State of Connecticut v. Christopher Ball (2013)

MEMORANDUM OF DECISION RE PRETRIAL MOTIONS

On September 25, 2013, the defendant, Christopher Ball, filed a motion for opening statements as well as a motion to suppress all evidence seized, pursuant to a search warrant, related to his treatment at Danbury Hospital on December 7 and 8, 2012.   A hearing was held on both motions on November 12, 2013.¹  At this hearing, the defendant also orally moved to substitute a witness, post-jury selection.   All three motions will be addressed in this memorandum of decision.

I

Motion for Opening Statements

The defendant moves this court to exercise its discretion and allow opening statements at the defendant's trial.   The defendant asserts that the nature of the State's case is complex enough to merit opening statements from both the State and the defendant.   In contrast, the State contends that opening statements are unnecessary as there are only two charges, one defendant and “a number of witnesses.”

“[T]he right to make an opening statement to the jury by a defendant in a criminal case is not guaranteed by law or rule.   Whether to allow an opening statement is a decision to be left to the sound discretion of the trial court, taking into consideration the number and nature of the charges, the complexity of the issues, the number of defendants and their interrelationship, and similar factors which, when put into proper perspective by an opening statement, would serve to clarify the issues and focus the attention of the jury upon the matters it must decide.”  State v. Ridley, 7 Conn.App. 503, 506, 509 A.2d 546, cert. denied, 201 Conn. 803, 813 A.2d 698 (1986).

The defendant's motion for opening statements is denied.   The State's case against the defendant consists of two charges, stemming from a motor vehicle accident.   Mr. Ball is the only defendant, the issues to be presented to the jury are not overly complex and opening statements are not necessary to clarify the issues and focus the attention of the jury upon the matters it must decide.   See State v. Ridley, supra, 7 Conn.App. 506.

II

Motion to Suppress

On December 7 and 8, 2012, the defendant received treatment at Danbury Hospital for injuries resulting from a motor vehicle accident that occurred on December 7, 2012.   Evidence pertaining to the defendant's treatment at Danbury Hospital was seized by the New Milford Police Department pursuant to a search warrant issued on December 26, 2012.

First, the defendant moves to suppress any and all medical records, blood testing or other evidence related to his treatment at Danbury Hospital on the ground that the affidavit in support of the search warrant seeking the results of the blood test did not establish probable cause.   At the hearing, the defendant argued that his failure of the field sobriety tests could have resulted from an injury suffered in the motor vehicle accident.   See General Statutes § 14–227a(k) (requiring police officer to demonstrate to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood or urine sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both).

This court finds that probable cause existed to issue the search warrant.   The search warrant affidavit and application contains the following information:  prior to his arrest, the defendant made repeated statements to Officer Marino that he was not injured and did not want medical attention;  the defendant had difficulty providing his registration and insurance documents to Officer Marino;  Officer Marino noted a strong odor of alcohol on the defendant's breath;  the defendant admitted to consuming alcohol prior to the accident;  the defendant failed three field sobriety tests;  and the defendant stated that he might not be able to perform one of the field sobriety tests because he had “too much.”   See State v. Barber, 42 Conn.App. 589, 591–93, 681 A.2d 348 (1996) (probable cause supported warrant authorizing seizure of blood sample taken at hospital after collision where, inter alia, strong odor of alcohol was detected on defendant's breath and defendant admitted to drinking alcohol shortly before accident).

The defendant also moves to suppress any and all medical records, blood testing or other evidence related to his treatment at Danbury Hospital on the ground that the blood test is inadmissible because there is no direct evidence that his blood was drawn at the hospital for medical purposes, as is required by General Statutes § 14–227a(k).  According to the defendant, the warrant is based on the statement of a nurse, whose connection to the defendant's medical care is unknown, that it is the policy of Danbury Hospital to extract blood for analysis.   The defendant asserts that this information is general and not specific to the defendant.   At the hearing, the defendant directed the court's attention to State v. Tuz, Superior Court, judicial district of Litchfield, Docket No. MV–10–228695–S (October 22, 2010, Klatt, J.) (50 Conn. L. Rptr. 810).   In contrast, the State argues that the warrant is supported by probable cause and, in signing the warrant, Judge Upson found the nurse's statement to be credible and reliable.

