State v. Tenay, AC 35045

STATE OF CONNECTICUT v. MARK A. TENAY

AC 35045

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 18, 2014

April 28, 2015^**

DiPentima, C. J., and Gmendel, Lavine, Beach, Sheldon, Keller, Prescott and Mullins, Js.^*

(Appeal from Superior Court, judicial district of Ansonia-Milford, geographical area number twenty-two, Keegan, J.)

Jeremiah Donovan, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Kevin S. Russo, supervisory assistant state's attorney, for the appellee (state).

Opinion

PRESCOTT, J. The defendant, Mark A. Tenay, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a) (1)¹ and, following a trial to the court on a part B information, of being a third time offender pursuant to General Statutes § 14-227a (g) (3). On May 13, 2014, a panel of three judges of this court affirmed the judgment of conviction of operating a motor vehicle while under the influence of alcohol. The panel, however, reversed that part of the judgment finding the defendant to be a third time offender on the ground that the trial court improperly admitted, pursuant to Connecticut Code of Evidence § 8-3 (7), the public records exception to the hearsay rule,² a case abstract from a Florida court allegedly evincing a prior conviction in Florida of driving under the influence. State v. Tenay, 150 Conn. App. 140, 153-63, 91 A.3d 483 (2014). Specifically, the panel concluded that although the state had met its burden to authenticate the Florida case abstract, the document was nonetheless inadmissible hearsay because the state failed to meet its burden to establish the foundational requirements for the admission of a document pursuant to the public records exception to the hearsay rule.

The state subsequently filed a motion for reconsideration or reargument en banc.³ In its motion, the state asserted that this court's decision regarding the admissibility of the Florida abstract conflicts with other decisions of this court regarding the admissibility of public records, and would have the burdensome and unnecessary effect of forcing "parties to . . . fly in clerks from all over the country to testify that their court's certified record meet[s] the foundational requirements of [Connecticut Code of Evidence §] 8-3 (7) when the entire purpose of the rule is to eliminate the need to do so."

This court subsequently granted the state's motion for reargument en banc. Following reargument en banc, we again reverse the defendant's conviction of being a third time offender pursuant to § 14-227a (g), albeit on a different ground.⁴ Specifically, we conclude that, even if we assume, without deciding, that the abstract properly was admitted pursuant to § 8-3 (7) of the Connecticut Code of Evidence, the abstract and a related fingerprint card were insufficient evidence to prove beyond a reasonable doubt that the defendant had been convicted in Florida of driving a motor vehicle while under the influence. We reverse the judgment only as to the defendant's conviction as a third time offender pursuant to the part B information and remand the case with direction to render a judgment of acquittal as to the defendant's being a third time offender, modify the conviction to reflect that he is a second time offender, and resentence him accordingly.

The relevant facts underlying the judgment of conviction, as they reasonably could have been found by the jury and the court on the part B information, were set forth in this court's prior opinion in State v. Tenay, supra, 150 Conn. App. 143-46. "Early in the morning of April 18, 2009, Officer Jeffrey Nelson of the Milford Police Department was dispatched to Naugatuck Avenue, where he observed a brown Jeep Cherokee with Vermont license plates partially on the front lawn of 1028 Naugatuck Avenue. Additional police officers, Matthew Mello and Gillian Gallagher, later arrived at the scene. The vehicle had considerable damage. The rear bumper was hanging off of the vehicle, the passenger side of the vehicle looked to have been sideswiped, the front passenger side window was broken, and the front passenger side fender and headlight were damaged. There was no tire on the front passenger side of the vehicle, and a gouge in the pavement, which extended back from the scene approximately one mile to the off ramp of Interstate 95, indicated that the vehicle had traveled for a considerable distance on its rim without the tire.

