State v. Romanko

• Decision Date: 19 August 2014
• Docket Number: No. 19112.,19112.
• Citation: 96 A.3d 518,313 Conn. 140
• Parties: STATE of Connecticut v. Todd R. ROMANKO.
• Court: Connecticut Supreme Court

313 Conn. 140

96 A.3d 518

STATE of Connecticut

v.Todd R. ROMANKO.

No. 19112.

Supreme Court of Connecticut.

Argued March 20, 2014.

Decided Aug. 19, 2014.

Jeanne M. Zulick, assigned counsel, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Diaz, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.^*

ESPINOSA, J.

In this certified appeal,¹ we consider whether the Appellate Court properly concluded that the trial court did not abuse its discretion by precluding certain demonstrative evidence proffered by the defendant, Todd R. Romanko. The defendant appeals from the judgment of the Appellate Court affirming the trial court's judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both, in violation of General Statutes § 14–227a (a)(1). The defendant claims that by precluding the proffered demonstrative evidence, by which the defendant sought to display to the jury how his alleged disability prevented him from performing two mobility based field sobriety tests under any conditions, the trial court deprived him of his constitutional right to present a defense. The defendant additionally claims that the state cannot satisfy its burden to prove that the error was harmless beyond a reasonable doubt. Because we conclude that, rather than preventing the defendant from presenting his defense, the court acted within its discretion in disallowing the defendant from utilizing a demonstration that the court properly deemed unreliable to pursue his theory of defense, we affirm the judgment of the Appellate Court.²

The jury reasonably could have found the following facts. At 10 p.m., on August 14, 2009, Cheryl Byrne was in the living room of her home in Burlington, when she heard noises outside. She walked into the kitchen to look out the window to the backyard and saw the defendant, whom she did not know, on the deck that wraps around the house. Initially, the defendant did not respond when Byrne repeatedly asked him what he was doing there, but eventually he told her he was looking for “Gerry.” Byrne noticed that something was “definitely not right” with the defendant, that his eyes were glossy and he appeared to see with what she termed “tunnel [vision].” She was uncertain whether he was intoxicated or under the influence of drugs. She told him that there was no one named Gerry there, and that he had to leave. The defendant then walked around the deck and entered the house through the front door. When Byrne's German shepherd dog immediately began barking furiously, the defendant backed out of the home and walked to where he had parked his car. Byrne watched him drive away in an older, white Monte Carlo with a red pinstripe. She made note of the license plate number, then called 911 to report the incident, providing the description of the vehicle and the license plate number to the police.

At approximately 10:30 p.m., Officer Stanley Murak of the Farmington Police Department was on patrol in his marked police cruiser when he spotted the defendant's vehicle turning onto Coppermine Road in Farmington. Murak had been traveling in the opposite direction, but he turned around and drove back until he came to an intersection, where the defendant's vehicle was stopped at a stop sign. Although there were three vehicles between the defendant's vehicle and Murak's cruiser, Murak could see that the left tires on the defendant's vehicle were on the double yellow line in the middle of the road. The defendant's vehicle proceeded through the intersection, then swerved quickly to the left, crossing at least one foot over the yellow lines, then swerved back to the right. At that point, Murak turned on his lights and siren and passed the three other vehicles to pull over the defendant. As he pulled behind the defendant's vehicle, the Monte Carlo pulled to the right, its right front tire striking the curb, going over it, then coming back down, whereupon the vehicle came to a stop.

After notifying dispatch of the motor vehicle stop, Murak exited his cruiser, approached the driver's side of the defendant's vehicle and asked the defendant for his license, registration and insurance card. As the defendant looked for his registration and insurance card, Murak observed that the defendant's movements were slow and deliberate. Observing that the defendant's vehicle was emitting steam, Murak asked the defendant if that was normal. When the defendant responded, Murak smelled the odor of alcohol on his breath and noticed that the defendant's speech was slurred. He could see into the passenger compartment of the vehicle, where he observed an empty, twenty-four ounce beer can on the rear floor of the driver's side. He asked the defendant how much alcohol he had consumed that night, and the defendant replied that he had had one twelve ounce beer. Seeing that the defendant's pants were unzipped, Murak asked him why his zipper was down. The defendant responded that he must have forgotten to zip it back up, but then left his pants unzipped.

Suspecting at this point that the defendant was under the influence of alcohol, Murak asked the defendant to step out of the vehicle. The defendant complied, and Murak began to administer three standard field sobriety tests, beginning with the horizontal gaze nystagmus test,³ which the defendant failed. Murak next proceeded to administer the walk and turn test, also known as the heel to toe test.⁴ Before asking the defendant to perform the test, Murak explained it verbally, then demonstrated it. The defendant failed the test. Finally, Murak administered the one leg stand test.⁵ The defendant expressed concern about the gravel on the side of the road, whereupon Murak allowed him to select a different location. The defendant failed that test as well.

At that point, Murak placed the defendant under arrest. He handcuffed the defendant, verbally advised him of his Miranda⁶ rights and searched his person. He then performed an inventory search of the defendant's vehicle, and discovered, in addition to the twenty-four ounce empty beer can he already had seen, another empty twenty-four ounce beer can, an empty eight ounce beer can, and a full eight ounce can of beer. At the precinct, the defendant was again advised of his Miranda rights and he signed a notice of rights form. Murak informed the defendant of Connecticut's implied consent law; General Statutes § 14–227b; and requested that the defendant submit to a breath test on a machine called an Intoxilyzer 5000, which the defendant refused to do. Murak then summoned another officer, Sean Bailey, to witness the defendant's refusal to submit to the breath test. Murak then questioned the defendant using an A–44 form.⁷ The defendant again stated that he had consumed one beer that evening, and that when Murak stopped him, he had been coming from Murphy & Scarletti's, a bar in Farmington. The defendant admitted that he took prescription medication, and Murak recovered a bottle of a generic form of Ativan from the defendant's person.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs or both in violation of § 14–227a (a)(1).⁸ During the trial, the defendant testified that he was unable to perform the walk and turn and the one leg stand field sobriety tests because of a knee injury that he had sustained during an accident on his dirt bike five years earlier. In connection with that testimony, the defendant sought to perform those tests in front of the jury. After a hearing outside the presence of the jury during which the court heard the defendant's offer of proof, the court precluded the evidence on the basis that it was not possible to replicate in court the conditions on the night of the arrest, and because “[i]t would be inappropriate to have the defendant demonstrate what he thinks occurred on that night.” The court added, however, that it would give the defendant “every leeway” to present his theory of the defense by other means.

Following his conviction, the defendant was sentenced to three years incarceration, execution suspended after one year, and three years probation. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment on the basis of its conclusion that the trial court correctly determined that the proffered demonstration was unreliable. State v. Romanko, 139 Conn.App. 670, 675, 56 A.3d 995 (2012). This certified appeal followed.

The defendant claims that in precluding the proffered demonstrative evidence, the trial court violated his constitutional right to present a defense. We disagree. Because the court acted within its discretion in precluding the proposed demonstration on the basis of its finding that the conditions were not substantially similar and because the court allowed the defendant to prove his theory of defense by other means, we conclude that the court did not abuse its discretion in precluding the demonstrative evidence.

We review a trial court's evidentiary ruling for abuse of discretion. State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005). In a criminal case, “[w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense.... A defendant is, however, bound by the rules of evidence in presenting a defense.... Although exclusionary rules of evidence should not be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” (Citations omitted; internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997). The trial court retains the power to rule on...