State v. Coccomo
State v. Coccomo
Opinion of the Court
Opinion
In this certified appeal, we are required to determine whether the Appellate Court correctly concluded that the admission of evidence that the defendant, Tricia Lynne Coccomo, had transferred certain real property that she owned for less than fair value as proof of consciousness of guilt constituted an abuse of the trial court’s discretion and deprived the defendant of a fair trial. Additionally, the defendant asks this court to consider, as an alternative ground for affirmance, whether the trial court committed plain error when it admitted the results of a blood alcohol test that the defendant claims was performed on blood that was not hers. The state claims that the Appellate Court incorrectly concluded that the trial court abused its discretion in admitting the property transfer evidence. Because we agree with the state and reject the defendant’s alternative ground for affirmance, we reverse the judgment of the Appellate Court.
The jury reasonably could have found the following facts. On the evening of July 26, 2005, the defendant attended a dinner party hosted by Louise Orgera at her home on Dannell Drive in the city of Stamford. Orgera had prepared two pitchers of sangría, each containing a “double bottle” of wine, to which the party guests helped themselves. Between the time that the defendant arrived at the party shortly after 7 p.m. and the time that she left at approximately 9 p.m., she consumed approximately one and three quarters cups of sangría.
The defendant subsequently was charged with numerous offenses and was convicted, after a jury trial, of three counts each of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a) and misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a), and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227 (a) (2). The defendant appealed to the Appellate. Court, which reversed the judgment of conviction on the ground that the trial court improperly had admitted the evidence relating to the property transfer as proof of consciousness of guilt. State v. Coccomo, 115 Conn. App. 384, 402, 972 A.2d 757 (2009). We then granted the state’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the trial court abused its discretion in admitting evidence of a transfer of property for less than fair value as evidence of consciousness of guilt and that such admis
I
We first address the state’s claim that the Appellate Court incorrectly concluded that the trial court abused its discretion in admitting evidence that the defendant had transferred, after the collision, certain property for less than its fair value to prove consciousness of guilt, and that the admission of this evidence denied the defendant a fair trial. The defendant contends that the evidence was inadmissible because it did not tend to show that she believed that she was guilty but, at most, was consistent with her guilt. We disagree.
The following additional facts and procedural history are relevant to our resolution of this claim. At trial, the state sought, over the defendant’s objection, to present evidence that, during her stay in the hospital, the defendant had requested and received the results of a blood alcohol test that had been performed on her blood. It also sought to present evidence that, several days after the collision, the defendant had quitclaimed to her mother her one-half interest in her Stamford residence (property), which she had co-owned with her mother, for consideration of $1 and other value less than $100. The state argued that the foregoing evidence showed consciousness of guilt and was therefore relevant. The
We begin our analysis with a review of the applicable legal principles. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common corarse of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 257, 745 A.2d 800 (2000).
“In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) State v. DePastino,
“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of
In the present case, we conclude that the defendant’s transfer of her interest in the property to her mother “may fairly be inferred to have been influenced by the criminal act” of causing the deaths of three persons while she was operating a motor vehicle under the influence of liquor. (Internal quotation marks omitted.) State v. DePastino, supra, 228 Conn. 563. The jury reasonably could have inferred that the defendant’s decision to transfer the property was influenced by her belief that she was guilty and that her criminal liability inevitably would give rise to civil liability for the wrongful deaths. Put differently, the jury reasonably could have inferred that the defendant’s act of transferring the property arose directly from her belief that her actions resulted in the death of the other three individuals involved in the collision, and that this belief gave rise both to consciousness of civil liability and criminal guilt.
We further conclude that the evidence was not more prejudicial than probative. For that reason, we do not
In the present case, the evidence of the property transfer does not rise to the level of prejudice identified in any of the four factors enumerated in James G. First, defense counsel did not argue at trial that this evidence would unduly arouse the jurors’ emotions, hostility or sympathy, nor do we believe that evidence as mundane as a transfer of property for less than valuable consideration is the type of evidence that would inflame a reasonable juror in a criminal manslaughter case. Second, there is nothing in the record to indicate that the admission of this evidence created an unduly distracting side issue. The state connected the relevance of the evidence to the underlying criminal charges, and no significant amount of time was expended exploring the factual or
Finally, we emphasize that “[t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Emphasis added; internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., supra, 298 Conn. 401-402. Although the trial court reasonably could have excluded this evidence, we cannot conclude that its decision to admit the evidence was a clear abuse of discretion. Accordingly, we conclude that the trial court properly admitted the evidence relating to the defendant’s request to review the results of her blood alcohol test and her transfer of her interest in the property to her mother to show consciousness of guilt,
In support of her claim to the contrary, the defendant relies on several cases in which this court has held that
In State v. Angel T., supra, 292 Conn. 262, this court’s conclusion that the prosecutor improperly had elicited and commented on evidence that the defendant had failed, upon the advice of counsel, to meet with police during their investigation of the crime was couched in a lengthy discussion of the constitutional right to counsel. See id., 273-74, 281-86 and nn.15 through 19. Accordingly, our conclusion that evidence that the
In sum, the foregoing cases do not stand for the proposition that if evidence is ambiguous, it cannot be admitted to prove consciousness of guilt. Rather, they stand for the proposition that consciousness of guilt evidence should not be admitted when doing so would chill an important legal right or undermine public policy. Accordingly, because the defendant in the present case has not identified any independent legal right or public policy that was implicated by the admission of the consciousness of guilt evidence, the foregoing cases are inapposite.
The defendant also refers to a small number of cases from other jurisdictions in support of her claim that evidence of the property transfer should not have been admitted to establish consciousness of criminal guilt. See United States v. Ramirez, 176 F.3d 1179, 1182-83 (9th Cir. 1999); United States v. Ferguson, supra, 2007 U.S. Dist. LEXIS 87842, *11-*12; United States v. Nacchio, United States District Court, Docket No. 05-CR-00545 (EWN) (D. Colo. March 29, 2007) (transcript of unpublished oral ruling by Nottingham, J.). Examination of those cases, however, reveals that they do not support the defendant’s claim. In Ramirez, the court engaged in no analysis of consciousness of guilt except to criticize the government’s weak case. See United States v. Ramirez, supra, 1182-83.
II
As an alternative ground for affirming the Appellate Court’s judgment, the defendant argues that the trial court committed plain error in admitting the results of a blood alcohol test because it was not clear that the blood tested was that of the defendant. Specifically, the defendant challenges the admission of the test results on the basis of a discrepancy between the type of tube used by the paramedics to draw her blood and the type of tube listed in the computer records as the one that was used to test her blood.
The following additional facts and procedural history are relevant to our resolution of this claim. Upon arriving at the scene of the accident, Jennifer Mardi, a paramedic, asked the defendant if she was alright, and the defendant responded, “hold on . . . [I’m] on the phone.” Mardi smelled alcohol and asked the defendant if she had been drinking. The defendant told her that she had consumed “a few drinks.” Mardi then placed the defendant in the care of another paramedic, Kirsten Engstrand, and an emergency medical technician, Yan-nick Passemart. Both Engstrand and Passemart detected the smell of alcohol on her breath, and noticed that her speech was slightly slurred. Engstrand asked the defendant if she had been drinking, and the defendant replied that she had consumed “a few glasses of champagne and a glass of wine at a party downtown.” Passemart heard the defendant state that she had had “a few drinks.” The defendant did not inquire about the people in the other vehicle but spoke to Engstrand about her pending divorce.
The defendant was secured on a spinal board, and Passemart placed a cervical collar around the defendant’s neck. Shortly thereafter, Engstrand established an intravenous line, as a standard precaution, in the defendant’s left arm, from which she drew five tubes of the defendant’s blood. Engstrand placed the tubes into a plastic biohazard bag, which she sealed and taped
Upon the defendant’s arrival at the hospital, Toren Utke, a registered nurse, took over her care. Officer Robert Bulman of the Stamford police department also met her in the emergency department trauma room and asked her several questions. Because of the activity and noise, Bulman testified that he had to bend down to within one inch of the defendant’s face so that he could hear her speak, and that, upon doing so, he detected a “strong” smell of alcohol on her breath. Utke further testified that the defendant was confused about what had happened and that she repeatedly had called for her mother, even after her mother arrived at the hospital. Although Utke did not notice any alcohol odor or slurred speech, it struck him that the defendant’s mental status was not quite right. Utke removed the tubes containing the defendant’s blood from the biohazard bag that was taped to the intravenous fluid bag and affixed to each tube a label containing, inter alia, the defendant’s biographical information. Using another such label, Utke then prepared a requisition form for various laboratory analyses of the blood samples and, at approximately 10:30 p.m., sent the tubes to the hospital laboratory for testing.
Maiiela Borrero, a laboratory technician, conducted a blood alcohol test on the defendant’s blood using the tubes that she received from Utke. The test revealed an alcohol content of 241 milligrams per deciliter, putting the defendant’s blood alcohol content at the time of the collision at approximately 250 milligrams per
We first set forth the applicable standard of review for a claim under the plain error doctrine. “This doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). “An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent
In other words, we must determine whether the error was “obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.” (Interna! quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 205, 982 A.2d 620 (2009).
