STATE v. ROMANKO

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Supreme Court of Connecticut.

STATE of Connecticut v. Todd R. ROMANKO.

No. 19112.

Decided: August 19, 2014

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

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 the admissibility of evidence pursuant to traditional evidentiary standards. Id.

We have recognized that “the trial court has broad discretion in determining whether to admit or exclude demonstrative evidence.” Barry v. Quality Steel Products, Inc., 280 Conn. 1, 20, 905 A.2d 55 (2006); see also Friedler v. Hekeler, 96 Conn. 29, 32, 112 A. 651 (1921) (holding that trial court acted within its discretion in allowing demonstration of extent to which plaintiff in personal injury action could close her eye). The general rule is that demonstrative evidence must be helpful to the fact finder in order to be admissible. C. Tait & E. Prescott, Connecticut Evidence (5th Ed.2014) § 11.18, pp. 744–45. The particular type of demonstrative evidence, and the purpose for which it is offered, determine the specific inquiry that a court engages in to determine the admissibility of the proffered evidence. Id., at § 11.15.1, p. 736 (explaining that “[b]efore demonstrative evidence is admitted, the purpose of the evidence should be clearly stated,” and enumerating different foundational requirements depending on stated purpose of proffer). Where the proffered evidence, as in the present case, is a physical demonstration that is offered for the purpose of recreating the events at issue at trial, “the demonstration must be performed under substantially similar conditions so that the rendition is reasonably fair and accurate.” Id., at § 11.18, pp. 744–45; see also State v. Holota, 2 Conn. Cir. Ct. 45, 49, 194 A.2d 69 (1963) (holding that trial court properly precluded defendant's proposed demonstration of his performance of sobriety tests, because “[t]he conditions were not the same; the tests could not be reproduced”); State v. Martin, 182 Vt. 377, 388, 944 A.2d 867 (2007) (no abuse of discretion to preclude videotaped reenactment of accident where conditions in reenactment were “not substantially similar” to those that existed during actual event).

The trial court in the present case properly grounded its ruling on its determination that the conditions of the defendant's proposed demonstration were not substantially similar to those that existed on the night of the defendant's arrest. The colloquy between the court and the parties reveals that both the court and the parties understood that the purpose of the proposed evidence was to reenact the walk and turn and the one leg stand tests.9 During the offer of proof, defense counsel explained that the purpose of the proposed demonstration was to “show the jury how the [defendant] performed [those tests] physically.” The state objected on the basis that a present demonstration of the defendant's performance of the tests would not be able to show how he performed them on the night of the arrest, more than one year earlier. In response to the court's inquiry as to how the defendant's present performance of the tests could fairly and accurately represent what happened on the night of the arrest, defense counsel responded that the jury could take into account that they were viewing the tests in the present time, and that the performance was similar, but not identical to the way that the defendant performed them on the night of the arrest, and that the purpose was to show that “in a sober condition [the] defendant performs the test[s] the same way.” When the court questioned how the jury would be able to compare the two performances, since they were not present on the night of the arrest, defense counsel responded that the jury could compare the defendant's in-court demonstration with the description that Murak had given during his testimony of the defendant's performance of the tests on the night of the arrest. The state reiterated its objection on the basis that the in-court performance of the tests could not accurately represent the defendant's performance “a year ago, at a different location, outdoor[s], [on the] side of the road.” The court asked defense counsel if he claimed that the defendant was somehow an expert on the tests. Defense counsel responded no, and added that he believed, because the defendant suffers from a disability, that the jury should be able to view him performing the tests.

We evaluate the court's ruling in light of the proposed purpose of the offer and the court's finding that the conditions in court were not substantially similar to those that existed on the night of the arrest. Our review of the transcripts, as previously noted, reveals that defense counsel repeatedly indicated that the purpose of the offer was to reenact the defendant's performance of the tests. In light of that proposed purpose, the trial court applied the proper standard when it considered whether the conditions in court were substantially similar to those on the night of the arrest. Moreover, in light of the court's finding that the conditions were not substantially similar—a finding that the defendant does not challenge on appeal—it did not abuse its discretion in precluding the demonstration.10