General Statutes § 14–227a(k) provides that “evidence respecting the amount of alcohol or drug in the blood or urine of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from or a urine sample provided by such person after such accident at the scene of the accident, while en route to a hospital or at a hospital, shall be competent evidence to establish probable cause for the arrest by warrant ² of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if:  (1) The blood sample was taken or the urine sample was provided for the diagnosis and treatment of such injury;  (2) if a blood sample was taken, the blood sample was taken in accordance with the regulations adopted under subsection (d) of this section;  (3) a police officer has demonstrated to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood or urine sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of subsection (a) of this section;  and (4) such judge has issued a search warrant in accordance with section 54–33a authorizing the seizure of the chemical analysis of such blood or urine sample.   Such search warrant may also authorize the seizure of the medical records prepared by the hospital in connection with the diagnosis or treatment of such injury.”

In State v. Tuz, supra, 50 Conn. L. Rptr. 811, the court suppressed a blood alcohol test taken at a hospital, after a motor vehicle accident, on the ground that there was “insufficient evidence to establish the statutory criteria [that] the blood sample was taken for the purpose of the diagnosis and treatment of the defendant.”   The defendant was transported to the hospital after his accident, despite advising the trooper that he was not injured.   Id., 810.   The trooper did not observe any injuries, but noted the odor of alcohol, bloodshot eyes and other indicia of alcohol.  Id. The trooper followed the defendant to the hospital and stationed himself outside the treatment area where the defendant was being attended to by hospital personnel.  Id. The trooper could not see the defendant but was able to observe medical personnel walking in and out of the treatment area.  Id. The trooper observed a lab technician enter the area and assumed that a blood test was taken.  Id. The trooper did not request that a blood test be performed, nor did he suggest one be taken.  Id. The next day, the trooper met with the defendant and obtained consent to release the medical records containing the blood test results.  Id.

The defendant moved to suppress the blood sample on the ground that it was not taken for a legitimate medical purpose, as required by General Statutes § 14–227a(k), because he was not and did not claim to be injured.  Id., 811.   The court rejected this aspect of the defendant's argument, explaining that “[t]he test for admissibility of blood tests results under [General Statutes § 14–227a(k) ] does not rest on whether the defendant actually suffered injuries in the accident ․ It is sufficient for the state to show that the defendant was injured or allegedly injured in the incident and that the tests were performed for the treatment and diagnosis of the person ․ [T]he trooper testified that the defendant was involved in a violent motor vehicle crash and was subsequently taken to the hospital.   This testimony would satisfy the criteria that the defendant was injured or [allegedly] injured during the accident.”  (Citation omitted.)  Id.

Nonetheless, the court questioned “why the blood alcohol test was ordered by the hospital.   The sole evidence submitted regarding the purpose of the blood test was the Emergency Department Treatment Record, offered as an exhibit.   The report itself did not indicate the reason the test was ordered;  as a rule, hospital medical records do not indicate a reason why any action is taken.   The medical report was replete with notations that the defendant indicated he was not injured in the accident.   In fact, the defendant repeatedly stated to the Trooper, the EMTs, the doctor and triage nurse that he was not injured as a result of the accident.   The medical report revealed a routine examination with normal findings.”  Id. The court found that, based on the evidence presented during the suppression hearing, the blood test was not taken for any medical purpose.  Id. The court noted that, in cases where a blood test was found to have been taken for a medical purpose, “medical testimony, either a doctor or nurse, was presented to explain the reason and purpose of the test.”  Id. However, no medical testimony was offered to explain why a blood alcohol test was necessary and the court explained that it could not “find that simply because the medical report shows that the test was ordered, that it was done for the diagnosis and treatment of [the] defendant's injury or alleged injury.”  Id.

In the present case, the following relevant facts are recited in the affidavit and application for the search warrant.   At the scene of the motor vehicle accident, Officer Marino of the New Milford Police Department asked the defendant if he needed any medical attention or wanted to go to the hospital.   Each time, the defendant advised that he was not injured and did not want medical attention.   Officer Marino then asked the defendant for his insurance and registration.   The defendant pulled out a large stack of papers and handed them to Officer Marino, stating that the insurance card was contained within that pile.   It appeared to Officer Marino that the defendant was having a very difficult time finding his insurance and registration information.   Officer Marino then noticed a very strong odor of alcohol emitting from the defendant, and asked the defendant if he had been drinking.   The defendant replied “yes, I'm not going to lie, I had a couple.”   When asked how many drinks and what types of drinks, the defendant's response was “a couple.”   Officer Marino then performed three field sobriety tests on the defendant.   The defendant was not successful in any of the field sobriety tests and was placed under arrest by Officer Marino.   The defendant was handcuffed and searched before being placed into a police vehicle.   Just prior to being driven to the police headquarters, the defendant complained that his shoulder and neck were hurting.   The defendant was removed from the police vehicle and placed into an ambulance.   Officer Marino followed the ambulance to Danbury Hospital.