Additionally, when the chain of custody of evidence is at issue, as in this case, “[t]he state’s burden ... is met by a showing that there is a reasonable probability that the substance has not been changed in important respects. . . . The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it . . . .” (Citations omitted; internal quotation marks omitted.) State v. Greene, 209 Conn. 458,479, 551 A.2d 1231 (1988); accord State v. Johnson, 162 Conn. 215, 232-33, 292 A.2d 903 (1972). Finally, it is well established that “[t]he trial court has wide discretion in determining the relevancy of evidence . . . and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling
In the present case, the defendant has not demonstrated that the trial court committed plain error by admitting the evidence of her blood test results. Blood tests performed in order to screen for the presence of alcohol in a person’s blood are considered rehable; see, e.g., Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 171, 847 A.2d 978 (2004); the blood test results in this case qualify as relevant evidence because the defendant told paramedics and a hospital nurse that she had consumed alcohol prior to the collision, and the trial court has broad discretion in determining whether a sufficient chain of custody has been established to warrant the admission of the proffered evidence. See State v. Greene, supra, 209 Conn. 479.
The defendant claims that the trial court committed plain error because a discrepancy existed between the type of tube used to draw the defendant’s blood immediately before or during the ambulance ride to the hospital and the type of tube listed in the computer records as containing the blood that was tested for her blood alcohol content. This discrepancy, however, arises solely from the record of the computer entry of the tube tested and not from the recollection of the laboratory technician or laboratory supervisor. At trial, the laboratory technician had no personal recollection of the defendant’s blood test, and the laboratory supervisor testified merely that such a discrepancy existed, stating that “the tube that was indicated in the computer is not in that bag” containing the types of tubes that the paramedics used to draw the defendant’s blood.
Moreover, it is uncontroverted that the defendant consumed alcohol prior to the accident; indeed, the defendant herself so testified. It is also uncontroverted
The defendant nevertheless argues that defense counsel raised concerns at trial that the blood tubes may have been “mixed-up” and states, without any additional support, that a mix-up was indeed “revealed” at trial by virtue of the discrepancy between the tubes. The defendant refers to no evidence or testimony, however, other than this discrepancy, to support her conclusion. We decline to accept the defendant’s interpretation of the trial record. In order for this court to entertain the defendant’s plain error claim with respect to the blood test results, it would have to engage in pure speculation as to why the record contains a discrepancy, which, in turn, would require it to engage in impermissible fact-finding. See, e.g., State v. Ovechka, 292 Conn. 533, 547 n.19, 975 A.2d 1 (2009) (“we are constrained to note that well established principles governing appellate review of factual decisions preclude us from utilizing this material to find facts on appeal”). Accordingly, we conclude that the defendant cannot prevail on her plain error claim.
The dissent further contends that, even if the defendant failed to preserve her claim, this court should find plain error and uphold the Appellate Court’s reversal of the trial court’s judgment because the trial court improperly admitted her blood test results. The dissent takes issue with (1) the statement in this opinion that “[i]t is . . . uncontroverted that . . . the defendant’s blood would have had to contain a detectable level of alcohol when it was drawn by the paramedics” following the collision, (2) the majority’s failure to consider that blood samples drawn from other persons that were sent to the laboratory at about the same time as the defendant’s blood but were not tested for blood alcohol content may have contained a detectable level of alcohol, and (3) the majority’s willingness to accept the reliability of the laboratory procedures used to test the defendant’s blood. In our view, none of these grounds, either individually or in combination, serves as a valid basis for reversal of the trial court’s judgment under the plain error doctrine, which requires that “the existence of the error [be] so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 287-88.
The dissent first claims that it is not uncontroverted that the defendant’s blood would have had to contain a detectable level of alcohol. Specifically, it claims that other guests at the dinner party that the defendant
The dissent also faults the majority for failing to consider that blood samples drawn from other persons that were tested around the same time as the defendant’s blood were not tested for blood alcohol content, and, consequently, there is no evidence as to whether any of those samples contained a detectable level of alcohol. The significance of the fact that blood alcohol tests were not ordered for other persons whose blood was tested around the same time as the defendant’s blood, however, escapes us. As we discuss subsequently in this opinion, to the extent that the dissent may be suggesting that other blood samples could have been mixed-up with the defendant’s samples, there was absolutely no testimony by hospital staff that a mix-up might have occurred. Accordingly, the dissent’s conclusion is highly speculative and, therefore, insufficient to raise doubt about the fairness and integrity of the trial court proceedings under the plain error doctrine.
The dissent finally contends that the majority places too much emphasis on the reliability of the procedures used by the hospital laboratory to test the defendant’s blood. The dissent states that “the record demonstrates
At the outset, the dissent refers to no testimony by anyone involved in the defendant’s care suggesting a break in the chain of custody. Engstrand testified that she drew five tubes of the defendant’s blood, each with a different colored cap, namely, gold, green, pink, purple and blue, placed the tubes in a biohazard bag, rolled the bag up, and taped it to the defendant’s intravenous fluid bag, all before the ambulance arrived at the hospital. Although Engstrand did not label the blood tubes or the biohazard bag, she stated that, upon arriving at the hospital, she placed the intravenous fluid bag and the biohazard bag containing the tubes on or between the defendant’s legs. She then turned the defendant’s care over to Utke, the nurse who met Engstrand and the defendant when the ambulance arrived at the hospital.
Utke testified that Engstrand identified the biohazard bag as belonging to the defendant and that he left the bag with the defendant while he went to obtain the printed labels produced for each patient during the hospital registration process. At that time, Shelley, the
No witness recalled testing the defendant’s blood after it arrived at the laboratory, but William H. Wilson, the administrative director of the laboratory, testified as to the procedures that were typically followed at the time in question. Wilson explained that the technician receiving the canister would take the biohazard bag out of the canister, open it, compare the name on the blood tube labels with the name on the requisition sheet to make sure they matched and then order the requested tests through the laboratory computer system by identifying the name of the patient and the tests to be performed. If a label indicated the time that the blood was drawn, the technician would enter that time into the system, but, if no time was indicated, the computer would default to the time that the information was entered into the system. Similarly, if the label contained the initials of the person who had drawn the blood, that person’s initials would be entered into the system.
With respect to the testing of the defendant’s blood, Wilson testified that, after checking the records for the night of the collision, it appeared that the blood from the defendant and three other patients had been tested around the same time. Neither Wilson nor Borrero, the laboratory technician who processed the requisition, recalled any problems or mix-ups that night. In responding to a question as to whether any of the five tubes used to draw the defendant’s blood was the type of tube normally used for testing blood alcohol content, Wilson testified that “[t]he [type of] tube that was indi
On the basis of the foregoing testimony and evidence, we disagree with the dissent that “the record demonstrates a litany of errors . . . regarding the testing of the defendant’s blood,” and that “[w]e do not know how the vials were tested, the procedures used on them, or the labeling or collection procedure . . . .” Rather, the testimony indicates that the procedures used in collecting, labeling and testing the defendant’s blood were straightforward and apparently free of errors and that, even though the administrative director of the laboratory and the technician who processed the requisition for the tests could not specifically recall testing the defendant’s blood, their testimony regarding the course of conduct and their inability to recall or identify any errors in the testing procedures at the time the blood was tested supports the conclusion that there was no break in the chain of custody.
To the extent the dissent, like the defendant, claims that the inconsistent evidence regarding the color of the blood tube caps indicates that the defendant’s blood
In addition to these evidentiary considerations, counsel did not object at trial to the admission of the computer printout or the testimony describing the discrepancy in the color of the blood tube caps. As a result, there was no indication that a claim relating to this discrepancy would be raised at trial, and, therefore, there was no incentive for either party to ask any questions relating to whether the discrepancy was caused by computer or human error.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
The trial court concluded that the defendant’s request for the results of the blood alcohol test, in and of itself, did not tend to show consciousness of guilt but that her knowledge of the results of the test, coupled with her transfer of the property several days later, was probative.
The defendant argues that the appropriate standard of review for this issue is de novo, citing State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007), for support. In Saucier, we addressed the issue of the appropriate standard of review for a trial court’s ruling on whether proffered testimony should have been categorized as hearsay. Id., 214-21. The defendant’s claim in the present case does not involve a question of hearsay but, rather, whether the evidence was relevant. Saucier is, therefore, inapplicable to the defendant’s claim.
We clarify that evidence tending to show consciousness of civil liability will not always be admissible in a criminal trial as evidence tending to show consciousness of criminal liability. Nevertheless, there may be instances, such as in the present case, in which a defendant’s conduct subsequent to the criminal act is relevant in establishing a mental state that demonstrates
Because we conclude that the trial court properly admitted the evidence regarding the defendant’s consciousness of guilt, we need not determine whether the Appellate Court properly concluded that the improper admission of that evidence constituted harmful error.
Indeed, the court in Ramirez stated, without providing further explanation, that “the admission of the evidence that [the defendant’s] sister registered his cars in her name six days after his arrest was harmless error.” United States v. Ramireg, supra, 176 F.3d 1183.
Although the defendant has raised various objections to and claims regarding the admission of the blood test results, both at trial and on appeal, none of the objections or claims were properly preserved for review. At trial, defense counsel objected to admission of the test results on chain of custody grounds relating to events surrounding the collection and labeling of the blood before it was sent to the laboratory for testing but did not object on grounds relating to the discrepancy in the type of tubes used to draw and test the blood. Accordingly, the Appellate Court concluded that the defendant had failed to preserve the chain of custody issue for review because she did not appeal from the trial court’s ruling on grounds relating to events that occurred before her blood was tested. See State v. Coccomo, supra, 115 Conn. App. 394. The Appellate Court also concluded that her claim on appeal relating to the discrepancy in the type of tubes used to draw and test her blood had not been preserved because defense counsel did not object to the admission of the test results on that ground at trial. See id., 392-94.
