author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL SPYKE
    (AC 21585)
    Lavery, C. J., and Schaller and O’Connell, Js.
    Argued December 3, 2001
    officially released January 25, 2002

      James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LAVERY, C. J.

The defendant, Michael Spyke, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-8 and 53a-54a and possession of a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38. The jury also found that the defendant had committed a class A, B or C felony with a firearm, and that finding was used by the court to enhance the defendant’s sentence. He raises seven claims on appeal, six of which we can review. The defendant claims that (1) the court improperly denied his motion to suppress, (2) the court improperly failed to disclose all relevant material for cross-examination following an in camera review, (3) the court improperly barred cross-examination regarding prior misconduct by the arresting officers, (4) the state’s attorney committed prosecutorial misconduct in her closing argument, (5) the court’s “Chip Smith” charge coerced the deadlocked jury to reach a verdict on the charge of murder as an accessory and (6) the court improperly failed to give a jury instruction that the jury could consider the circumstances under which the defendant’s statement was taken. The defendant agrees that the seventh issue, that our Supreme Court should exercise its supervisory power to order that the Chip Smith charge be modified or abandoned, is an issue for that court alone to decide. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10:15 p.m. on December 20, 1997, the defendant and two others jumped out of a stolen van and shot the victim, Malik Shannon, four times with handguns and an assault rifle in the Blue Hills Avenue section of Hartford. The victim died as a result.

On April 22,1998, Detectives Robert Dionne and Stephen Grabowski of the Hartford police department arrested the defendant pursuant to a warrant for his involvement in the killing. He was brought to the police station for questioning, executed a Miranda waiver and confessed to taking part in the shooting.

The state charged the defendant with murder, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, possession of a weapon in a motor vehicle and commission of a class A, B or C felony with a firearm. The court denied the defendant’s motion to suppress his confession as involuntary on December 1, 1999, and a jury trial began shortly thereafter. At trial, the defendant maintained that he had been only a passenger in the van and did not shoot the victim, and again claimed that his confession was involuntary. The defendant was found guilty on December 13, 1999, of all charges except the conspiracy charge. On the conspiracy charge, the jury was deadlocked eleven to one in favor of conviction, and a mistrial was declared as to that count. Additional facts will be provided as necessary.

I

The defendant challenges the court’s denial of his motion to suppress the written statement that he made to Dionne and Grabowski in which he admitted that he shot the victim. The court found that the defendant was in custody and that the police were required to read him his Miranda rights prior to interrogation, but that the defendant’s waiver of those rights was knowing, intelligent and voluntary. The defendant does not challenge the test used by the court or most of its factual findings, but claims that it improperly concluded that the confession was voluntary. He claims that his statement was involuntary in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 7 and 8, of the constitution of Connecticut. We disagree.

“[T]he use of an involuntary confession in a criminal trial is a violation of due process. . . . The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence. . . . The ultimate test remains ... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418-19, 736 A.2d 857 (1999).

A trial court determines the voluntariness of a confession on the basis of the circumstances. The factors may include the age of the accused, his level of education, his intelligence, whether he was advised of his constitutional rights, “the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Internal quotation marks omitted.) Id., 419. Other factors are the accused’s prior interaction with the criminal justice system; State v. Williams, 65 Conn. App. 59, 73, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001); and voluntary use of illegal drugs or alcohol. State v. Stankowski, 184 Conn. 121, 134, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

On appeal, “[t]he trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous.” (Internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 420. We accord plenary review to the legal conclusion that the confession was voluntary based on our own scrupulous examination of the record. Id., 420-21.

We conclude that the court took the appropriate factors into account and gave them the proper weight. In a thoughtful and well reasoned oral decision, the court found that the state met its burden to show that the defendant’s statement was voluntary under the totality of the circumstances. Although the defendant had a limited formal education and testified that he had dropped out of school the year before his confession after three unsuccessful attempts to complete the ninth grade, the court found there was no evidence of mental defect and that a letter that the defendant wrote to the court evinced his ability to read and write at a level that “far surpasse[d]” the minimum. The court also found that the defendant had a “very easy way of communicating.” It rejected the defendant’s argument that his age of sixteen years and eleven months strongly counseled that his confession was involuntary, and properly concluded that “it has been left for me to decide in the case of anybody over the age of sixteen, to make a determination on a case-by-case basis depending on the unique circumstances of each individual involved . . . .” The court also noted that the defendant had heard a recitation of Miranda rights during a prior interaction with the police.

As to the contours of the interrogation and confession, the court stated that the account of what occurred was largely a “conflict of credibility,” and credited the detectives’ testimony, concluding “that the testimony of the defendant in many respects was not credible . . . .” Citing State v. Chung, 202 Conn. 39, 50-51, 519 A.2d 1175 (1987), the court noted that an oral or written waiver is “strong proof’ of its validity and that the defendant signed the waiver form and initialed the individual rights that he was waiving. As to the defendant’s assertion that he was under the influence of illy, the court did not find “any qualitative evidence other than [the defendant’s] testimony” that he was impaired. It noted that no drugs were found on the defendant’s person, that Dionne testified that he did not smell the odor of illy when he and Grabowski arrested the defendant and that the defendant testified that the drug had the effect of giving him a lot of energy, a condition that dissipated when he was questioned. The court also discredited the defendant’s testimony that he was physically abused and threatened by Dionne. Additionally, the court took into account that the defendant was “allowed to make the telephone call to his mother” beforehand and that he was allowed to make other telephone calls after the confession. It also found that the questioning lasted approximately three and one-half hours of the five hours that the defendant was at the station, which it concluded was not unduly long. The defendant was not deprived of food or other comforts, and the court noted that the defendant refused Grabowski’s offer for food. Finally, it found that the defendant did not request an attorney.

On appeal, the defendant asks us to weigh some of the court’s findings differently. Specifically, he argues that his lack of education and the length of interrogation “weigh heavily” in making his confession involuntaiy. He restates allegations that he was under the influence of illy, “a powerful and bizarre intoxicant,” and curiously claims that Grabowski’s offer of food and drink may have contributed to the interrogation’s coerciveness. According to the defendant, “[although [an offer of food] can be seen as an effort to alleviate the coercive atmosphere in which the defendant finds himself, it also serves to underline the remorseless and continuing nature of the interrogation.” He argues that his youth, however, is the factor that “must be given the highest precedent.”

