State v. Scott

• Decision Date: 13 September 1988
• Docket Number: No. 6039,6039
• Citation: 16 Conn.App. 172,547 A.2d 77
• Parties: STATE of Connecticut v. Donald SCOTT.
• Court: Connecticut Court of Appeals

Page 77

547 A.2d 77

16 Conn.App. 172

STATE of Connecticut v. Donald SCOTT.

No. 6039.

Appellate Court of Connecticut.

Argued May 3, 1988.

Decided Sept. 13, 1988.

James E. Mattern, Niantic, with whom was Katherine Delisle, for appellant (defendant).

Mitchell S. Brody, Deputy Asst. State's Atty., with whom, on the brief, was Thomas Nazzaro, Former Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and EDWARD Y. O'CONNELL, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, ¹ of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. ² The defendant claims that the trial court erred (1) in denying his motion to suppress the results of a chemical breath test of his blood alcohol level, (2) in denying his motion to dismiss based on an alleged violation of the trial court's sequestration order depriving the defendant of his constitutional right to due process of law and statutory rights under General Statutes § 54-85a, ³ and (3) in sustaining the state's objection to the defendant's subpoena duces tecum. We find no reversible error.

This case involves the following facts. On December 20, 1985, Trooper Donald M. Barbour stopped an automobile driven by the defendant for suspicion of driving under the influence of alcohol. Barbour administered field sobriety tests to the defendant, which the defendant failed. Barbour placed the defendant under arrest at about 12:40 a.m. The defendant was then placed in the passenger side of a police vehicle and transported to the police station.

At the police barracks, Barbour tested the defendant's blood alcohol level with a breathalyzer device known as an intoximeter. The first test was administered at 1:15 a.m., yielding a blood alcohol ratio of .199. A second test was given to the defendant at 1:53 a.m., yielding a blood alcohol ratio of .184. Both of these ratios indicated blood alcohol levels above the legal limit set forth in General Statutes § 14-227a(a)(2). ⁴ Barbour checked the intoximeter's accuracy before and after each test. These checks indicated that the calibrations were accurate and that the intoximeter was functioning properly.

Barbour placed the printouts of the checks on the intoximeter's accuracy together with the measurements of the defendant's blood alcohol level in a log book kept in the police barracks, and mailed copies of the same to the defendant. On April 19, 1986, the log book was discovered to be missing. It had not been located by the time of the hearing on the defendant's motion to suppress the results of the breath alcohol tests.

I

In his first claim of error, the defendant argues that the trial court erred in denying his motion to suppress the results of the breathalyzer tests (1) because the instrument was not checked for accuracy at the beginning of each day of use in accordance with General Statutes § 14-227a(c)(4), ⁵ or at the beginning of each shift in accordance with the department of health services regulations; Regs., Conn. State Agencies §§ 14-227a-8(d) ⁶ and § 14-227a-10; ⁷ and (2) because the defendant was not under "continuous observation" for at least fifteen minutes prior to the collection of the breath samples in accordance with the department of health services regulations. Regs., Conn. State Agencies § 14-227a-10(b)(1)(A). ⁸ These issues of statutory and regulatory interpretation have been fully addressed in the companion case of State v. Smith, 16 Conn.App. 156, 547 A.2d 69 (1988).

In State v. Smith, supra, 163, 547 A.2d 69, we held that a check of the intoximeter's accuracy prior to the subject test, as opposed to the beginning of each day of use or shift, complies with the requirements for admissibility set forth in the statute and regulations. Further, the trial court found that "as far as humanly possible the trooper kept the defendant under continuous observation for the requisite period." That finding is supported by the record, and is all that is required under the regulations. State v. Smith, supra. The trial court did not err in denying the defendant's motion to suppress on those grounds.

II

The defendant next claims that the trial court erred in denying his motion to suppress because the loss of the log book, which contained a copy of his test results and accuracy determinations of the intoximeter, violated his constitutional right to due process under the fourteenth amendment to the federal constitution. We disagree.

