State v. Velazquez

• Decision Date: 02 June 2020
• Docket Number: AC 40224
• Citation: 197 Conn.App. 754,231 A.3d 1269
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marcos A. VELAZQUEZ

197 Conn.App. 754

231 A.3d 1269

STATE of Connecticut

v.Marcos A. VELAZQUEZ

AC 40224

Appellate Court of Connecticut.

Argued February 3, 2020

Officially released June 2, 2020

Marcos A. Velazquez, self-represented, the appellant, filed a brief (defendant).

Melissa Patterson, assistant state's attorney, Gail P. Hardy, state's attorney, and Sara Greene, assistant state's attorney, filed a brief for the appellee (state).

Alvord, Bright and Bear, Js.

BEAR, J.

The self-represented defendant, Marcos A. Velazquez,¹ appeals from the judgment of conviction, rendered following a bench trial, of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both in violation of General Statutes § 14-227a (a) (1).² On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction and (2) the court improperly admitted the testimony of a police officer with regard to the presence of a marijuana odor in the defendant's vehicle at the time he was involved in an accident. We affirm the judgment of the trial court.

The trial court's oral decision sets forth, and the record reveals, the following relevant facts and procedural history. On March 24, 2015, while the defendant was operating a motor vehicle near 914 Silver Lane in East Hartford, he sideswiped one motor vehicle, reversed direction, and then rear-ended a second motor vehicle. Following the second collision, the police arrived on the scene and interviewed the defendant and the operators of the other vehicles. The police determined that the defendant was the operator of the vehicle that collided with the two other vehicles.

Shortly after the collisions, the investigating officers found the defendant to be "dazed and confused, stumbling around, [and] unaware of where he came from and even knowing that [he had] been in an accident." Additionally, "[h]e overwhelmingly failed the horizontal gaze nystagmus test, the walk and turn test, and the one-legged stand test." When speaking with the police, the defendant admitted to using marijuana approximately one hour prior to the collisions. The defendant further admitted taking Gabapentin, a medication that was prescribed to treat the effects of some of his preexisting injuries. He also admitted that Gabapentin made him drowsy and unable to "function."³

During trial, Sergeant John Dupont of the East Hartford Police Department testified about his interactions with the defendant at the scene of the accident. Dupont testified, among other things, that he smelled an odor of marijuana inside the defendant's car, but he did not smell any odor of marijuana coming from the defendant's person. Following Dupont's testimony, defense counsel claimed that the state committed a Brady⁴ violation and a discovery violation because it failed to disclose that Dupont had smelled marijuana in the defendant's car and that Dupont would testify about it. As a result, defense counsel moved for a mistrial and a dismissal of the charge of operating a motor vehicle while under the influence. After the court conducted a Brady hearing, defense counsel admitted that there was no Brady violation with respect to Dupont's testimony about the odor of marijuana. Defense counsel, however, asserted that, pursuant to his discovery requests, the state should have disclosed prior to trial that Dupont would testify about the odor of marijuana in the defendant's vehicle. The court denied defense counsel's requests because it concluded that Dupont's testimony about the odor of marijuana in the defendant's vehicle constituted neither a Brady violation nor a discovery violation.

On January 6, 2017, the trial court found the defendant guilty of operating a vehicle under the influence of intoxicating liquor or any drug or both in violation of § 14-227a (a) (1). Specifically, the court concluded that, "[w]hen considering the defendant's admission to marijuana use approximately an hour before the accident, his admission [to a health care professional] one month prior as to the side effects ... [and] impacts that Gabapentin was having on his functioning, the nature of the accident, the defendant's behaviors exhibited following the accident in conjunction with his failures on the standard field sobriety test, this court finds ... beyond a reasonable doubt that the defendant's physical and mental capabilities were impaired to a degree ... [t]hat he no longer had the ability to drive a motor vehicle with the caution and characteristic[s] of a sober person of ordinary prudence."

After the court found the defendant guilty, the defendant moved for a continuance, which was granted by the court, to file a sentencing memorandum and postverdict motions. Subsequently, the defendant filed a motion for a judgment of acquittal, arguing that there was insufficient evidence to meet the requisite standard of guilt beyond a reasonable doubt. He also filed a motion for a new trial in which he argued, among other things, that relief should have been granted pursuant to Practice Book § 40-5⁵ with regard to Dupont's testimony concerning the odor of marijuana in the defendant's vehicle. On January 13, 2017, the court denied the defendant's motions and sentenced him to six months incarceration, execution suspended after four months, followed by two years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to sustain his conviction. He argues that both he and the state produced expert testimony, but that the toxicologist produced by the state and the toxicologist that he had produced reached opposite conclusions as to whether he was under the influence of alcohol or drugs. The defendant asserts that the state's toxicologist testified that he may have been under the influence only of drugs. He also asserts that the urine test he took at Hartford Hospital, within three days of the accident, "indicated that he wasn't under the influence at the time of the accident." Finally, he asserts that a blood test taken by his primary doctor also "indicated that he wasn't under the influence at the time of the accident."

"In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [fact finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... This court cannot substitute its own judgment for that of the [fact finder] if there is sufficient evidence to support the [fact finder's] verdict ...." (Internal quotation marks omitted.) State v. Watson , 195 Conn. App. 441, 445, 225 A.3d 686, cert. denied, 335 Conn. 912, 229 A.3d 472 (2020).

Additionally, as our Supreme Court often has noted, "proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty." (Internal quotation marks omitted.) State v. Morelli , 293 Conn. 147, 152, 976 A.2d 678 (2009).

The court found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both in violation of § 14-227a (a) (1). In order for the court to have found beyond a reasonable doubt that the defendant was guilty, the state needed to prove that the defendant (1) operated a motor vehicle (2) on a public road (3) while under the influence of intoxicating liquor or any drug or both.⁶ See State v. Gordon , 84 Conn. App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).

During trial, the state elicited the following testimony from the police officers who investigated the incident: (1) immediately after the incident, the defendant "appeared dazed and confused and did not appear like he knew where he was ... he was stumbling around ... [and] [n]ot steady on his feet"; (2) the defendant was slow to respond to questioning and directions; (3) the defendant, while at the scene of the incident, appeared to be unaware that he had been in a car accident; (4) the defendant admitted to the police that he smoked marijuana approximately one hour prior to the accident and that he also consumed regular prescription medication, which he had admitted to a medical professional one month earlier, caused him to feel drowsy and unable to function; (5) the defendant failed three separate field sobriety tests;⁷ and (6) after he was arrested, the police attempted to obtain a urine sample from the defendant, but the defendant refused to provide one.

The state also elicited the testimony of Robert Powers, a forensic toxicologist. Powers testified that Gabapentin, the defendant's prescribed medication, should not be taken prior to operating heavy machinery, such as a motor vehicle, and that the side effects of taking Gabapentin include negative cognitive effects, dizziness, and lack of coordination.

On the basis of this evidence, and the reasonable inferences drawn...