The defendant’s assertion that he was under the influence of illy is undercut by his own testimony as to its effects. See State v. Negron, 221 Conn. 315, 323 n.8, 603 A.2d 1138 (1992). Furthermore, the court’s factual finding that there was no corroborating evidence that the defendant was even on the drug is not clearly erroneous. The defendant’s educational level; see State v. Northrop, 213 Conn. 405, 418, 568 A.2d 439 (1990), and cases cited therein; and the length of the interrogation; see State v. DeAngelis, 200 Conn. 224, 233-35, 511 A.2d 310 (1986); cf. cases cited in State v. Carter, 189 Conn. 631, 638, 458 A.2d 379 (1983); do not implicate involuntariness. As to the defendant’s claim that his youth “must be given the highest precedent,” our Supreme Court repeatedly has held that an individual’s minority is only one factor in the totality of circumstances. See In re Manuel R., 207 Conn. 725, 736 n.6, 543 A.2d 719 (1988); State v. Simms, 201 Conn. 395, 415, 518 A.2d 35 (1986); State v. Turcio, 178 Conn. 116, 144-45, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Oliver, 160 Conn. 85, 94, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115 (1971). Although General Statutes § 46b-137 requires a parent to be present and the police to give the equivalent of Miranda warnings where confessions are made by a “child,” that applies only to a person under the age of sixteen. State v. Whitaker, 215 Conn. 739, 748, 578 A.2d 1031 (1990). The defendant here was a month shy of his seventeenth birthday and was not entitled to the statutory protection. Additionally, the police allowed the defendant to call his mother before questioning, which is beyond what is required. See id., 749.

Accordingly, we conclude that the court properly denied the defendant’s motion to suppress his confession.

II

The defendant also claims that the court made improper evidentiary rulings that affected his ability to question the arresting detectives effectively. First, he asks that we review the personnel files of Dionne and Grabowski that were viewed by the court in camera and order the court on remand to disclose any information that would be probative of their veracity. He also claims that the court improperly limited his cross-examination of Dionne and Grabowski, depriving him of his right to confrontation under the sixth and fourteenth amendments to the United States constitution and article first, §§ 7 and 8, of the constitution of Connecticut.

Shortly before the motion to suppress, the defendant raised the possibility that he might cross-examine Dionne and Grabowski about an incident on February 26, 1998, between themselves and another officer that resulted in extensive media coverage and arrest warrants for both detectives for breach of the peace in violation of General Statutes § 53a-181. The defendant had obtained a copy of Grabowski’s arrest warrant and claimed that it showed that the police investigators had concluded that Dionne and Grabowski lied about their role in the incident. The defendant argued that he should be allowed to ask the detectives about whether they had lied in order to attack their credibility. At the suppression hearing, defense counsel argued that “if Dionne and Grabowski can assault .... [an] off-duty police officer, can interfere with on-duty officers who come ... to thwart that incident and then he about that, allegedly, afterward, they certainly can do the same thing to my client two months later.” He also subpoenaed the detectives’ personnel files and internal affairs reports regarding the incident and asked the court after an in camera review to disclose any information that would bear on their veracity. Both parties and the court agreed at the start of the trial that the defendant would be allowed to ask the detectives whether they had made any false statements in connection with the February, 1998 incident, but would not allow extrinsic evidence on the matter. During the trial, however, the court reversed itself and announced sua sponte that it would sustain an objection to any question about whether the detectives lied to investigators. It also stated that after the in camera review, it did not find anything in the personnel files that bore on veracity.

“A trial court’s ruling on the admissibility of evidence is afforded great deference. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69, 762 A.2d 1278 (2000). After our own review of the challenged evidence, we conclude that the court did not abuse its discretion.

A

The defendant asks that we review the personnel files of the arresting detectives and order the court to turn over any additional material that should have been disclosed. The court reviewed the files in camera and concluded that they were “barren of anything which I would consider go to the issues of truth and veracity.” To the extent that there were any issues that had a “slight” bearing on credibility, the court determined that it would “inject a number of collateral issues into these proceedings, which potentially could be confusing to the jury.”

Although public records generally are available pursuant to the Freedom of Information Act, General Statutes § 1-200 et seq., the confidentiality of information in police personnel files that may be relevant to a witness’ credibility is protected by General Statutes § 1-210 (b) (2). See State v. Leonard, 31 Conn. App. 178, 198, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994). To comply with the federal confrontation clause, a court should reveal such information to a defendant, usually after an in camera inspection, only if it is “clearly material and relevant to the issue involved.” State v. Januszewski, 182 Conn. 142, 173, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); see also State v. Santiago, 224 Conn. 325, 337, 618 A.2d 32 (1992). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 762, 631 A.2d 309 (1993). Such a determination should be made on a case-by-case basis. State v. Januszewski, supra, 173. In the event that a trial court does not turn over an entire file to a defendant, we analyze the sealed undisclosed portion to determine whether the court abused its discretion. See State v. Harris, supra, 762-63; see also Practice Book § 40-42.

After our own in camera review, we cannot conclude that the court abused its discretion in refusing to turn over any information that the defendant did not already have because the material was neither clearly material nor relevant.

B

The defendant next challenges the court’s ruling disallowing him from asking Dionne or Grabowski whether they lied to the internal affairs department regarding the February, 1998 arrest. He argues that the court abused its discretion in not allowing him to question the detectives, even with the agreement that he would not attempt to introduce external evidence. We disagree.

At the same time that it stated that it would not turn over any information in the personnel report, the court also informed the defendant that it would sustain an objection to any question regarding the February, 1998 incident, even if he did not attempt to offer extrinsic evidence. It stated that it interpreted the arrest warrant to indicate that there were competing stories about the dispute and “that there may [have been] more backers of one side than the other, and, therefore, Detectives Dionne and Grabowski may not have been the persons who were ultimately believed. But I don’t think that rises to the level of saying that this presents an issue of veracity.”

“The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. . . . [T]he primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Therefore, an accused’s right to cross-examination to elicit facts tending to show motive, interest, bias and prejudice may not be unduly restricted by the wide discretion of the trial court. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

“We have emphasized in numerous decisions, however, that the confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. . . . [T]he right to cross-examine a witness pertaining to specific acts of misconduct is limited in three distinct ways. . . . First, cross-examination may only extend to specific acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity .... Second, [w]hether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court. . . . Third, extrinsic evidence of such acts is inadmissible.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, supra, 255 Conn. 70-71.

