State v. Stephanie U.
| Citation | 206 Conn.App. 754,261 A.3d 748 |
| Decision Date | 24 August 2021 |
| Docket Number | AC 41793 |
| Parties | STATE of Connecticut v. STEPHANIE U. |
| Court | Appellate Court of Connecticut |
Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).
James M. Ralls, assistant state's attorney, with whom were Matthew C. Gedansky, state's attorney, and Jaclyn Dulude, assistant state's attorney, for the appellee (state).
Bright, C.J., and Prescott and Elgo, Js.
The defendant, Stephanie U., appeals from the judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1), operating a motor vehicle while her operator's license was under suspension in violation of General Statutes § 14-215 (a), and attempt to commit risk of injury to a child in violation of General Statutes §§ 53-21 (a) (1) and 53a-49 (a) (2). On appeal, the defendant claims that (1) the prosecutor violated her state constitutional rights to confront witnesses against her and to testify on her own behalf by improperly attacking her credibility during cross-examination and in her closing rebuttal argument by suggesting that she had tailored her testimony to conform to the evidence she had overheard during her trial, (2) the prosecutor denied her due process of law under both the federal and state constitutions when, during cross-examination, the prosecutor asked the defendant whether she had an interest in the outcome of the trial, and when, during rebuttal argument, the prosecutor told the jury that it could consider the defendant's vested interest in the outcome of the trial, (3) prosecutorial impropriety deprived her of a fair trial when the prosecutor argued that she had tailored her testimony and that she had a motive to lie, (4) this court, in the alternative, should order a new trial after we employ our supervisory authority to prohibit questions and arguments that amount to generic tailoring and/or telling or implying to the jury that it can or should discredit the defendant's trial testimony because she has an "interest in the outcome" of her trial, and (5) her conviction of attempt to commit risk of injury to a child should be vacated because it is not a cognizable crime. We reject the defendant's claims, although we agree with her request to exercise our supervisory authority over the administration of justice on the issue of generic tailoring. Nevertheless, because we conclude that the prospective rules we articulate regarding generic tailoring would not have changed the outcome of the defendant's trial, we affirm the judgment of the trial court.
The following facts, as reasonably could have been found by the jury on the basis of the evidence presented at trial, and the relevant procedural history, inform our review of the defendant's claims. On October 30, 2015, at approximately 5 p.m., the defendant arrived to pick up her one year old child at a Vernon day care center. Jessica Woodruff also was there to pick up her own child, and she witnessed the defendant stumbling out of a vehicle, having difficulty walking into the day care, repeatedly stumbling, having difficulty "hold[ing] herself up," and falling backward. Woodruff believed that the defendant was intoxicated. Once inside, several people, including Woodruff; the assistant director of the day care, Kathleen Wheeler; and a teacher at the day care, Elyse DeGemmis, observed the defendant slur, mumble, and grab onto various objects in an effort to support herself. Wheeler and DeGemmis were so concerned that they called 911.
Detective John Divenere of the Vernon Police Department was dispatched to the day care on a report of an intoxicated woman attempting to pick up her child. On his arrival, someone pointed out the defendant. When Divenere asked the defendant for identification, she handed him her state identification card and, when asked about her driver's license, she told him that it had been suspended. Divenere observed that the defendant's eyes were glassy, her speech was slow and slurred, and she was having difficulty maintaining her balance. The defendant denied to Divenere that she had taken drugs or alcohol, or that she had medical issues, disabilities, or diabetes. Divenere administered two "preliminary" tests that are not part of the field sobriety tests, namely, the "alphabet" test and the "counting backwards" test. At his request, the defendant performed each test several times. The defendant slurred her speech and skipped letters and numbers during each of the tests. The defendant appeared intoxicated to Divenere, who then administered several field sobriety tests, all of which the defendant failed. Officer David Provencher, who also had arrived at the day care, recorded on his body camera the defendant performing the field sobriety tests. Divenere arrested the defendant and took her to the police station.1
At approximately 6 p.m., while at the police station, Divenere advised the defendant of her rights. The defendant again denied that she had any medical issues or that she had consumed alcohol. She did state that she was prescribed Xanax but that she had not taken it that day. Divenere observed that the defendant did not smell of alcohol or marijuana, her eyes were not bloodshot or red, and her pupils were not dilated or constricted. Divenere did not find any drugs, drug paraphernalia, or alcohol in the defendant's vehicle or purse. Divenere administered a Breathalyzer test, which resulted in a reading of zero. He then asked the defendant to take a urine test, which the defendant initially agreed to take but then declined.2
On the basis of this evidence, the jury found the defendant guilty of illegal operation of a motor vehicle while under the influence of intoxicating alcohol or drugs, illegal operation of a motor vehicle while her license was under suspension, and attempt to commit risk of injury to a child. The court accepted the jury's verdict and sentenced the defendant to a total effective term of five years of imprisonment, execution suspended after eighteen months, followed by five years of probation. This appeal followed. Additional facts will be set forth as necessary.
The defendant claims that the prosecutor violated her state constitutional rights, under article first, § 8, to confront witnesses against her and to testify on her own behalf by improperly attacking her credibility when engaging in a generic tailoring argument, by suggesting during cross-examination and during closing rebuttal argument that she had tailored her testimony to conform to the evidence that she heard during her criminal trial. The defendant did not preserve her claim and asks for review pursuant to State v. Golding , 213 Conn. 233, 239–240, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015).3
We conclude that the defendant's claim is reviewable but that it fails under the third prong of Golding . In particular, we conclude that the defendant has failed to prove that the state constitution offers greater protection than the federal constitution with respect to confrontation rights, and, therefore, she cannot establish that a state constitutional violation exists.
The following additional facts are necessary to our consideration of the defendant's claim. During trial, the defendant testified on her own behalf. She explained to the jury that she had experienced mental health issues, including mood disorders, anxiety, and bipolar disorder, since she was a child, and that she takes Xanax as needed. She also testified that the day before this incident, she had gotten into a verbal altercation with a coworker and quit her job. The defendant further explained that, on the day of the incident, she met with her manager and someone from human resources to ask for her job back, but she was not successful. She testified that, later in the day, when it was time to pick up her child from day care, her grandmother, who had been providing transportation, was unavailable; so, despite knowing that her license was under suspension, she drove to the day care to pick up her child. She denied that she had been disorientated when she went to the day care, but she testified that the body camera video convinced her that she had undergone a mental health episode while at the day care center. She explained that the video showed her experiencing tics and pulling her hair, which signaled a mental health episode.
During cross-examination, the prosecutor asked the defendant:
The next day, during the rebuttal portion of her closing argument, the prosecutor argued in relevant part:
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State v. Stephanie U.
...senior assistant public defender, in opposition.The state's cross petition for certification to appeal from the Appellate Court, 206 Conn. App. 754, 261 A.3d 748 (AC 41793), is ...
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State v. Stephanie U.
...Ralls, assistant state's attorney, in opposition.The defendant's petition for certification to appeal from the Appellate Court, 206 Conn. App. 754, 261 A.3d 748 (AC 41793), is ...