While the defendant was under evaluation at the hospital, Officer Marino stood outside of the emergency room.   After hospital personnel completed their evaluation of the defendant, Officer Marino issued the defendant a misdemeanor summons for operating under the influence and failure to grant the right of way at an intersection.   While issuing the summons, Officer Marino noted that the defendant had a medical device (“Hep–Lock”) attached to his arm, on the inside of his elbow.   A Hep–Lock is used to draw blood and administer medications or fluids.   Officer Marino then issued the defendant a non-surety criminal appearance bond.   The defendant was given a court date and released.   On December 12, 2012, Officer Marino called the hospital emergency room and spoke with Nurse Christopher Buczek, who stated that it is the policy of the hospital to extract blood for analysis during the normal course of patient examinations.

In State v. Petruzzelli, 45 Conn.App. 804, 699 A.2d 204 (1997), the Appellate Court held that blood test results were admissible where the defendant was transported to the hospital and presented no evidence to contradict the testimony of a physician from the hospital's emergency room that the blood sample was taken for diagnosis and treatment.   The Appellate Court noted that there was probable cause to arrest the defendant at the scene for driving while intoxicated but it was necessary and prudent to transport the defendant to the hospital for a more complete medical diagnosis.  Id., 807–08.   The Appellate Court noted that “[t]here was no evidence to support the trial court's conclusion that the defendant was sent to the hospital as a pretext to enable the police to gather evidence to convict him of driving while under the influence.”   Id., 808 n.3. In determining whether the blood sample was taken for the purpose of diagnosis and treatment, the court found that there was “no evidence to support the [trial] court's finding that the blood test was taken for the primary purpose of providing evidence to convict [the defendant] of ․ driving while under the influence ․ There was no evidence that the blood was tested at the request of the police ․ [N]o evidence to contradict the hospital report's conclusion or the testimony of a physician from the hospital's emergency room that the blood sample was taken for the diagnosis and treatment of the defendant for possible injury.”  (Internal quotation marks omitted.)  Id., 808–09.

In the present case, with respect to the issuance of the December 26, 2012 search warrant, the record is clear that this application was sought by the police as a result of their observations and conversations at the scene.   At that time, the defendant was having difficulty locating routine paperwork, admitted to drinking alcohol and failed three field sobriety tests.   There was probable cause to arrest the defendant at the scene for driving while intoxicated and the defendant was placed under arrest.   However, it subsequently became necessary to transport the defendant to the hospital after he complained of shoulder and neck pain.   The hospital conducted its treatment in response to the defendant's complaints.

Like in Petruzzelli, there is no evidence that the defendant was transported to the hospital as a pretext to enable the police to gather evidence to convict him of driving while under the influence;  no evidence that the blood test was taken for the primary purpose of providing evidence to convict the defendant of driving while under the influence;  no evidence that the blood was tested at the request of the police;  and no evidence to contradict Nurse Buczek's statement that the blood sample was taken during the normal course of patient examinations.   Unlike in Tuz, where the court questioned why the blood alcohol test was ordered by the hospital when the defendant “repeatedly stated to the Trooper, the EMTs, the doctor and triage nurse that he was not injured as a result of the accident,” in the present case, the defendant did complain of pain in his shoulder and heck, and it was for this reason that he was transported to the hospital.   Furthermore, in the present case, unlike in Tuz, Nurse Buczek explained the reason for the test—it was during the ordinary course of hospital procedures and treatment that the defendant's blood was drawn and analyzed.

Based on the evidence presented, this court finds that there is sufficient evidence to establish that the blood sample was taken for the purpose of diagnosis and treatment of the defendant.

For the foregoing reasons, the defendant's motion to suppress is denied.

III

Oral Motion to Substitute Witness

At the November 12, 2013 hearing, the defendant made an oral motion, seeking to substitute his sister to testify in his behalf instead of the defendant exercising his right to testify.   The defendant stated that his sister picked him up from the hospital and observed him at the hospital and immediately afterwards.   The defendant asserted that there is no unfair surprise as to the content of the sister's testimony, as it would be in the same nature as the testimony of the State's witnesses—what happened at the hospital, what happened with the defendant and any observations.   The defendant acknowledged that his request was being made post-jury selection.   In response to the court's inquiry as to why this witness was not previously disclosed, the defendant's counsel, Attorney Holmes, stated that he “didn't realize that she was going to be available and that she was a witness that would have information that would be pertinent to this case.   I didn't have a chance to speak to her until yesterday afternoon, when [the defendant] brought it to my attention.”   The State objected, arguing that not only did it not receive the requested witness list from the defendant, but that the jury was not subject to voir dire concerning this potential witness.