While the court could have allowed the defendant to question the detectives on that subject with the understanding that he would not be able to introduce extrinsic evidence; see, e.g., State v. Chance, 236 Conn. 31, 59-61, 671 A.2d 323 (1996); it did not abuse its discretion in prohibiting the questioning in these circumstances. Recently, our Supreme Court upheld a trial court’s ruling on a motion in limine that prohibited a defendant from questioning a detective about a prior incident where the detective allegedly had coerced a witness to make a false statement in an affidavit and was later found liable in a civil trial for false arrest and malicious prosecution. See State v. Valentine, supra, 255 Conn. 72-74. Holding that the trial court did not abuse its discretion, the Valentine court concluded that the previous judgment did not directly implicate the detective’s veracity in that case and that the court properly could have found that it was a collateral matter. Id., 73-74. In light of Valentine, we cannot conclude that the court abused its discretion in limiting the defendant’s proposed cross-examination.

Ill

The defendant also alleges that portions of the state’s closing and rebuttal arguments were improper, depriving him of a fair trial. He argues that the assistant state’s attorney asserted that the defendant was a liar and interjected a fact not in evidence. Although he did not object during the trial, he asks us to undertake Golding review.

The defendant first claims that the assistant state’s attorney improperly argued that he was lying during his testimony. During her closing, she stated that “[the defendant] admitted to you that he lied under oath at his preliminary hearing to try to get his confession thrown out,” and, in rebuttal, she stated: “I submit to you that the defendant was not truthful when he took the witness stand.” As the defendant correctly notes, and the state conceded at oral argument, the defendant never testified that he had lied at the suppression hearing, but rather testified that he had said that he did not remember because he did not want to answer certain questions at that time. The defendant also claims that the assistant state’s attorney’s statement that the decision of the Hartford police not to audiotape or videotape confessions was up to Dionne and Grabowski’s supervisors is unsupported by the evidence.

“[P]rosecutorial misconduct of constitutional proportions may arise during the course of closing argument .... [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 306, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). Furthermore, our Supreme Court in Brown recently reaffirmed that a defendant’s Golding claim will not be successful if the alleged misconduct “merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” (Internal quotation marks omitted.) State v. Brown, supra, 306. Accordingly, we analyze the defendant’s claims under a two step process: (1) first, we determine whether the challenged statements were improper; (2) second, if so, we determine whether they caused the defendant substantial prejudice. See State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). We conclude that because the statements were either fair inferences supported by the record or of such a brief character and later cured by a jury instruction, this claim fails under the third prong of Golding. See State v. Burton, 258 Conn. 153, 165-66, 778 A.2d 955 (2001).

Although it is improper for a prosecutor to express an opinion, either directly or indirectly, as to the defendant’s guilt or the credibility of witnesses; see State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987); it is not improper to use the words “I submit” to highlight reasonable inferences that the jury could draw from the evidence presented. See State v. Singh, 59 Conn. App. 638, 647, 757 A.2d 1175 (2000), cert. granted on other grounds, 255 Conn. 935, 767 A.2d 1214 (2001). Furthermore, even though it is unprofessional, a prosecutor can argue that a defendant is a “liar” if such an argument is supported by the evidence. See State v. Oehman, 212 Conn. 325, 334, 562 A.2d 493 (1989). Accordingly, we conclude that the assistant state’s attorney’s submission that the defendant was not truthful during his testimony was a fair inference to draw, in light of the contrary testimony of other witnesses. It was also a fair inference that the decision not to videotape the defendant’s confession was outside the control of Dionne and Grabowski, as Grabowski testified that he did not know why the department did not videotape confessions.

The statement that the defendant admitted that he lied in his suppression hearing, however, is not supported by the evidence. “A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Citations omitted; internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 306, 755 A.2d 868 (2000). Although this portion of the closing argument was unsupported, we conclude that this single instance of misconduct was not so egregious that it substantially prejudiced the defendant. Not only was it limited to a single instance, but the court also charged the jury that the closing arguments are not evidence and that its memory of the evidence was the controlling one. Such an instruction mitigated any adverse effect that the impermissible statement may have had. See State v. Williams, supra, 204 Conn. 540 (setting forth factors to be taken into account by appellate court when reviewing prosecutorial misconduct claim).

IV

The defendant’s final two claims allege improprieties in the court’s jury charge that he claims deprived him of his rights under the sixth and fourteenth amendments to the United States constitution and article first, §§ 7 and 8, of the constitution of Connecticut. The defendant devoted a large portion of his brief and most of his oral argument to the claim that the court coerced a deadlocked jury into reaching a verdict on the murder charge. He also claims that the court improperly failed to charge the jury that it could consider the circumstances under which his statement was taken, which largely constitute the factors that he claims made his statement involuntary. In both instances, he concedes that he did not raise the claim at trial but again asks us to undertake Golding review. See footnote 9.

A

The defendant argues that the court’s instructions taken as a whole coerced a jury that had shown the intent to deadlock on the murder charge. He points us to selected portions of three separate instructions. At the end of the second full day of deliberations, the jury submitted a note to the court stating that it was unable to reach a verdict on the murder charge. The defendant points to the portion of Judge Gallagher’s response given on the beginning of the third day of deliberations in which she directed the jury that “with respect to the [murder] count, you need to reach a verdict on the offense charged.” Later in the day, the jury submitted a note to the court asking if it could be unanimous on some counts but not on others. The court stated that it could, but asked the jurors to “keep working.” Still later, the jury sent a note stating that it was unanimous on the possession of a weapon in the vehicle charge, but deadlocked eleven to one in favor of conviction on the remaining counts. The note concluded: “We strongly feel that further deliberation will not help one juror. We have a serious problem.” In response, the court gave a “Chip Smith” instruction. Although the defendant concedes that the “Chip Smith” charge has been approved on numerous occasions by our Supreme Court; see, e.g., State v. Feliciano, 256 Conn. 429, 439, 778 A.2d 812 (2001), and cases cited therein; he argues that it exacerbated the previous instruction as to the “need” to reach a verdict on the murder charge. Essentially, he argues that the court’s instructions coerced the dissident juror to find the defendant guilty. We disagree.