It is also significant that the court did not prevent the defendant from presenting his theory of the defense—that it was his disability rather than his intoxication that caused him to fail the walk and turn and one leg stand tests—by other means. By expressly allowing the defendant “every leeway” to present his defense theory by means other than the proposed demonstration, the court made clear that it was excluding only the demonstrative evidence of the defense, and not the defense itself. The defendant was free to testify regarding his injury and the effect that the injury had on his ability to perform the tests, and he did. The defendant testified that five years prior to the arrest, he had injured his knee during a dirt bike accident. He further stated that he had tried to explain to Murak that his injury would prevent him from performing the tests properly, but Murak would not listen to him. These two statements by the defendant represent the sum total of evidence he presented in support of his theory. He also was free to present other evidence regarding the effect that his injury had on his ability to perform the tests. He could have presented the testimony of a treating physician, produced documentary evidence, and questioned his father and his friend, both of whom testified on his behalf, regarding the injury.11 He did not. Nor did he mention in closing argument to the jury his claim that it was his disability rather than his intoxication that prevented him from passing the two mobility based field sobriety tests. The mere fact that the trial court prevented the defendant, on the basis of the court's sound application of the rules of evidence, from relying on an unreliable demonstration to prove his claim does not support the defendant's claim that the court's ruling violated his constitutional right to present a defense. The defendant had many other opportunities to present reliable, admissible evidence to prove his claim, and he chose not to. The court's ruling did not infringe on his constitutional right to present a defense.

The judgment of the Appellate Court is affirmed.

I agree with the majority that the Appellate Court properly affirmed the conviction of the defendant, Todd R. Romanko. I disagree, however, with the majority's conclusion that the Appellate Court properly determined that the trial court did not abuse its discretion when it precluded the defendant from performing the walk and turn and the one leg stand field sobriety tests in the presence of the jury.

The majority reaches this conclusion on the basis of its determination that the defendant's claim on appeal was never raised in the trial court. Specifically, the majority asserts that, although the defendant now contends that he sought to perform the field sobriety tests at issue to demonstrate for the jury that he is unable to perform them due to a preexisting knee injury, “[t]he colloquy between the court and the parties reveals that both the court and the parties understood that the purpose of the proposed evidence was to reenact [those] tests.” Text accompanying footnote 9 of the majority opinion. The majority then explains that, because the purpose of the demonstration was to reenact the defendant's performance of the tests, and not, as the defendant claims, to demonstrate that he is unable to perform them even in a sober state, under any conditions; see footnote 9 of the majority opinion; the trial court did not abuse its discretion in precluding the demonstration because it was not possible to replicate in court the conditions that existed when the defendant performed the tests at the time of his arrest.1

I disagree with the majority because the trial transcript reveals that the purpose of the proposed demonstration was to establish that the defendant is unable to perform the tests even under the best of conditions and, therefore, to bolster his claim that it was his injury, and not his allegedly intoxicated condition, that caused him to fail the sobriety tests on the night of his arrest. Because the conditions in the courtroom were perfectly adequate to permit such a demonstration, I agree with the defendant that the trial court abused its discretion in precluding it. I nevertheless concur in the judgment because there is no reasonable possibility that the jury would have found the defendant not guilty even if he had been allowed to perform the tests at trial.

As the majority explains, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs. At trial, the defendant testified that he was unable to perform the mobility based field sobriety tests that were administered to him at the time of his arrest due to a preexisting knee injury. Specifically, when defense counsel asked him whether the arresting officer “wanted [him] to perform a test” and whether he was “comfortable doing that test,” the defendant responded: “No․ I'm not comfortable with that. I told him that I wouldn't be able to do it. I ․ five years before ․ hurt my leg really bad; my knee went out of socket when I flipped over a dirt bike on a road.” Defense counsel then turned to the court and stated: “Your Honor, at this time, [the] defense would request [that] demonstrative evidence be introduced.” The court responded that it would prefer to view the proffered demonstration outside the presence of the jury and excused the jury from the courtroom. After the jury was excused, defense counsel told the court that the defendant “would like to show the jury how [he] performed the [heel to toe and one leg stand field sobriety] test[s] physically.” The assistant state's attorney objected to this demonstration, arguing that it was “extremely inappropriate. He's asking to try to perform a test today that he was asked to perform a year ago․ It's not proper. He can do anything he wants now. He can do cartwheels now if he wishes, and I don't see how that's going to explain how he performed the test on [the night of his arrest].” The court then asked defense counsel how he could guarantee that it would be a fair and accurate representation of the defendant's performance of the tests. Defense counsel responded: “Well, the jury can see that this is not occurring on that date, Your Honor. The jury can take into account that [this] is a present physical [demonstration and that the defendant's] performance of it is similar if not identical to that day since, in a sober condition, [the] defendant performs the test the same way.” The court then asked defense counsel how the jury would be able to compare the two performances. Defense counsel responded that the jurors already had heard the testimony of the arresting officer, who had described “what the [defendant] looked like when he performed the test․” The court then asked defense counsel whether he was “claiming that [the defendant] is somehow an expert on these tests and can enlighten the jury somehow․ [A]m I missing something?” Defense counsel responded that the defendant was not claiming to be an expert but was simply a person with “a disability,” which the jurors should be allowed to see “for themselves” so that they could properly decide “whether he's credible or not․” When defense counsel finished speaking, the court stated that it was “not going to allow that kind of demonstrative evidence, basically, because we cannot recreate the scene. It would be inappropriate to have the defendant demonstrate what he thinks occurred on that night.”