There is no dispute that the defendant did not disclose his sister as a witness, pursuant to Practice Book § 40–13(b).³  However, “[n]o witness shall be precluded from testifying for any party because his or her name or statement or criminal history was not disclosed pursuant to this rule if the party calling such witness did not in good faith intend to call the witness at the time that he or she provided the material required by this rule.   In the interests of justice the judicial authority may in its discretion permit any undisclosed individual to testify.”  Practice Book § 40–13(c).

In State v. Beaulieu, 118 Conn.App. 1, 7–9, 982 A.2d 245, cert. denied, 294 Conn. 921, 984 A.2d 68 (2009), the Appellate Court found that the trial court had not abused its discretion in permitting previously undisclosed witnesses to testify where the witnesses were discovered during an ongoing investigation and the defendant was offered time for further investigation.   Similarly, in State v. Wilson F., 77 Conn.App. 405, 416–20, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003), the Appellate Court held that a trial court did not abuse its discretion in permitting the State to amend its proposed witness list at the start of jury selection to include an expert witness where there was nothing in the record to indicate that the State acted in bad faith in failing to disclose the witness and the defendant was put on notice of the testimony of the expert before jury selection began.

In the present case, the State was not put on notice of the defendant's sister's name prior to jury selection nor was the name of the defendant's sister discovered during an ongoing investigation.   However, the defendant's counsel represented that the defendant seeks to substitute his sister to testify in his behalf instead of the defendant exercising his right to testify.   If this court precluded the defendant's sister from testifying, it would, in effect, be compelling the defendant to take the stand and testify in his own defense.   Our Supreme Court has held that “compelling a criminal defendant to take the stand and to testify in a criminal prosecution against him is so fundamental an error that automatic reversal is required and may not be disregarded.”  State v. Sierra, 213 Conn. 422, 440, 568 A.2d 448 (1990).  “[T]o compel a criminal defendant to testify at his own trial in violation of his fifth amendment right not to take the stand derogates from the integrity of the constitution and the judicial system and affects an individual's dignity in such a way that cannot be tolerated.”  Id., 441.

Accordingly, as the right of a person not to be compelled in a criminal case to be a witness against himself is a fundamental right under the Fifth Amendment, this court concludes that the defendant's sister is permitted to testify in his behalf instead of the defendant exercising his right to testify.   The defendant's oral motion to substitute his sister as a witness is granted.

IV

CONCLUSION

The defendant's motion for opening statements is denied.   The defendant's motion to suppress is denied.   The defendant's oral motion to substitute his sister as a witness is granted.

So ordered.

BY THE COURT,

Marano, J.

FOOTNOTES

FN1. No witnesses were presented and no testimony was taken at this hearing..  FN1. No witnesses were presented and no testimony was taken at this hearing.

FN2. At the hearing, the defendant argued that he had already been placed under arrest prior to his transport to the hospital where the blood test subsequently occurred.   The defendant was unable to provide the court with any case law in support of his position that this sequence of events is relevant to his motion to suppress.   Under the facts of this case, this court finds no merit to the defendant's position..  FN2. At the hearing, the defendant argued that he had already been placed under arrest prior to his transport to the hospital where the blood test subsequently occurred.   The defendant was unable to provide the court with any case law in support of his position that this sequence of events is relevant to his motion to suppress.   Under the facts of this case, this court finds no merit to the defendant's position.

FN3. “Upon written request by the prosecuting authority ․ the defendant ․ shall promptly ․ disclose to the prosecuting authority the names and ․ the addresses of all witnesses whom the defendant intends to call in the defendant's case in chief and shall additionally disclose to the prosecuting authority any statements of the witnesses other than the defendant in the possession of the defendant or his or her agents which statements relate to the subject matter about which each witness will testify.”.  FN3. “Upon written request by the prosecuting authority ․ the defendant ․ shall promptly ․ disclose to the prosecuting authority the names and ․ the addresses of all witnesses whom the defendant intends to call in the defendant's case in chief and shall additionally disclose to the prosecuting authority any statements of the witnesses other than the defendant in the possession of the defendant or his or her agents which statements relate to the subject matter about which each witness will testify.”

Marano, Richard M., J.