Although “a defendant is not entitled to an instruction that a jury may hang ... he is entitled to a jury unfettered by an order to decide.” (Internal quotation marks omitted.) State v. Breton, 235 Conn. 206, 239, 663 A.2d 1026 (1995). “A jury that is coerced in its deliberations deprives the defendant of his right to a fair trial under the sixth and fourteenth amendments to the federal constitution .... Whether a jury [was] coerced by statements of the trial judge is to be determined by an examination of the record. . . . The question is whether in the context and under the circumstances in which the statements were made, the jury [was], actually, or even probably, misled or coerced.” (Citations omitted; internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 427.

The defendant asks us to order a new trial on the basis of selected portions of selected instructions. Looking at the challenged instructions as a whole, we conclude that the court did not coerce the jury to reach a verdict. The court’s instruction on the jury’s “need” to reach a verdict on the murder count should not be read in isolation, but in context with the circumstances and the surrounding language. The jury’s note read, “This jury is unable to reach a verdict on [the murder charge].” The court, following the defendant’s recommendation, decided to limit its supplemental charge to the murder count and the lesser included offenses, as the jury could have reached a verdict on the remaining counts. Consequently, the court charged the jury: “I don’t know where you are in your deliberations. And it is not necessary that I know where you are. I don’t need to know, don’t want to know where you are. But at this time, I would say to you with respect to the [murder charge] you need to reach a verdict on the offense charged. And that is . . . . accessory to murder. If you were to find the defendant guilty of the offense charged of accessory to murder, then, of course, you would not consider the lesser included offense that Judge Solomon already gave you a charge on. However, if you were to find the defendant not guilty of . . . the offense charged, then you would go on to consider the lesser included offense. So basically, ladies and gentlemen, you cannot consider the lesser included offense unless and until you have reached a verdict on the offense charged.” Such an instruction is neither coercive nor improper.

The court later reemphasized that it was not coercing the jury into reaching a verdict. In response to the note asking if the jury could be unanimous on some charges but hung on others, the court instructed that it could, but asked that it keep working on it. Such a request is consistent with Practice Book § 42-28, which provides that a judge “may require the [deadlocked] jury to continue their deliberations,” as long as it is not for an unreasonable amount of time. Immediately prior to the “Chip Smith” charge, the court gave what our Supreme Court previously has called “patently fair threshold instructions” that informed the jury that the charge to follow was not “coercive in any manner.” See State v. O'Neill, 200 Conn. 268, 283, 511 A.2d 321 (1986). Accordingly, we conclude that the instructions were not coercive and that the defendant failed to satisfy the third prong of Golding.

We are not persuaded by the defendant’s argument that because the jury found the defendant guilty of murder but hung on the conspiracy to commit murder charge, it believed that it needed to come to a verdict on the murder charge but not on the other ones. A factually inconsistent verdict may be indicative of negotiation and compromise among the members of the jury and will not be overturned on appeal. See State v. DeCaro, 252 Conn. 229, 242-44, 745 A.2d 800 (2000).

The defendant also asks us to review his claim under the plain error doctrine. See Practice Book § 60-5. We decline to do so in instances such as these where the challenged conduct by the court is not incorrect. See State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

B

The defendant also claims that the court improperly failed to charge the jury sua sponte that it could take into account the circumstances of the defendant’s confession when determining if it was voluntary. We decline to review this claim because it is evidentiary and not of constitutional magnitude, and thus fails Golding's second prong. See State v. Riddick, 61 Conn. App. 275, 291, 763 A.2d 1062, cert. denied, 255 Conn. 946, 769 A.2d 61 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

         State v. Smith, 49 Conn. 376, 386 (1881).

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       We limit our analysis to the federal constitutional claims because the defendant “has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised.” (Internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69 n.11, 762 A.2d 1278 (2000). Consequently, we see no reason, on the facts of this case, to analyze independently the defendant’s argument as it relates to the state constitution. Id.

         The defendant understood illy to be mint leaves soaked in embalming fluid. In State v. Billie, 47 Conn. App. 678, 680 n.2, 707 A.2d 324 (1998), aff'd, 250 Conn. 172, 738 A.2d 586 (1999), we described it as “the street name for a drug consisting of a nonuniform mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde.”

       General Statutes § 46b-137 (a) provides in relevant part: “Any admission, confession or statement, written or oral, made by a child to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of his parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child's behalf, (2) of the child’s right to refuse to make any statements and (3) that any statements he makes may be introduced into evidence against him.”

       General Statutes § 46b-120 provides in relevant part: “The terms used in this chapter shall, in its interpretation and in the interpretation of other statutes, be defined as follows: (1) 'Child' means any person under sixteen years of age ... (2) ‘youth’ means any person sixteen to eighteen years of age . . . .”

       We limit our analysis to the federal constitutional claims because that is what the defendant has done. See footnote 3.

       General Statutes § 1-210 provides in relevant part: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. . . .
      “(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       Pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), an appellant can prevail on a constitutional claim not previously raised only if: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Because this is a conjunctive test, we are free to assess the defendant’s claim by “focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.

       The assistant state’s attorney’s comments were as follows: “Now, I know the defense is going to get up here and say you can’t possibly believe Nemlon Adams because he’s lied before under oath and he made a deal with the state. But he’s going to want you to believe his client, who lied under oath, too. His client admitted to you that he lied under oath at his preliminary hearing to try to get his confession thrown out. That’s exactly what Nemlon Adams did. He lied to try to keep himself out of trouble as well.”

       The assistant state’s attorney and the defendant engaged in the following dialogue:
      “[Assistant State’s Attorney]: When were you in a van on Cornell Street?
      “[Defendant]: When everybody else was in the van.
      “[Assistant State’s Attorney]: All right. And when was that, sir?
      “[Defendant]: December 20th.
      “[Assistant State’s Attorney]: December 20, 1997?
      “[Defendant]: Yes.
      “[Assistant State’s Attorney]: All right. And was that wha.t you testified to a couple of days ago at your preliminary hearing in this matter?
      “[Defendant]: You didn’t ask me.
      “[Assistant State’s Attorney]: Did I not ask you what you were doing on December 20, 1997?
      “[Defendant]: I didn’t even remember.
      “[Assistant State’s Attorney]: Oh, your memory’s improved in the last couple of days?
      “[Defendant]: I didn’t want to . . . answer the question.”

       The court charged in relevant part: “Certain things are not evidence, and you may not consider them in deciding what the facts are. These include the following: The arguments and statements by the attorneys. The attorneys are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way that the attorneys have stated them, it is your memory and recollection that controls.”