In light of the Appellate Court’s decision, the defendant now seeks review under the plain error doctrine, contending that it was plain error for the trial court to admit the blood test results because the blood that was tested belonged to someone else. See, e.g., State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009) (“[the plain error doctrine] is a doctrine that this court
The dissent, however, contends that the defendant properly preserved her claim, thus choosing to follow a path that defense counsel, the state and the Appellate Court have rejected. The dissent specifically contends that the defendant preserved her claim when she filed her motion for a Porter hearing; see State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert, denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998); challenging the admission of the blood test results on chain of custody grounds, and when she subsequently appealed to the Appellate Court from the trial court’s decision to admit those results. We disagree.
We first note that the defendant herself does not argue on appeal that she properly preserved her claim for review, and, consequently, a decision by this court to treat her claim as preserved not only would be inconsistent with the defendant’s own position but would deprive the state of the opportunity to argue that the abuse of discretion standard is incorrect. Moreover, the dissent cannot assume the role of the defendant’s advocate and treat her claim as if it had been properly preserved merely because it construes the record differently. See State v. Tocco, 120 Conn. App. 768, 786, 993 A.2d 989 (reviewing court may not act as advocate for any party), cert, denied, 297 Conn. 917, 996 A.2d 279 (2010). Accordingly, these reasons alone constitute sufficient grounds on which to reject the dissent’s approach.
Furthermore, the defendant’s claim at the Porter hearing is not the claim that she raises on appeal, which is based on a discrepancy between the color of the cap on the tube that was used to draw her blood (yellow or gold) and the color of the cap on the tube that was listed in the hospital laboratory records as the tube that was used to test her blood for its alcohol content (red and gray). The defense argued at the Porter hearing that the blood test results were inadmissible because the defendant’s blood had not been drawn at the hospital but, rather, at the scene of the accident or in the ambulance by a person whose identity was unclear, and because the tubes may have been improperly labeled before they were sent to the laboratory for testing. There was no testimony regarding the discrepancy in the color of the blood tube caps until much later in the proceeding. The trial court’s ruling thus was based on information pertaining only to events that occurred before the blood was sent to the laboratory for testing. As the trial court explained, “there’s a line of evidence here, which, if the jury chooses to accept it, that the defendant’s blood was drawn in the ambulance and taped to a saline bag and then taken down by the emergency department muse, and a label [was] put on the tubes and [they were] put in this pneumatic system up to the lab and tested. And [there are] things that-the defense will raise to question that chain of events, but I don’t see it as sufficiently affecting the integrity of the sample so that the jury should not be in a position to weigh that evidence and make a decision as to its credibility.” (Emphasis added.) We have repeatedly stated that “[o]ur review of eviden-tiary rulings made by the trial court is limited to the specific legal ground
The dissent claims that testimony outside the presence of the jury directly before the Porter hearing by William H. Wilson, administrative director of the hospital laboratory, describing laboratory procedures, contradicts our conclusion that defense counsel objected to the admission of the blood test results only on grounds relating to events surrounding the collection and initial labeling of the blood. A fair reading of the transcript, however, shows that Wilson made no reference to a discrepancy in the color of the caps on the tubes used to draw and test the defendant’s blood and that defense counsel made no argument that the defendant’s blood test results should be excluded on that ground or on any other ground relating to the procedures used in the laboratory for testing.
The dissent also argues that this court has repeatedly reviewed issues on appeal that were not specifically raised at trial, as long as they were properly within the scope of the issue that was raised. See, e.g., Morgan v. Hartford Hospital, 301 Conn. 388, 394 n.7, 21 A.3d 451 (2011); Rowe v. Superior Court, 289 Conn. 649, 663, 960 A.2d 256 (2008); State v. Mitchell, 169 Conn. 161, 168, 362 A.2d 808 (1975), overruled in part on other grounds by State v. Higgins, 201 Conn. 462, 472, 518 A.2d 631 (1986). The cases cited by the dissent are distinguishable, however, either because they do not involve evidentiary rulings or do not involve a claim that the disputed evidence was not the subject of the trial court’s ruling, as in the present case. See, e.g., Morgan v. Hartford Hospital, supra, 394 n.7 (considering whether defendants waived their right to file motion to dismiss challenging sufficiency of opinion letter attached to original complaint in medical malpractice action); States. Mitchell, supra, 168 (considering whether results of polygraph examination should be admitted to show prior consistent statements or to prove truth of responses given during examination).
We further disagree with the dissent that defense counsel’s subsequent objection to admission of the blood test results as afull exhibit was sufficient to preserve the defendant’s claim. Defense counsel simply stated, when the
The dissent nonetheless contends that this court concluded in State v. Ryder, 301 Conn. 810, 23 A.3d 694 (2011), that the defendant in that case had preserved a claim for review on the basis of far less evidence than in the present case. The dissent argues that the court in Ryder determined that the defendant had preserved his claim that the state had conducted a warrantless search that began when a police officer crossed a security gate onto the curtilage of his home, even though the defendant had not referred to the curtilage in his motion to suppress, merely because a witness had used the term “curtilage” during his testimony at the suppression hearing and the defendant had used the term twice in his brief to the Appellate Court. Id., 818-19 n.5. This argument, however, greatly oversimplifies our reasoning in Ryder. First, we did not know in Ryder what the defendant had argued in his written motion to suppress because the trial court improperly had destroyed the file containing the motion after the defendant entered a conditional plea of nolo contendere specifically reserving his right to appeal from denial of the motion. See id., 819-20 n.5 Moreover, what we actually stated in Ryder was that, “although the transcripts of the suppression hearing do not reveal that the defendant specifically used the term ‘curtilage’ in arguing that the entry upon his property was improper, they confirm that the trial court clearly anticipated and understood that the defendant claimed that [the police officer] had violated his fourth amendment rights by crossing the gate.” Id., 818 n.5. We also discussed the testimony of three different witnesses at the suppression hearing regarding the gate and the security apparatus that extended across the front lawn of the defendant’s home, noting that one witness had testified that he understood that he was entering the “curtilage” of the defendant’s home when he climbed over the gate. (Internal quotation marks omitted.) Id. We further observed that, during redirect examination of one of the other three witnesses on the significance of the gate, the trial court had interrupted the prosecutor twice, stating that it “underst[ood] the whole issue of the gate .... I got it.” (Internal quotation marks omitted.) Id. We thus concluded that the trial court understood the curtilage issue and that the issue had been properly raised. Id. We also rejected the dissenting justices’ “mischaracteriz[ation]” in Ryder of the defendant’s brief to the Appellate Court as containing only “two passing references to the curtilage”; id.; concluding instead that the defendant had “clearly raised the curtilage claim before the Appellate Court” because he had discussed at length the need to cross over the security gate
It is unclear from the record whether the defendant’s blood was drawn immediately before or during the ambulance ride to the hospital, or both.
The alleged discrepancy was between the color of the cap of the tube used by the paramedics to draw the defendant’s blood (yellow or gold) and the color of the cap of the tube listed in the hospital laboratory records as the one from which blood was taken to test for the defendant’s blood alcohol content (red and gray).
To the extent the dissent argues that it is not uncontroverted that the defendant’s blood contained a detectable level of alcohol because “[n]one of the evidence cited by the majority establishes conclusively that the defendant’s blood would have had to contain a detectable level of alcohol when it was drawn by the paramedics,” it misunderstands our analysis. We do not state that the evidence “conclusively” establishes that the defendant’s blood would have had to contain a detectable level of alcohol, only that the record contains no evidence to establish that her blood did not contain a detectable level of alcohol. Although there was expert testimony as to the rate that a person of the defendant’s weight and gender might have metabolized varying amounts of alcohol, no witness testified or claimed that her blood would have contained no detectable level of alcohol at the time it was drawn. Thus, the dissent’s claim to the contrary is based on sheer speculation as to how selected portions of the testimony at trial might have been construed and applied to the defendant in light of various presumptions.
For example, a comprehensive metabolic panel and a blood alcohol content test were ordered for the defendant, whereas a basic metabolic panel, which consists of fewer blood tests than a comprehensive metabolic panel, and a blood alcohol content test were ordered for Shelley.
The stringent labeling procedure required when blood samples are taken before they are sent to the laboratory for testing further reduced the potential for a mix-up of the defendant’s blood with blood samples from other persons tested around the same time.
For example, computer and human error was discussed in other contexts, such as when Robert Voss and James Duffy, two paramedics employed by Stamford Emergency Medical Services (SEMS), explained how inaccurate information could end up in the SEMS computer system due to the fact that the options available for describing a patient’s condition in the system’s drop down menus sometimes were limited.
Dissenting Opinion
dissenting, with whom PALMER and VERTEFEUILLE, Js., join with respect to part I of this dissenting opinion.