The state acknowledges the loss of the log book. The maintenance of a log book is required by the department of health services regulations. Regs., Conn. State Agencies § 14-227a-10(b)(2)(B). ⁹ The defendant does not argue that the violation of the regulation constituted sufficient support for his motion to suppress the results of the breath alcohol tests. Cf. State v. Williamson, 14 Conn.App. 108, 540 A.2d 386 (1988). The defendant argues, rather, that the alleged violation of his constitutional rights constituted sufficient support for his motion to suppress. We note in the first instance that a prosecutor has a constitutional duty to disclose exculpatory evidence which is known to the prosecution but unknown to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). It is apparent that this case does not involve the unintentional loss or nondisclosure of Brady material but, at most, involves the loss or nondisclosure of potentially exculpatory material. This is also so because the defendant had received copies of the printouts of the checks on the intoximeter's accuracy and a copy of the measurements of his blood alcohol level by mail, which were items recorded in the log book.

The seminal case regarding a state's constitutional duty to preserve potentially exculpatory evidence is California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (state's failure to preserve a defendant's breath alcohol sample does not violate the federal constitution). ¹⁰ Trombetta held that the failure to preserve potentially exculpatory evidence does not result in a violation of the constitution unless such failure deprives a defendant of "a meaningful opportunity to present a complete defense." Id., 485, 104 S.Ct. at 2532. Trombetta delineated two inquiries for discerning whether a defendant has had "a meaningful opportunity to present a complete defense." The first inquiry is whether the authorities were "acting 'in good faith and in accord with their normal practices.' " Id., 488, 104 S.Ct. at 2533, quoting Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256 (1961). The second inquiry is whether the evidence was material in that it (a) "possess[es] an exculpatory value that was apparent before the evidence was destroyed [and (b) is of] such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, supra, 467 U.S. at 489, 104 S.Ct. at 2534; see also Chaussard v. Fulcomer, 816 F.2d 925, 931-32 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987) (loss of a tape recording did not constitute material evidence and therefore its absence did not result in a due process violation).

As to the good faith element of the Trombetta standard, the trial court found no evidence showing that the log book was purposely lost, or destroyed intentionally. "The record contains no allegation of official animus towards [the defendant and indicates] no conscious effort to suppress exculpatory evidence." California v. Trombetta, supra, 488, 104 S.Ct. at 2533. Accordingly, the first Trombetta inquiry is satisfied in this case.

As to the materiality elements of the Trombetta standard, we conclude that the second inquiry is also satisfied in this case. First, the defendant cannot demonstrate that the log book's exculpatory value was "apparent before the evidence was destroyed." Id., 489, 104 S.Ct. at 2534. The defendant speculates that had the missing log book showed that the machine used to sample the defendant's blood alcohol level previously malfunctioned and was not subsequently calibrated, an accuracy reading prior to the taking of the defendant's breath sample may have been "tainted." We find such speculation to be unsupported by the record. The evidence indicates that the machine used to test the defendant's blood alcohol level was in fact tested for accuracy and calibrated by Barbour immediately prior to and following each breath test. The log book's exculpatory value was therefore not "apparent" to the authorities when it was lost.

Second, the evidence is not "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. The defendant had comparable evidence available, in addition to the log book, by which to impeach the accuracy capabilities of the intoximeter used to sample his blood alcohol level. General Statutes § 14-227a(c)(2) requires that "a true copy of the report of the test result [be] mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day" in order for the test results to be admitted into evidence. The record indicates that the defendant received a copy of the test results that contained the two determinations of the defendant's blood alcohol content, and numerical indications that the machine had been checked for accuracy. This copy was admitted into evidence at the suppression hearing. Because the record indicates that the log book contained an identical copy of the foregoing information, the fact that it was missing did not deprive the defendant of comparable evidence. Furthermore, the copy contained in the missing log book, identical to that received by the defendant, was inculpatory in that it demonstrated that...