       We limit our analysis to the federal constitution because that is what the defendant has done. See footnote 3.

       During part of jury deliberations, Judge Gallagher substituted for Judge Solomon, who had taken a scheduled vacation.

       The court’s instruction was as follows: “Along these lines, the court would like to state the following to you. Although the verdict to which each of you agrees must express his or her own conclusions and not a mere acquiescence in the conclusion of your fellow jurors, yet, in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully, but also with due regard and deference to the opinions of each other. In conferring together, you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s argument.
      “If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his or her opinion is a reasonable one when the evidence does not lend to a similar result in the mind of so many of you who are equally honest and equally intelligent with yourself who have heard the same evidence with the same attention with equal desire to arrive at the truth and under the same sanction of the same oath.
      “If the majority of you are for one decision, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt their own conclusions when they are not concurred in by most of those with whom they are associated. And they may well distrust the weight of sufficiency of the evidence upon which they rely when it fails to bring the mind of their fellow jurors to the same conclusions that you hold.
      “I have stated this to you in order to get you to further consider in your deliberations the opinions of your fellow jurors. That is all.”

       Immediately prior to the “Chip Smith” charge, the trial court charged the jury as follows: “The court feels that this matter has been well tried. You have heard the evidence, and the court is of the opinion that it should give you additional instructions regarding this matter to see whether or not it is within your reach to arrive at a verdict in this matter.
      “So, with [that] thought in mind, the court wishes to state to you at the outset that the additional instructions are not to be construed by you to be coercive in any manner or to compel you to arrive at a verdict. The instructions are designed to aid you in considering your own positions individually and weighing your individual positions against the collective position or the positions of other members of the jury and after having done so, to reconsider whatever conclusion that you individually may have reached, not to suggest to you in any manner that you are compelled to reach a verdict or that you must reach a verdict. The instruction that I shall now give you is only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES PJURA
    (AC 20150)
    Foti, Schaller and Dupont, Js.
    Argued September 24, 2001
    officially released February 12, 2002

      James O. Ruane, with whom, on the brief, was Lori A. McCarthy, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert S. Katz, former senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, James Pjura, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). The defendant claims that the trial court improperly (1) allowed opinion testimony by a state police trooper that the defendant was under the influence of alcohol and (2) admitted evidence of the horizontal gaze nystagmus (HGN) test. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. Shortly after midnight on April 26, 1998, Trooper Aaron Huntsman of the Connecticut state police drove his cruiser off to the right side of Interstate 95 to set up a radar post. Just after establishing his position, Huntsman observed the defendant’s vehicle traveling in the highway’s breakdown lane. The vehicle came within one foot of hitting Huntsman’s cruiser. Huntsman turned on his police lights and siren, and began to pursue the defendant. He followed the defendant for one-half mile along the highway and then off an exit. One-quarter mile later, Huntsman managed to force the defendant to stop by boxing his vehicle in between the cruiser and a large rock.

As Huntsman approached the vehicle, the defendant rolled down the window. On the basis of the defendant’s appearance, manner and odor, Huntsman suspected that the defendant was intoxicated. He asked the defendant to get out of the car to perform standard field sobriety tests. The first test Huntsman administered was the HGN. That test assesses a driver’s visual ability to track an object smoothly. Huntsman next administered the walk and turn test, which required the defendant to walk heel to toe in a straight line. Last, Huntsman administered the one-leg stand test, in which the defendant had to raise one foot off the ground and count for thirty seconds.

After further observation and a determination that the defendant had failed the three field tests, Huntsman arrested the defendant for operating a vehicle while under the influence of intoxicating liquor. At trial, Huntsman testified, as an expert witness on drunken driving, about his observations and testing of the defendant. The jury returned a verdict of guilty, and the defendant appealed. Additional facts will be set forth as necessary.

I

The defendant first claims that it was improper for the court to allow a state trooper to offer expert testimony as to whether the defendant was intoxicated. The defendant argues that it was improper, first, because the testimony concerned the ultimate issue of fact in the case, and second, because the jury was capable of understanding the subject matter on its own.

A

The defendant argues that it was improper for the court to allow expert testimony as to whether he was intoxicated because that was the ultimate issue in the case. We do not agree.

At the outset, we set forth our standard of review. It is well established that “[t]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.” (Internal quotation marks omitted.) State v. McNally, 39 Conn. App. 419, 424, 665 A.2d 137, cert. denied, 235 Conn. 931, 667 A.2d 1269 (1995).

We further note that with regard to expert testimony, our case law states that “[a]n expert witness is not ordinarily permitted to express an opinion on an ultimate issue of fact which is to be decided by the trier of fact. . . . Experts can sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it mustpass.” (Citations omitted; internal quotation marks omitted.) State v. Lamme, 19 Conn. App. 594, 603, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

In State v. Lamme, supra, 19 Conn. App. 594, we applied that principle to expert testimony concerning a defendant’s sobriety when his intoxication was the ultimate issue. The defendant in Lamme contended that the trial court improperly admitted a police officer’s opinion testimony about intoxication because that was the ultimate issue in the case. Id., 601-602.

The officer in Lamme testified that the defendant was driving without his headlights on when he was stopped. Id., 601. The officer also testified that when he approached the defendant’s car, he had to bang on the window before the defendant opened it and that there was a strong odor of alcohol in the car. Id. The testimony also related the officer’s administration of field sobriety tests and his interpretation of those tests. Id., 601, 603. Finally, the officer testified that on the basis of his observations and the sobriety tests, he believed that the defendant was intoxicated. Id., 601-602.

Affirming the decision of the trial court, we stated that “[the officer’s] testimony, which included a description and interpretation of and conclusions regarding the roadside sobriety tests, was necessary for the jury intelligently to make a finding as to whether the defendant violated General Statutes § 14-227a (a) by ‘[operating] a motor vehicle while under the influence of intoxicating liquor or any drug or both.’ The opinion portion of [the officer’s] testimony differed from any other opinion testimony regarding the sobriety of an individual because it was based in great part on knowledge and skill beyond the ken of the average juror.” State v. Lamme, supra, 19 Conn. App. 603-604. We concluded that the officer’s testimony in Lamme met the previously stated requirement of the trier of fact’s needing expert assistance so as to permit the testimony’s admission as expert testimony on the ultimate issue of fact. Id., 604.