I respectfully dissent. I disagree with the majority’s conclusion that the Appellate Court improperly determined that the trial court abused its discretion by admitting as evidence of consciousness of guilt the fact that the defendant, Tricia Lynne Coccomo, had transferred certain real property that she owned for less than fair value. I further disagree with the majority’s conclusion that the judgment of the Appellate Court should not be affirmed on the alternate ground that the trial court committed plain error in admitting into evidence the blood alcohol test results attributed to the defendant and in concluding that the failure to grant relief to the defendant will not result in manifest injustice. Moreover, I also disagree with the majority’s conclusion that the defendant did not appeal the trial court’s ruling on the issue of the chain of custody of the blood evidence. Instead, I would conclude that the Appellate Court properly concluded that the trial court abused its discretion in admitting as evidence of consciousness of guilt the fact that the defendant had transferred certain real property that she owned for less than fair value. I would further conclude that, at trial, the defendant raised and preserved for appeal her claim
Because a careful analysis of the facts of this case is critical to an examination of the issues raised on appeal, I find the following facts, as set forth in the Appellate Court opinion, and procedural history necessary for my review. The defendant worked as a schoolteacher at one of Stamford’s magnet schools. “At approximately 7 p.m. on July 26, 2005, the defendant attended a work-related dinner at a colleague’s home where jambalaya and sangria were served.” State v. Coccomo, 115 Conn. App. 384, 386, 972 A.2d 757 (2009). All of the attendees at the party, including the hostess, were colleagues of the defendant. “The hostess explained that she served two pitchers of sangria to her eight guests, each pitcher containing no more than a magnum of wine. One pitcher had white wine, the other red. Both were mixed with fruit, honey and sparkling water. There was no other alcohol served at the party. At the end of the dinner party, the pitcher of red sangria appeared untouched and the pitcher of white sangria was three-quarters consumed. The defendant testified that she drank between one and two glasses of sangria during dinner. The other guests testified that they, too, consumed some of the sangria. There was no evidence that the defendant consumed any other alcohol before or after dinnér. All of the people at the
“Sometime between 9 p.m. and 9:30 p.m., the defendant left the dinner to go home. At approximately 9:28 p.m., the defendant, who was driving northbound at approximately forty-five miles per hour, the posted speed limit, around a curve on Long Ridge Road in Stamford, collided with another vehicle traveling southbound at approximately the same speed. The defendant’s vehicle was three feet over the center line of the roadway at the time of the collision. The three occupants of the other vehicle died from the injuries that they sustained as a result of the collision. The defendant sustained a broken ankle and minor lacerations.
“Officer Frank Laccona of the Stamford police department was one of the first police officers on the scene. He helped the defendant out of her vehicle. Shortly thereafter, technicians from Stamford Emergency Medical Services, Inc. (emergency medical services), arrived. Robert Voss of the emergency medical services testified that the defendant was stable and ambulatory and that she was alert and oriented. Jennifer Mardi, also of the emergency medical services, testified that the defendant had the odor of alcohol on her breath. She asked the defendant if she was okay and if she had been drinking. In response, the defendant stated that she had had a few drinks. After checking the defendant’s vital signs, Mardi transferred her care to paramedic Kirsten Engstrand who, along with fellow emergency medical technician, Yannick Passemart, accompanied the defendant to Stamford Hospital [hospital]. Engstrand testified that, although she did not write it in her report, the defendant did have the odor of alcohol on her breath. Engstrand stated that the defendant was conscious, alert, oriented and ambulatory.” Id., 386-87.
“The defendant’s blood was drawn in the ambulance on the way to the hospital. Although the emergency medical technicians’ report indicates that the defendant’s blood was drawn by Passemart, who was not legally qualified to do so, the testimony at trial was that her blood was drawn by Engstrand. Engstrand indicated that she had a distinct recollection of her treatment of the defendant due to the serious nature of the collision. Engstrand testified that she used five tubes to collect the defendant’s blood, one [ten] milliliter tube with a pink top, and four [five] milliliter tubes: one with a blue top, one green, one lavender and one yellow. Engstrand testified that she never used tubes of any other description and that she did not have access to any other tubes. After she filled the tubes, she placed them in a biohazard bag, rolled the bag up and taped it to the defendant’s intravenous bag. Engstrand did not label the tubes as containing the defendant’s blood, as it was not procedure to do so, nor did she label the biohazard bag.” Id., 387-88. The emergency medical technicians testified that the defendant attained a perfect score on the Glasgow coma scale,
“Emergency room nurse Toren Utke assumed the defendant’s care from Engstrand. Utke testified that the defendant appeared alert and oriented, and was not confused or sliming her words and that he never smelled the odor of alcohol on her breath. He indicated that the defendant attained a perfect score on the Glasgow coma scale. Utke testified that Engstrand identified a biohazard bag of blood as the defendant’s and that he left the blood with the defendant while he printed labels for the tubes. Utke indicated that he individually labeled the tubes of blood, placed them back in the biohazard bag and sent them to the laboratory.
“Utke and other emergency room staff testified that the emergency room was very hectic and ‘crazy’ that night due to the trauma patients from the defendant’s collision. The hospital records indicate that the blood sample attributed to the defendant was one of three blood samples collected in the emergency room at precisely 10:30 p.m.
“Wilson also produced documents that he referred to as an ‘audit trail,’ consisting of aseries of screenshots from the laboratory’s computers revealing certain information about the blood tubes tested by the laboratory. The documents indicate that the laboratory labeled and tested blood that was collected from the defendant at 10:30 p.m. in the emergency room and deposited in a [ten] milliliter ‘red-gray top’ tube. Despite the contents of the ‘audit trail’ documents, the evidence at trial revealed, unequivocally, that the defendant’s blood was drawn in the ambulance, and not at the hospital, and that she arrived at the hospital at 10:15 p.m. The evidence is also clear that when the blood was taken from the defendant in the ambulance, none of it was deposited into a tube with a ‘red-gray top.’ The blood in the red-gray tube, which was attributed to the defendant, reportedly contained a blood alcohol content of 0.241.” Id., 388-90. Wilson testified that the tube the lab tested for blood alcohol content was not one of the tubes that Engstrand filled with the defendant’s blood. Although the defendant previously had objected, in a motion in limine, to the admission of the blood alcohol testing evidence on the basis of the chain of custody, the record does not suggest that there was a specific objection to the admission of the blood alcohol results specifically on the points of Wilson’s testimony that the tube tested by the laboratory did not correspond to any of the tubes of the defendant’s blood drawn in the ambulance. At the time the motion in limine was filed, the evidence
“Both toxicologists, Robert Powers for the state and Richard Stripp for the defendant, testified as to the probable effect a 0.241 blood alcohol content would have on an individual. Both toxicologists testified that a reading of 0.241 at 9:62 p.m. would equate to a reading of roughly 0.26 at 9:28 p.m., the time of the accident, assuming no further alcohol was ingested. Powers opined that to produce such a reading, the defendant would have had to have consumed ten or eleven servings of alcohol in one hour, and Stripp indicated that the defendant would have had to have consumed three-quarters of a pitcher of sangría to reach that level. Powers stated that such a high level of intoxication would result in cognitive impairment noticeable to others. Powers expressed that if his blood alcohol content were that high, he probably would not ‘be sitting up.’ Stripp opined that a blood alcohol content of 0.241 or 0.26 would render an average person overtly intoxicated, staggering, demonstrating motor impairment, cognitive dysfunction and slurring words, and that a blood alcohol content of 0.26 is ‘sloppy drunk.’
“James Samelle, the trauma surgeon who cared for the defendant, testified that he did not observe any signs of intoxication in the defendant. He indicated that she was not slurring her words, she was alert and that she had no problems in communicating with him and that he did not detect the odor of alcohol on her breath. Samelle stated that if he had observed any signs of intoxication in the defendant, he would have noted them in his report. He opined that an intoxicated individual would not score a perfect fifteen on the Glasgow coma scale, which the defendant did three times that evening.” Id., 390-91.
While in the hospital, the defendant was advised that her blood had been tested for alcohol, and that the results showed a very high blood alcohol level. The defendant “wanted to see” what the blood alcohol content report contained. She asked for, and was provided, a copy of the report.
Thereafter, “[t]he defendant was arrested and charged with three counts of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), three counts of manslaughter in the second degree with a motor vehicle in violation of [General Statutes] § 53a-56b (a), three counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a), one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of [General Statutes] § 14-227a (a) (2), one count of failure to keep a narcotic drug in the original container in violation of General Statutes § 2 la-257 and one count of possession of less than four ounces of marijuana in
At trial, the defendant testified that prior to the accident, papers had been drawn to deed to her mother her interest in certain jointly held property, to protect it from her soon to be former husband. The defendant signed and recorded the papers after the accident. The transfer was soon thereafter undone. Counsel was involved in every step. The state introduced, over the defendant’s objection, the corresponding quitclaim deed, as well as the tax card for the transferred property. The trial court admitted both exhibits, ruling that the jury could find that the documents reasonably inferred that the defendant had a guilty conscience. The trial court further instructed the jury that the evidence had been admitted, and could be considered, “to show consciousness of guilt.”
“[The defendant] was convicted of three counts of manslaughter in the second degree with a motor vehicle, three counts of misconduct with a motor vehicle and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs, and was acquitted of the remaining charges. The defendant was sentenced to a total effective term of twenty years incarceration, execution suspended after twelve years, followed by five years probation and a $1000 fine.” State v. Coccomo, supra, 115 Conn. App. 391.
Thereafter, the defendant appealed from the judgment of conviction to the Appellate Court. On appeal to that court, the defendant claimed that: (1) “the trial court improperly admitted evidence of her blood alcohol content”; id., 386; (2) “there was insufficient evidence to sustain her conviction”; id.; and (3) “the [trial] court improperly admitted consciousness of guilt evidence.” Id. The Appellate Court concluded that the defendant had not properly preserved her claim regard
The Appellate Court also concluded, however, that the trial court improperly admitted consciousness of guilt evidence and, therefore, reversed the judgment of the trial court and remanded the case for a new trial. Id., 396,402. This court then granted the state’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the trial court abused its discretion in admitting evidence of a transfer of property for less than fair value as evidence of consciousness of guilt and that such admission of evidence was not harmless?” State v. Coccomo, 293 Conn. 909, 910, 978 A.2d 1111 (2009). Thereafter, the defendant filed a motion pursuant to Practice Book § 84-11
I
A
I first turn to the issue of whether the Appellate Court improperly concluded that the trial court abused its discretion in admitting evidence relating to a transfer of property for less than fair value as evidence of consciousness of guilt. The majority concludes that “the trial court properly admitted the evidence relating to the defendant’s request to review the results of her blood alcohol test and her transfer of her interest in the property to her mother to show consciousness of guilt . . . .” I disagree.
I agree with the majority with respect to the standard of review. Our standard of review for evidentiary claims is well settled. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law ... for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 396, 963 A.2d 966 (2009).