"When Nelson arrived, the defendant was seated in the driver's seat of the vehicle with the door open. He was confused and disoriented. His eyes had a glassy appearance, and he smelled strongly of alcohol. When Nelson inquired about the condition of the vehicle, the defendant responded that he may have struck a curb a couple of blocks away, although the damage to the vehicle did not support that scenario. The defendant later indicated that he may have struck a mailbox or something else. Nelson had to repeat his request for the defendant's driver's license, registration and insurance card a few times before the defendant complied.

"On the basis of initial observations, the defendant was asked to perform certain field sobriety tests: the alphabet test, the walk and turn test, the one leg stand test, the horizontal gaze nystagmus test, and the finger dexterity test.

* * *

"Having failed to perform adequately any of the roadside sobriety tests administered to him, the defendant was arrested for operating his motor vehicle while under the influence, and he was transported to the Milford Police Department. While at the police department, the defendant refused to take a Breathalyzer or a urine test to determine his blood alcohol content. The defendant was given a summons and released. The next day, he reported for medical treatment to the emergency room at Yale-New Haven Hospital." Id.

The state subsequently charged the defendant in a two part substitute information. In the first part, the state charged the defendant with the crimes of operating a motor vehicle while under the influence ofintoxicating liquor or drugs pursuant to § 14-227a, and reckless driving pursuant to General Statutes § 14-222. In the part B information, the state accused the defendant of being a subsequent offender on the ground that he previously had been convicted of driving under the influence of intoxicating liquor or drugs. Specifically, the state alleged in the part B information that the defendant had been convicted on May 9, 2002, in the judicial district of Danbury, of the offense of driving under the influence of intoxicating liquor or drugs, and, on February 13, 1996, had been "convicted of the offense of driving while under the influence in the State of Florida, pursuant to [Fla. Stat. §] 316.193, whose substantial elements are essentially the same as [§] 14-227a of the Connecticut General Statutes

The defendant elected a jury trial with respect to the first part of the information and a court trial with respect to the charge of being a subsequent offender. On May 16, 2012, following a trial, the jury found the defendant guilty of driving under the influence of intoxicating liquor or drugs and reckless driving.

After a bench trial on August 28, 2012, in a written memorandum of decision dated September 5, 2012, the court concluded that the state had proven beyond a reasonable doubt that the defendant previously had been convicted of driving under the influence in Danbury in 2002, and in Florida pursuant to Fla. Stat. § 316.193 in 1996. The court also concluded that the elements of § 316.193 are essentially the same as those of § 14-227a. Accordingly, the court found that the defendant "has been twice convicted of operating under the influence within ten years of the present conviction on May 16, 2012."⁵ The court subsequently sentenced the defendant as a third time offender, pursuant to § 14-227a (g) (3), to a total effective term of three years incarceration, execution suspended after eighteen months, and three years of probation. This appeal followed.

On appeal, the defendant raised four principal issues: whether the trial court improperly (1) excluded from evidence during the jury trial portions of certain hospital records that pertained to medical treatment that he received following his arrest; (2) admitted into evidence during the jury trial the results of a finger dexterity roadside sobriety test without first determining the scientific validity of that particular test in accordance with State v. Porter, 241 Conn. 57, 80-90, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998); (3) admitted into evidence during the trial to the court on the part B information a certified copy of a case abstract that sets forth some case history regarding a Florida criminal action involving the defendant and a related fingerprint card; and (4) concluded that the state had proven beyond a reasonable doubt that the defendant had been convictedof driving under the influence in Florida and that the statute under which the defendant was convicted contains substantially the same essential elements as § 14a-227a.

A panel of this court rejected the defendant's first two claims, but agreed with his claim that the Florida case abstract improperly was admitted into evidence. State v. Tenay, supra, 150 Conn. App. 143. Accordingly, the panel reversed that part of the judgment finding the defendant to be a third time offender pursuant to § 14-227a (g). The panel did not, however, remand the case for a new trial, as is typically done following a conclusion that the trial court erred in its evidentiary rulings, but instead remanded the case with direction to modify his conviction on the part B information to reflect that he is a second time offender and to resentence him accordingly....