State v. Perkins

• Citation: 856 A.2d 917,271 Conn. 218
• Decision Date: 28 September 2004
• Docket Number: No. 17099.,17099.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Benjamin J. PERKINS.

856 A.2d 917

271 Conn. 218

STATE of Connecticut v. Benjamin J. PERKINS.

No. 17099.

Supreme Court of Connecticut.

Argued March 9, 2004.

Officially released September 28, 2004.

David T. Grudberg, with whom was Ira B. Grudberg, New Haven, for the appellant (defendant).

Timothy J. Sugrue, Senior Assistant State's Attorney, with whom, on the brief, were David I. Cohen, State's Attorney, and Richard Colangelo, Jr., Senior Assistant State's Attorney, for the appellee (state).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

Opinion

BORDEN, J.

The so-called "waiver rule" provides that, "when a motion for [a judgment of] acquittal at the close of the state's case is denied, a defendant may not secure appellate review of the trial court's ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant's sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state's evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto." State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The defendant appeals¹ from the trial court's judgment of conviction, rendered after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a),² misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a),³ and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224(a).⁴ The defendant claims, among other things,⁵ that the waiver rule is unconstitutional, and, to this end, he argues that the trial court improperly denied his motion for a judgment of acquittal at the close of the state's case with respect to the charges of manslaughter in the second degree with a motor vehicle and misconduct with a motor vehicle. We disagree with the defendant's claim that the waiver rule is unconstitutional and, on the basis of all of the evidence presented to the jury, we affirm the judgment of the trial court.

The defendant, Benjamin J. Perkins, was charged with manslaughter in the second degree with a motor vehicle in violation of § 53a-56b (a), misconduct with a motor vehicle in violation of § 53a-57 (a), and evasion of responsibility in the operation of a motor vehicle in violation of § 14-224(a). At the close of the state's case, the trial court denied the defendant's motion for a judgment of acquittal. At the close of the defendant's case, the defendant again moved for a judgment of acquittal, and the trial court reserved decision on that motion. The jury found the defendant guilty of all charges, and the trial court rendered judgment of conviction in accordance with the jury's verdict. Thereafter, the trial court denied the defendant's motions for a judgment of acquittal and for a new trial.⁶ This appeal followed.

The jury reasonably could have found the following facts on the basis of the evidence presented during the state's case-in-chief. On the evening of November 20, 2000, the defendant was at La Cucina restaurant in Fairfield with the victim, Michael Novack, and other friends, including Jason Medvegy. The defendant arrived at La Cucina that evening at approximately 9 p.m. Medvegy arrived shortly thereafter, and, after greetings were exchanged, he noticed that the defendant was drinking scotch. The defendant, the victim and Medvegy remained inside La Cucina until approximately 10:30 or 10:45 p.m., and then they conversed in the parking lot of the restaurant for approximately fifteen minutes. At approximately 11 p.m., the defendant and the victim departed in the defendant's automobile, with the defendant driving and the victim seated in the front passenger seat.

Sometime between 11:45 and 11:50 p.m., the defendant's automobile was traveling at fifty-five miles per hour along Wilton Road in Westport. The vehicle then skidded off the road, which was damp that evening, went through some fencing, and eventually crashed into a tree.⁷ The portion of road where the crash occurred, which is curvy and has several changes in elevation, had a posted speed limit of twenty-five miles per hour. Emergency personnel arrived at the accident scene shortly thereafter, and discovered the victim, who was already dead, in the front passenger seat of the vehicle. The cause of death was blunt force cerebral trauma,⁸ which was consistent with injuries that could have resulted from an automobile striking a stationary object, such as a tree.

The driver of the vehicle, however, could not be located. Using a thermal imaging camera, which detects human heat sources, firefighters scanned a one-half mile area around the accident scene and were unable to locate anyone else who may have been involved in the crash. In addition, it was clear to emergency personnel that, on the basis of the accident configuration, the victim had not been the driver of the vehicle.