This court previously has made clear that “consciousness of guilt [evidence] goes to the question of the defendant’s state of mind, a determination which in turn requires an assessment of the defendant’s motivations . . . .” (Internal quotation marks omitted.) State v. Davis, 98 Conn. App. 608, 628, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008). “A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false state-
Section 4-3 of the Connecticut Code of Evidence provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations or undue delay, waste of time or needless presentation of cumulative evidence.” “One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act. . . . The state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty . . . and, under proper safeguards ... is admissible evidence against an accused.” (Citation omitted; internal quotation marks omitted.) State v. Camacho, 92 Conn. App. 271, 294, 884 A.2d 1038 (2005), cert, denied, 276 Conn. 935, 891 A. 2d 1 (2006).
A review of the common law, however, reveals that the vast majority of conduct that is admitted as consciousness of guilt evidence in criminal cases consists of illegal or improper attempts by a defendant to circumvent or affect his or her criminal prosecution. These cases reveal that the defendant “thinks his case is weak and not to be won by fair means.” (Internal quotation marks omitted.) State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). Such evidence tends to fall into three categories, “acts calculated to enable the defendant ... [1] to evade arrest ... [2] to avoid trial ... or [3] to prevent a conviction.” E. Imwinklereid,
The majority opinion also cites Batick v. Seymour, 186 Conn. 632,443 A.2d 471 (1982), which the trial court in the present case heavily relied upon in ruling that the transfer evidence was admissible as evidence of consciousness of guilt. The majority does not, however, address why this civil case is persuasive in the present criminal matter. I would conclude, consistent with the Appellate Court, that the reasoning in Batick is inapplicable here. In Batick, the defendant conveyed his interest in real property to his wife, for “love and affection,” less than three months after he was involved in a motor
As noted in the Appellate Court opinion in the present case, Batick was a civil case involving potential civil liability. In Batick, this court also stated that it was clear that “a court has discretion to exclude relevant evidence [concerning the property transfer] .... This discretion, however, has often been invoked and discussed in the context of criminal trials where the stakes are higher and prejudice may have the consequence of confinement.” (Citations omitted.) Id., 637.
Additionally, a criminal case relied on by the state, United States v. Forbes, United States District Court, Docket No. 3:02 CR264 (AHN), 2007 WL 141952 (D. Conn. January 17, 2007), further supports the conclusion that the transfer of assets may only be relevant to a criminal prosecution when it directly interferes with the prosecution. In Forbes, the government sought and ultimately obtained a multi-billion dollar order of restitution against the defendant in connection with his allegedly fraudulent transfer of certain assets to family
The majority also concludes that “the evidence [of the property transfer] was not more prejudicial than probative.” I disagree. Instead, I would conclude, as the Appellate Court did, that the challenged evidence was only weakly probative of a consciousness of guilt because the defendant’s “motivation for the transfer was speculative.” State v. Coccomo, supra, 115 Conn. App. 401.
I agree with the Appellate Court that, in the present case, “the defendant explained that she transferred the interest in her home to her mother because, throughout her marriage, her husband had borrowed approximately $250,000 from her mother and that because she was planning to divorce her husband, she was transferring this asset in an attempt to ensure that her mother would get her money back. The defendant testified that she had started to prepare the paperwork for the transfer of her assets two weeks prior to the accident. Although the defendant’s act of transferring her interest in her home could have been viewed as an attempt to protect that asset in the case of civil litigation arising from the collision, as in Ferguson, the motivation for the transfer was speculative.” State v. Coccomo, supra, 115 Conn. App. 400-401.
Even in the context of civil litigation, a transfer of assets is not probative, per se, of consciousness of guilt.
Furthermore, I am not convinced, on the basis of the record in the present case, that this evidence would have even been admissible under Batick in a civil context. In the present case, there was no evidence of limited insurance coverage, which was one of the three indicia for admission in Batick. Id., 637-38. In addition, there is nothing in the record to indicate the financial situation of the defendant. The defendant testified that her husband had borrowed a large sum of money from her mother and that she wished to protect her mother’s interest in that money by transferring the property to her mother in light of her impending divorce. There is no evidence, however, regarding the size of the defendant’s assets. Indeed, if the defendant was extremely wealthy and had a great deal of other assets, a transfer of this size would have very little, if any, probative value in any determination of consciousness of guilt. I would conclude, therefore, that there was an insufficient record to establish that this evidence was relevant to consciousness of guilt, even under the rule for civil cases set forth in Batick.
Moreover, in the present situation, even if the defendant’s explanation for the transfer was not credited, there are numerous other explanations that can explain the transfer of assets, which do not necessarily imply consciousness of guilt. Although the defendant discussed the transfer in the context of a divorce situation,
The majority concludes that the probative value of the evidence outweighed any prejudicial effect. Because I would conclude that the evidence was both speculative and irrelevant to the criminal prosecution, I do not perform an analysis of its probative value in relation to its prejudicial effect. I do note, however, that I agree with the Appellate Court that the evidence was extremely prejudicial. In effect, it supported the state’s theory regarding intoxication when such evidence was extremely tenuous.
In reaching this conclusion, I recognize the importance of the doctrine that “[t]he issue [for an appellate court reviewing the decision by the trial court to admit certain evidence] ... is not whether we would reach the same conclusion in the exercise of our judgment,
B
Because I conclude that the trial corut abused its discretion in admitting the consciousness of guilt evidence, I must address the state’s claim that, even if the evidence was improperly admitted, its admission was harmless. State v. Coccomo, supra, 115 Conn. App. 401-402.
I begin by setting forth the legal principles that govern our review of this claim. “[W]hen an improper eviden-tiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was
The state claims that the evidence of guilt was substantial. It points to the fact that the defendant admittedly consumed alcohol in the approximate two hour period preceding the crash, that she crossed the center of the highway and caused the collision, and that she admitted to one person that she had consumed some champagne and wine before the crash. It also contends that the facts that the defendant evidenced slurred speech to some observers, had no idea how the crash occurred, and had a blood alcohol content of 0.241— over three times the legal limit—all demonstrate the strength of the state’s case.
The defendant contends that the error was harmful and that the state’s case was weak. She asserts that the fact that she may have driven over the center line was not substantial evidence of a crime. The defendant admits that the testimony at trial established that she may have had one or two drinks at the party, which consisted of the sangría, and this evidence is consistent with the testimony of everyone she talked to after the accident except the one paramedic who testified that she said that she had consumed some champagne and wine. The fact that she could not remember the events of this horrific crash, she maintains, is neither unusual nor probative that a crime has been committed. The defendant further asserts that the state’s case was weak because it rested on providing a rational explanation for the gross inconsistency between the testimony of every one of the sixteen people who interacted with her and testified that she was alert, oriented, rational, able to understand and to be understood, as well as the fact that her blood alcohol content was supposedly 0.241.
Although there was some testimony from the witnesses who attended the party that the defendant displayed some uncharacteristic behaviors (i.e., not apologizing to the hostess for arriving late, not saying goodbye to the school’s principal when she left, not speaking to one colleague as much as she normally would) during the party, the testimony of all of the witnesses was consistent in that the defendant did not appear impaired or intoxicated. The police described these witnesses as “cooperative, forthright, honest, not attempting to cover anything up, and not attempting to coordinate stories.” Accordingly, I would conclude that the state’s evidence in this case was extremely weak.
Additionally, I note that the fact that the defendant was over the center line is not, per se, evidence of a criminal act. Although it may be strong evidence in a
I now consider the impact of the improperly considered evidence on the trier of fact. According to the state, “the consciousness of guilt evidence was in reality a minor cog in the greater wheel of the evidence of guilt and its impact on the jury was not likely great. ” The defendant, however, focuses on the Appellate Court’s conclusion that it was not “assured that the admission of this evidence did not substantially affect the verdict. ” State v. Coccomo, supra, 115 Conn. App. 384. As noted previously, this evidence buttressed the state’s case regarding intoxication, and may have been a deciding factor in a case in which the anecdotal evidence was not consistent with the questionable blood alcohol content test results that could not be traced to the defendant’s blood. I note that this court previously has held that the state of mind that is characterized as guilty consciousness or consciousness of guilt is strong evidence
As Judge Kozinski of the United States Court of Appeals for the Ninth Circuit has observed, consciousness of guilt evidence is “second only to a confession in terms of probative value.” United States v. Meling, 47 F.3d 1546,1557 (9th Cir. 1995). Indeed, “nothing but an hallucination or a most extraordinary mistake will otherwise explain” why a person would harbor a guilty conscience without actually being guilty. 2 J. Wigmore, supra, § 273 (1). If there is a chance that members of the jury improperly attributed probative value to the asset transfer, then it likely shaped their views of the case.
The state asserts that this evidence was obviously not very important because it did not mention the evidence in closing argument. We previously have noted the inclusion of improperly admitted evidence in closing argument in assessing whether its admission was harmless. See, e.g., State v. Sawyer, 279 Conn. 331, 360-61, 904 A.2d 101 (2006). In the present case, however, because the improperly admitted evidence was consciousness of guilt evidence, it was so strong once admitted, and there were so many other factors to consider in closing argument, that there was no need to mention the transfer in the closing argument. In essence, the damage was already done, and the image of the guilty mind was implanted in the jurors’ minds from the moment of its admission. In either event, the mention of evidence during closing argument, while sometimes relevant to the analysis of the strength of the state’s case without the improperly admitted evidence, is not a mandatory part of our harmless error standard. Id., 362.1 consider the state’s failure to mention the transfer as one of the many factors in the analysis of the strength of the state’s case. After reviewing all of the evidence, it is clear to me that the
Next, I consider whether the challenged evidence was cumulative. As indicated by the Appellate Court, “[t]he fact that the defendant sought her blood alcohol content results from the hospital and transferred real estate to her mother without consideration was not crucial to the state’s case, nor was it cumulative of any other evidence of the defendant’s state of mind or consciousness of guilt. Because this was a close case in which the evidence of intoxication rested heavily on questionable blood alcohol content results that were at variance with much of the testimonial evidence, the admission of the prejudicial evidence of the defendant’s transfer of assets likely tipped the scale in favor of the state.” State v. Coccomo, supra, 115 Conn. App. 402. Indeed, the state does not suggest that this evidence was cumulative. I would conclude, therefore, that this consciousness of guilt evidence was not cumulative.