We discern no significant distinction between the situation in Lamme and that in the present case, despite the defendant’s argument to the contrary, and are therefore constrained to apply the reasoning of that case. Huntsman testified about events similar to those that occurred in Lamme under virtually the same circumstances. Huntsman testified about the initial incident that prompted the pursuit and the pursuit itself. He described his initial interaction with the defendant after he approached the car, as well as the odor of alcohol in the car. He recalled that the defendant could not find his driver’s license when asked for it. He related that he smelled alcohol on the defendant’s breath and that his eyes were red. He testified that the defendant slurred his speech and had difficulty walking to the rear of the car to take the sobriety tests. Huntsman also described his administration of the tests and his interpretation of them. As in Lamme, Huntsman determined, on the basis of his knowledge, observations and the tests, that the defendant was intoxicated.

We conclude, as we did in Lamme, that Huntsman’s expert testimony concerning the defendant’s intoxication meets the test for the admissibility of expert testimony on the ultimate issue. The testimony consisted of expert assistance on the ultimate issue that was necessary for the trier of fact to make an intelligent finding. The court did not abuse its discretion in admitting the testimony.

B

The defendant also argues that it was improper for the court to allow Huntsman’s testimony that the defendant was intoxicated because it provided the jury with an expert opinion on an issue that was within its comprehension and that it could have decided using its common knowledge. The defendant argues that the court improperly permitted the jury to give more weight to Huntsman’s opinion than to its knowledge on the issue of the defendant’s sobriety.

As previously noted, our standard of review for a challenge to the admissibility of expert testimony is to determine whether the trial court abused its discretion. See State v. McNally, supra, 39 Conn. App. 424. We further note the long-standing test for the admissibility of expert testimony. “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Lamme, supra, 19 Conn. App. 603.

Before we can properly address the defendant’s claim, we must review our existing decisions that address expert testimony on intoxication. In that review, we consider the circumstances under which the three-pronged test for admitting expert testimony is met in the context of police officers testifying about a defendant’s intoxication.

In State v. Lamme, supra, 19 Conn. App. 594, we determined the nature of the officer’s testimony in the context of the principal question about expert testimony on the ultimate issue. We noted that despite the trial court’s categorization of the officer’s testimony as lay opinion, his testimony constituted expert testimony. Id., 602-603. Our analysis of the testimony in Lamme is instructive here.

In assessing the officer’s testimony in Lamme, we first noted his training. The officer had received instruction that provided him with specialized skill and knowledge to assess and determine whether a person is intoxicated. Id., 603-605. We therefore stated that “[the officer’s] opinion . . . was based on this training. As such, his opinion qualified as that of an expert and should have been accorded that status.” Id., 603.

Although we did not provide detailed analysis for that conclusion, implicit was the idea that because the officer applied the skill and knowledge derived from his training to interpret the field sobriety tests, his testimony met the three-pronged test for expert testimony. That knowledge and skill, which is not common to the layman, allowed the officer to provide assistance to the jury in its decision concerning the defendant’s intoxication.

We must now examine the implications of our decision in Lamme in light of subsequent case law. In State v. McNally, supra, 39 Conn. App. 419, the defendant was an off-duty police officer who was charged with assault after an altercation outside a bar. He argued on appeal that the trial court improperly excluded his expert testimony, as a police officer, that the victim was intoxicated at the time of the event. Id., 424.

In affirming the trial court’s decision, we stated that “Lamme is distinguishable from this case because in Lamme the officer’s opinion was based on field sobriety tests and the officer’s interpretation of those tests. In this case, however, the witness did not conduct field sobriety tests, but rather relied solely on his observation of the victim and his companions to formulate his opinion.” Id. We concluded that “[t]he expert opinion was properly excluded on the ground that a determination of a person’s intoxication based solely on observation and not on an interpretation of sobriety tests is within the general knowledge of the jury.” (Emphasis in original.) Id. McNally indicates that testimony based solely on observations of another’s behavior that might indicate intoxication is not beyond the jury’s understanding and therefore does not meet the three-pronged test for admitting expert testimony.

When Lamme and McNally are read together, we see a clear distinction. Expert testimony is improper if it is based solely on general observations by themselves because in that situation an officer need not invoke or rely on the skill and knowledge garnered from his training. Expert testimony is permissible, however, in the context of an official roadside investigation because in that situation, an officer is required to administer tests and to observe the driver. Those related tasks require the officer to use his specialized skill and knowledge to determine whether the driver is intoxicated.

The defendant argues further that the trooper’s testimony, which included both his general observations and discussion of the field sobriety tests, should not have been admitted as proper expert testimony. The defendant asserts that McNally should apply to this situation because the trooper’s opinion was based, in part, on his observations and general knowledge of intoxicated people. We are not persuaded.

First, the trooper’s opinion was based on more than his general observations. Second, the observations discussed in McNally arose in a factual context too remote from those we consider presently. McNally concerned an off-duty officer, charged with a crime, who observed a person in a social setting. Here, the trooper observed the defendant in the context of an authorized roadside intoxication investigation.

We conclude that the defendant’s claim is governed by Lamme rather than by McNally. We apply Lamme here for two reasons. First, the officer’s testimony that was admitted in that case is similar to the testimony in dispute in this case. Second, whereas McNally discusses testimony about observations alone, Lamme addresses expert testimony that concerns both observations and the interpretation of field tests, as noted in footnote 2.

As we determined in Lamme, an officer properly may testify as an expert when his opinion is based on the specialized skill and knowledge he has derived from his training. Specifically, we referred to the application of that specialized knowledge to the interpretation of field sobriety tests in our disposition of that appeal. Because we concluded, however, that all of the officer’s testimony constituted expert testimony, we implicitly determined that testimony based on the application of that same skill and knowledge to his observations made during a roadside investigation is also admissible expert testimony.

The Lamme decision recognized, without specifically stating, that in the context of roadside sobriety tests, there is an interrelationship between what the officer observes about the defendant’s demeanor and behavior, and how the officer interprets the defendant’s performance on the sobriety tests. The roadside investigation must therefore be viewed in light of all the circumstances because the officer’s observations generally provide the basis for, and are an integral part of, his decision to field test the driver and his interpretation of the field tests.