Shortly after 12 a.m. on November 21, 2000, the defendant, using his cellular telephone, called his supervisor, Steven Habetz, who was home in bed. After getting dressed, Habetz proceeded in his car toward Wilton Road in Westport, whereupon he discovered that a portion of the road had been blocked off, and he was able to see flashing lights in the distance. According to telephone records, Habetz also received telephone calls from the defendant at 12:13, 12:25, 12:29 and 12:30 a.m. On the basis of the defendant's directions, Habetz picked up the defendant on the street at approximately 12:30 a.m. The defendant, who appeared disheveled and dirty, was bleeding from his head, was limping, and looked like he had been in a brawl. After concluding that the defendant needed an attorney, Habetz drove the defendant back to Habetz' home.

The police determined that the defendant was the owner of the wrecked automobile. On the morning following the accident, November 21, 2000, after trying unsuccessfully to locate the defendant at the accident scene and at his place of employment, Sergeant Anthony Guinta of the Westport police department contacted Habetz. Habetz indicated that he had received a telephone call from the defendant the night before, but did not disclose his whereabouts to Guinta. Approximately one hour later, the defendant's attorney, Philip Russell, contacted Guinta. Later that day, one of Russell's associates brought to the police the clothing worn by the defendant on the evening of the accident.

The police later determined that the defendant had been treated for injuries at Greenwich Hospital on November 21, 2000, the day after the accident. In addition, human brain tissue, which matched that of the victim, was discovered on the jacket worn by the defendant on the evening of the accident.

At trial, the state presented the testimony of five witnesses that arguably was relevant to the issue of the defendant's intoxication. Francis X. Grosner testified that, on the evening of the accident, he was working as a bartender at the Tavern on the Main restaurant in downtown Westport. He testified that he had began work at about 4:30 p.m. that evening, and he recalled serving beer to two men. Grosner could not identify the defendant as one of the men he had served that evening.

Medvegy testified that, when he arrived at La Cucina, the defendant "had a scotch in front of him." When asked if the defendant "was drinking scotch that night," Medvegy responded, "Yes." Finally, although Medvegy did not know how many drinks the defendant had consumed that evening, he stated that the defendant did not appear to be intoxicated.

Ralph Fidaleo was working as a bartender at La Cucina on the evening of the accident. When asked if he "recall[ed] serving a G.Q. looking guy," Fidaleo stated, "Yes, I do." Fidaleo also testified that he served that individual three glasses of scotch, that the individual "was drinking [th]em," and that ordinarily he pours two ounces of alcohol into each drink that he serves. In addition, Fidaleo testified that, if he saw the "G.Q. looking guy" again, he would not "be able to pick him out." Finally, when asked if the individual appeared to be intoxicated, Fidaleo replied, "Not at all."

In an effort to show that the defendant's conduct immediately after the accident warranted the inference that he had been intoxicated, the state presented the testimony of Habetz, who stated that he had received five telephone calls from the defendant shortly after midnight. Habetz also testified that, in his opinion, the defendant needed an attorney. Finally, even though Habetz testified that the defendant had appeared to be injured, he drove the defendant back to Habetz' home rather than to the hospital.

Finally, the state presented the testimony of Joel Milzoff, a toxicologist employed by the toxicology and controlled substances section of the Connecticut department of public safety, as an expert witness in the field of toxicology. Milzoff testified that alcohol is a depressant, which inhibits reflexes, the ability to respond to situations, the ability to operate machinery, and the ability to perform complex tasks. In addition, Milzoff testified that a single dose of alcohol, i.e., twelve ounces of beer or one ounce of eighty proof scotch, affects an individual to a "slight degree," and that as alcohol consumption increases, so do the resulting effects from the alcohol.

At the close of the state's case, the defendant moved for a judgment of acquittal on all three charges arguing that the state's evidence was insufficient to support a verdict of guilty. The trial court denied the motion.

The defendant then presented several witnesses,⁹ and also testified on his own behalf The defendant testified that he had met the victim at Tavern on the Main shortly after 7 p.m., where he drank one beer.¹⁰ Thereafter, the defendant and the victim arrived at La Cucina sometime before 9 p.m. to meet friends. The defendant testified that, although three...