Finally, I must consider whether other evidence existed that corroborated or contradicted the point for which the evidence was offered. The state does not claim that there was any evidence that corroborated the consciousness of guilt evidence. The only evidence that, conceivably, contradicted this evidence was the defendant’s testimony regarding the reason for the transfer. Thus, there was no other evidence to corroborate the consciousness of guilt evidence.
I have evaluated the state’s case in light of the entire record, including the strength of the state’s case without the evidence admitted in error. State v. Mitchell, supra, 296 Conn. 459-60. In view of the fact that the state’s case was weak, I would conclude that the admission of the consciousness of guilt evidence was harmful
I would conclude, therefore, that the defendant has satisfied her burden of proof that the error was harmful, because it cannot be said with fair assurance that the error did not substantially affect the verdict. State v. Sawyer, supra, 279 Conn. 361-62. Accordingly, I would affirm the judgment of the Appellate Court and grant the defendant a new trial.
II
With respect to the admission of the blood alcohol test results, the majority concludes: “Although the defendant has raised various objections to and claims regarding the admission of the blood test results, both at trial and on appeal, none of the objections or claims were properly preserved for review. At trial, defense counsel objected to admission of the test results on chain of custody grounds relating to events surrounding the collection and labeling of the blood before it was sent to the laboratory for testing but did not object on grounds relating to the discrepancy in the type of tubes used to draw and test the blood. Accordingly, the Appellate Court concluded that the defendant had failed to preserve the chain of custody issue for review because she did not appeal from the trial court’s ruling on grounds relating to events that occurred before her blood was tested. . . . The Appellate Court also concluded that her claim on appeal relating to the discrepancy in the type of tubes used to draw and test her blood had not been preserved because defense counsel did not object to the admission of the test results on that ground at trial.” (Citation omitted.) See footnote
Having dismissed the defendant’s chain of custody claims by concluding that “none of the [defendant’s] objections or claims were properly preserved for review,” the majority goes on to examine the admission into evidence of the blood alcohol content test results for plain error and “conclude[s] that the trial court’s admission of the blood test results does not support reversal on plain error grounds.” I disagree, and would conclude that the defendant has demonstrated that the trial court’s improper admission of the blood alcohol content test results in the present case “is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010).
I begin with a review of the relevant legal principles relating to chain of custody. “As apart of the foundation
“As a general rule, it may be said that the prosecution is not required or compelled to prove each and every circumstance in the chain of custody beyond a reasonable doubt; the reasonable doubt must be to the whole evidence and not to a particular fact in the case. . . . An object connected with the commission of a crime, however, must be shown to be in substantially the same condition as when the crime was committed before it can be properly admitted in evidence.” (Citations omitted.) State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). “The state’s burden with respect to chain
A
In the present case, the trial court record establishes that the defendant objected to the admission into evidence of the blood alcohol content test results on the ground, inter alia, that the state had failed to meet its burden of establishing the chain of custody. First, during trial, the defendant filed a motion for a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert, denied, 523 U.S. 1068, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). In her motion, the defendant specifically challenged the admission of the blood alcohol content test results on the basis that “it is unclear where and under what conditions the [blood sample] was stored prior to that time, how it was transported either to the hospital or to the laboratory, how it was labeled, if at all (testimony of [emergency medical service] workers established that blood may not have been labeled, and same may [be] done by either hospital staff or [emergency medical service] staff), who received it, who transferred it to hospital personnel, what it may have been exposed to, what, if any, controls were established in relation to handling the blood, and generally, the ‘chain of custody’ of the blood between the time it was taken and the time it was tested. Chain of custody and contamination issues affect the reliability of the tests.”
During the Porter hearing, the state itself recognized that the defendant was challenging whether the state was able to establish the chain of custody regarding the blood alcohol test, stating, “the things that [defense counsel is] complaining about have to do with chain of custody.” Indeed, the state recognized that “putting a needle in someone’s arm and drawing the blood is a chain of custody issue as to the blood.” The state further remarked that “what [defense counsel is] really talking about is chain of custody.”
The trial court also understood that the defendant was objecting to the admission of the blood alcohol
I would conclude, on the basis of the trial court record, in which it is clear that the defendant, the state and the trial court all understood that the defendant was objecting to the admission of the blood alcohol results on the basis that the state had failed to establish the chain of custody regarding the blood sample that was used for the results, that the defendant properly raised her objection at trial and that the objection was ruled upon by the trial court.
I would further conclude that the defendant properly preserved for review her objection to the admission of the blood alcohol test results on the basis of the state’s failure to establish the chain of custody regarding the blood sample. The majority states that “[although the defendant has raised various objections to and claims regarding the admission of the blood test results, both at trial and on appeal, none of the objections or claims were properly preserved for review.” See footnote 6 of the majority opinion. The majority does not, however, provide any basis for this conclusion, and I disagree. As I previously have explained herein, the defendant repeatedly raised her objection to the admission of the blood alcohol test results on the ground that the state had failed to establish the chain of custody for the blood sample, and the state and the trial court were aware of the defendant’s claim. Indeed, the trial court ruled on the defendant’s objection and, even after that court ruled on the objection, the defendant objected again when the blood alcohol test results were admitted into evidence. On the basis of this record, I would conclude
Indeed, this court recently addressed the issue of whether a defendant had properly preserved his claim for review in State v. Ryder, 301 Conn. 810, 23 A.3d 694 (2011). In Ryder, a majority of this court concluded that the defendant had preserved for review in this court his claim that the state had conducted a war-rantless search that began when a police officer stepped over the defendant’s security gate onto his curtilage. Id., 812-14, 820. The hearing on the defendant’s motion to suppress focused on the validity of the police officer’s warrantless search by examining the basis for, and reasonableness of, his belief that an emergency situation existed at the moment that he entered the defendant’s residence through a set of French doors. Id., 816-20. The trial court, in its memorandum of decision denying the motion to suppress, did not make specific findings of fact regarding the scope and nature of the defendant’s curtilage, and the defendant had not sought a motion for articulation on that issue. Id., 820 n.6. Although, as the majority points out, the motion to suppress in Ryder was not available for this court to review, in view of the lack of specific findings related to curtilage made by the trial court, and the defendant’s failure to seek a motion for articulation on that issue, we can only assume that it was not an issue in the trial court. Nevertheless, in finding that the defendant had preserved his claim for review, a majority of this court relied on the fact that a witness had used the term “curtilage” during his testimony at the suppression hearing, that two other witnesses had testified about the gate and the security apparatus on the front lawn of the defendant’s home, and that the defendant had used the term two times in his brief to the Appellate Court. Id., 818-19 n.6. In concluding that the curtilage issue was preserved, a majority of this court concluded that, “although the
The record in the present case is replete with references by the defendant, the state and the trial court to challenges to the chain of custody regarding the blood alcohol test results. Reviewing the record in its entirety as the majority of this court did in Ryder, I would conclude that the trial court in the present case clearly anticipated and understood that the defendant was challenging the entire chain of custody for the blood alcohol test results. Indeed, in the present case, the trial court specifically ruled on the defendant’s objection relating to chain of custody and the defendant renewed her objection relating to chain of custody at the time the blood alcohol test results were admitted into evidence. Accordingly, on the basis of the analysis by a majority of this court in Ryder, the record in the present case is more than sufficient to demonstrate that the defendant properly preserved for appeal her claim regarding chain of custody.
The majority states that “the Appellate Court concluded that the defendant had failed to preserve the chain of custody issue for review because she did not appeal from the trial court’s ruling on grounds relating to events that occurred before the blood was tested.
As I previously have explained herein, the defendant objected to the admission of the blood alcohol test results on the ground that the state had failed to establish the general chain of custody regarding the blood sample from which the results were obtained. Specifically, the defendant claimed that the evidence did not establish the conditions under which the blood sample was stored prior to the testing, how it was transported either to the hospital or to the laboratory, how it was labeled, if at all, who received it, who transferred it to hospital personnel, what it may have been exposed to, and what, if any, controls were established in relation to handling the blood. After hearing the defendant’s motion and the state’s response, the trial court ruled that the blood alcohol test results were admissible. Thereafter, the state introduced the blood alcohol test results and they were admitted as a full exhibit. At that point, the defendant renewed her objection, but the blood alcohol test results were admitted.