Contrary to the majority, I do not believe that the defense was merely asking the court to allow the defendant to “reenact” his performance of the tests on the night of the arrest. To the contrary, it is apparent that the defense was requesting to have the defendant perform the tests in the courtroom so that the jury could judge for itself whether, as the defendant claimed, his knee injury prevented him from performing such tests even in a sober condition. I therefore believe it is inaccurate for the majority to assert that even defense counsel “understood that the purpose of the proposed evidence was to reenact the walk and turn and the one leg stand tests”; text accompanying footnote 9 of the majority opinion; and that “defense counsel repeatedly indicated that the purpose of the offer was to reenact the defendant's performance of the tests.” Not only did defense counsel never use the words “reenact” or “reenactment,” he plainly stated that the jury would understand that what they were seeing was a “present physical [demonstration],” the point of which was to show how the defendant's disability affects his ability to perform a field sobriety test, intoxicated or sober. Moreover, to the extent that defense counsel considered the demonstration to be something akin to a reenactment, it was due to the fact that, according to defense counsel, the defendant's performance would be “similar if not identical” to the performance he gave on the night of his arrest because he undoubtedly would be unable to perform the tests due to his disability.

Even if, as the majority contends, the court and the parties were in agreement that the demonstration was intended to be a simple reenactment of the tests, the majority fails to explain why the trial court properly concluded that the dissimilarity between the conditions in court and the conditions that existed on the night of the arrest constituted cause to disallow the demonstration. Nor did the trial court offer any explanation for its decision. In fact, the conditions in the courtroom were perfectly adequate to permit the proffered demonstration. Indeed, this is not a case in which the defendant contended that external conditions, such as an uneven road surface or inclement weather, impeded his ability to perform a field sobriety test. If it was, then I believe it would have been perfectly proper for the trial court to preclude the demonstration on the ground that the conditions required to ensure the reliability and accuracy of the demonstration could not be replicated in court. The defendant, however, claimed that a knee injury prevented him from performing the tests at issue and that that was the reason he failed the tests. In view of the nature of this claim, all that was needed to ensure a reasonably fair and accurate demonstration was the defendant and a flat surface for him to walk on.2

I concur in the judgment, however, because the trial court's error in precluding the proffered demonstration was harmless by any measure. As the majority notes, shortly before his arrest, the defendant entered the home of a complete stranger, Cheryl Byrne, in a disheveled state, appearing glossy eyed and looking for someone by the name of “Gerry.” He left only when confronted by Byrne's German shepherd dog. Byrne wrote down the defendant's license plate number and immediately contacted the police. Shortly thereafter, a Farmington police officer spotted the defendant's car swerving and crossing the yellow median. After the officer pulled the defendant over and approached his vehicle, the officer observed that the defendant's breath smelled of alcohol, and that he exhibited slurred speech and had an open twenty-four ounce beer can on the floor of the vehicle. The defendant also admitted to having been at a bar earlier that evening. In light of this overwhelming evidence of guilt, it is clear that, even if the defendant had been permitted to demonstrate for the jury how he performs the field sobriety tests, and even if the jury had believed that he was unable to perform them due to a preexisting knee injury, it nevertheless would have found him guilty of the charged offense. Accordingly, I concur in the judgment.

ESPINOSA, J.

In this opinion ROGERS, C.J., and ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js., concurred.

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