When a police officer’s opinion testimony involves an overall interpretation of observations and field tests that is based on his skill and knowledge, which is beyond the jury’s general knowledge because the officer has special training, that opinion properly may be admitted as his expert opinion. We conclude accordingly that consistent with Lamme, a police officer’s observations concerning a defendant and his actions, along with the officer’s interpretation of field tests, may be admitted as part of the officer’s expert opinion testimony when they are interpreted by the officer as an integral part of his opinion.

Although the defendant argues that State v. Gracia, 51 Conn. App. 4, 17-19, 719 A.2d 1196 (1998), is inconsistent with Lamme, we conclude that Gracia is inapplicable to this appeal and is not inconsistent with Lamme because the issue in Gracia was whether a field sobriety test constitutes scientific evidence requiring expert testimony for admission. That, however, is not the question we are now addressing in this case. Rather, we are deciding when expert testimony on intoxication is permissible. Such testimony is admissible whenever a police officer’s opinion is based on his skilled and knowledgeable interpretation of observations and field tests. The holding in Gracia that the field test results themselves did not require expert testimony as a condition to their admission into evidence; id., 18-19; has no bearing on whether expert interpretation of the tests is admissible.

Our review of the trial transcript in this case indicates that Huntsman testified about both his observations of the defendant and his interpretation of the field sobriety tests. He testified about the entire incident, from the time he began to pursue the defendant to the time of the arrest after the defendant failed the tests.

Huntsman described the defendant’s appearance and manner when he first approached the car. He related the smell in the car, the smell of the defendant’s breath and the condition of his eyes. He described the defendant’s slurred speech and inability to find his driver’s license. He testified that when he asked the defendant to get out of the car and walk to the rear for the tests, the defendant had difficulty walking and had to hold onto the car. Huntsman also testified about the tests in detail as well as the defendant’s performance of them.

It is clear that Huntsman’s opinion as to the defendant’s intoxication was the product of his interpretation of those observations and field tests. Specifically, on direct examination, Huntsman was asked: “Based upon your previous training, your experience from what you observed out there on the roadside, the defendant’s appearance, his behavior, his performance on the tests ... do you have an opinion . . . ?” He replied: “I was of the opinion at the time by taking all the facts and circumstances of the case, he was under the influence . . . .”

As we previously concluded, that type of opinion testimony, which is based on all of the circumstances, properly is admitted as that of an expert because it results from the officer’s training, specialized skill and knowledge. It is the result of a continuing interpretative process that Huntsman engaged in from the time he first observed the defendant’s vehicle traveling in the breakdown lane until he arrested the defendant.

Because we have determined that Huntsman applied the skill and knowledge from his training to both his observations of the defendant and the field sobriety test results, his testimony properly was admitted as that of an expert. His testimony meets the three prongs of the test reiterated in Lamme for the admission of expert opinion because he possessed a special skill and knowledge from his training, it was beyond the jury’s knowledge and it allowed Huntsman to provide testimony that was helpful to the jury in deciding the issue at hand. The court did not abuse its discretion in allowing Huntsman to testimony as an expert.

II

The defendant’s second claim is that the court improperly admitted evidence of the HGN test without first requiring the state to meet the criteria for the admission of scientific evidence. We agree, but conclude that the error was harmless.

At the outset, we note our standard of review of a challenge to a trial court’s determination of evidentiary matters. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 133, 773 A.2d 965 (2001).

Although this court has decided several appeals concerning HGN testing, Russo, our most recent decision, is dispositive of the defendant’s claim. In Russo, the defendant also was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Id., 130. At trial, the court allowed the arresting officer to testify about the field tests he administered, including the HGN test. Id., 133. On appeal, the defendant challenged the court’s decision to admit the HGN test results without first requiring the state to satisfy the criteria for the admission of scientific evidence as set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Russo, supra, 62 Conn. App. 131.

In deciding Russo, we discussed our previous decision in State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995) , which also involved a trial court’s admission of HGN evidence without first requiring the state to meet the criteria for the admission of scientific evidence. Our decision in Merritt stated that “the HGN test and its results are based on a scientific principle, namely, that there is a discemable correlation between the increased incidence of and the angle of the onset of nystagmus and alcohol consumption. The mechanics of the HGN test, we further conclude . . . are not within the common knowledge of lay jurors. The reasons underscoring the nature of the HGN test are unfamiliar to jurors, and a juror would not be in a position to weigh the testimony concerning the HGN test and its results without abandoning common sense and sacrificing independent judgment to the expert’s assertions, which are based on understanding the technical aspects of the test. The scientific and theoretical nature of the HGN test and its results has the potential to mislead jurors in the absence of a foundation establishing the general acceptance of the test. The [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] test therefore should be applied to the admission of testimony derived from the HGN test and its results. . . .

“We conclude, therefore, that as a precondition to the admission of testimony concerning HGN testing and results, the party introducing the testimony must establish, pursuant to Frye, the general acceptance of the HGN test.” (Citation omitted.) State v. Merritt, supra, 36 Conn. App. 90-91.

Having reviewed Merritt, our decision in Russo went on to harmonize our state law with federal law. We stated that “[w]hen deciding Merritt, however, we also recognized that the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 586-89, had adopted as federal law a broader test for the admission of scientific evidence and had held that the rigid rule of Frye no longer governed. . . . Nevertheless, we adhered to the Frye test in Merritt because our Supreme Court had not yet addressed the issue of whether Daubert had superseded Frye as a matter of state law. . . .

“In 1997, however, our Supreme Court squarely addressed that issue in State v. Porter, [241 Conn. 57, 66-68, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)]. It explicitly held that ‘the Daubert approach should gov-em the admissibility of scientific evidence in Connecticut.’ . . .

“Contrary to the state’s argument that Porter overruled Merritt, we view it as having modified Merritt. Although Porter affected the criteria for the admission of scientific evidence reiterated in Merritt, it did not affect the primary holding of Merritt. Testimony regarding HGN testing is still the type of scientific evidence that may mislead a jury in the absence of a proper foundation. Merely changing the criteria for the admission of scientific evidence has no effect on the primary holding of Merritt. Accordingly, we conclude that Porter modified Merritt so that, piior to admission, testimony regarding HGN testing . . . must comply with the now prevailing requirements in Connecticut for the admission of scientific evidence derived from Daubert.” (Citations omitted; emphasis in original.) State v. Russo, supra, 62 Conn. App. 135-36.