Subsequently, Wilson, the director of the laboratory who performed the blood alcohol content test, testified that “the tube that was indicated [as the tube on which the blood alcohol content test was performed] is not in the bag [of tubes containing the defendant’s blood].” At the point that Wilson testified, the blood alcohol test results previously had been admitted as a full exhibit and had been the subject of witness testimony. The defendant did not further renew her objection to the admissibility of the blood alcohol test results after hearing Wilson’s testimony, presumably because the trial court had already ruled on her objection regarding the chain of custody, the results were already admitted into evidence, and she had renewed her objection on chain
Indeed, this court has repeatedly reviewed issues on appeal that were not specifically raised in the trial court as long as such issues were properly within the scope of the issue that was raised in the trial court. See, e.g., Morgan v. Hartford Hospital, 301 Conn. 388, 394 n.7, 21 A.3d 451 (2011) (reviewing issue not raised at trial because it was properly within scope of issue that was raised at trial court); Rowe v. Superior Court, 289 Conn. 649,663,960 A.2d256 (2008) (concluding that defendant had preserved issue for appeal because theories related to single legal claim even though defendant had not raised each theory at trial); State v. Mitchell, 169 Conn. 161, 168, 362 A.2d 808 (1975) (reaching ground not raised at trial because it was related to preserved claim raised on appeal), overruled in part on other grounds by State v. Higgins, 201 Conn. 462, 472, 518 A.2d 631 (1986); In re Jason S., 9 Conn. App. 98, 107-108, 516 A.2d 1352 (1986) (same); cf. Vine v. Zoning Board of Appeals, 281 Conn. 553, 569, 916 A.2d 5 (2007) (addressing alternative ground for affirmance not raised at trial because, inter alia, issue was “closely intertwined” with certified question); State v. Bethea, 24 Conn. App. 13, 17 n.2, 585 A.2d 1235 (reviewing issue not raised at trial but subsumed within issue raised), cert, denied, 218 Conn. 901, 588 A.2d 1076 (1991).
The majority further concludes that the defendant did not appeal the trial court’s ruling on the chain of custody issue. I disagree. Indeed, in its opinion, the Appellate Court clearly explained that, “[o]n appeal, the defendant contends that the chain of custody was not established . . . .” State v. Coccomo, supra, 116 Conn. App. 392. Moreover, an examination of the defendant’s brief to the Appellate Court demonstrates that the defendant appealed the trial court’s ruling on the chain of custody issue. In her brief to the Appellate Court, the defendant claimed that “the [trial] court erred in admitting the [blood alcohol test] results and said error was harmful.” In advancing this claim, the defendant relied on the case law establishing that the state has the burden of proving an adequate chain of custody and that the defendant objected to the admission into evidence of the blood test results on the ground that the state had not established an adequate chain of custody. On the basis of her brief to the Appellate Court and the Appellate Court’s characterization of her claims on appeal, I would conclude that the defendant appealed the trial court’s ruling on the chain of custody.
As previously set forth herein, “[a]n object connected with the commission of a crime, however, must be shown to be in substantially the same condition as when the crime was committed before it can be properly admitted in evidence.” State v. Johnson, supra, 162 Conn. 232. “The state’s burden with respect to chain of custody is met by a showing that there is a reasonable probability that the substance has not been changed in important respects. . . . The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of inter-
In the present case, I would conclude that the trial court abused its discretion by admitting into evidence the blood alcohol test results because the state utterly failed to show that there was a reasonable probability that such results were obtained from the defendant’s blood. Indeed, Wilson, the state’s witness, testified directly to the contrary. The state further failed to establish that the blood vials taken from the defendant by the emergency medical technicians in the ambulance were properly transported to the hospital’s laboratory, that those vials were properly tested, and that the results came from those vials.
There are numerous discrepancies in the records of both the emergency medical technicians and the hospital. First, the defendant’s blood was drawn in the ambulance on the way to the hospital. The hospital records indicate, however, that the blood sample attributed to the defendant was one of three samples collected in the emergency room at precisely 10:30 p.m. The defendant’s blood was never drawn in the emergency room. Second, the defendant arrived at the emergency room at 10:16 p.m. Therefore, her blood had to have been collected prior to that time while she was in the ambulance. Third, the medical technicians’ report indicates that the defendant’s blood was drawn by Passemart, who was not legally qualified to do so, while the testimony at trial was that Engstrand drew the blood. Fourth, the hospital records indicate that the vial tested that contained the defendant’s blood had a red-gray top. The emergency medical technicians testified that they never used such a top, and the laboratory director testified that the vial indicated in the computer entry was not in the bag of vials used by the emergency medical technician to draw the defendant’s blood. Specifically, the
Having concluded that the trial court abused its discretion in admitting the blood alcohol test results into
First, it is important to examine the crimes with which the defendant was charged. The defendant was charged with three counts of manslaughter in the second degree in violation of § 53a-56 (a) (l),
Furthermore, despite the state’s protestations to the contrary, its case was extremely weak. As the Appellate Court indicated, the case relied almost entirely on the admission of a blood alcohol content report. “The level of intoxication implied by this report was in stark contrast with the anecdotal evidence of the defendant’s behavior during the dinner party, at the accident scene and at the hospital, and with forensic evidence of the likely effects such a reading would have on an individual’s bearing and behavior.” State v. Coccomo, supra, 115 Conn. App. 401-402. Further, the fact that Samelle testified that a person who is intoxicated could not receive a perfect score on the Glasgow coma scale, and that the defendant received a perfect score three times that evening, casts further doubt on the strength of the state’s case. Accordingly, I would conclude that the improper admission of the blood alcohol test results in the present case was not harmless.
The majority notes in footnote 6 of its opinion that “[a]t trial, defense counsel objected to admission of the test results on chain of custody grounds . . . but did not object on grounds relating to the discrepancy in the type of tubes used to draw and test the blood.” This is precisely the point: The admission of the blood test results was a chain of custody issue. The laboratory director could not tie the test results to the blood drawn from the defendant. The chain was broken. The state failed to prove its chain of custody with any probability, let alone a reasonable one. It is clear that the defendant preserved for appeal her claim regarding chain of custody. As I previously have explained herein, there was
B
Even if I were to conclude that the defendant did not preserve for review her claim that the trial court improperly admitted as evidence the blood alcohol test results, I would conclude that the trial court’s admission of the results requires reversal for plain error. The majority “conclude[s] that the trial court’s admission of the blood test results does not support reversal on plain error grounds.” I disagree.
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.
“Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. Plain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Thus, in addition to examining the patent nature of the error, the reviewing court must examine that error for the griev
“We next turn to a closer examination of the plain error doctrine itself. This doctrine, codified at Practice Book § 60-6,
The majority places much emphasis on the results of other tests performed around the same time as the defendant’s. The majority states: “it is uncontroverted that the defendant consumed alcohol prior to the accident; indeed, the defendant herself so testified. It is also uncontroverted that, because the defendant admitted to consuming ‘a few drinks’ earlier that evening and four persons detected the smell of alcohol on her breath after the collision, one of whom described it as ‘strong,’ the defendant’s blood would have had to contain a detectable level of alcohol when it was drawn by the paramedics. Finally, it is uncontroverted that the only other tube of blood tested in the hospital laboratory for blood alcohol content around the same time the defendant’s blood contained an undetectable level of alcohol. Simply put, the trial court did not commit plain error in admitting the defendant’s blood alcohol content test results because it was clear that, of the two tubes of blood tested for blood alcohol content at the time in question, only the tube attributed to the defendant had a detectable level of alcohol.” I disagree.
The majority does not provide any cite to the record to support this assertion, and I can find no support for this position in the record. Indeed, the evidence adduced at trial casts doubt on whether the defendant’s blood would have contained a detectable level of alcohol when the paramedics drew her blood samples at 9:62 p.m., following the crash. The defendant testified that she arrived at the dinner party at 7:07 p.m. She further testified that she had between one to one and three-quarters glasses of sangría before and during dinner. The attendees at the party testified that the sangría
The majority states that “[t]he dissent first claims that it is not uncontroverted that the defendant’s blood would have had to contain a detectable level of alcohol. Specifically, it claims that other guests at the dinner party that the defendant attended before the collision testified that she did not consume more than one and three-quarters glasses of a sangria mixture that was low in alcohol content, and two toxicologists testified that, theoretically, the blood of a person who had consumed the amount of alcohol the defendant purportedly had consumed would not have had the high blood alcohol content revealed in her blood test results. Both of these reasons, however, relate to the amount of alcohol in the defendant’s blood, not to whether her blood contained a detectable level of alcohol.” (Emphasis in original.) I do not agree with this characterization. As I have explained previously herein, one of the toxicologists, Stripp, testified that the defendant would have had a blood alcohol content of 0.03 to 0.04 percent at the time she had the approximately two drinks of sangria at the party, but that an average person would have metabolized the alcohol at a rate of approximately 0.017 percent per hour. The undisputed evidence established that the defendant’s blood was taken approximately two hours after she stopped drinking. Therefore, based on Stripp’s testimony, it is possible that the defendant metabolized all of the alcohol she consumed prior to her blood being taken. Indeed, even relying on the testimony of the state’s toxicologist, Powers, it is possible that the defendant could have metabolized all of the alcohol she consumed that evening prior to her blood being taken. Specifically, Powers testified that a person of the defendant’s size would metabolize at a rate of approximately
None of the evidence cited by the majority establishes conclusively that the defendant’s blood would have had to contain a detectable level of alcohol when it was drawn by the paramedics. Furthermore, the majority does not credit the evidence presented by the defendant and the other guests at the party that she only drank one to one and three-quarters glasses of sangría at the party, that the sangría was not strong in alcohol content, that she did not appear intoxicated while at the party, that she would have had to consume ten to eleven drinks to reach a blood alcohol content of 0.241, that the accident occurred approximately fifteen minutes after she left the party, that she passed the Glasgow coma scale on three different occasions that evening, and that an intoxicated person would not pass the Glasgow coma scale. I point to these conflicting pieces of evidence only to respond to the majority’s reliance on the fact that “it is . . . uncontroverted that the defendant’s blood would have had to contain a detectable level of alcohol” as the basis for its conclusion that it was not plain error for the trial court to admit the results of the blood alcohol test. Indeed, particularly in light of the conflicting evidence presented in this case, I would conclude that it was plain error to admit the blood alcohol test results in this case because the state did not establish the chain of custody as it relates to the blood alcohol test results.
