at the point at which the object could no longer be seen, namely, the "maximum deviation"; and (3) whether the eye began moving or bouncing involuntarily at a point prior to forty-five degrees as the object moved toward maximum deviation.

When Dunn stated that involuntary movement of an eye prior to forty-five degrees would indicate "more than likely that [an individual is] 0.1 or above--," the defendant objected, but before the trial court's ruling, Dunn finished his statement with "--above the legal limit." Defense counsel explained his objection by stating that Dunn was testifying to an opinion, and requested voir dire regarding Dunn's qualifications. The state countered that Dunn was merely testifying to generalities regarding the framework of the test, and the court overruled the objection.

Dunn then testified as to his particular observations when conducting the HGN test on the defendant. He stated that both eyes lacked smooth pursuit, and, that at the point of maximum deviation, the eyes exhibited a distinctive twitching or involuntary movement that commenced prior to forty-five degrees. The prosecutor then asked the following question: "Based on the defendant's performance on this test, did you form an opinion as to his sobriety?" Defense counsel objected at this point, and a lengthy voir dire occurred outside the presence of the jury.

During the voir dire, Dunn testified that he did not have a medical degree, and that he did not know the scientific formula to convert the results of the HGN test to a finding regarding an individual's specific blood alcohol content. Moreover, he could not identify a scientific journal or book that determines the accuracy of the HGN test. Defense counsel then stated that "under the Frye criteria ... I would submit ... that [Dunn is] not qualified to testify as an expert on the opinion of whether [the defendant] was under the influence.... Frye says that [r]egarding evidence derived from innovative scientific techniques there has to be proof that there's general acceptance by the scientific community. [See Frye v. United States, supra, 293 F. at 1014.]"

In essence, the defendant objected to the state presenting opinion evidence that the results of the HGN test indicated that the defendant was under the influence. The defendant did not object when Dunn described the mechanics of the HGN test, but did object that a proper foundation had not been supplied for an opinion on the bases of the HGN test results. We conclude that the defendant timely objected to the admissibility of Dunn's testimony on the ground that the Frye test had not been met with regard to the HGN test and its results. Accordingly, we will review his claim.

B HORIZONTAL GAZE NYSTAGMUS TEST

We apply the following standard of review for evidentiary matters: "The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992)." State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). The question here is whether the trial court improperly ruled that Dunn could testify to his opinion based in part on the HGN test results, without requiring that the HGN test meet the Frye standard for the admission of scientific evidence.

In Frye, the court set forth a special rule for the admission of testimony regarding scientific evidence. The court stated that "[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Emphasis added.) Frye v. United States, supra, 293 F. at 1014. ³

Our Supreme Court has held that the Frye standard does not apply to all types of scientific evidence. In holding that the Frye test is "not a necessary precondition for the admission of expert testimony on battered woman's syndrome"; State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993); the court stated that it "does not apply the Frye test to all types of expert testimony, even if technical or scientific concepts are involved." In State v. Hasan, [205 Conn. 485, 489, 534 A.2d 877 (1987) ], [our Supreme Court] noted that [it had] previously applied the Frye test to 'innovative scientific techniques ... [including] polygraph testing ... and human leukocyte antigen testing for paternity.' (Citations omitted.) See State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988) (finding that shaken baby syndrome is a diagnosis generally accepted in the medical field); State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (applying the Frye test to the use of police radar). [The court has] found the Frye test appropriate when the experimental, mechanical or theoretical nature of the scientific evidence had the 'potential to mislead lay jurors awed by an aura of mystic...