We then addressed the defendant’s claim in Russo and stated that “[t]he [trial] court, over the defendant’s objection, allowed [the officer] to testify regarding the results of the defendant’s HGN test without requiring the state to establish the proper foundation for the admission of scientific evidence as set forth in Daubert. Rather than conducting the proper Daubert analysis, the court simply disregarded the primary holding of Merritt by concluding that HGN testing was not scientific evidence. . . . We conclude, therefore, that the court abused its discretion in admitting [the officer’s] testimony regarding the results of the defendant’s HGN test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert.” Id., 136.

The state again raises the issue that we declined to decide in Russo. The state invites us to declare that the HGN test has gained general acceptance in the scientific community. Although the state argues that the decision in State v. Carlson, 45 Conn. Sup. 461, 720 A.2d 886 (1998), supports that proposition and validates the test, we decline to decide on the basis of Carlson whether the HGN test meets the Daubert standard for scientific validity. As we noted in Russo, we will not determine whether the HGN test meets the Daubert criteria when the trial court has not itself specifically ruled on that issue. State v. Russo, supra, 62 Conn. App. 136 n.5. We stated in Russo that the appeal in that case was an inappropriate vehicle by which to examine the validity of the HGN test because the trial court had found that the HGN test was not even a scientific test. Id. Similarly, when ruling on the defendant’s motion in limine to bar the HGN test evidence, the court in this case stated only that Huntsman had “testified sufficiently to the court’s satisfaction that he’s qualified to perform that or render that test . . . .” Because the court did not specifically address whether the HGN test met the scientific validity standard, we decline the state’s invitation to rule on whether the HGN test has gained general acceptance in the scientific community.

Before turning our attention to the defendant’s claim, we must also first address the state’s attempt to distinguish this case from Merritt and the trial court’s response. The state argued at trial that Merritt did not apply to this case because in Merritt, the state was attempting to establish a correlation between the HGN results and a specific level of intoxication. The state asserted that contrary to that position, it sought in this case to introduce the HGN evidence only to show that the defendant had consumed alcohol. A reading of the transcript reveals that the court was persuaded by that argument because in its denial of the defendant’s motion in limine, it stated that Huntsman could testily as to the administration of the test and his findings, but that no opinion or evidence as to the level of intoxication would be allowed.

Although Russo controls our disposition of this appeal, we review the state’s attempt to distinguish this case from Merritt because we discussed Merritt in Russo and because the court’s decision on the defendant’s motion in limine indicates that the court agreed with the state’s position. Although the officer’s testimony about the HGN test in Merritt did specifically refer to that test in relation to blood alcohol levels, we believe our decision in that appeal applies more broadly than to the specific use of HGN evidence to prove a certain blood alcohol level, and that our decision established that evidence concerning HGN tests, in any form, is scientific and should be treated as such.

In Merritt, we stated that “the majority of jurisdictions that grant the admission into evidence of the HGN test and its results allow the test and results only as evidence of intoxication, rather than conclusive proof of intoxication. ... On the basis of our review of the record, and in accord with the majority of jurisdictions that have addressed this issue, we conclude that the HGN test and its results are based on a scientific principle . . . .” (Citation omitted.) State v. Merritt, supra, 36 Conn. App. 90. Because we read Merritt broadly, we conclude that the present case is not distinguishable from Merritt. Additionally, because we do not agree with the state’s narrow reading oí Merritt, we conclude that the specific nature of the HGN testimony is irrelevant.

We now address the defendant’s claim and apply the law as stated in Russo. In light of that decision, we conclude that the evidence before the trial court was insufficient to establish the scientific validity of the HGN test. The court improperly admitted Huntsman’s testimony about the HGN test without first requiring the state to establish the proper foundation for the admission of scientific evidence as set forth in Daubert.

That, however, does not end our inquiry into this issue. We must also determine if the court’s ruling was harmless. We first note our standard of review in making that determination. It is well settled that “[w]here an evidentiary ruling has been found to be incorrect, but the improper ruling . . . does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. ... In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citations omitted; internal quotation marks omitted.) State v. Russo, supra, 62 Conn. App. 137.

In the present case, we cannot conclude that the court’s admission of the HGN test affected the outcome of the defendant’s trial. The jury heard a plethora of other evidence from which it could have determined that the defendant was intoxicated.

As previously stated, Huntsman testified about the near collision when the defendant was driving in the breakdown lane, as well as the three-quarter mile pursuit. He also testified about the odor of alcohol both in the car and on the defendant’s breath. He stated that the defendant was unable to find his driver’s license and had bloodshot eyes and slurred speech. He also described how the defendant had to use the car to keep his balance as he walked to its rear to take the field tests. Huntsman also described how the defendant failed the other two field tests, noting that he had to stop the walk and turn test because the defendant was so unbalanced that Huntsman feared that the defendant might fall and injure himself. He also testified that the defendant could manage to stay only on one foot in the one-leg stand test for ten seconds. Huntsman further testified that at the police barracks, the defendant refused to submit to a breath test. Additionally, another trooper at the barracks testified, as Huntsman had, that the defendant smelled of alcohol, had red and glassy eyes, and was slurring his speech. On the basis of all the evidence that the jury heard, we cannot conclude that absent the HGN test evidence, the jury would have found differently.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although two police officers testified in Lamme, we need only discuss the testimony of the officer who stopped the defendant, administered the field tests and testified about those events. The court admitted the officer’s testimony as lay opinion on the intoxication issue. On appeal, however, this court determined that the officer’s testimony was that of an expert. We therefore treated his opinion as expert testimony when deciding the case.

       We note that our discussion of the officer’s testimony in Lamme focused on his interpretation of the field sobriety tests, despite the fact that the officer testified about both his interpretation of the tests and his observations of the defendant. It appears from the decision in Lamme, however, that all of the officer’s opinion testimony, including his observations of the defendant, was determined to be that of an expert. That will be discussed in greater detail in this opinion.

       As previously stated, the HGN test assesses a driver’s ability to visually track an object smoothly. Huntsman explained that the test is administered by asking the driver to follow a moving object, such as a pen or finger, with his eyes from left to right. The officer holds the object at eye level about twelve inches from the driver’s eyes and begins moving it. As the object moves, the officer watches the driver’s eyes and checks to see if the eyes smoothly pursue the object and if they jerk at certain points in their movement. The HGN test is used as a field sobriety test because after consuming alcohol, a person’s eyes tend to jerk involuntarily as they move from side to side.