Moreover, the majority places great emphasis on the testimony of four individuals who stated that they
“Q. Well, does everybody with the smell of alcohol get arrested for [driving while intoxicated]?
“A. No, sir.
“Q. Okay. So you would agree that the smell of alcohol by itself, by itself, is not conclusive by any means that someone is under the influence of alcohol?
“A. Conclusively, no.”
Stripp also testified as follows: “If you are just smelling the alcohol, you cannot make a determination with regards to the amount of alcohol that’s present.” Accordingly, I cannot agree with the majority that “[i]t is also uncontroverted that . . . the defendant’s blood would have had to contain a detectable level of alcohol when it was drawn by the paramedics.”
It is also important to note that the blood samples taken from the backseat passenger in the other car involved in the accident, Glenn Shelley, were tested in the laboratory for blood alcohol content at the same time that the defendant’s blood samples were tested. Shelley’s blood samples had been taken at the hospital. The evidence also demonstrates that the hospital typically uses a vial with a red-gray cap for samples that are to be tested for blood alcohol content. There is no evidence in the record as to whether Shelley had any alcohol to drink that night. Based on this evidence, I
The testimonial and documentary evidence at trial established that dining the one and one-half hour period surrounding the time that the defendant’s blood was tested, the hospital laboratory performed tests on samples of blood taken from eight individuals, including the defendant.
Additionally, the majority’s account of the testimony of Utke, the nurse that assumed the defendant’s care, must, in my view, be expanded. Utke spent three hours with the defendant in an area roughly the size of a jury box. During that time, he never smelled alcohol on the defendant’s breath, and the defendant did not slur her speech. She was “answering questions appropriately.” She appeared “alert and oriented.” She was not confused. She did not use inappropriate words. She obeyed commands. She had no problem speaking. She again achieved a perfect score on the Glasgow coma scale. The majority makes note of the fact that the defendant was “confused about what had happened and that she repeatedly had called for her mother, even after her mother arrived at the hospital.” The majority fails to
The majority states that “[t]he defendant claims that the trial court committed plain error because a discrepancy existed between the type of tube used to draw the defendant’s blood immediately before or during the ambulance ride to the hospital and the type of tube listed in the computer records as containing the blood that was tested for her blood alcohol content. This discrepancy, however, arises solely from the record of the computer entry of the tube tested and not from the recollection of the laboratory technician or laboratory supervisor. At trial, the laboratory technician had no personal recollection of the defendant’s blood test, and the laboratory supervisor testified merely that such a discrepancy existed, stating that ‘the tube that was indicated in the computer is not in that bag’ of tubes that the paramedics used to draw the defendant’s blood.”
Respectfully, I strongly disagree with the characterization of this testimony. In my view this testimony is the key to the case. It is not a piece of evidence to be discarded as a gossamer feather tossed into the wind. The state had the burden of establishing the chain of
Accordingly, I dissent. I would affirm the judgment of the Appellate Corut and remand the case to that court with direction to remand the case to the trial court for a new trial.
PALMER, J., dissenting. I agree with and join part I of Justice Eveleigh’s dissent.
“The Glasgow coma scale assesses brain function on the basis of how a patient responds to certain stimuli by opening the eyes and giving verbal and motor responses.” State v. Coccomo, supra, 115 Conn. App. 389 n.l.
“The hospital records are inaccurate in that the defendant’s blood was drawn in the ambulance, not at the hospital, and, because the defendant arrived at the hospital at 10:15 p.m., her blood had to have been drawn prior to that time.” State v. Coccomo, supra, 115 Conn. App. 389 n.2.
Practice Book § 84-11 (a) provides: “Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. Any party to the appeal may also present for review adverse rulings or decisions which should be considered on the appeal in the event of a new trial, provided that such party has raised such claims in the appellate court. If such alternative grounds for affirmation or adverse rulings or decisions to be considered in the event of a new trial were not raised in the appellate court, the party seeking to raise them in the supreme court must move for special permission to do so prior to the filing of that party’s brief. Such permission will be granted only in exceptional cases where the interests of justice so require.”
The majority also cites to State v. Niemeyer, 258 Conn. 510, 517-19, 782 A.2d 658 (2001), which does not address evidence introduced to show consciousness of guilt, but only addresses what constitutes circumstantial evidence.
As addressed in part II of this dissenting opinion, I would conclude that the admission of the blood alcohol test results was improper because the state failed to establish the chain of custody for the blood alcohol test. Without the blood alcohol test results, the state’s case would be extremely weak, if not impossible to prove.
I note in this case, however, that the chain of custody ended with the blood being tested for blood alcohol content by the laboratory. Counsel for the state informed this court at oral argument that, according to hospital policy, all blood samples were destroyed shortly after the test results were received. The vials introduced at trial were representative of vials used by the emergency medical technicians on the night of the accident in the present case.
The majority asserts that “[a]t trial, defense counsel objected to admission of the test results on chain of custody grounds relating to events surrounding the collection and labeling of the blood before it was sent to the laboratory for testing but did not object on grounds relating to the
Indeed, the testimony of Wilson, the director of the laboratory, at the Porter hearing contradicts the majority’s position that the defendant only “objected to admission of the test results on chain of custody grounds relating to events surrounding the collection and labeling of the blood before it was sent to the laboratory for testing . . . .” (Emphasis added.) See footnote 6 of the majority opinion. At the Porter hearing, the defendant called Wilson to testify about the procedures used in the laboratory, including how the vials were relabeled and how they were tested. Much of Wilson’s testimony focused on the relabeling procedure used by the laboratory at the time the defendant’s blood was taken, how that procedure has been changed and the errors that can occur when blood is relabeled.
The majority attempts to distinguish these cases by stating, inter alia, that “they do not involve evidentiary rulings or do not involve a claim that the disputed evidence was not the subject of the trial court’s ruling, as in
In support of her claim before the Appellate Court that the trial court improperly admitted into evidence the blood alcohol test results when the state failed to establish an adequate chain of custody, the defendant cited the evidence that “the lab having tested and attributed to [the defendant] a [ten milliliter] red/gray topped tube of blood when the testimony and evidence unequivocally established that [the defendant’s] blood was in a
The only vial of blood taken from the defendant that contained the appropriate chemical for a blood alcohol test was a five milliliter vial with a yellow cap.
General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”
General Statutes § 53a-56b (a) provides: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”
General Statutes § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”
General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight, except that if such person is operating a commercial motor vehicle, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is four-hundredths
Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
The majority states that “no blood alcohol test was ordered for two of the other three persons whose blood was tested around the same time as the defendant’s blood, and, therefore, it is highly unlikely that any of the tubes used to collect their blood and sent to the laboratory for testing would have had a red and gray cap . . . The majority does not cite to any testimony in support of this statement and I cannot find any. I disagree. Indeed, the testimonial evidence at trial demonstrated that the laboratory often receives many vials of a patient’s blood that are not required for the tests ordered because emergency and medical staff often draw blood in a “rainbow” of tubes, not knowing what tests the physician will order. The testimony showed that those extra vials are usually sent to the laboratory and just stored in a hold rack in the laboratory. Wilson testified that the laboratory “could have received other tubes that we didn’t do any testing on . . . Accordingly, I disagree that it is highly unlikely that any of the tubes used to collect the blood of the patients for whom a blood alcohol test was not ordered would have had a red/gray top. The testimonial evidence demonstrates the opposite. Some of the patients for whom a blood alcohol test was not ordered may have had blood drawn in a red/gray vial, and that blood may have been sent to the laboratory and could have been mixed up with the defendant’s blood.
The worldist prepared at 11:25 p.m. includes one typewritten entry and one handwritten entry. Wilson testified at trial that the laboratory technician likely handwrote the second entry instead of printing out another work list. For purposes of this dissenting opinion, I am treating both entries as part of the work list prepared at 11:25 p.m.
The majority also states that, “to the extent that the dissent may be suggesting that other blood samples could have been mixed-up with the defendant’s samples, there was absolutely no testimony by hospital staff that a mix-up might have occurred.” I strenuously disagree. The testimony presented by the state to lay the foundation for the admission of the blood alcohol test results—namely, Wilson’s testimony—demonstrated that the hospital records reflected that the blood alcohol test results that the state sought to admit came from blood from a ten milliliter vial with a red-gray top and Wilson’s further testimony demonstrated that the emergency medical technicians did not place the defendant’s blood in such a vial. In my view, this testimony of hospital staff clearly demonstrates that a mixup may have occurred.
Indeed, in light of the other evidence presented in this case, it is even more obvious that a manifest injustice has occurred. The other evidence, mostly presented by the state itself, demonstrated that the defendant was not intoxicated at the time of the accident. For instance, the people who attended the party with the defendant minutes before the accident testified that she did not appear intoxicated; Bulman, the Stamford police officer, and Samelle, who both spolte with the defendant shortly after she arrived at the emergency room, testified that she did not appear intoxicated; the evidence consistently showed that she only consumed one to one and three-quarters glasses of sangría in the two hours prior to the accident; and the evidence demonstrated that she passed the Glasgow coma scale with a perfect score on three separate occasions that evening. On the basis of this evidence that so overwhelmingly conflicts with the blood alcohol test results, it is clear that a manifest injustice has occurred.
Dissenting Opinion
dissenting.
I join part I of Justice Eveleigh’s well reasoned dissent, in which he concludes that he would affirm the judgment of the Appellate Court, which held that the defendant, Tricia Lynne Coc-como, is entitled to a new trial on the ground that
Reference
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- State of Connecticut v. Tricia Lynne Coccomo
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